text:
    Ex parte BLUE CROSS-BLUE SHIELD OF ALABAMA. (Re Margaret L. HAGGARD v. BLUE CROSS-BLUE SHIELD OF ALABAMA).
    80-68.
    Supreme Court of Alabama.
    July 10, 1981.

      Byrd R. Latham for Patton, Latham, Legge & Cole, Athens, for petitioner.
    Jimmy E. Alexander for Steele, Alexander, Corder & Plunk, Athens, for respondent.
   ADAMS, Justice.

We granted petitioner’s request for writ of certiorari to the Court of Civil Appeals to review their decision on what we considered a material question of first impression in Alabama. That material question is whether the terminology “not medically necessary” which appears'in the plaintiff’s policy with the defendant Blue Cross-Shield of Alabama is terminology which is exclusively within the knowledge of expert witnesses (doctors) so that if such a witness is uncon-tradicted in his statement that it was not medically necessary for the plaintiff to be hospitalized, the case should not go to the jury. Although not treated in the Court of Civil Appeals opinion, the petitioner also argues that the terminology “domiciliary care” provided in plaintiff’s policy is exclusively within the knowledge of expert witnesses (doctors) and if such a witness testifies that plaintiff was admitted solely because of lack of such care at home, the case should not be submitted to the jury. We will address both questions.

The trial court granted, a directed verdict in favor of Blue Cross-Blue Shield, thereby answering these questions in the affirmative. The Court of Civil Appeals, 401 So.2d 781 reversed and remanded, answering the question it decided in the negative. We affirm.

There has been no contest of the factual statement of the Court of Civil Appeals and, therefore, we adopt its statement of facts. That court says the following incidents occurred:

Plaintiff, having been released from a period of hospitalization only six days before, suffered a blackout and a fall. She fell across a coffee table while alone at night. The next day she went to the emergency room of the hospital where her physician found her to have recently fractured lumbar and sacral vertebrae and her pubis ramus. She was in much pain and unable to bear her weight without crutches. Her physician knew from his past attendance that plaintiff had weak bones, “osteoporosis,” and a nervous problem causing blackouts. She had had previous falls and fractures. He knew or was told that she had no one to care for her at home. She did not request hospitalization. Plaintiff’s physician admitted her to the hospital and prescribed specific courses of medication and treatment.
Plaintiff suffered much pain for which she was given medication. She was confined to bed and given a regimen of physical therapy and exercise to relieve pain and strengthen her body. Her physician visited her twice each day, checking her condition and entering additional daily orders for her care and treatment. She remained in the hospital for more than two weeks and was released upon the order of her physician. She filed her claim for insurance benefits. The physician filed a claim for his services. A portion of plaintiff’s claim was paid. The claim of the physician was paid. Subsequently, the physician was notified by defendant to return his payment and he did. Plaintiff, after several inquiries about payment, was notified her claim was denied because of policy exclusions.
The physician testified that though he admitted plaintiff to the hospital and kept her there for two weeks, he did not consider such hospitalization “medically necessary.” He said that she could have stayed at home if she had someone to care for her, and he admitted her because he knew, or she told him, she had no one at home to care for her.

Under the Exclusions section, plaintiff’s Blue Cross-Blue Shield policy carries the following statements:

Not medically necessary — i. e., when in the judgment of the Carrier the medical services did not require the acute hospital bedpatient (overnight) setting, but could have been provided in a physician’s office, the outpatient department of a hospital, or in a lesser facility without adversely affecting the patient’s condition or the quality of medical care rendered....
Domiciliary care — Provided because care in the home is not available or is unsuitable.

The Court of Civil Appeals said in Ford Life Insurance Company, Inc. v. Smith, 369 So.2d 808 at 809 (Ala.Civ.App.1979):

It is well settled in Alabama that the opinion testimony of an expert witness is not binding on the jury unless (1) such testimony concerns a subject which is exclusively within the knowledge of experts and (2) the testimony is uncontroverted.

If there ever was a phrase that would be exclusively within the knowledge of an expert, it would seem that the phrase “medically necessary” would meet the test. On closer scrutiny, however, it seems that which would appear to be obvious is not obvious. The first stumbling block we run into is the defendant’s own view of what the term “not medically necessary” means. Although Blue Cross argues to us that we should take the word of Dr. Pendleton that plaintiff was hospitalized for non-medical reasons, Blue Cross is not required to accept doctors’ opinions on this subject, absolutely. The policy says “not medically necessary” means “when in the judgment of the Carrier the medical services did not require the acute hospital bedpatient (overnight) setting.” (Emphasis added.) In Van Vactor v. Blue Cross Association, 50 Ill.App.3d 709, 8 Ill.Dec. 400, 365 N.E.2d 638 (1977), plaintiffs filed a class action suit to obtain hospital benefits where surgery was required for impacted teeth. The defendant Blue Cross-Blue Shield argued against absolute authority on the part of the dentist expert, claiming that the exclusionary provisions similar to the one here gave Blue Cross final authority to determine what was “medically necessary.” The court, in that case, ruled against Blue Cross.

In addition to the vacillating position of the company insofar as the term “medically necessary” is concerned, we also considered the rather curious position of their expert Dr. Pendleton. The uncontroverted testimony of Dr. Pendleton is that he put the plaintiff Margaret Haggard in the hospital, although she did not request him to do so and kept her there for two weeks. While there, she suffered much pain and he prescribed medication and treatment. She was confined to bed and given a regimen of physical therapy and exercise to relieve pain and strengthen her body. In spite of all this, he testified that her hospitalization was “not medically necessary.” This was his testimony, although it is commonly known that hospitals are not nursing homes and generally have a shortage of beds, even for sick and seriously ill people. The old truism that actions speak louder than words was never more appropriate than in a case like this. What the doctor did speaks so loudly that it is hard to hear what he said when he talks about “medical necessity.”

Finally, the phrase “medically necessary” is subject to more than one interpretation. Black’s Law Dictionary (5th ed. 1979), says the word “necessary” means: “This word must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful,’appropriate, suitable, proper, or conducive to the end sought.” We have held that where terms of a policy are broad, ambiguous or susceptible to various meanings, they are to be construed most favorably for the insured. State Farm Fire and Casualty Company v. Erwin, 393 So.2d 996 (Ala.1981); Employers Insurance Company of Alabama v. Jeff Gin Company, 378 So.2d 693 (Ala.1979). When we add to “medically” either the word “convenient,” “useful,” “appropriate,” “suitable,” “proper,” or “conducive,” the phrase ceases to be one as to which a doctor would have exclusive expertise.

Dr. Pendleton testified that he hospitalized plaintiff because the home in which she was residing was not suitable for the care that she needed. In doing so, he was merely echoing a representation which had been made to him by the plaintiff. We have concluded that he, although uncontradicted, is not such an expert that his opinion about “medically necessary” would take this issue from the jury. He is less likely to know about the condition of her home care and, therefore, the meaning of this exclusionary phrase, as it relates to the facts in this case, likewise, must be submitted to the jury.

The Court of Civil Appeals must be affirmed on yet another ground. The testimony and actions of Dr. Pendleton were so inconsistent that both should have been submitted to the jury to determine which they chose to believe. The testimony of one witness may be so in conflict that it should be submitted to the jury. Martin v. Auto-Owners, 57 Ala.App. 489, 329 So.2d 547 (1976); Huff v. Vulcan Life and Accident Insurance Company, 281 Ala. 615, 206 So.2d 861 (1968). In other words, we are saying that his position was not uncontradicted and meets one of the exceptions of the Ford case. Although his words were not contradicted, his actions may have contradicted his words.

In light of the above discussion, the trial court erred in directing a verdict in favor of the defendant. There was certainly a gleam, glimmer, spark or scintilla in support of the theory of plaintiff’s complaint. Alabama Power Company v. White, 377 So.2d 930 (Ala.1979). The Court of Civil Appeals was correct in its interpretation of this question of first impression and its judgment reversing and remanding the case is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Ella M. GLOVER v. ALABAMA DEPARTMENT OF PENSIONS AND SECURITY. In the Matter of Celesta Michelle GLOVER and Robert Marcellus Glover.
    Civ. 2486, 2486-A.
    Court of Civil Appeals of Alabama.
    June 17, 1981.

      Robin L. Burrell, Robert A. Jones, Jr., and Frances Heidt, Birmingham Area Legal Services Corporation, Inc., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp and Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.
    Rizpah Morrow, Birmingham, guardian ad litem for the children.
   WRIGHT, Presiding Judge.

The mother, Ella Glover, appeals from an order of the Family Court of Jefferson County finding her two minor children to be dependent, terminating her parental rights to the children and placing their permanent custody with the State Department of Pensions and Security (DPS) for adoptive planning.

The first issue presented for review is whether the evidence supports the trial court’s findings of dependency and termination of parental rights.

DPS petitioned for permanent custody and termination of parental rights of the mother in April 1979. The children have been in the custody of DPS by commitment order since 1978. A psychological evaluation of Miss Glover was conducted with subsequent testing and interview. An expert diagnosed Miss Glover as a paranoid schizophrenic with mild mental retardation. Her history of mental illness supports this diagnosis. The expert, a psychiatrist and vice chairman of the Department of Psychiatry at University Hospital, UAB, testified that this condition would make it difficult for Miss Glover to establish satisfactory relationships on a family, social and work basis. Her illness was diagnosed as chronic and interfering with her ability as a parent.

