author: HARRIS, Presiding Judge.

text:
    Floyd Leldon COLLINS, alias v. STATE.
    6 Div. 40.
    Court of Criminal Appeals of Alabama.
    Oct. 16, 1979.
    Rehearing Denied Nov. 20, 1979.

      Carl E. Chamblee, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

The appellant was convicted for buying, receiving or concealing one G. E. Weather-tron 5 ton capacity heat pump valued at $1,162.00. Sentence was fixed by the trial court at five years imprisonment in the state penitentiary. Oral notice of appeal was given, and although appellant was declared indigent, his trial counsel agreed to remain his attorney of record and to represent him on appeal without charge. The several issues presented for review are complex and require a detailed delineation of the facts. Two trials were begun in this matter, the second resulting in this appeal. We shall consider the facts and issues of the two trials separately so far as they are pertinent to this appeal to facilitate understanding.

Appellant was first indicted by the Cull-man County Grand Jury on January 10, 1978. He was charged in a two-count indictment with grand larceny and with buying, receiving, or concealing “one General Electric Weathertron 5 ton capacity heat pump, beige in color, Model No. BGWA860RLB, Serial No. 301913640, of the value of $1,162.00, the personal property of The Schaefer Company, Inc., a corporation, against the peace and dignity of the State of Alabama.” Grand Larceny was charged in Count I while buying, receiving or concealing the same heat pump was charged in Count II.

The first trial of this cause was commenced on May 22, 1978, after appellant had been duly arraigned and had pleaded not guilty to the charges. Three state witnesses testified at appellant’s first trial before the proceedings were terminated. Their testimony is summarized below.

Bob Waldrop, the vice president of The Schaefer Company, Inc., testified that on June 21, 1977, his company was in the process of installing two G. E. Weathertron 5 ton capacity heat pumps at a Mormon Church. The heat pumps were owned by Schaefer Company, Inc. The model number on one of the heat pumps was BGWA860RLB and its serial number was 301913640. The serial number was on the unit when it was taken to the church for installation; however, Mr. Waldrop stated that, upon examining the recovered unit, he discovered that the serial number had been removed.

Detective Javon Daniel of the Cullman Police Department had previously testified that the recovered unit had been located at Alvin Alexander’s farm on Brushy Pond Mountain in Cullman County on August 26, 1977. The heat pump was found in a barn and was covered by a tarpaulin. Detective Daniel stated that the heat pump had been in the barn approximately two months. It was transported to the Cullman Police Department and, after certain connecting parts were removed for comparison studies, was subsequently released to the Schaefer Company.

Brent Wheeler, a criminalist in the State Department of Toxicology, had also previously testified that the connecting parts removed from the recovered heat pump matched one set of the connecting parts which were left severed at the church site. The connecting parts consisted of % inch and xh inch Sealtite flexible electrical conduits, and % inch and % inch copper pipes. It was Mr. Wheeler’s opinion that the connecting wires and pipes had been cut in two with a hacksaw so that the heat pumps could be taken from their base at the Mormon Church.

The problem that developed during appellant’s first trial on this matter centered itself on the missing serial number on the unit recovered at Alvin Alexander’s farm. Because the serial number had been removed, Mr. Waldrop was unable to verify which of the two stolen heat pumps had been recovered. The recovered unit might have had serial number 301913640 as per indictment, or it might have had a different serial number. Put another way, serial number 301913640 may have belonged to the unit that was never recovered, and which was not the subject of the indictment.

The district attorney requested the appellant to consent to an amendment of the indictment by simply striking out the serial number to eliminate any variance of proof, but the appellant refused. The district attorney then moved the trial court to dismiss the prosecution by authority of Alabama Code 1975, § 15-8-90 and 15-8-91. The trial court granted the motion. The appellant contends this ruling was erroneous because there was no material variance between the allegation and proof. He further maintained that the ruling placed him in double jeopardy when he was re-indicted. These arguments are not valid.

The 1975 Code of Alabama Section 15-8-90 reads as follows:

“An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described.” (Emphasis added).

Section 15-8-91 of the Code, which must be read in conjunction with the preceding sections, reads in pertinent part:

“If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time . . . .”

Unquestionably, there was a variance between the indictment and the proof offered. Although the state did prove that the recovered heat pump was a General Electric Weathertron 5 ton capacity unit, that The Schaefer Company owned it and that it was one of the two heat pumps stolen at the Mormon Church, it was impossible to prove that the unit’s serial number was 301913640. The recovered unit simply had no serial number on it. As stated previously, serial number 301913640 may well have belonged to the unit that was never recovered. Due to this lack of certainty as to the true serial number on the recovered unit it may properly be said that the property was incorrectly described in the indictment. Sections 15-8-90 and 15-8-91 of the 1975 Code were specifically designed to remedy incorrect descriptions of property.

