author: BOOKOUT, Judge.

text:
    Fannie Cornelia CARPENTER v. STATE.
    4 Div. 776.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Boyd Whigham, Clayton, for appellant.
    Charles A. Graddick, Atty. Gen. and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   BOOKOUT, Judge.

The appellant was indicted and convicted for first degree murder; the shotgun slaying of her son-in-law, Robert Earl Faircloth. In compliance with the jury verdict, sentence was fixed at life imprisonment.

The State’s evidence was sufficient to prove appellant’s guilt beyond any reasonable doubt. The evidence was conflicting in certain instances, especially in regard to appellant's claim of self-defense; however, any differences of fact were resolved by the jury. It is not the function of this court to re weigh the evidence. This court is required to review the evidence presented in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and not substitute its judgment for that of the jury, Cumbo v. State, Ala.Cr. App., 368 So.2d 871 (1978), cert. denied, Ala., 368 So.2d 877 (1979).

Briefly, the pertinent facts reveal that the deceased had physically and emotionally abused his wife, Mary Ella, on a frequent basis during their five year marriage. There was also evidence that the deceased had abused his children. Appellant became aware of the deceased’s abusive behavior approximately two years before she killed him, although Mary Ella had tried to keep it a secret.

Appellant came to stay with Mary Ella and the deceased the first week of September, 1978, to “take care of the children” while Mary Ella was in the hospital for an operation on her hand. When her daughter returned home, appellant witnessed the deceased twist her stitched hand “for no reason at all.” Appellant also saw the deceased whip the couple’s three-year-old and one-year-old children with a doubled belt and “hit them under the throat with his hand.”

Later in the month Mary Ella returned to work, and appellant agreed to continue taking care of the children until her daughter could find a baby-sitter. On one occasion during this period, appellant heard the deceased hitting Mary Ella with a belt and threatening “to knock her teeth down her throat.” When appellant told the deceased to stop hitting her daughter, the deceased told her, “[I]f you don’t shut your mouth . . . I’ll give you some of what I’m giving her.” Appellant stated that she left the room because she did not want her teeth knocked out. Appellant testified that the deceased was generally “mean and cruel” to Mary Ella.

Later, on the morning of September 28, 1978, Mary Ella left for work in her station wagon between 6:00 and 7:00 a. m. When she got off around 8:15 or 8:30 that evening, the deceased was waiting outside in his truck. The deceased then followed Mary Ella home, and upon arriving “he started twisting my arms and everything and he told me I never would drive the car anymore.” The deceased took Mary Ella’s car keys and left again in his truck. The deceased worked at the Anderson Peanut Company and reported for work that night at 9:00 p. m. Appellant witnessed the arm twisting through the mobile home window. Appellant, Mary Ella, and the children went to bed at approximately 10:00 p. m.

Around 1:00 or 1:30 a. m. on September 29, 1980, the deceased returned home to get a pot of coffee. The deceased woke Mary Ella up snatching her by her hair, slapped her across the bed, and accused her of infidelity. Appellant testified that she heard the deceased hit her daughter and heard her crying; “I stood there to see just how hard he was going to whip her, and he turned around and he says I will be back to kill you [Mary Ella].” The deceased then left and went back to work in Mary Ella’s car. Appellant stated that she was too scared to leave the mobile home and could not sleep the rest of the night even though she had taken pain medication for her back problems and valium for her “nerves.”

Appellant heard the deceased return from work between 5:00 and 5:30 a. m. and saw him standing outside the mobile home with his hands in his pocket. Appellant started toward her daughter’s room to warn her the deceased was home when she saw the deceased “coming right straight at me.” Appellant did not have the time to wake Mary Ella; “I thought that there was murder in his eyes . .. and he was so close to me at that time that I think he was fixing to grab me.” Appellant testified that she got a gun out of the broom closet, stepped back, and pulled the trigger.

Mrs. Mary Jordan, a next-door neighbor to the Faircloths, testified that she heard two gunshots around 5:00 a. m. on September 29, 1980, as she was getting ready to go to work. She stated that the shots were spaced three to four minutes apart. Mrs. Jordan was sure it was minutes rather than seconds. Approximately ten minutes after hearing the gunshots, the appellant came to Mrs. Jordan’s door and told her that she had shot the deceased, to call an ambulance and the sheriff. Appellant also told Mrs. Jordan that the deceased was lying in the yard and she “hoped he was dead.” Mrs. Jordan stated that appellant was not upset or crying, but “seemed real calm.”

After being properly advised of her constitutional rights, appellant voluntarily gave a signed confession at the scene admitting that she had shot the deceased. She also voluntarily retrieved the murder weapon from the closet and handed it to the authorities.

Allen Booth, Coroner for Pike County, again advised appellant of her constitutional rights at approximately 8:00 a. m. at the Pike County Jail. In the presence of Mr. Booth, the district attorney, Sheriff Anderson, and appellant’s husband, the appellant voluntarily admitted that she shot the deceased twice.

Sheriff Anderson testified that when appellant was asked why she shot twice “she said she thought maybe he was winged or wounded like an animal and might run off and she wanted to make sure he was dead.” Sheriff Anderson further testified that in another statement appellant told him she first shot the deceased on the top step to the mobile home and a second time on the bottom step. Coroner Booth’s testimony concerning appellant’s statements was similar in all respects.

Thorough searches inside the mobile home and of the mobile home’s steps by several law enforcement personnel failed to reveal any bloodstains. The closest blood spots were discovered some forty-nine inches from the bottom mobile home step.

A careful examination of the murder scene did not reveal any weapons on or near the deceased. Two spent .12 gauge shotgun shells were recovered. Blood, skin, and bone fragments were discovered at the base of a pecan tree and on the grill of the station wagon parked near the deceased.

An autopsy revealed that the deceased received two gunshot wounds, one to the left elbow and one to the chest. Both shots were fired at close range, but because of the pattern spread the shot to the chest was conceivably fired at a lesser distance. The cause of death was due to massive bleeding from the chest wound.

I

As repulsive as the deceased’s abusive treatment of his family may have been and as frightened as appellant may have felt concerning the threat the deceased had. made to her daughter some four hours earlier, based on the foregoing facts, there can be no doubt that each element of first degree murder was firmly established. Section 13-1 — 70, Code of Ala.1975; Young v. State, Ala.Cr.App., 363 So.2d 1007 (1978). Proof of the corpus delicti was clearly shown prior to the admission of appellant’s voluntary confession. Jones v. State, 260 Ala. 341, 70 So.2d 629 (1954). Where there is evidence of first degree murder and also evidence of self-defense, a jury question is presented. Hutchens v. State, 207 Ala. 126, 92 So. 409 (1922); King v. State, Ala.Cr.App., 355 So.2d 1148 (1978).

The Alabama Supreme Court wrote in Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388 (1952):

“The rule of self-defense is that persons may and must act on the reasonable appearance of things. While it is not required that where a person is menaced he must wait until a weapon is presented ready for deadly execution, yet the danger must be real or so manifestly apparent as to create a reasonable belief of presently impending peril to life or limb. In determining this question evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question of fact for the jury. ...”