While admitting error in conduct, Miss Glover contends that the incidents made the basis of three petitions of dependency were not significant insofar as harm to the children. Except for one incident when the children were found to be dirty after they were left for some time in the home of a blind friend, the evidence supports her contention. It is possible that harm may have come had not authority entered the picture. Such possibility is speculative however.

The evidence was that the home, however humble and changing, was always acceptably clean. There were times that the rent and utilities were delinquent. On one occasion the gas was cut off during summer months because of an unpaid bill. It must be to the credit of the mother that the children were never found to be abused, unclothed, unfed nor in ill health while in her custody. If such conditions existed, it is reasonable that the DPS caseworkers who were in regular contact with the family unit since 1977 would have discovered them.

Since the children were placed in the custody of DPS in 1978, the girl, now past the age of seven, has been determined to be mentally retarded. She has developed psychological problems evidenced by spreading her feces about her face and sexual fixation upon herself and others. There has been some indication of possible sexual abuse. She is developing violent and destructive tendencies. The children are in a foster home with at least one other older dependent child and older children of the foster family.

There was testimony that because of their ages, retardation, psychological profiles and scarcity of black adoptive families, the prospect of adoption is slight to none. It is not known whether separation from her mother has contributed to the girl’s mental and emotional problems. If she continues without improvement, she may be transferred to an institution and thus separated from her brother. Separation would be detrimental to him as he is attached to his sister.

These children have now been separated from their mother since early 1978. The boy has been in foster care since infancy and hardly knows his mother. The girl has an emotional attachment to her mother. The mother has visited with the children at the DPS office from time to time.

Most of the testimony produced by DPS during three lengthy hearings before two judges has related to the mental, emotional, psychological and character weaknesses of the mother. It is undisputed that she has a low I.Q. but is functional. She has little income and has been less than successful in meeting some of the goals set by her caseworkers over the years. These goals were deemed necessary to be accomplished by the mother before the return of her children to her. She has been strong on promises and weak on performance. However, she has been consistent in expressing her love for her children and continuing efforts within her means to secure their return to her. At the last hearing she produced evidence and exhibits to show that she had secured reasonable accommodations for sheltering the children. She further showed that she was active in church affairs and had a responsible relative now willing to aid and assist her if the children were returned.

We consider important that the State, in seeking permanent termination of parental rights, as compared to temporary custody of a dependent child, establish not only the permanent incompetency and unsuitability of the parent by clear and convincing evidence, but that it present a viable alternative to better serve the future welfare of the children.

From our careful consideration of the record, there appears a picture of a black unmarried woman of limited intelligence, the mother of two children by different men, financially dependent upon public assistance except for contribution of a live-in male friend and apparent father of the last child. One, perhaps in medical terms, a paranoid schizophrenic, but not violent or dangerous. She has on occasion drunk alcohol to excess and left her children for a time in the perhaps unqualified care of another. She has kept a clean house and apparently sufficiently clothed and fed her children. She has improved somewhat in attitude and performance since deprived of custody of her children, but adamantly insists the children are hers and she should not have to conform to the strict demands made of her by the state in order to secure the return of her children. She insists she loves and wants her children.

What picture does the State present as to the future of these children if they are permanently removed from their mother?

Two black children, ages seven and three. Sister and brother. A girl with serious psychological abnormalities, possibly contributed to by removal from her mother, and mentally retarded. The psychological disorders have arisen since removal from the mother into foster homes and appear to be getting worse to include violence and destructiveness. She is clearly emotionally attached to her mother. She may have to be institutionalized. Her chance of adoption is extremely slight. A boy, possibly retarded, probably has no recollection of his mother. Loves his sister. Separation from her would be detrimental to both of them. Chance of adoption — unlikely. Foster home care for both is changeable and difficult to secure.

Thus it can be said that the future presented after termination and permanent removal of maternal and family ties has little if any more prospects of serving the best interests of the children than if they were returned to the mother. At least, there appears so little advantage on the side of termination for it to fall far short of “clear and convincing.” It can be contended, and is by counsel for the mother and the guardian ad litem, that the best interest of the children would be best served by returning the children to the mother — at least on a supervised trial basis. We tend to agree with that contention; however, we consider that the trial court should make that decision after further consideration, with the aid and assistance of DPS and other appropriate available sources. We decide here only that the evidence at this time does not rise to the status of being so clear and convincing that the children are so dependent as to require the last and most extreme order of disposition permitted by statute. § 12-15-71(a)(6). We further determine that such disposition is insufficiently shown to serve the best interest of the children.

We hasten to observe that our decision does not reflect either upon the personnel of DPS who have performed conscientiously in this case in spite of an overload of cases. Neither does it reflect upon the able judges who have conscientiously and patiently listened to hours of testimony and read many pages of documents and reports. This court fully recognizes the difficulty of such cases. We realize that this is a relatively new Juvenile Code with little case precedent.

Though this court previously has not endorsed all the things said in the case of Roe v. Conn, 417 F.Supp. 769 (M.D.Ala. 1976), we continue in that posture. We do adhere to the principle that termination of parental rights by the State should occur only upon strong proof of abuse and/or continuing neglect of the welfare of the child. We have said that the right of a parent to a child is a fundamental and prima facie one and may be overcome only by substantial evidence of the best interest and welfare of the child after looking to viable alternatives. Miller v. Alabama Dept. of Pensions and Security, 374 So.2d 1370 (Ala.Civ.App.1979); Lovell v. Department of Pensions & Security, 356 So.2d 188 (Ala.Civ.App.1978). We consider this principle is espoused by the words of the disposition statute. § 12-15-71, Code of Alabama (1975).

In view of our decision to reverse the order of termination, we fail to perceive necessity or benefit in discussing additional argued issues. It is sufficient that we find none to be of prejudicial stature. We have addressed the only constitutional issue properly raised below — previously in Miller, supra.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Judge.

text:
    Eddie Dean WILCOX, alias v. STATE.
    8 Div. 331.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Aug. 19, 1980.
    See also, Ala.Cr.App., 395 So.2d 1052.

      John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.

      Charles A. Graddick, Atty. Gen. and Charles M. Allen, II, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The grand jury returned a three count indictment against the appellant, Eddie Dean Wilcox, charging him with second degree burglary, grand larceny, and buying, receiving or concealing stolen property in connection with a break-in and theft of certain personal property from the mobile home of one Andrew Roberts. Wilcox pleaded “not guilty” to all counts, and at trial was convicted by a jury on the count for grand larceny. The court, after reviewing the past records of appellant, sentenced him to serve ten years in the penitentiary. Appellant’s motion for new trial on the issues here asserted was denied by the trial court; hence, this appeal. Appellant has been represented at all stages by retained counsel.

Andrew Roberts testified that, on June 1, 1979, he and his wife, Kelly, were residing in a mobile home located at 353 Ruth Circle in Huntsville, Alabama. On this night he and his wife left their trailer home at about 9:00 o’clock. Roberts stated that he had secured the trailer by locking the windows and doors, but that upon his return at 4:30 the next morning he found the interior of his trailer in disarray. Further, he discovered that the “back door was bent ... the lock was broken, and the facing where the door-lock bar was, it was broken” (R. 10). Mr. Roberts ascertained his missing property as a Sears nineteen inch color television set, two car stereo speakers, a quantity of jewelry, a J. C. Penney hair dryer, and a bowling ball with bag. The value of these items was approximately $750.00. The authorities were duly notified. Mr. Roberts then testified that a few weeks after this incident he saw a girl at a club where his wife, Kelly Roberts, worked, wearing one of the necklaces which had been taken with the other jewelry. He identified the girl as Donna Pitts, and subsequently identified two State’s exhibits as photographs depicting the items of stolen jewelry. Roberts pointed out the necklace that he saw Donna Pitts wearing.

Diane Campbell, eighteen years of age, testified that she knew the appellant, also Andrew Roberts and Kelly Roberts. She stated that, on the night of June 1, 1979, she had been present at an apartment with appellant, Eddie Dean Wilcox, Donna Pitts, Jerry and Ray Campbell, but had left with appellant at around midnight. She testified that Wilcox had told her he was going out to some friends’ trailer to get some money, but that he did not identify the friends. Subsequently, the witness drove Wilcox and one Martin out to the trailer park in Martin’s car, with appellant giving the directions. Upon reaching the location of the park, the witness, Diane Campbell, was directed to drive back behind the park into a large field and stop near a trailer. She testified that Wilcox and Martin left the car, and that Wilcox instructed her to wait in the car for them. She then witnessed Wilcox and Martin approach a darkened trailer, heard some “banging around,” and eventually saw Wilcox return with a television set and other items. Diane Campbell stated that she saw Wilcox enter the trailer and emerge with the items. After Wilcox’s return to the car, they all proceeded to Wilcox’s brother’s home, with Martin driving. When they reached the house, appellant unloaded all of the items except some jewelry into his brother’s garage, and returned to the car with some money. Diane Campbell identified Wilcox’s brother, and stated that he was present, though he did not help unload the car. The group then returned to the apartment, whereupon appellant distributed necklaces to the witness, Donna Pitts and Ray Campbell. Diane Campbell stated that she no longer had the necklace, having subsequently given it to another girl. She denied knowing anything of appellant’s purposes in going to the Roberts’ trailer that night.

Jessie Ray Campbell, age nineteen, testified for the State that he was Diane Campbell’s brother, that he knew Mr. and Mrs. Roberts, and that he had been at the apartment on the night of June 1, 1979, with Wilcox, Diane Campbell and his girl friend, Donna Pitts. He witnessed Wilcox and Diane Campbell leave around midnight, and was present when they returned some time later. Upon his return, Wilcox removed a number of necklaces from his pocket and threw them onto a bed, inviting Donna Pitts to “get her a couple” (R. 39). This Donna Pitts did, and she gave one to him. Jessie Ray Campbell denied knowing the necklace was stolen, and stated that he wore it until several weeks later when he returned the necklace to Kelly Roberts. Campbell identified the necklace from the photographs.

Donna Pitts, sixteen, testified that she, too, was present at the apartment on June 1, 1979, when Wilcox and Diane Campbell left, that appellant, upon his return, laid a “bunch of necklaces” (R. 47) on a bed, and that she then picked two out. Donna Pitts gave one to Jessie Ray Campbell and wore the other until she returned it to Kelly Roberts. Donna Pitts identified the necklaces from the State’s photographs.

The final State’s witness was Roger Grub, a criminal investigator with the Madison County Sheriff’s Department. He testified that he had investigated the break-in at the Roberts’ trailer, and had taken the photographs of the recovered necklaces.

At this point the State rested, and appellant moved to exclude the State’s evidence and to require the State to elect under which count it would seek a conviction. These motions were overruled. Appellant offered no witnesses, and did not take the stand himself.

I

The appellant initially asserts that the trial court erred in failing to compel an election by the State as to which count of the indictment it was seeking a conviction. The claim that the State is required to elect in instances such as this, where an indictment charges different kindred offenses in the same transaction, is without basis in our law. It has long been held that different offenses of the same character may be properly joined in a single indictment:

“A careful solicitor should always frame the indictment with as many counts as may be necessary to meet the different phases the evidence may assume. Embezzlement and larceny, burglary and larceny, larceny and receiving stolen property, and offenses of like character may properly be joined in separate counts in the same indictment....” Orr v. State, 107 Ala. 35, 18 So. 142 (1895); Rose v. State, 117 Ala. 77, 23 So. 638 (1898); Perry v. State, 25 Ala.App. 224, 143 So. 835, cert. denied, 225 Ala. 441, 143 So. 836 (1932); McDaniel v. State, 30 Ala.App. 447, 7 So.2d 583 (1942).

As noted by our Supreme Court in Deason v. State, 363 So.2d 1001 (Ala.1978), “[T]his is permissible under our statute [§ 15-8-52, Code of Alabama 1975] ... and places no obligation upon the prosecution to elect beforehand which of those offenses it intends to prove.” This situation is to be distinguished from one in which the indictment alleges one offense and different instances of that offense are made the subject of proof by the prosecution; in such instances the court should compel election:

“ ‘The court will not exercise its power to compel an election unless it appears either from the indictment or the evidence that an attempt is made to convict the accused of two or more offenses growing out of separate and distinct transactions. Mayo v. State, 30 Ala. 32; Wooster v. State, 55 Ala. 217.’ Butler v. State, 91 Ala. 8, 9 South. 191.” Brooms v. State, 197 Ala. 419, 425, 73 So. 35, 37 (1916) (Mayfield, J., concurring); Deason v. State, supra.

In the instant case, the counts of the indictment charged offenses of the same character stemming from a single transaction, i. e., the breaking and entering of the Roberts’ trailer and the theft of their property. The State was not required to elect the particular count under which it would seek an indictment, and the trial court was not in error in refusing appellant’s motion to compel such election. The decision of this Court in Jones v. State, Ala.Cr.App., 373 So.2d 1221, cert. denied, Ala., 373 So.2d 1225 (1979), relied upon extensively by appellant, is factually inapposite to the case presented here.

II

Appellant next contends that the testimony of Diane Campbell, Donna Pitts and Jessie Ray Campbell should have been excluded because these witnesses were actually accomplices, and their testimony was not corroborated as required by statute, citing § 12-21 — 222, Code of Alabama 1975. Specifically, appellant argues that the testimony of these witnesses establishes that Diane Campbell was present at the scene of the break-in, and that she, Donna Pitts and Ray Campbell all accepted and wore pieces of stolen jewelry.

It has often been stated by our appellate courts that a witness is to be considered an accomplice for the purposes of the statute if he or she could have been indicted and convicted for the offenses charged, whether as principal or accessory. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973); Mills v. State, Ala.Cr.App., 367 So.2d 547, cert. denied, Ala., 367 So.2d 550 (1978), cert. denied, 444 U.S. 852, 100 S.Ct. 105, 62 L.Ed.2d 68 (1979). This determination may be one of law for the court or of fact for the jury, dependent upon the circumstances, and where there is some doubt or question as to whether a witness is an accomplice, the issue is for the jury. Yarber v. State, Ala.Cr.App., 375 So.2d 1229 (1978); Jacks v. State, Ala.Cr.App., 364 So.2d 397, cert. denied, Ala., 364 So.2d 406 (1978); Daniels v. State, 50 Ala.App. 88, 277 So.2d 364 (1973); Skumro v. State, 234 Ala. 4, 170 So. 776 (1936).

As to Diane Campbell, we find that the testimony indicates that she drove appellant and another man to the Roberts’ trailer, though she denies knowing who lived there at the time or what appellant’s true motives were in going there. She remained in the car while appellant and the other participant went to the trailer, apparently broke in [she heard “some banging around,” (R. 25)] and returned with certain items. Diane Campbell accompanied Wilcox to his brother s house, where Wilcox unloaded all of the items, and went with him back to the apartment. Diane Campbell states that Wilcox told her “he had to go get some money from some of his friends who owed him, and if they were not going to give him the money, then they were going to give him something to hold until they got the money” (R. 29; see also R. 22). While we feel that this testimony only indicates that this witness was present at the scene, which in itself is insufficient to have made her an accomplice, Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947), and Daniels v. State, supra, the question was properly one for the jury, which could have chosen to disbelieve her. The record reveals that a comprehensive charge was given to the jury by the trial court concerning accomplices and corroboration (R. 61-63), and that the question as to Diane Campbell was thereby properly submitted to the jury.

By their own statements at trial, Diane Campbell, Donna Pitts and Ray Campbell each partook of a necklace from the items with which Wilcox returned from the Roberts’ trailer. There is some dispute as to exactly when Diane Campbell received hers, but the testimony was clear that Ms. Pitts and Ray Campbell did not get their necklaces until Wilcox returned to the apartment. Ray Campbell denied any knowledge that the necklace he had was stolen, while Donna Pitts stated, “I didn’t know it was stolen, but I sort of figured it was” (R. 50).

While it is arguable that these witnesses were each guilty of at least some culpable conduct in adorning themselves with the Roberts’ necklaces, this alone does not act to transform them into appellant’s accomplices. It has long been held that even evidence establishing conclusively that a witness knew that he had received stolen goods is insufficient as a matter of law to make that witness an accomplice in an underlying burglary or larceny. Childs v. State, 43 Ala.App. 529, 194 So.2d 861, cert. denied, Ala.App., 194 So.2d 864 (1966); Pearson v. State, Ala.Cr.App., 343 So.2d 538 (1977); Summers v. State, Ala.Cr.App., 348 So.2d 1126, cert. denied, Ala., 348 So.2d 1136 (1977); Rice v. State, Ala.Cr.App., 365 So.2d 1007 (1978), cert. denied, Ala., 365 So.2d 1010 (1979). These witnesses were not accomplices of appellant merely by virtue of their wearing stolen necklaces, and thus their testimony was not subject to the corroboration requirement of § 12-21-222.

Ill

Finally, appellant argues that the evidence was insufficient to allow the jury to find him guilty of larceny. The appellant’s main thesis in this regard seems to be, since he was acquitted of burglary by the jury’s verdict, he could not be guilty of larceny since the jury did not believe that he broke and entered the trailer. At the most, appellant contends, he would only be guilty of receiving the stolen property from his companion, who, he contends, did the burglarizing and stealing.

Larceny is the felonious taking and carrying away of the personal property of another with the intent on the part of the taker to deprive the owner of possession thereof, or to convert to the use of the taker. Section 13-3-50, Code of Alabama 1975; Mauldin v. State, Ala.Cr.App., 376 So.2d 788, cert. denied, Ala., 376 So.2d 793 (1979); Lofton v. State, Ala.Cr.App., 371 So.2d 988 (1979). Some cases establish that, where an indictment charges a defendant in alternative counts of burglary and larceny, he may be convicted of either or both offenses. Bell v. State, 48 Ala. 684 (1872); Borum v. State, 66 Ala. 468 (1880); Robinson v. State, 84 Ala. 434, 4 So. 774 (1888). Of course, where a defendant is found guilty of both, he may not be made the subject of double punishment, Paige v. State, Ala.Cr.App., 339 So.2d 141 (1976), and a verdict of guilty as to one count operates as an acquittal on the other counts. Wildman v. State, 42 Ala.App. 357, 165 So.2d 396 (1963), cert. denied, 276 Ala. 708, 165 So.2d 403 (1964).

In the instant case, appellant’s conviction of grand larceny operated as an acquittal on the burglary count, but because appellant was found not guilty by the jury as to the burglary does not act, as appellant argues, to show that he did not commit the larceny in question. The jury could have easily concluded that appellant’s companion did the burglarizing, and that the appellant committed the larceny of the Roberts’ property. The evidence established at trial was sufficient to afford the conclusion that appellant feloniously carried away the Roberts’ property with the intent to deprive them of possession thereof.