However, even if the evidence of self-defense is undisputed, the credibility of the defendant with respect to the evidence of self-defense is for the jury, and they may, in their discretion, accept it as true or reject it. Kemp v. State, 278 Ala. 637, 179 So.2d 762 (1965); Mack v. State, Ala.Cr.App., 348 So.2d 524 (1977). The jurors are not bound to accept the defendant’s testimony as true or draw any inference of danger from the circumstances. Kemp, supra. These same rules apply where one invokes the doctrine of self-defense in the protection of a third person. See Mack, supra. Appellant’s motion to exclude was properly overruled, and the affirmative charge was not due to be given. Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956).

II

The trial court properly denied appellant’s pretrial motion to reduce the charge from first degree murder to second degree murder. Whether appellant’s acts constituted first or second degree murder was a jury question. A trial judge may not determine the sufficiency of evidence prior to trial or resolve conflicts of fact where such is the function of the jury.

III

The trial court did not err in admitting State’s Exhibits 13, 14, and 16 which were photographs of the deceased taken at the funeral home several miles from the scene. The photographs were admitted during the testimony of Dr. G. R. McCahan, State Toxicologist. As a general rule photographs are admissible in evidence if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1973). Photographs may be admitted if they tend to shed light on, strengthen, or to illustrate other testimony in the case. Chunn v. State, Ala.Cr.App., 339 So.2d 1100 (1976). Photographs which show wounds on a victim’s body which tend to corroborate the testimony of a toxicologist as to the number and location of the wounds are admissible. Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969); Grant v. State, 250 Ala. 164, 33 So.2d 466 (1948).

Photographs of the deceased in a murder prosecution are not required to be taken only at the scene. Brown v. State, 288 Ala. 684, 264 So.2d 553 (1972). It is proper in the same prosecution to admit photographs of the deceased made at the scene and also photographs of the deceased made at the funeral home. Baldwin v. State, 282 Ala. 653, 213 So.2d 819 (1968). It is also proper to introduce photographs of the deceased lying on his back with his shirt open which show the location of gunshot wounds. Allen v. State, 260 Ala. 324, 70 So.2d 644 (1954). Furthermore, photographs which depict the character and location of external wounds on the body of a deceased victim are admissible even though they are cumulative evidence based upon an undisputed matter. Hines v. State, Ala.Cr. App., 365 So.2d 320, cert. denied, Ala., 365 So.2d 322 (1978); Ellenburg v. State, Ala.Cr.App., 353 So.2d 810 (1977). The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury. Richards v. State, Ala.Cr.App., 337 So.2d 171, cert. denied, Ala., 337 So.2d 173 (1976). For these reasons the photographs objected to were properly admitted.

IV

Appellant’s statements made at the scene and at the Pike County Jail were properly admitted. The evidence is unequivocal that appellant was properly given her Miranda warnings prior to making the statements in each instance and that her statements were in all respects voluntary. Appellant said that she understood her rights before making the statements. Although there was evidence appellant had taken prescribed medication for pain and her nerves some four hours prior to shooting the deceased, there is no evidence that appellant suffered a diminished capacity either at the time of the shooting or at the time she made the statements. From all accounts appellant appeared calm and possessed of rational intellect after she killed the deceased and when she made the statements to the police officers. There is not one trace of evidence that her statements were anything less than the product of her free will.

A confession need not be verbatim as related by the accused as long as it substantially and accurately reflects what the accused said. Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953); King v. State, Ala.Cr.App., 355 So.2d 1148 (1978). It is not error to admit both oral and written confessions. Thomas v. State, 249 Ala. 358, 31 So.2d 71 (1947).

Appellant did not object to the testimony of Coroner Booth or Sheriff Anderson pertaining to her statements. Constitutional rights may be waived where there is no objection. Carroll v. State, Ala.Cr.App., 370 So.2d 749, cert. denied, Ala., 370 So.2d 761 (1979); McBride v. State, Ala.Cr.App., 355 So.2d 750 (1978). However, we would point out that, while Sheriff Anderson’s version of appellant’s statements was not verbatim to that of Coroner Booth, their testimony was consistent in all pertinent parts and was in no way contradictory. Nonetheless, how similar these two witnesses’ accounts of appellant’s statements were is a question which attaches to the credibility of their testimony and not to the admissibility of the statements. Thus, from all the facts and circumstances, we hold that the trial court correctly admitted the statements.

V

The record is unmistakable that appellant consented to allow the jury to separate during the trial. Section 12-16-9, Code of Ala.1975, was complied with fully.

VI

No objection was made at trial to Sheriff Anderson testifying after the rule had been invoked. Appellant raised the issue for the first time in his motion for new trial. Although the State’s motion to strike appellant’s motion for new trial was subsequently granted, a hearing on appellant’s motion was had, and it was ascertained that Sheriff Anderson was in the courtroom for a short period of time during Coroner Booth’s testimony. He testified, “I remember going in and sitting in the back just a couple of minutes or so maybe and then I was out.” Sheriff Anderson further testified that he was an officer of the court, but did not serve as bailiff during appellant’s trial. Appellant contended Anderson’s presence in the courtroom prior to his testimony after the rule had been invoked caused reversible error. We disagree.

Two cases cited by appellant, Teague v. State, 245 Ala. 339, 16 So.2d 877 (1944) and Raymond v. Pointer, 222 Ala. 518, 133 So. 260 (1931), stand for the proposition that it is within the discretion of the trial court to permit a witness who has not been under the rule or who has violated the rule to testify, and that this is not reviewable unless abuse of discretion is shown. In Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), cert. denied, 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958), it was held that, where a witness has remained in the courtroom in violation of the rule, the trial court’s decision as to his testifying or not is not open to review. It has specifically been held to be within the trial court’s discretion to permit the sheriff to remain in the courtroom after the rule has been invoked. Denson v. State, 50 Ala.App. 409, 279 So.2d 580 (1973). An objection to the admission of testimony made for the first time in a motion for new trial cannot be considered. Acker v. State, 19 Ala.App. 592, 99 So. 663 (1924). A motion for new trial cannot take the place of an objection to the introduction of evidence. Pugh v. State, Ala.Cr.App., 355 So.2d 386, cert. denied, Ala., 355 So.2d 392 (1977).

The purpose of sequestration is to obviate as far as possible one witness’s trying to make his testimony consistent with that of another. Rowell v. State, 53 Ala.App. 286, 299 So.2d 332 (1974). Appellant’s prior contention that Sheriff Anderson’s testimony was not supported by the testimony of Coroner Booth defeats his argument here. As the court stated in Bed-dow, supra, “the efficacy of sequestration— which can only occur during trial — is probably overrated. The law has moved from oath — taking to cross examination in its search for the truth.” 39 Ala.App. at 31, 96 So.2d 175. We hold, therefore, that even had a timely objection been made at trial the trial court was well within its discretion in permitting Sheriff Anderson to testify.