We have carefully examined the record in this cause, and find the same to be free of error. The judgment and sentence rendered in the trial court below are hereby

AFFIRMED.

All the Judges concur.

      . Also, Wilkins v. State, Ala.Cr.App., 373 So.2d 353 (1979).


author: ADAMS, Justice.

text:
    Ex parte Eddie Dean WILCOX. (Re Eddie Dean Wilcox, alias v. State of Alabama.)
    79-945.
    Supreme Court of Alabama.
    July 10, 1981.

      John Mark McDaniel, Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for respondent.
   ADAMS, Justice.

We granted certiorari in this case to review the issue of whether the state, at the close of its case, can be compelled to elect the count in an indictment upon which it seeks a conviction.

The defendant was tried before a jury in the Circuit Court of Madison County on a three-count indictment charging second degree burglary, grand larceny, and, buying, receiving or concealing stolen property. The defendant moved to require the state, at the close of its case, to elect upon which count it would seek a conviction. The defendant’s motion was denied and the case was submitted to the jury on all three counts. A verdict of guilty was returned by the jury on the count charging grand larceny. The Court of Criminal Appeals affirmed, 401 So.2d 789, holding that their decision in Jones v. State, 373 So.2d 1221 (Ala.Cr.App.1979), relied on by the defendant, was factually inapposite.

This appeal presents two questions for resolution. The first is whether the state can be compelled to elect, at the close of its case, if it will seek a conviction for grand larceny, or, buying, receiving or concealing stolen property under the authority of Jones v. State, supra. The second question is one of fact and turns on whether defendant’s case is factually distinguishable from Jones v. State. We answer the first in the negative, and, therefore, do not reach the second.

Defendant correctly argues that he cannot be convicted of both larceny and buying, receiving or concealing stolen property where the same property is involved. Deason v. State, 363 So.2d 1001 (Ala.1978); Nicholson v. State, 369 So.2d 304 (Ala.Cr.App.1979); Davidson v. State, 360 So.2d 728 (Ala.Cr.App.1978), cert. denied, State ex rel. Attorney General, 360 So.2d 731 (Ala.1978). Defendant argues, therefore, that because he cannot be found guilty of both crimes, the state should be compelled to elect the one upon which it seeks a conviction. The defendant contends that moving to compel the state to elect was a proper means of protecting him from being found guilty of both crimes. Jones v. State, supra. We disagree with defendant’s contention. This court has held previously that:

Where two distinct felonies are charged in different counts, it is not a matter of legal right pertaining to the accused, that the State should be compelled to elect for which one of the offenses it will prosecute; nor will the court compel such election, where the two counts are joined, in good faith, for the purpose of meeting a single offense. It is a practice sanctioned by common custom, and by the law, to charge a felony in different ways, in different counts of the indictment, so as to provide for the different phases which the evidence may present upon the trial; and where such is the bona fide purpose of the joinder of counts, the court never exercises its power of quashing the indictment, or compelling an election.

Mayo v. State, 30 Ala. 32, 33 (1857).

The Mayo court then observed that an election may be compelled upon the state where there is an attempt “to convict the accused of two or more offenses growing out of distinct and separate transactions . . . . ” Mayo v. State, 34. That is not the case here. Wilcox was indicted and tried for three different crimes which all arose from the same alleged transaction. No election could have been required of the state. To require an election would unfairly deprive the state of its opportunity to seek a conviction on a legitimate theory. Long ago, this court noted the propriety of charging different offenses for the same act:

Due precaution suggests the propriety of charging a single offense in different ways in different counts, so as to meet every probable aspect of the case, that may be presented by the evidence. When the distinct felonies are so charged, in good faith, for such purpose, the accused has no legal right to compel the State to elect for which it will proceed to prosecute. The court will not exercise its power to compel an election, unless it appears, either from the indictment or the evidence, that an attempt is made to convict the accused of two or more offenses growing out of separate and distinct transactions.

Butler v. State, 91 Ala. 87, 90, 9 So. 191, 192 (1891).

The effect of our holding is that although a defendant cannot be convicted of both larceny and buying, receiving or concealing stolen property, where the same property is involved, the state may, nevertheless, seek convictions upon both. Defendant’s right not to be convicted of both can be safeguarded by requesting that the jury be instructed to specify the count under which they find the defendant guilty, and in situations where no evidence is presented as to a particular count, a directed verdict can be requested as to that count. Nicholson v. State, 306-7. To the extent that Jones v. State, 373 So.2d 1221 (Ala.Cr.App.1979), suggests that a defendant seeking to avoid being convicted of both larceny and buying, receiving or concealing stolen property, can compel the state to elect between its theories, it is expressly overruled.

The decision of the Court of Criminal Appeals is affirmed.

AFFIRMED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Dennis KOCH v. STATE.
    4 Div. 869.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Joseph P. Hughes, Geneva, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Jones, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of carnal knowledge of a girl under the age of twelve and fixed his punishment at imprisonment for sixty years. He was sentenced accordingly.

This is the second appeal in the case. On the former appeal (Koch v. State, Ala.Cr.App., 384 So.2d 1191 (1980), the judgment of the trial court was reversed and the cause remanded by reason of the fixation by the trial court of the punishment, which should have been determined and fixed by the jury as required by Code of Ala. 1940, Tit. 14, § 398, which was effective until October 31, 1977, the effective date of Code of Ala. 1975, and it having been shown therein by the evidence that the alleged crime, if committed, was committed prior to the effective date of Code of Ala. 1975, which provides that the punishment shall be fixed by the court. On the first conviction, the court fixed punishment at ninety-nine years’ imprisonment.

Before the second trial commenced, defendant filed a plea of former jeopardy. Appellant asserts that the trial court was in error in ruling that the plea of former jeopardy was not sustained by the facts. He argues that the court’s action in not requiring the jury on the first trial to fix the punishment and in not imposing a sentence in accordance with a verdict of the jury is to be likened to an order of a mistrial, which when erroneous and not expressly or impliedly consented to by defendant, would form the basis for a valid plea of former jeopardy. He relies particularly upon Parham v. State, 47 Ala.App. 76, 250 So.2d 613, 618 (1971), in which it was held that former jeopardy had occurred on the first trial and became a bar to the second trial, by reason of the discharge of the jury in the first trial pursuant to action of the trial court, without the knowledge or consent of defendant or his attorney in “(1) instructing the bailiff that he, the bailiff, (rather than the court) could let the jury go [if the jury failed to reach a verdict by 10:00 P.M.]; and (2) entering up a mistrial on the foundation of this irregularity.”

No such circumstance as found in Parham is involved in the instant case, and no action that can be likened to a mistrial occurred. Parham furnishes no precedent for sustaining the plea of former jeopardy in this case. However, there is precedence to the contrary, at least in logical analogy in the following:

“The principles settled in Dover’s [v. State, 75 Ala. 40] case are fully supported by the uniform practice and the decisions in this court extending back for the past forty years. The precise question arose in Cobia v. The State, 16 Ala. 781, decided in 1849. The defendant was there convicted of murder, the verdict of the jury being defective in failing to state the degree of the homicide — a statutory requirement. The judgment of conviction was reversed, on the ground that the verdict, being defective, did not warrant the sentence pronounced by the court, which was imprisonment in the penitentiary. The question was directly presented, whether the prisoner should be discharged, as having been once in jeopardy, or whether he could be constitutionally put on trial again upon reversal of the judgment of conviction. It was contended that he should be discharged, ‘because he was regularly put upon his trial upon a sufficient indictment, and the evidence in support of the charge submitted to the jury; and that he was therefore in jeopardy,’ within the meaning of the thirteenth section of the first article of the constitution of 1819, which was, we may add, the same as article I § 10, of our present constitution, relating to the subject of jeopardy in criminal cases. The court, after due deliberation, refused to sustain this view, and held the prisoner in custody for another trial. The true rule was held to be, that the discharge of a jury, without legal necessity or consent, which will operate as an acquittal, is a discharge before the rendition of the verdict by the jury; and that a discharge after a defective verdict, on which judgment had been erroneously pronounced, was not such jeopardy as would prevent the defendant from being put on trial again upon reversal of the judgment on appeal at his instance. This we understand to be the doctrine of Ned v. The State, 7 Port. 213, which is referred to in Cobia’s case. And as far back as the time of Hawkins and of Blackstone, it was generally said, in discussing this subject, that the jury could not be discharged, unless in case of evident necessity, ‘till they had given their verdict.’ — 4 Black. Com. 461.” Gunter v. The State, 83 Ala. 96, 104-105, 3 So. 600 (1887).

The principle stated in Gunter, supra, has been consistently followed thereafter. Washington v. State, 125 Ala. 40, 44, 45, 28 So. 78, 79 (1889); Luquire v. Holman (Warden of Kilby), 279 Ala. 203, 183 So.2d 799 (1966); Alford v. State, 30 Ala.App. 590, 10 So.2d 370, cert. denied, 243 Ala. 404, 10 So.2d 373 (1942).