VII

The trial court correctly sustained objections by the State to evidence proffered by appellant that was clearly hearsay in nature. A careful review of each ruling reveals no error. Conversations not occurring in the accused’s presence or hearing are inadmissible, being hearsay. Mays v. State, 218 Ala. 656, 120 So. 163 (1929); Hamlett v. State, 19 Ala.App. 218, 96 So. 371 (1923).

VIII

After eliciting testimony from three character witnesses, appellant called witness Richard Peters, and the following exchange occurred:

“THE BAILIFF: He’s not here.
“MR. WIGHAM [Defense Counsel]: How about Mr. Bill [sic] Shehan?
“MR. FOLMAR [District Attorney]: Boyd, we would stipulate if this is another character witness what they would testify to.
“MR. WIGHAM: You will stipulate to the good character?
“MR. FOLMAR: We would just stipulate as to what their testimony would be.
“MR. WIGHAM: Your Honor, I think it has value to putting them on the stand unless we stipulate to her good character and if that’s the case, we’ll take the stipulation.
“MR. FOLMAR: We would just stipulate, Your Honor, to what their testimony would be.
“MR. WIGHAM: I would rather for them to testify, Your Honor. If they will stipulate to the good character, we will leave them alone.
“THE COURT: I don’t think he is going to do that.”

No objection was made, and Ben Shehan was next called to testify. Appellant contends that although no objection was made the trial court’s remark caused ineradicable harm. Appellant submits that the remark indicated to the jury a belief appellant was a person of bad character. These arguments are meritless.

It is apparent that the district attorney in an effort to expedite matters simply offered to stipulate the substance of Richard Peters’s testimony. He was not offering to stipulate that appellant had good character. The trial judge merely pointed this out to end the exchange. The remark was not prejudicial and cannot be reasonably interpreted as being a comment on appellant’s character. A trial judge’s casual remarks concerning testimony which are addressed to counsel and not the jury do not constitute prejudicial comments on the evidence. Copeland v. State, Ala.Cr.App., 377 So.2d 1 (1979).

Furthermore, the law is clear that unless allegedly prejudicial remarks by the trial court are objected to the remarks are not subject to review except where they are grossly improper. Nichols v. State, 267 Ala. 217, 100 So.2d 750; Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250 (1973). There must be either an objection, a motion to exclude, or a motion for the jury to disregard the statements before error will be preserved. Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973). Thus, there is nothing before us to review.

IX

No exception was taken to the trial court’s oral charge, both sides announcing “satisfied.” However, seven of appellant’s twenty-five requested charges were refused. They were:

“Defendant’s Charge Number 1
“He who invokes self-defense in protection of third person is placed in shoes of such person and that if jury is reasonably satisfied that at time of fatal shot, accused’s daughter was in imminent danger of losing life, accused should be acquitted.”
“Defendant’s Charge Number 2
“The law gives a person the same right to use force reasonably necessary under the circumstances to protect herself from great bodily harm as it does to prevent her life being taken, and that she may excusably use this necessary force to save herself from any felonious assault.”
“Defendant’s Charge Number 5
“If you reasonably believe that the Defendant was free from fault and that the Defendant acted in self-defense of herself, and or her daughter then she was entitled to kill in self-defense.”
“Defendant’s Charge Number 10
“I charge you, that if there are the facts proved to the satisfaction of the jury which are inconsistent with the Defendant’s guilt, that is sufficient to create a reasonable doubt in your minds, then the jury should give the Defendant the benefit of the doubt and acquit her.”
“Defendant’s Charge Number 15
“A reasonable doubt is sometime said to be a doubt for which a reason can be given; it must spring from the evidence in the case, and the evidence only; if, after careful consideration of all the evidence you have a doubt arising from the evidence or any part of the evidence of the Defendant’s guilt, and if such doubt seems to be reasonable to you, then the Defendant should be acquitted.”
“Defendant’s Charge Number 19
“The accused is not required to establish the defense to the satisfaction of the jury; and that fault of accused depriving her of her right to self-defense must be shown by the prosecution beyond a reasonable doubt.”
“Defendant’s Charge Number 23
“Prosecution must prove each of the elements of murder and that proof must be positive enough to show that there was no justification or that defendant was not free from fault in bringing on fatal encounter.”

Requested charges are the proper way for additional instructions to be given where an oral charge is not as comprehensive as a party desires. Harris v. State, Ala.Cr.App., 358 So.2d 482, 486, cert. denied, Ala., 358 So.2d 487 (1978). We note at the outset that each of the refused charges dealt with the doctrine of self-defense, defense of a third person, or reasonable doubt. The trial court’s oral charge comprehensively covered self-defense and reasonable doubt. For that reason alone requested Charges 2,10,15,19, and 23 were properly refused. Chambers v. State, 264 Ala. 8, 84 So.2d 342 (1955); Widner v. State, Ala.Cr.App., 376 So.2d 1132, cert. denied, Ala., 376 So.2d 1135 (1979); Fitch v. State, Ala.Cr.App., 372 So.2d 1328, cert. denied, Ala., 372 So.2d 1331 (1979). In addition, refused Charges 2 and 23 were substantially covered, respectively, in given Charges 11 and 24. Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956). Furthermore, refused Charges 2,19, and 23 are elliptical, ungrammatical, and confusing. Harris, supra. While not holding that refused Charges 1 and 5 were otherwise correct propositions of law as written, we find that these charges were also substantially covered in given Charges 12, 13, 14, and 25 and for that reason were properly refused. Walker, supra.

X

After retiring and commencing its deliberations, the jury returned to the courtroom and requested the trial judge “to re-read the difference between 1st degree murder and 2nd degree murder.” The trial judge complied with this specific request, but appellant excepted because the entire oral charge was not repeated.

The actions of the trial court were correct.

“When a jury calls for additional instruction and clearly delineates the area of its request, it is usually better for the trial court to remain within such area. To do otherwise ofttimes tends to appear to place the trial judge in the role of an interested advocate rather than an impartial arbiter.” East v. State, Ala.Cr.App., 339 So.2d 1104, 1106 (1976).

XI

Appellant was sentenced and gave notice of appeal on May 30, 1979. Appellant’s motion for new trial was filed with the Pike County Circuit Clerk on June 7, 1979. The trial court first received notice that the motion for new trial had been filed on August 27, 1979. A hearing was set to consider the merits of the motion on September 24, 1979. Appellant was granted a continuance, and the hearing was reset for September 27, 1979. On that date the State’s motion to strike appellant’s motion for new trial was granted due to its untimely presentation to the trial court. This ruling by the trial court was correct.

Interim Rule 4(b) of the Alabama Rules of Appellate Procedure controls this issue. In pertinent part it reads:

“A motion for a new trial based on newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 30 days after entry of judgment. The motion for new trial must be called to the attention of the trial court at the time of filing, ruled upon at presentation, or hearing thereon continued to a date certain and ruling of trial court made before expiration of such continuance. ...”
(Emphasis added.)