Some piquancy is to be found in the point now made by appellant that is absent from the circumstances in the cases just cited in the fact that on the first trial of the instant case defendant objected to receipt of the verdict “upon the grounds that it does not fix the punishment.” We limit our decision on the particular point to the facts of this case, in which the defendant adequately preserved for the purpose of an appeal his right to have the jury, rather than the judge, fix the punishment. We do not look upon defendant’s objection as making the point that a judgment in which the court fixed the punishment would be void, which would be true of any judgment of conviction in a case tried by a jury in which a mistrial had been declared. The action of the defendant thereafter is inconsistent with such a contention. He filed a motion for a new trial, which was overruled, and raised the same point he raised on the trial, i. e., the judge erroneously fixed the punishment. Upon an adverse ruling by the trial court, he continued correctly to treat the judgment as an erroneous, but not a void, judgment by appealing and obtaining relief by a reversal of the judgment and a re-mandment of the cause. He has not only waived any claim to the effect that he was entitled to have the particular jury in the first trial, which found him guilty, to finish its duty, contrary to the mistaken belief of the trial judge as to such duty, by fixing the punishment, but he has also become estopped to assert the claim now. Moore v. State, Ala.Cr.App., 366 So.2d 1150, 1154 (1979); Mitchell v. State, 16 Ala.App. 635, 80 So. 730 (1918). Although the estoppel is not as clear in the instant case as in the cases just cited, in which estoppel was found in the action of defendant in moving for and obtaining relief on the first trial on the ground of a material variance, defendant eventually obtained in this court, by his former appeal, everything in substance the defendant asked for in the trial court and should not now be allowed to renounce the benefit thereby received and receive a benefit inconsistent therewith. We do not attempt to pass upon the question whether former jeopardy is to be found in a case under circumstances including the same as existed at the conclusion of the first trial but in which there is an additional circumstance that the defendant then and there made it clear that he wanted the particular jury then trying the ease to complete its duty by fixing the punishment.

Appellant does not question the sufficiency of the evidence to show that defendant did in fact “carnally know” the alleged victim. He insists, nevertheless, that the alleged victim was not “under the age of twelve years” at the time and that there is no substantial evidence that defendant committed such crime within the period of the three-year statute of limitations. Code 1975, § 15-3-1. The alleged victim was one of three stepdaughters of defendant. We see no need to discuss any of the details of the evidence other than as they pertain to the questions whether the crime as alleged was committed by defendant before the alleged victim was twelve years of age and whether it was committed within three years from the commencement of the prosecution.

There is agreement between the parties that the prosecution was commenced on July 16, 1979. The parties seem to agree that the victim became twelve years of age on December 21, 1977. It is therefore for us to determine whether there was substantial evidence that there was a commission of the alleged crime between July 16, 1976, and December 21, 1977. If not, the judgment must be reversed.

The evidence, which consisted exclusively of the testimony of the alleged victim, her two sisters and a court reporter who read from his transcript some of the testimony of defendant in the previous trial, lacked desirable clarity as to the time of any of a series of occasions in which defendant carnally knew or attempted to carnally know the alleged victim. Doubtless, the vagueness is largely attributable to the long period of time involved and the tenderness of age of the witnesses as to the facts.

According to the testimony of the victim, her mother married the defendant in 1972; the family commenced living in Florida, then moved to Michigan, then back to Florida and then to Geneva County, Alabama. At first they lived in Hartford and then moved to Slocomb. They lived in two or three different houses while in Slocomb.

We are convinced that much of the evidence relates to defendant’s carnal knowledge or his attempt to have carnal knowledge of the victim prior to July 16, 1976, and that such acts were barred by the statute of limitations. In addition, however, to such incidents, the victim testified:

“Q. Would your mother be at work or would she be at home?
“A. She would be at work.
“Q. Where were your two sisters when this happened?
“A. They would be at school or over at somebody’s house.
“Q. Some of the times they were in school and some of the times they were where?
“A. At somebody’s house.
“Q. Now, after you left this house and moved out into the old house on the dirt road, do you know when that was?
“A. ’77.
“Q. All right. Did he have sexual contact with you in this house?
“A. Yes.
“MR. BOSWELL: On how many occasions did that happen?
“A. Once.
“Q. And that was in ’77, you said?
“A. Yes.”

Thereupon the witness testified as to details of the incident. She was then interrogated as to the time defendant was arrested and replied that it was the year before her testimony in 1980. She testified that defendant was not living with the family at the time of his arrest, that he had not been living with them at the time of his arrest for “six months, I think, six or seven months.” She said that at the time of his arrest he was still living in the house where the latest incident occurred, that she, her sisters and her mother had left that house and moved to Malbern, and then “moved back here.” She testified that some time after the separation her mother obtained a divorce from the defendant.

On cross-examination, the witness testified in part as follows:

“Q. And he wasn’t arrested until 1979, was he?
“A. Yeah.
“Q. That’s two years later after that incident had occurred, and then you told [her girl friend] and the wheels got moving and he was arrested.
“A. (No response).
“Q. Is that right?
“A. What?
“Q. That there was a two-year period of time before he was arrested?
“A. Yeah.
“Q. Could it have been longer than two years?
“A. What?
“Q. The period of time.
“A. What?
“Q. From the time that this happened in Slocomb on the dirt road that I was just asking you about until he was arrested, could it have been longer than two years?
“A. It could have.(pause). no. I don’t know.
“Q. Well, do you know or not, — ?
“A. It was about two years.
“Q. About two years?
“A. Yes.”

We agree with appellant that the evidence does not show with absolute certainty that the particular incident referred to in the testimony of the victim as quoted above occurred between July 16,1976, and December 21,1977, and that some of the testimony of the victim as to her age and grade in school in preceding years tended to show the contrary, but we believe that upon taking all of the evidence into consideration there was substantial evidence that the particular incident occurred within the period stated. The possibility that it occurred in 1977 but not before December 21 of that year exists, but it is hardly reasonable to conclude that it occurred between December 21 and January 1, a holiday season. She said her sisters were at school at the time. In this connection, it is to be noted that in Koch v. State, supra, “The offense in question was committed some time during the spring of 1977 while the prosecutrix was in the sixth grade.”

In our opinion, there was substantial evidence that defendant had carnal knowledge of the alleged victim prior to her becoming twelve years of age and within three years before the commencement of the prosecution. We cannot say that the jury was not convinced thereof from the evidence beyond a reasonable doubt.

Defendant did not testify in the second trial, but his testimony in the first trial was introduced in evidence over the objection of defendant. The ruling of the court in this respect was not erroneous. Cantrell v. State, Ala.Cr.App., 353 So.2d 80 (1977); Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973).

Appellant charges that the trial judge committed error in overruling defendant’s motion that he recuse himself. The ground stated in the motion is that “said Judge has heard the testimony of previous trial of this cause, is biased and prejudiced against this Defendant, to the extent that this Defendant could not obtain a fair and impartial trial before said Judge, said bias and prejudice being exhibited by said Judge’s remarks following the previous trial of this cause, a portion of the court record containing said remarks being attached hereto as Exhibit A and made a part hereof.” In his brief, counsel relies upon and quotes the following part of what the trial judge said in sentencing the defendant on the first trial:

“There is just no place in society for anyone who has pursued the course of conduct which the evidence shows that you have pursued in the last four or five years.... [Ljike I say, there is no place in society for you, and, therefore, the Court is going to sentence you to ninety-nine years in the State Penitentiary.. .. I will say one other thing. This is a ninety-nine year sentence, and basically, as far as I am concerned, you should serve every day of it.... As far as I am concerned, you ought to stay there ninety-nine years.... ”

The quoted statement does not show personal bias or prejudice against defendant. The bias or prejudice that will disqualify a judge must be “personal” as distinguished from “judicial” bent; the disqualifying bias or prejudice “characterizes an attitude of extrajudicial origin, derived coram non judi-ce.” Ex parte White, 53 Ala.App. 377, 300 So.2d 420, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974); Pannell v. State, Ala.Cr.App., 356 So.2d 219, cert. denied, 356 So.2d 222 (1977). Although it is clear that the judge was not as lenient in his fixation of punishment on the first trial as was the jury on the second trial, his attitude as to the proper punishment was not his prerogative, and we find nothing in the transcript or record of the second trial that indicates any bias or prejudice whatever toward defendant.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Dennis KOCH. (Re: Dennis Koch v. State of Alabama).
    80-615.
    Supreme Court of Alabama.
    July 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Horace Wayne BORDEN v. STATE.
    8 Div. 438.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.
    Michael L. Weathers and Gary L. Jester of Patterson & Weathers, Florence, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The defendant was indicted and convicted for assault in the first degree. Alabama Code 1975, Section 13A-6 — 20 (amended 1977). Sentence was twenty years’ imprisonment.

The only issue on appeal concerns the voluntariness of an unsolicited statement made by the defendant after his arrest.

The defendant was arrested by an officer of the Muscle Shoals Police Department on the night of June 7, 1980. He was charged with driving while intoxicated and driving without a driver’s license and was taken immediately to the Muscle Shoals Police Department arriving at approximately 11:59 P.M.

After refusing to take a P.E.I. test, the defendant was “booked” on the traffic charges. The time from his arrival at the station until he was actually placed in a jail cell was about ten minutes. During this time officers “talked to” defendant about the DWI case. The defendant was not questioned about the assault and shooting of Dewayne Grissom. By all indications, the officers had no knowledge that this crime had been committed before the defendant made his statement.

As the defendant was being escorted to the jail cell “he was mumbling under his voice in a bragging manner that he shot Mr. Grissom.”

The defendant contends now, as he did at trial, that his confession should not have been admitted into evidence because it was involuntary. He argues that “his degree of intoxication would have preempted his ability to formulate the intent necessary to volunteer any statement.” We disagree.

The only evidence that the defendant was intoxicated to such a degree as to render his statement involuntary came when the defendant testified in his own behalf in defense of the charged crime. The defendant stated that he was drunk and denied that he made any statement.

The predicate for the admission of the statement was laid entirely before the jury. No hearing outside the presence of the jury was held to determine voluntariness. However none was ever requested.

Since the defendant never requested the exclusion of the jury, the trial judge was not required to exclude them. Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967); Reynolds v. State, 346 So.2d 979 (Ala.Cr.App.), cert. denied, 346 So.2d 986 (1977).

The State’s evidence shows that although the defendant was intoxicated his intoxication was not such an impairment of the will and mind as to render him unconscious of the meaning of his words. Only such a degree of intoxication will render a confession inadmissible if otherwise voluntary. Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala. 1980).

Officer Kelly E. Riddle testified on cross examination:

“Q. Do you know whether or not Mr. Borden was intoxicated when he was arrested or not?
“A. Physical appearance would determine that he was intoxicated.
“Q. How intoxicated was he?
“A. I can’t answer that question. Like I said, there was no way of determining that.
“Q. Was he staggering around?
“A. He didn’t have all of his senses that a person was not under the influence of alcohol would have.
“Q. So you’re saying he was pretty drunk?
“A. Yes, sir, he was intoxicated, not to the amount that he wouldn’t know what he was saying.” (emphasis added)

The holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not apply to unsolicited volunteered statements. 384 U.S. at 478, 86 S.Ct. at 1630.

“ ‘When the circumstances indicate that according to the common probabilities of experience, the confession was not improperly induced, then no formal predicate is required.’ C. Gamble, McElroy’s Alabama Evidence, Section 200.02(4)(a) (3rd ed. 1977).” Laffitte v. State, 370 So.2d 1108, 1110 (Ala.Cr.App.), cert. denied, 370 So.2d 1111 (Ala.1979).

“In this State confessions are prima facie involuntarily made, and there must therefore be evidence addressed to the trial judge (unless the circumstances attending the confession show that it was voluntary) rebutting that presumption and showing prima facie that the confession was voluntarily made.”
Dyer v. State, 241 Ala. 679, 683, 4 So.2d 311 (1941).

See also Phillips v. State, 248 Ala. 510, 28 So.2d 542 (1947); Johnson v. State, 242 Ala. 278, 5 So.2d 632 (1942); Garrison v. State, 372 So.2d 55 (Ala.Cr.App.); Love v. State, 44 Ala.App. 85, 302 So.2d 140 (1967); Fitzhugh v. State, 35 Ala.App. 18, 43 So.2d 831 (1949).

Under the facts and circumstances of this case we conclude that the State did lay a sufficient predicate and that the trial judge was without error in allowing the confession into evidence.

Although our conclusion is not based on the following, we note that if ever there was a case where the introduction of a confession amounted to harmless error it is here to be found. The evidence against the defendant was overwhelming and quite substantial. The jury spent only ten minutes deliberating before finding the defendant guilty as charged.

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

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    Ex parte Horace Wayne BORDEN. (In re Horace Wayne Borden v. State of Alabama).
    M-781.
    Supreme Court of Alabama.
    July 20, 1981.
   PER CURIAM.

WRIT DENIED — NO OPINION.

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


text:
    In re TRAFFIC COURT RULE 6.115.
    No. 46571-M.
    Supreme Court of Florida.
    July 1, 1981.
   PER CURIAM.

The Florida Rules of Practice and Procedure for Traffic Courts are hereby amended by adding Rule 6.115, effective July 1, 1981.

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

6.115 DWI School Coordination Trust Fund

(1) Each DWI school approved by the DWI Schools Coordinator is required to remit monthly the assessments collected pursuant to Section 316.665, Florida Statutes, to the Marshal of the Supreme Court on a form provided by the Supreme Court.

(2) Each certified DWI school shall cause records and accounts to be kept in accordance with procedures prescribed by the Supreme Court. Such records and accounts will be subject to audit by the designated representative of Supreme Court.

(3) Each DWI school shall collect the trust fund in accordance with the plan attached hereto.

Pursuant to Section 316.665(5), Florida Statutes the Supreme Court hereby adopts the following plan for the implementation of the DWI Schools Coordination Trust Fund.

(1)Effective July 1, all DWI schools in the state of Florida shall assess three dollars at the time of enrollment against every individual convicted of a violation of Section 316.193 or 860.01, Florida Statutes. This shall include all individuals who are convicted under the aforementioned statute including those who transfer to a school in another state. However, those individuals who transfer from another state shall not be assessed. Federal military employees, their dependents and retired military personnel who attend a federal military DWI school shall be subject to the assessment.

(2) The assessment shall be collected at the time of enrollment in the school to which he is originally enrolled. In the event that an individual transfers to another school, the transferor school shall collect the assessment.

(3) In no case shall the assessment be waived.

(4) Each school shall remit on a monthly basis the assessment collected. This monthly remittance shall be forwarded at such time so as to be received by the Supreme Court by the seventh working day of the next month. The remittance shall be in the form of a check or money order and be sent with a form entitled “DWI Schools Coordination Trust Fund — Remittance of $3.00 Additional Assessment.” See Appendix A.

(5) Each DWI school shall cause records and accounts to be kept which show the collection of each assessment and which will be subject to audit by the Supreme Court. The records of the assessments shall be in a form specified by the Supreme Court. See Appendix B.

(6) Each school shall be responsible for all costs, if any, incurred through compliance with the requirements of the fund.

(7) Each DWI school may request an increase in the fee charged to the individuals to whom this assessment applies. The DWI Schools Coordinators Office shall determine whether a change in the fee is appropriate.

(8) Monies collected by the fund shall be used by the DWI Schools Coordinator’s Office to pay for staff salaries, travel and other expenses related to the functioning of the office. The fund will also be used to pay for programs in which the coordinator’s office engages, including but not limited to, interstate reciprocity, training, certification, monitoring and technical assistance. The Supreme Court may assess the fund for reasonable costs for the administration of the fund.

(9) The DWI Schools Coordinator shall be the administrator of the fund.

APPENDIX A

APPENDIX B


text:
    THE FLORIDA BAR. In re PETITION TO AMEND FLORIDA BAR INTEGRATION RULE, ARTICLE V AND ARTICLE XI (BAR COMMITTEES AND ADVISORY OPINIONS).
    No. 58825.
    Supreme Court of Florida.
    July 9, 1981.
    Leonard H. Gilbert, President of The Florida Bar, Sylvia H. Walbolt and J. Brent Walker, Tampa, James P. Hollaway, Deputy Staff Counsel of The Florida Bar, Tallahassee, N. David Korones, Chairman of the Integration Rule and Bylaws Committee, Clearwater, and Thomas M. Ervin, Jr., Chairman, The Florida Bar Professional Ethics Committee, Tallahassee, for petitioner.
   PER CURIAM.

The Florida Bar proposes amendments to article V, section 4, and article XI, rule 11.13(8), of the Florida Bar Integration Rule. The amendments essentially codify existing practice with respect to advisory opinions issued to attorneys from the Professional Ethics Committee of The Florida Bar, the Standing Committee on the Unauthorized Practice of Law, and staff members of the Bar operating under the aegis of those committees. The proposed amendments also established the Professional Ethics Committee by order of this Court, rather than under general authority delegated to The Florida Bar by the Integration Rule. We approve the proposed amendments insofar as they achieve these objectives.

The Bar has also proposed amendments establishing a review procedure for persons dissatisfied with advisory opinions rendered in the area of professional ethics and unauthorized practice of law. We approve the Bar’s proposals for review through the Board of Governors. We reject the Bar’s proposal for further review of advisory opinions by this Court.

The petition to amend the Integration Rule is granted, in part, and the following rules are adopted, effective upon rendition of this decision.

It is so ordered.

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

(words in struck through type are deletions from the existing rule; words underlined are additions):

Article V

SECTIONS AND COMMITTEES

4. In addition to the grievance committees provided for in Article XI. Rule 11.03. and the unauthorized practice of law committees provided for in Article XVI. there shall be a Professional Ethics Committee and such other standing committees as (t)he Board of Governors may oreate-such-stand-ing committees as it may deem desirable it advisable to create.

Article XI

Rule 11.13: ADDITIONAL RULES OF PROCEDURE

8. Ethics and Unauthorized Practice of Law Opinions. Opinions-of (T)he Professional Ethics Committee, Staff Counsel and assistants, and the Standing Committee on Unauthorized Practice of Law of The Florida Bar are advisory only: shall issue Advisory Opinions in accordance with procedures prescribed bv the Board of Governors and approved bv the Supreme Court of Florida. Such Advisory Opinions shall be written bv the foregoing committees and staff counsel acting as adjuncts of the Board of Governors of The Florida Bar serving as an arm of the Supreme Court of Florida in the exercise of its jurisdiction to control, supervise and regulate the standards of professional conduct to be observed bv members of The Florida Bar and in the exercise of its jurisdiction to prohibit the Unauthorized Practice of Law. Such opinions shall be subject to review bv the Board of Governors of The Florida Bar in accordance with procedures promulgated bv the Board. Informal and other staff counsel opinions, including but not limited to ethics opinions and Unauthorized Practice of Law opinions. shall be subject to review bv the Professional Ethics Committee or the Standing Committee on Unauthorized Practice of Law of The Florida Bar in accordance with the procedures prescribed bv the Board of Governors. All opinions of the Professional Ethics Committee and the Standing Committee on Unauthorized Practice of Law of The Florida Bar shall be subject to review bv the Board of Governors of The Florida Bar or such appeals committee as they may designate.


text:
    LEATHERBY INSURANCE COMPANY, Petitioner, v. Diego LEZCANO and Mirelia R. Lezcano, his wife, Respondents.
    No. 57519.
    Supreme Court of Florida.
    July 16, 1981.