Assuming a motion for new trial is timely filed within thirty days after entry of judgment, Interim Rule 4(b), from its plain reading, has two additional requirements: (1) the motion for new trial must be brought to the attention of the trial court at the time it is filed; and (2) the motion must be ruled upon at the time it is presented or on a date certain in the future when a hearing is had on the motion. Thus, it is incumbent upon one filing a motion for new trial to bring it to the attention of the trial court within thirty days after entry of judgment. Filing the motion within thirty days after entry of judgment only completes the first step; the motion must also be brought to the attention of the trial court within that time.

Here, the motion was timely filed within the thirty day period. However, the trial court was first apprised of this action eighty-nine days after entry of judgment. This defect in notification to the trial court was fatal. The first of the additional requirements listed above was not met. It does not matter that on August 27 the trial court initially set a hearing on the motion for September 24 and later continued the hearing until September 27. The record is unequivocal that the trial court had not received timely notice of the motion at the time it set the hearings.

Even had the procedural requirements of Interim Rule 4(b), Alabama Rules of Appellate Procedure, been met, we find no merit to the allegations presented in appellant’s motion for new trial. Each issued raised in the motion, except one, has been answered in this opinion. As to that additional issue, we need only cite Atwell v. State, Ala.Cr. App., 354 So.2d 30, 37 (1977), cert. denied, Ala., 354 So.2d 39 (1978), for the following principles:

“After a case has been submitted to the jury, their deliberations in the jury room are not subject to review. Gamble, McEl-roy’s Alabama Evidence, 3rd Ed., § 94.06, p. 207. Public policy forbids that a juror disclose deliberations in the jury room and demands that they be kept secret. Taylor v. State, 18 Ala.App. 466, 93 So. 78 (1922); Harris v. State, 241 Ala. 240, 2 So.2d 431 (1941). Permitting such impeachment would open the door for tampering with the jury after the return of their verdict. Hawkins v. United States, 244 F.2d 854, 856 (C.A.Va.1957).
“Consequently a jury’s verdict is not subject to impeachment by the testimony of jurors as to matters which transpired during the deliberations. Fox v. State, Ala.Cr.App., [49 Ala.App. 204] 269 So.2d 917 (1972). A juror may not, either in impeachment or in support of his verdict, testify as to his mental operation in reaching the verdict.”

We have carefully examined each issued raised in brief and presented at oral argument. In addition, we have searched the entire record for error as required by law and find no error prejudicial to appellant.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Ex Parte: Fannie Cornelia CARPENTER. (Re: Fannie Cornelia Carpenter v. State of Alabama).
    80-381.
    Supreme Court of Alabama.
    June 26, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Roy Kennedy WILLIAMS v. STATE of Alabama.
    8 Div. 373.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.
    Charles B. Langham, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen. and Robert F. Tweedy, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

The indictment charged Roy Kennedy Williams with owning and having in his possession a pistol after having been convicted in Alabama of the offense of robbery on to-wit, May 19, 1975, contrary to the provisions of § 13-6-152 Code of Alabama 1975. The jury found the appellant “guilty as charged” and the trial court sentenced the appellant to five years imprisonment as punishment.

On January 19, 1979, Mrs. Susan Cockrell observed three black males shortly before 10:00 a. m. driving a black Buick automobile into an apartment complex in a reckless manner. She telephoned the police as it appeared to her that the three men had walked toward an apartment and attempted to enter therein. She stated that she was familiar with the Somerville Road Apartments and knew that none of the three were residents there.

Pursuant to police alert, Decatur Officers Hollis Johnson and Sergeant James Steen-son stopped the appellant and two companions who were observed by the officers in front of a small neighborhood grocery store acting in a suspicious manner. They had been alerted by fellow officers Mickle and Watson, who had answered the call at the apartments and indicated that they had observed three black men near a neighborhood grocery store. A short time later the appellant, Roy Kennedy Williams and Larry Pride were stopped, arrested and searched by the officers. A third companion, Roger McElroy attempted to flee and as McElroy was arrested by Officer Mickle he threw away a “gun barrel” which was retrieved by Officer Mickle and taken to the patrol unit where Williams and Pride were being held. Mickle testified at trial that the barrel contained a “sixteen gauge shotgun shell” at the time he retrieved it. (R 50)

A search of Williams and Pride revealed that Williams had in his possession the trigger assembly and a pair of gloves and a handkerchief. The third party, Larry Pride had a .38 caliber pistol which was fully loaded.

There appears to be a dispute over the precise length of the “barrel” which was found on Williams’s companion, McElroy; one estimate indicating that it-was twelve and one-half inches long, (R 108), while another estimate determined that the barrel was twelve and five-eighths inches in length. (R 116) Without dispute, both measurements included the length of the chamber which contained the shell and which was a permanent part of the barrel. Without dispute the only charge against the appellant was “felony possession of a weapon, a pistol”.

In cross-examination of Decatur officer, William Watson, we find the following: (R 73-74)

“Q (By MR. LANGHAM) Is this a pistol?
“A No, sir, it’s a receiver from the shotgun.
“Q Can you shoot that?
“A Not without the barrel.
“Q Can you shoot it with this attached?
“A No, Sir.
“Q Can you even put a shell in it?
“A No, sir.
“Q Were any other charges placed against Roy Kennedy Williams?
“A Not to my knowledge.
“Q He was charged with felony possession of a weapon, isn’t that right, isn’t that why we’re here today?
“A Yes, sir, a pistol.
“Q Felony possession of a pistol. Now everything, all these exhibits right here, state’s exhibit one, state’s exhibit two, state’s exhibit three, state’s exhibit four, state’s exhibit five, and state’s exhibit ten and state’s exhibit eleven were found on the other two individuals, isn’t that right?
“A Yes, sir.
“Q Larry Pride and what’s this other name, McElroy?
“A Yes, sir.
“Q This pistol was found in the possession of Larry Pride, isn’t that correct?
“A Yes, sir, it was.
“Q No other charges were placed against Roy Kennedy Williams?
“A No, sir.”

The appellant did not take the stand and testify, nor did he offer any testimony at trial from other witnesses.

However, on hearing his motion for a new trial challenging the conviction, the appellant did present the testimony of Sergeant Robert Clark, who had testified at the original trial, and also one Herbert Youngkin, Special Agent for the Bureau of Alcohol, Tobacco and Firearms of Huntsville, Alabama, concerning “what constitutes a pistol” and how the “barrel” found in the possession of McElroy should be measured. This motion was denied.

I

Much testimony was offered at trial and on hearing the motion for a new trial as to what constitutes • a “pistol” within the meaning of the Alabama Statutes and also as to how a “barrel” should be properly measured. Section 13-6-150, Code of Alabama 1975 in pertinent part reads as follows:

“(1) PISTOL. Any firearm with a barrel less than 12 inches in length.”