      Basil E. Dalack and Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for petitioner.
    Ronald Alverez and Larry Klein, West Palm Beach, for respondents.
   PER CURIAM.

Certiorari dismissed. United States Fidelity & Guaranty Co. v. Curry, 395 So.2d 530 (Fla.1981).

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


author: SCHEB, Chief Judge.

text:
    The CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., and Mary Sue Huhbard, Appellants, v. Gabriel CAZARES and Margaret Cazares, his wife, Appellees.
    No. 80-1438.
    District Court of Appeal of Florida, Second District.
    April 1, 1981.
    Paul Antinori, Jr., Tampa, for appellants.
    Walt Logan, St. Petersburg, Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for ap-pellees.
   SCHEB, Chief Judge.

Gabriel and Margaret Cazares sued The Church of Scientology of California, Inc., and Mary Sue Hubbard in circuit court in Pinellas County. The Church and Hubbard each moved for a change of venue under section 47.101(l)(b), Florida Statutes (1979), on the ground that they could not receive a fair trial in Pinellas County because The Church was odious to the inhabitants of Pinellas County and the people associated Hubbard with The Church because she was the wife of its founder.

Following a hearing the trial court entered its order stating:

[T]hat the Motions for Change of Venue are denied to the limited extent that they seek a recusal of the Court and assignment of the case to another Judge in another Circuit, however,
It is further ORDERED AND ADJUDGED that the Motion is granted in part to the extent that the trial of the cause shall be held in Daytona Beach, Volusia County, Florida.
It is further ORDERED that F.S. 47.-191 shall not be applied to require the movants, MARY SUE HUBBARD and THE CHURCH OF SCIENTOLOGY OF CALIFORNIA INC. to pay taxable costs at this time since the cause has not been transferred away from the Circuit Court for Pinellas County, Florida and that jurisdiction still lies in that Court.

While the court denied The Church and Hubbard’s motions to the extent that they sought recusal, the order indicates that the court concluded that the cause should be transferred. Once the court determined this, it had to enter an order transferring the action to a court of the same jurisdiction in another county. § 47.141, Fla.Stat. (1979). The court’s authority at that point was limited to entry of an order transferring jurisdiction. Kern v. Kern, 309 So.2d 563 (Fla. 2d DCA 1975); University Federal Savings and Loan Association of Coral Gables v. Lightbourn, 201 So.2d 568 (Fla. 4th DCA 1967).

Further, the court having improperly attempted to retain jurisdiction, it also erred in not requiring The Church and Hubbard, as movants, to pay accrued costs. § 47.191, Fla.Stat. (1979).

Accordingly, we vacate the court’s order, remand, and direct the trial court to enter an order transferring venue in accordance with section 47.141 and directing payment of costs as required by section 47.191.

HOBSON and DANAHY, JJ., concur.


author: ORFINGER, Judge.

text:
    Thomas J. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 80-1111.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    Kirk N. Kirkconnell of Muller & Kirkcon-nell, P.A., Winter Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION FOR SUPERSEDEAS BAIL ON APPEAL

ORFINGER, Judge.

Appellant’s motion requests that we set bail after conviction and pending his appeal, or that we relinquish jurisdiction to the trial court for that purpose. In ruling on appellant’s motion below, the trial court determined that it had no jurisdiction because the appeal had been perfected and the record and briefs had been lodged in this court.

The motion raises an interesting issue on the interplay of various rules of criminal and appellate procedure, and how these rules apply to the situation here. Florida Rule of Appellate Procedure 9.140(e) says that the trial court may hear a motion for post-trial relief pending appeal either before or after a notice of appeal is filed. The committee notes indicate that this rule was adopted to incorporate the holding in Williams v. State, 324 So.2d 74 (Fla.1975), but in that case the notice of appeal had been filed before the judgment was rendered, so that appeal had not been perfected. The court held that the filing of a notice of appeal before the judgment of conviction was rendered did not deprive the trial court of jurisdiction to set bail pending appeal. The State says the cited rule is intended to cover that factual situation, and that once the appeal is perfected, the trial court loses jurisdiction to entertain a motion for supersedeas pending appeal.

Florida Rule of Criminal Procedure 3.691 states that persons convicted of any offense, not capital “. . . may be released, pending review of the conviction, at the discretion of either the trial or the appellate court ... ”, but it does not attempt to define when the jurisdiction of the trial court ends. Florida Rule of Appellate Procedure 9.600(a) provides that prior to the time the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the court to render orders on any procedural matter relating to the cause. Is a motion to set bail pending appeal a procedural matter within the purview of Florida Rule of Appellate Procedure 9.600(a), or is the entitlement to bail after conviction and pending appeal completely within the jurisdiction of the appellate court after the judgment is rendered and the appeal perfected?

We need not decide now how these various rules interact with each other because the question is not properly before us in this case. Taking the broadest view of the issue, the trial court’s concurrent jurisdiction would in any event terminate when the record is transmitted to this court, as has occurred here. Therefore, under any interpretation, the trial court was correct in holding that it had no jurisdiction, in the posture of this case, to grant bail pending appeal.

We therefore grant the motion and relinquish jurisdiction to the trial court for a period of thirty (30) days for the express purpose of ruling on the motion to set bail pending appeal. In so doing, we retain jurisdiction of all other proceedings in this appeal so that the appellate procedure may progress without delay. By authorizing the trial court to hear the motion, we have not considered or decided the merits of the motion, nor do we intend this opinion as any indication of what ruling should be made. The trial court shall make the initial determination of the question as required by law.

DAUKSCH, C. J. and SHARP, J., concur.

      . In a different context, it has been held that entitlement to bail pending appeal is a procedural matter amenable to court rule. See Bamber v. State, 300 So.2d 269 (Fla.2d DCA 1974), cert. dismissed, 311 So.2d 672 (Fla.1975).

      . Cf. Laurich v. State, 376 So.2d 408 (Fla. 1st DCA 1979) where the court held that the trial court lacked jurisdiction to revoke bail pending appeal after the record on appeal and briefs had been filed with the appellate court.


author: ORFINGER, Judge. DAUKSCH, Chief Judge,

text:
    Thomas J. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 80-1111.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Rehearing Denied Aug 4, 1981.

      Kirk N. Kirkconnell of Muller & Kirkcon-nell, P. A., Winter Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant was charged with the first degree murders of Teddy Pawalta and John Walwyn and the attempted first degree murder of Harry Clayton. A jury found him guilty of second degree murder of Teddy Pawalta, manslaughter of John Walwyn and attempted manslaughter of Harry Clayton. From the judgments of conviction and sentences thereon this appeal follows. We affirm.

The charges arose out of a shooting that occurred on the evening of October 27,1979, in a bar owned by appellant. The evidence reflects that after an altercation, appellant fired three shots from a shotgun. The first shot hit Teddy Pawalta in the chest; the second hit John Walwyn in the back and the third hit Harry Clayton in the back. The indictment charged appellant with committing the murders on the date of the shooting and the information charging appellant with the attempted murder of Clayton specified the date, but not the year. Before trial, the court granted appellant’s motion for a statement of particulars of the date, time and place of the events charged in the indictment and the State responded to the motion. No request was made for a statement of particulars as to the crime charged in the information (where the year had been omitted), nor did appellant move to dismiss the information.

The statement of particulars filed by the State recited that the offenses charged in the indictment occurred “from 0001 hours on the 24th day of October, 1979 to 0001 hours on the 28th day of October, 1979.” From the testimony of the expert medical witness who performed autopsies on the bodies, it was only established that the victims died sometime before 9:30 A.M. on October 28, 1979, the point at which the autopsies were performed. No other evidence was presented by the State as to the time of death. Appellant argues on appeal, as he did below, that there was a total failure of proof that any homicides occurred within the time set out in the indictment, as narrowed by the statement of particulars. The trial court granted the State’s motion to amend the statement of particulars to extend the time by ten hours, so that the amended statement of particulars would include the time of the autopsies, the only time which the evidence conclusively established as the point of death. Appellant’s first point on appeal questions the propriety of the trial court allowing the State to amend its statement of particulars in this fashion after the State had submitted its evidence and had rested.

Appellant relies heavily on that portion of the opinion in State v. Beamon, 298 So.2d 376 (Fla.1974), cert. denied Beamon v. Florida, 419 U.S. 1124, 42 L.Ed.2d 824, 95 S.Ct. 809 (1975), wherein the court said that when a statement of particulars gives an exact date upon which the offense occurs

the effect of such a specification of date in a bill of particulars is to narrow the indictment or information as to the time within which the act or acts allegedly constituting the offense may be proved.. . .

Id. at 379.