The appellant was charged under § 13-6-152 Code of Alabama 1975, which reads as follows:

“(a) No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control.
“(b) No person who is a drug addict or an habitual drunkard shall own a pistol or have one in his possession or under his control. (Acts 1936, Ex. Sess., No. 82, p. 51; Code 1940, T. 14, § 174; Acts 1951, No. 784, p. 1378.)”

Much is made in brief by both parties about how the proper measurement of a “barrel” should be made and as to whether or not the disassembled “barrel” from the shotgun which is in evidence and which “barrel” was found in the possession of McElroy, could constitute a “pistol” within the meaning of the above-stated statute. This court is now in effect being asked to determine whether vel non the possession of the “barrel” by McElroy constitutes a “pistol” within the meaning of the above statute under which defendant Williams is charged.

We leave the decision as to whether or not a cylinder is properly included in the measurement of a barrel for another day. It is not necessary to decide this in order to make our decision in this case.

In Webster’s Third New International Dictionary, the term “pistol” is defined as follows:

“(1) a short firearm intended to be aimed and fired with one hand” and
“(2) a hand gun whose chamber is integral with the barrel — distinguished from a revolver”.

In The Random House Dictionary, the term “pistol” is defined as follows:

“a short firearm held and fired with one hand”.

Without dispute, under the testimony of the officers who made the arrest of the defendant, Williams, and who testified at trial, the only items which could constitute a weapon found on Williams were “fore arm piece of a shotgun” found in Williams’s left coat pocket (R 65) and “a receiver from a sixteen gauge shotgun” taken from the right coat pocket of Williams. (R 66) The State’s witnesses clearly indicated that these two pieces could not fire even when placed together without the “barrel”, which was in the sole possession of McElroy. Williams, by admission of the State’s witnesses, is not charged with a conspiracy to commit a felony or other such offense.

It is clear to the Court from the record and from reviewing the “fore arm piece”, the “receiver” and the “barrel” that such could not constitute a “pistol” within the meaning of the above-quoted Alabama Statute. Moreover, such was disassembled, by the testimony of the State’s own witnesses, and also according to the State’s witnesses, such could not fire when so disassembled.

It therefore follows that the trial Court erred in submitting this case to the jury and in overruling defendant’s motion for a new trial, as the parts of the disassembled shotgun found in the possession of Williams clearly do not constitute a “pistol” within the meaning of the above-quoted Alabama Statute.

We distinguish this case from Johnson v. State, 51 Ala.App. 172, 283 So.2d 642 (1973) inasmuch as the appellant in that case had in his possession both a pistol and a fully assembled sawed-off shotgun, whose barrel was measured “less than 12 inches.” See also Robinson v. State, 40 Ala.App. 101, 108 So.2d 188 (1959).

For the reasons stated, the judgment of the court below is hereby reversed and rendered.

REVERSED AND RENDERED.

All the Judges concur.


text:
    Ex Parte: State of Alabama. (Re: Roy Kennedy WILLIAMS v. STATE of Alabama).
    80-527.
    Supreme Court of Alabama.
    July 2, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: DeCARLO, Judge.

text:
    Ernest LOWMAN v. STATE.
    1 Div. 151.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied May 5, 1981.

      Cynthia C. Pickett, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Appellant was indicted, convicted, and sentenced to fifteen years imprisonment for first degree burglary, in that he broke and entered an inhabited dwelling house in the night time with intent to ravish.

The State’s evidence showed that on the morning of November 1, 1979, the prosecu-trix awoke and saw someone hovering over her. She could not see the person’s face, but she stated that she screamed and the intruder then pulled the bedcovers over her head. She tried to resist, but the person held her down and told her to shut up or he would kill her. He then fondled her breasts and genitals, unzipped his pants, and pressed his body against her. She could tell that he did not have a shirt on at that time. She pretended to be unconscious and the assailant then dragged her into the living room, dropped her by the door and left. The prosecutrix testified that the screen on her bedroom window was intact when she retired for the night, but that after her assailant left, the screen was broken.

Mrs. Burnita Fuller, a neighbor of the victim stated that about 2:30 A.M. on November 1, 1979, she was awakened by screams and a thumping noise coming from the victim’s apartment. Mrs. Fuller’s husband called the police and they arrived within three minutes. After the police got there, Mrs. Fuller heard the sound of a door slamming and someone running.

Officer W. E. Toole of the Mobile Police Department testified that on November 1, 1979, he answered a call for help at the victim’s address. As Toole approached the premises he heard a door slam and saw a black male with no shirt on and his pants down. The man tried to pull up his pants and began running from Toole. Officer Toole chased the subject through several yards and finally apprehended him. At trial, Toole identified the appellant as the subject he caught.

At the conclusion of the State’s case, appellant moved to exclude the evidence on the ground that a prima facie case of first degree burglary had not been shown. The motion was overruled and appellant called one witness, Mrs. Burnita Fuller. Mrs. Fuller’s testimony was similar in substance to her original testimony.

I

Appellant’s motion to exclude at the close of the State’s case presents the question of the sufficiency of the evidence to this court. In Gaskin v. State, 53 Ala.App. 64, 297 So.2d 388 (1974), we outlined the elements of the offense of first degree burglary as follows:

“(1) breaking and entering, (2) 'in the nighttime, (3) of an inhabited dwelling house or any other house or building occupied by any person lodged therein, with intent to steal or commit a felony.”

All the foregoing elements were properly proved in the case before us. Contrary to appellant’s assertion, the broken window screen clearly provided proof of a “breaking and entering.” Compare State v. McCall, 4 Ala. 643 (1843). In addition, Miss Davis’ testimony about the intruder’s conduct, once inside the bedroom, is sufficient to prove the “intent” element. See Hamilton v. State, 270 Ala. 184, 116 So.2d 906 (1959), cert. den., 365 U.S. 852, 80 S.Ct. 1638, 4 L.Ed.2d 1737 (1960).

II

Appellant contends that the trial court erred when it instructed the jury not to draw “any inference” from the defendant’s failure to testify.

From the record:

“Now, I would not ordinarily mention it, except that counsel for the defendant has mentioned it both in his opening and closing statements, and I want to make sure that you understand, and so I tell you and I will appeal to both counsel when I finish making this statement to tell me if I have stated it correctly. That defendant has no burden to take the stand, number one. He has a constitutional right to stand silent, number two. Number three, you cannot draw any inference from his failure to take the stand. Now, is there anybody in this box that can’t follow my instructions on that point? If so, stand up right now and I will mistrial this whole case. That is a fact and I charge you that you cannot draw any inference from his not taking the stand. And I appeal to both counsel and ask if I have stated it fully and fairly.
“MR. HANLEY: That’s the way I understand it, Judge.
“MR. STEIN: [Defense counsel] Yes, sir, Judge.
“THE COURT: Thank you very much.”

It is clear from the foregoing portion of the transcript that the trial judge felt it appropriate to explain the law regarding defendant’s failure to testify since defense counsel had himself discussed it in argument. It is also evident that, taken in context, the court’s comments were a commendable effort to protect the defendant from any unfavorable inferences the jury might have drawn.

Appellant cites Smith v. State, Ala.Cr.App., 370 So.2d 312, for the proposition that, in the absence of a requested charge by the defendant on the subject, comment by the trial judge on the defendant’s failure to testify should clearly set out the fact that no inference adverse to the defendant — rather than simply “no inference” — can be drawn from the defendant’s failure to take the stand. We find that Smith v. State, supra, does not mandate reversal here since appellant not only took no exception to the court’s comments, but also specifically approved the statement. In the absence of an exception to the court’s oral charge, there is no basis for appellate review. Crenshaw v. State, Ala.Cr.App., 374 So.2d 448.

hi

Appellant also complains of the following statement made by the trial court in its oral charge to the jury:

“You may infer from the facts of this case or from the circumstances of this case the necessary intent element.”

Appellant argues that the foregoing was an impermissible comment upon the effect of the evidence in violation of § 12-16-11, Code of Alabama, 1975. This contention is insupportable in view of the fact that appellant took no exception to the charge. Crenshaw v. State, supra. Moreover, it is a well settled proposition of law that, upon review of the trial court’s instructions to the jury, the charge must be taken as a whole and not out of context. Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782. The record reveals that immediately after the statement complained of, the judge stated the following:

“If from the facts you cannot infer an intention to commit a felony, you cannot convict the defendant.” [Emphasis added.]

When this portion of the charge is taken together with the court’s earlier statement, it is apparent that the jury was instructed that they could convict only if they found the necessary intent element.

IV

Appellant makes the further argument that the court erred in its refusal of his written requested charges numbered 10 and 11. The requested charges, however, were fully and substantially covered in the court’s oral charge and it was not error to refuse them. Barnes v. State, Ala.Cr.App., 361 So.2d 390.

V

Appellant next asserts that certain photographs of the victim’s yard and apartment were not admitted into evidence, yet were taken by the jury to the jury room. First of all, we are not convinced from the record either that the exhibits were not admitted, or that they were, in fact, taken to the jury room. However, assuming both of appellant’s assertions to be true, we find no error. It is the responsibility of the defense, along with the prosecution, the court reporter, the acting clerk, and the bailiff, to bring to the court’s attention any question regarding what physical evidence shall go to the jury room. “[WJhen the one complaining is no less responsible therefor than others, his complaint is not ordinarily well taken.” Merriweather v. State, Ala.Cr.App., 364 So.2d 374.

VI

Finally, appellant contends that the trial court erred by considering impermissible and extraneous matters in imposing sentence on him. At the sentencing hearing the following occurred:

“THE COURT: You are asking the Court to give him probation in this case, in the sentencing process?
“MR. STEIN: [Defense counsel] Yes, sir, Judge, I am.
“THE COURT: Mr. Hanley?
“MR. HANLEY: [Assistant District Attorney] Yes, sir.
“THE COURT: I’d like to hear from your side. You’re the trial lawyer representing your state, and you have heard the evidence that went before the jury and the factual basis in this charge.
“MR. HANLEY: Yes, sir, Judge. Mr. Lowman was found guilty of committing one of the most vicious, premeditated assaults that I have ever heard since I’ve been prosecuting. I won’t get into the facts, I’m not going to insult your intelligence—
“THE COURT: The jury has determined the facts.
“MR. HANLEY: That’s right, and you heard them, Judge, and I think that should be taken into consideration. I would also like for you to consider that the man that stands here today, saying that he is innocent, he had plenty of time to go ahead and confess his guilt and throw himself upon the mercy of the Court, but even to this day he will not admit his guilt.
“Secondly, Judge, he is also charged with assault with intent to ravish in this case, which will be prosecuted definitely. Judge, Mr. Stein asks you for mercy right now, but Mr. Lowman showed [the victim] absolutely no mercy. And I would ask for a sentence commensurate with the wickedness and severity of the crime.
“THE COURT: Have you examined the offense report in this case?
“MR. HANLEY: Yes, sir, Judge, I looked at it.
“THE COURT: Presentence report?
“MR. HANLEY: Yes, sir, I examined it.
“THE COURT: Do you have any comment to make on that?
“MR. HANLEY: Judge, he was arrested several times. We don’t know if he has committed this crime before and has not been caught; I will tell you as a member of the Bar that there were several burglary ones, rapes in this area, the same fact situation — Somebody broke into a window, threw a blanket over somebody’s head and proceeded to rape them in this particular area. As soon as Mr. Lowman was committed to jail the burglaries stopped. I don’t know—
“THE COURT: You wouldn’t purport to say that would be a preponderant way of showing that he has committed other crimes?
“MR. HANLEY: Judge, I can only tell you what the facts are as Cliff Lockett tells me and as the police department records show. Many, many rapes and many, many burglary ones at nighttime go unsolved because they are committed—
“THE COURT: It is a matter of great public concern, I will take that statement to establish that fact; and it is a matter of great public concern.
“MR. HANLEY: I would submit to you, Judge, that there is no worse crime that a man can commit than breaking into a single woman’s house at night and attempting to rape her.
“THE COURT: Does the State of Alabama oppose probation?
“MR. HANLEY: Yes, sir, vigorously.” [Emphasis supplied.]

From the quoted excerpt, it is obvious that the trial court was not persuaded by the State’s argument that appellant had committed other crimes. The court, in fact, stated that it would consider the prosecutor’s argument only to establish the fact that burglary and rape are “a matter of great public concern.”

Therefore, we find that no error occurred during the sentencing process. The propriety of a sentence within statutory limits is not reviewable on appeal. Butler v. State, Ala.Cr.App., 344 So.2d 203.

We have searched the record for error prejudicial to appellant and have found none. The judgment of conviction by the Mobile Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Ernest LOWMAN. (Re Ernest Lowman v. State of Alabama).
    80-564.
    Supreme Court of Alabama.
    July 2, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Wallace Norrell THOMAS v. STATE.
    1 Div. 944.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied April 21, 1981.
    John L. Carroll, Montgomery, and Michael W. McCormick, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

REVERSED AND REMANDED ON AUTHORITY OF Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 372 (1980); Beck v. State, 396 So.2d 645 (1980) as modified March 6, 1981.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte State of Alabama. (Re Wallace Norrell THOMAS v. STATE of Alabama).
    80-526.
    Supreme Court of Alabama.
    June 26, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.


text:
    James Willie COCHRAN, alias v. STATE.
    6 Div. 780.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied April 21, 1981.
    John L. Carroll & Dennis N. Balske, Montgomery, and Michael W. McCormick, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Paul E. Johnson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

REVERSED AND REMANDED ON AUTHORITY OF Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 372 (1980); Beck v. State, 7 Div. 560, 396 So.2d 645 (1980) as modified on March 6, 1981.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte State of Alabama. (In re James Willie COCHRAN, alias v. STATE of Alabama).
    80-523.
    Supreme Court of Alabama.
    June 12, 1981.

      Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for petitioners.
    No brief for respondent.
   PER CURIAM.

Writ denied. See Ex parte Ritter (On rehearing) 403 So.2d 154 (Ala.1981).

WRIT DENIED.

All the Justices concur.


text:
    Maurice BROOKS v. STATE.
    6 Div. 950.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied April 21, 1981.
    Robert R. Bryan and Roger C. Appell of Bryan, Wiggins, Quinn & Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

REVERSED AND REMANDED ON AUTHORITY OF Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 372 (1980); Beck v. State, 7 Div. 560, 396 So.2d 645 (1980) as modified on March 6, 1981.

All the Judges concur.


text:
    Ex parte Maurice BROOKS. (Re Maurice Brooks v. State of Alabama).
    80-536.
    Supreme Court of Alabama.
    July 2, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Richard James CHAMBERS v. STATE.
    6 Div. 508.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      M. Richard Hughes, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted for theft of property in the first degree. Alabama Code 1975, Section 13A-8-3 (Amended 1977). Sentence was two years and six months’ imprisonment.

I

The substance of the defendant’s only allegation of error is that the trial court erred in allowing the State to claim surprise and cross examine its own witness, Mrs. Willie Mae Chambers, the mother of the defendant.

The record shows that, before trial, the Assistant District Attorney had learned that Mrs. Chambers had given renditions of the subject of her testimony different from and inconsistent with the statement she gave to an investigating officer. In a telephone conversation with the Assistant District Attorney Mrs. Chambers denied .calling the police. Defense counsel told the prosecutor that Mrs. Chambers denied seeing her son, the defendant, park the stolen automobile in her backyard. Despite this, the trial court allowed the prosecutor to cross examine Mrs. Chambers. Defense counsel objected: “For the record, Your Honor, we would except.”

After having Mrs. Chambers denying making these statements, the State impeached her testimony through the testimony of Birmingham Police Officer Harold Mitchell. Officer Mitchell stated that Mrs. Chambers “called and she wanted to talk to us about her son and a car that was in her backyard that didn’t belong to them.” Mrs. Chambers also told him that her son, the defendant, came home in the automobile (which was the stolen vehicle) and parked it behind some trees behind her house and that she had never seen the vehicle before and she called the police.

We need not decide whether the trial judge abused his discretion in allowing the State to impeach its own witness, see C. Gamble, McElroy’s Alabama Evidence, Sections 165.01(6) and (7) (3rd ed. 1977), or whether the objection of defense counsel was sufficient to preserve any error in this regard. If any error were committed in the admission of such testimony, the error was harmless. Rule 45 A.R.A.P.

In a confession which was admitted into evidence and to which defense counsel specifically stated that he had “no objection”, the defendant admitted taking the automobile and driving it home. In the confession he also admitted that his mother called the police.

The erroneous admission of evidence is not a ground for reversal, if the fact testified to be proved by other evidence not objected to. Crenshaw v. State, 205 Ala. 256, 87 So. 328 (1921). The admission of incompetent evidence is harmless error, where the fact to which such evidence relates is otherwise established by competent evidence. Glasscock v. State, 159 Ala. 90, 48 So. 700 (1909); Cassidy v. State, 369 So.2d 310 (Ala.Cr.App.1979). Testimony apparently illegal upon admission may be rendered prejudicially innocuous by subsequent legal testimony to the same effect. Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974).

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

AFFIRMED.

All Judges concur.


author: PER CURIAM. BOYD, Justice, ALDERMAN, Justice,

text:
    Ramiro SILVERA, Petitioner, v. The MIAMI WHOLESALE GROCERY, INC., The Home Indemnity Company and The Industrial Relations Commission, Respondents.
    No. 56685.
    Supreme Court of Florida.
    Jan. 15, 1981.
    Rehearing Denied July 28, 1981.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for petitioner.
    Barry A. Pemsler of Richard, Tharp & Pemsler, Miami, for respondents.
   PER CURIAM.

Ramiro Silvera suffered a heart attack in the course of his employment with Miami Wholesale Grocery, Inc. His claim for workmen’s compensation benefits was accepted by a Judge of Industrial Claims, but denied by the Industrial Relations Commission based upon our recent decision of Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978). Silvera asks us to hold that his heart attack occurred within the guidelines for compensability expressed in Richards, Richard E. Mosca & Co. v. Mosca, 362 So.2d 1340 (Fla.1978), and Tintera v. Armour & Co., 362 So.2d 1344 (Fla.1978).

The unchallenged facts with respect to Silvera’s heart attack are set forth in the order of the Judge of Industrial Claims:

Claimant’s customary work with the employer herein was that of a sales representative. The preceding day a ship, the Nopal Shore arrived in the port late. Ordinarily ships arriving late would be loaded the following day. However, the ship had radioed in earlier that day indicating their arrival and expected departure early the following morning. Accordingly, claimant commenced filling their order initially involving loading cases of beer and liquor which he did not customarily do, but under the circumstances in order to fill the order was required to do. He thereafter journeyed to the port at approximately 5:00 o’clock P.M., waited approximately forty five minutes until the ship was completed docking and thereafter went on board. Although customarily the ship’s crew is to do the loading of provisions, in this case upon docking the ship’s crew went on shore and the loading was left to be accomplished bv claimant and the steward. This particular ship had somewhat more personnel than the other ships serviced and it was accordingly a larger order. Although claimant in the past on occasion had helped with some loading, this was not a customary part of his work. He and the steward with some assistance from co-employee, Walter McComas loaded the provisions and liquor. The loading took several hours and thereafter McComas and claimant had to obtain for the Captain a special order to wit: a cooler. This particular Captain was on this occasion a difficult individual to deal with and very demanding. They obtained the cooler, waited sometime for return of the Captain in order to collect the money and that did not take place until approximately 11:00 o’clock P.M. Claimant thereafter returned to his place of employment to obtain his car, arrived home at approximately 12:00 midnight and thereafter after approximately four hours sleep was up the next morning in order to be at the Miami River at approximately 6:30 A.M. —7:00 o’clock A.M. to see what ships had arrived and needed any provisions. Claimant was exceptionally tired from the unusual ordeal the preceding night which because of the particular circumstances required that he worked very late in the evening which was not customary for him. After remaining approximately one half hour at the Miami River he proceeded to his place of employment and unfortunately had a flat tire. He had to change that, thereafter proceeded to his place of employment, learned that apparently the Captain was screaming about some portion of the order not filled, this particular account was one of the larger accounts and claimant felt his job was on the line if he did not please this individual. He proceeded out to the port in his exhausted state, was justifiably upset in that he had worked so hard and so long to please the Captain and the Captain nevertheless was dissatisfied with the services which was expressed to claimant by his general manager. Upon getting to the gang plank of the ship, McComas told claimant the Captain did not want to see him and was blaming claimant for alleged failure to complete the order. Immediately upon being advised thereof claimant according to his co-employee whose testimony I accept appeared very upset, got red in the face, claimant complained of chest pain, commenced feeling bad, attempted to make one other short stop at the Port, was feeling worse and got back to the employer’s premises where he collapsed and was taken to the hospital, (emphasis added.)