Beamon has been qualified, however, in Hoffman v. State, 397 So.2d 288 (Fla.1981), wherein the Supreme Court pointed out that where time is material, it must be proved as alleged. On the other hand

[t]here may be some variance between the date alleged in the information as being the date the offense charged was committed and that proven on the trial, which variance is immaterial if the proof shows that the crime was committed before the filing of the information and that prosecution therefor was begun within the two year period, except in those rare cases . . . where the exact time enters into the nature or legal existence of the offense.

Id., 1981 FLW at 262.

The court reemphasized the principle that the violation of a rule of procedure does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. From a review of the other cases cited by the court in Hoffman, we are convinced that the propriety of the allowance of an amendment to a statement of particulars depends on a finding of absence of prejudice or harm to the defendant even when, as here, the amendment is proffered after the State has completed its presentation of its evidence.

In Holland v. State, 359 So.2d 28 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1124 (1979), cited with approval in Hoffman, the information for second degree murder charged that the defendant had committed the offense on the day of the wounding, whereas the proof showed that the victim had lingered and had not died until five weeks later. An amendment to the statement of particulars to correct the date was allowed during trial and approved by the district court on the finding that defendant was not misled. These facts are analogous to the instant case where the statement of particulars covered the time of the shooting, although not necessarily the time of death. In the instant case, the trial court responded to the State’s request to amend by conducting an extensive inquiry into the matter, concluding that the determinative question was whether prejudice to the defendant existed. Finding none, the court allowed the amendment.

We hold that the court was correct in that determination. There was absolutely no doubt as to the offenses for which defendant was being tried. Further, there was no indication that he was prejudiced or misled by the fact that the indictment used the date of the shooting, whereas the proof of death was a few hours later. On the contrary, it affirmatively appears that there was no prejudice.

For these same reasons, appellant’s complaint of error in allowing the State to amend the information to supply the year “1979” is also without merit. Appellant’s counsel stated that he was aware of the omission but did not feel obligated to draw the State’s information. This was a technical omission which neither misled nor prejudiced defendant in the slightest, and the late attack on it was clearly the type of ambush denounced in Hoffman.

More provocative is appellant’s next contention that the trial court erred in instructing the jury that one of the lesser included offenses of attempted first degree murder of Harry Clayton was “attempted manslaughter.” No objection was made by appellant to the giving of the instruction, and in fact, appellant’s counsel responded in the affirmative when the trial judge posed the question of whether “there is a crime of attempted manslaughter.”

Appellant now argues on appeal that he could not be convicted of attempted manslaughter even in the absence of an objection to the instruction, because there is no such crime in the State of Florida. Appellant’s argument, in essence, is that since one of the elements of manslaughter is culpable negligence, it is a logical absurdity to say that one can have the intent to commit an involuntary (or negligent) act.

Manslaughter is the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification. § 782.07, Fla.Stat. (1975). We have repeatedly said that the culpable conduct necessary to sustain proof of manslaughter under section 782.07 must be of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. Filmon v. State, 336 So.2d 586 (Fla.1976); Miller v. State, 75 So.2d 312 (Fla.1954); Preston v. State, 56 So.2d 543 (Fla.1952).

McCreary v. State, 371 So.2d 1024, 1026 (Fla.1979). With this definition in mind, the same argument was addressed and rejected in Charlton v. Wainwright, 588 F.2d 162 (5th Cir. 1979):

Florida courts have long recognized the crimes of assault with intent to commit manslaughter and accessory before the fact to manslaughter. Both of these crimes, assault with intent and accessory before the fact, involve specific intent. The Florida Supreme Court has stated that assault with intent to commit manslaughter is a crime where the mode of assault constitutes “culpable negligence.” In addition to recognize that a person can have the specific intent to commit manslaughter, Florida courts have implicitly recognized the crime of attempted manslaughter. Devoe v. Tucker, 113 Fla. 805, 152 So. 624, 626 (1934).
Florida courts have given a special definition to “culpable negligence.” Instead of construing it to emphasize involuntary and unintentional behavior, they have construed it to emphasize culpability which rests on intentional, or quasi-intentional behavior.
* * * * * *
In sum, Florida has defined culpable negligence to involve a state of mind so wanton or reckless that the behavior it produces may be regarded as intentional. As a result, Florida manslaughter convictions based on culpable negligence, like those based on act or procurement, demand proof of a level of intent greater than that of ordinary negligence. Since each of these three ways of committing manslaughter requires that intent predominate over accident or chance, petitioner’s attack on the logic of attempted manslaughter by culpable negligence must fail, (footnotes omitted).

While no opinion by a Florida court directly upholds the existence of the crime of “attempted manslaughter,” at least one opinion in dictum has questioned it.

As pointed out by the federal court in Charlton, the Florida Supreme Court has recognized the crime of assault with intent to commit manslaughter in at least four old cases, Devoe v. Tucker, 113 Fla. 805, 152 So. 624 (1934); State ex rel. Brown v. Mayo, 113 Fla. 746, 152 So. 627 (1934); Lassiter v. State, 98 Fla. 370, 123 So. 735 (1929); Kelly v. State, 78 Fla. 636, 83 So. 506 (1919). In Lassiter, Justice Brown, in a dissent, expressed doubt as to the existence of the crime because, he said, the statutory definition of manslaughter appears to eliminate the element of intent to kill, at least as to deaths resulting from culpable negligence.

One of the requisite elements of proof necessary to convict a defendant of an attempt to commit a crime is the formation of an intent to commit that crime. There is a certain appeal to appellant’s position that one cannot form an intent to commit an involuntary act, but if we start with the premise that there can be an assault with intent to commit the same [involuntary] act (manslaughter), then it must follow that there can be an attempt (the formation of an intent) to commit the crime, when the other elements of attempt are present. Thus precedent, if not logic, requires that we hold that there is a crime of attempted manslaughter in Florida.

Because the question has not been directly addressed by the Supreme Court in almost 50 years and because it is a matter of importance to the bench and bar in the state, we certify the following question to the Supreme Court of Florida as a question of great public importance, to-wit:

IS THERE A CRIME OF ATTEMPTED MANSLAUGHTER UNDER THE STATUTES OF THE STATE OF FLORIDA?

Appellant’s remaining point is without merit. Finding no error, the judgments of conviction and sentences thereon are

AFFIRMED.

SHARP, J., concurs.

DAUKSCH, C. J., concurs in part and dissents in part with opinion.

DAUKSCH, Chief Judge,

concurring in part; dissenting in part:

I concur with the well-reasoned opinion of the majority all the way through the opinion until I reach the part where it says there can be a crime of “attempted manslaughter.” Because there is a crime of culpable negligence, section 784.05, Florida Statutes (1979), which can be defined as manslaughter without the death (or even without any injury if it is subsection (1) of section 784.05), I think the “attempt to manslaughter” has been specifically covered by the Legislature.

Even if that were not so I would apply ordinary logic and say one cannot attempt to commit a crime which requires no intent in the first place. It is not without fear of being called wrong in my opinion, though, because I must admit that if the same logician who said there can be assault with intent to commit manslaughter is the one who decides whether there can be an attempted manslaughter then my opinion is in trouble. I hasten to add I realize my two colleagues would probably like to apply the better logic rather than consider precedent if given freedom of legal choice. I admit precedent is against me and I almost concurred but felt the need to whistle, albeit probably in the wind.

I would rule it error to instruct on attempted manslaughter and to convict for that offense.

      . Approving 372 So.2d 533 (Fla. 4th DCA 1979), opinion by Dauksch, J. In that case the court allowed the amendment to the statement of particulars after opening statements had been made, after determining that defendant was neither misled by the date, nor prejudiced in his defense.

      . Thorp v. Smith, 64 Fla. 154, 156, 59 So. 193 (1912).

      . Richardson v. State, 246 So.2d 771, 774 (Fla.1971).

      . Appellant contends that Jefferson v. State, 391 So.2d 747 (Fla. 5th DCA 1980), requires reversal here, but it must be noted that in that case, the State did not, at any time, request leave to amend the statement of particulars.

        . Hoffman suggests that the reader compare Holland with Crowell v. State, 238 So.2d 690 (Fla. 3d DCA 1970), where the State was denied the right to amend a bill of particulars to show the correct date of the crime. There, the defendant had prepared his defense to show that he was in jail on the date alleged, and the court agreed with defendant’s contention that under those circumstances he would be prejudiced by the amendment.

      . The jury found appellant guilty of attempted manslaughter of Harry Clayton.

      . Charlton was a federal habeas corpus case. It reveals that the petitioner had been convicted by a Florida jury of attempted manslaughter, which conviction was affirmed without a written opinion. Charlton v. State, 336 So.2d 609 (Fla. 2d DCA 1979), cert. denied, 341 So.2d 1080 (1976).

      . In Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976), the court commented: “We express serious doubt as to whether there is such a crime as attempted manslaughter. The definition of “manslaughter” suggests that “attempted manslaughter is an absurdity. However, for the reasons set forth below, we need not pass on that question.” 338 So.2d at 1311. Yet in the same opinion, the court recognized the crime of assault with intent to commit manslaughter.

      . Florida Standard Jury Instructions in Criminal Cases 2.03.

      . Since oral argument in this case, the Supreme Court adopted, on April 23, 1981, new standard jury instructions in criminal and misdemeanor cases. We note that in the recently published list of lesser included offenses (not yet adopted, but as to which the court will accept comments), “attempt" is listed as a category 4 lesser included offense of manslaughter. See Brown v. State, 206 So.2d 377 (Fla.1968).