The sole issue properly before us is whether Silvera’s heart attack was “caused by the unusual strain or overexertion of a specifically identifiable effort not routine to the work the employee was accustomed to performing.” The Industrial Relations Commission held that it was not, presumably because there was no “specifically identifiable effort.” Miami Wholesale Grocery argues for the correctness of the Commission’s ruling, noting that in Tintera, Mosca and Richards, the claimants were denied compensation for the similar absence of a specifically identifiable physical effort.

The record indicates, as the underscored findings of the Judge of Industrial Claims show, that loading activity preceding Silv-era’s attack was unusual to the performance of his duties for Miami Wholesale Grocery. The medical testimony presented for Silvera also identified emotional concerns, as opposed to physical effort, as a precipitating cause of Silvera’s heart attack. This testimony, which was accepted by the Judge of Industrial Claims, also found a close nexus between the heart attack and Silvera’s physical and emotional exertion, both causally and temporally.

The issue posed by these facts is whether Richards requires a precise correlation between physical effort and the onset of a heart injury, and whether an “effort” encompasses a combined physical and emotional sequence which is identifiable apart from normal work pressures. We hold that it does not require a precise temporal correlation, and that the specifically identifiable effort may be a causally related emotional and physical sequence which is independent of normal work pressures.

To be compensable, the “identifiable effort” associated with the onset of a heart attack must be job-related and must stem in part from some non-routine physical exertion. It may, however, involve psychological pressures closely associated with the physical activity. On this record, we conclude that the Commission misapplied our decisions in holding that Silvera’s heart attack was not compensable as a matter of law. The award of the Judge of Industrial Claims was correct and should be reinstated.

It is so ordered.

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

BOYD, J., dissents with an opinion.

ALDERMAN, J., dissents with an opinion.

BOYD, Justice,

dissenting.

Once again we are faced with the question of whether compensability can be found upon the fact that the claimant’s “myocardial infarction was precipitated by a series of unusual, non-routine, work-related, emotionally traumatic events and circumstances compressed within a specific period of time, rather than a single isolated event.” Richards Department Store v. Donin, 365 So.2d 385, 386 (Fla.1978). In Richards we specifically held that it cannot. In Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340 (Fla.1978), we explained why.

We have had a number of “heart” cases in which we determined what was or what was not an unusual and non-routine strain or exertion within the definition of Victor Wine [& Liquor, Inc. v. Beasley, 141 So.2d 581]. These decisions have involved either physical strain or exertion alone or physical strain or exertion in concert with emotional strain, but in no case have we held emotional strain alone to be sufficient. Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant’s employment.

Id. at 1342.

This case is a good example of why this Court should adhere to the rule enunciated in Richards and Mosca. Claimant, a Panamanian national, had been under must stress in the eight years proceeding his heart attack. He was the deputy commander of all the armed forces of Panama before he was jailed in 1970. He escaped to the Canal Zone and sought political asylum in this country. For the next several years he attempted several business ventures which failed before going to work with Miami Wholesale Grocery. He was under a lot of stress due to fear of losing his job. Furthermore, he was overweight and a heavy smoker.

All of these factors could be related to claimant’s suffering a heart attack. Since these factors cannot be independently measured, it is impossible to find a casual connection between claimant’s work-related stress and his heart attack. This is precisely the reason for requiring that some work-related physical activity precipitated the heart attack.

Although there is some evidence that claimant engaged in some unusual physical exertion, there is no medical testimony linking the physical activity to the heart attack. The claimant’s medical expert, Dr. Lewis, testified that “the acute attack was precipitated by tremendous psychological pressure, anger and tension at the incident that happened as he was going out to the boat.” On cross examination he was asked,

Q. In other words, you are basing your opinion on a psychological stress, doctor?
A. Yes, ....

When asked if claimant’s changing a tire would entail a little stress, the doctor replied:

Basically, he had no symptoms. If he would have had a strain on his heart, I would expect him to have an angina attack. That is, a transient, temporary chest pain which is an indication of not enough oxygen to his heart. From this physical stress of changing the tire, he did not develop symptoms and I would assume that he apparently went to work and did not feel anything bad at the time.

As Justice Alderman points out, the claimant testified he felt fine after loading the merchandise and after changing the flat tire. Therefore, there is no substantial competent evidence causally linking claimant’s physical activity to his heart attack.

I would affirm the Industrial Relations Commission’s order.

ALDERMAN, Justice,

dissenting.

Consistent with our decision in Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978), the Industrial Relations Commission correctly reversed the Judge of Industrial Claims and denied Silvera’s claim for workers’ compensation for the heart attack he sustained. In reversing on the basis that the Judge of Industrial Claims had failed to focus on a specifically identifiable effort or event that caused the heart attack and on the basis that it could not isolate an identifiable event, the Commission relied on the following excerpt from Richards Department Store:

We find, consistent with our pronouncement in Victor Wine and its progeny, that, for a heart attack occurring during the course of employment to be compensable, it must have been caused by the unusual strain or overexertion of a specifically identifiable effort not routine to the work the employee was accustomed to performing.

365 So.2d at 386.

In Richards Department Store, we dismissed Donin’s claim because the Judge of Industrial Claims had failed to find that strain and exertion of a specifically identifiable effort, over and above the routine of the job', caused the heart attack and because such a finding could not be supported by the record.

In the present case, the Judge of Industrial Claims based his finding of compensa-bility on a series of events that took place during a two-day period of time. The Judge of Industrial Claims was unable to conclude from the record that any specifically identifiable effort had caused Silvera’s heart attack. Furthermore, it does not appear from the record that any of the physical effort exerted by Silvera had caused the heart attack. He testified that after loading the merchandise, he felt fine and that he still felt fine the next morning even after changing a flat tire on his car on his way to the warehouse. After arriving at the warehouse, he was told that the captain of the ship was angry with him, and he then proceeded to the dock where he was informed that the captain did not want to see him anymore and that the captain was going to give the account to another salesman with another company. It was only after receiving this emotionally upsetting information that he first felt a pain in his chest. At the time he sustained the attack, he was not exerting any identifiable physical effort, and up until this point he had felt fine. Dr. Lewis, upon whose testimony the Judge of Industrial Claims relied, testified that it was the psychological pressure, anger, and tension upon receiving this disturbing information that precipitated the attack. In Richard E. Mosca & Co., Inc. v. Afosca, 362 So.2d 1340 (Fla.1978), we held that emotional strain alone is not the unusual strain or exertion within the definition of Victor Wine Liquor, Inc. v. Beasley, 141 So,2d 581 (Fla.1962), and we explained:

Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant’s employment.

362 So.2d 1342.

Accordingly, I find that the Commission’s order complies with the essential requirements of the law and would deny certiorari.

        Richards Dep’t Store v. Donin, 365 So.2d 385, 386 (Fla.1978).