It should be pointed out that Section 15-8-91 of the 1975 Code does not require a material variance to exist in the indictment as the appellant suggests. “Variance” in Section 15-8-91 refers to “when the name of the defendant is incorrectly stated or when any person, property or matter (in the indictment) is incorrectly described,” as per Section 15-8-90. The variance we are concerned with here is incorrectly described property.

The first indictment specified serial number 301913640. It was uncertain whether the recovered heat pump, in fact, had that serial number. Even though it was unnecessary for the state to prove the serial number to establish a prima facie case of grand larceny or buying, receiving, or concealing, the law is settled that if an indictment contains an unnecessary averment, nonetheless it becomes necessary for the state to prove it, and there can be no conviction without such proof. Gilmore v. State, 99 Ala. 154, 13 So. 536; Weatherly v. State, 33 Ala.App. 127, 30 So.2d 484. Stated another way, where a particular kind of property is specifically described in an indictment, it must be proved as laid. Bell v. State, Ala.Cr.App., 364 So.2d 420, cert. denied Ala., 364 So.2d 424; Lee v. State, 20 Ala.App. 334, 101 So. 907, cert. denied, 212 Ala. 135, 101 So. 909. Under the foregoing authority it would have been incumbent upon the state to prove that the serial number on the recovered unit was that specified in the indictment. Since the appellant would not consent to an amendment to the indictment, the state was placed in the position of not being able to prove a prima facie case without the incorporation of Section 15-8-91, Code 1975.

We note that the appellant’s second indictment in this matter, which was handed down by the Cullman County Grand Jury on August 7,1978, and under which he now stands convicted, does not add any new substantive offense which he was required to defend. The second indictment simply eliminates the serial number from consideration and slightly modifies the model number and spelling of the company name, “Schaefer.” Count II of the second indictment reads in pertinent part:

“The Grand Jury of said County charge that before the finding of this Indictment, Floyd Leldon Collins, alias ‘Porky’, whose name is otherwise unknown to the Grand Jury, did buy, receive, conceal or aid in concealing one G. E. Weathertron 5 ton capacity heat pump, beige in color, Model No. BGWA860RLB, a further and better description of which is otherwise unknown to the Grand Jury, of the value of $1,162.00, and one G. E. Weathertron 5 ton capacity heat pump, beige in color, Model No. BGWA860RLB, of the value of $2,324.00, the personal property of the Schaefer Company, Inc., a corporation, knowing that it was stolen, or having reasonable grounds for believing that it has been stolen, and not having the intent to restore it to the owner, against the peace and dignity of the State of Alabama.”

On its face, if the facts which are alleged in this indictment were proved at appellant’s May 22 trial, no conviction would have been warranted on the first indictment. The test establishing variance is thus complete. Wright v. State, 40 Ala.App. 683, 122 So.2d 555; Mitchell v. State, 16 Ala.App. 635, 80 So. 730. We hold therefore, that the trial court’s reliance on Section 15-8-90 and Section 15-8-91, 1975 Code, was, in all respects, proper.

The dismissal does not prevent appellant being tried on a new indictment conforming to the case made by the evidence. The accused is held to have never been in jeopardy since the crime charged is not the same in the sense that it is not sustainable by the same proof as in the former indictment. Oliver v. State, 234 Ala. 460, 175 So. 305; Wright, supra. When a variance exists between the proof and the offense charged in the first indictment, the trial court is fully authorized under § 15-8-91 of the 1975 Code in dismissing the prosecution and ordering the appellant held for the grand jury to prefer a new indictment. Such proceedings furnish no ground for a plea of former jeopardy. Wright, supra.

The appellant next argues that his second trial on this matter, which commenced on March 19,1979, in effect, denied him a speedy trial guaranteed by the Sixth Amendment of the United States Constitution. The appellant filed a motion to dismiss for want of prosecution in the case at bar on February 14, 1979. A hearing was heard the same day and it was learned that Alvin Alexander, one of the state’s material witnesses, was avoiding service of process. The court denied the motion with the understanding that the case would be dismissed if the state could not locate Mr. Alexander before the next docket call on March 19. Mr. Alexander was found and the trial commenced.

A hearing had previously been held on October 5, 1978, which concerned the appellant’s involvement in the burglary and buying, receiving or concealing of a coal trailer truck. It was learned during this hearing, which is a part of the present record, that the appellant had been charged in four separate cases, including the coal truck and the case at bar. As to the other two cases, one had been dismissed and the remaining case, which also involved buying, receiving, concealing stolen property, had resulted in a five year sentence which was affirmed without formal opinion by this court.

The October 5th hearing also revealed that the Tommy Lee Hines trial was in progress at the Cullman County Courthouse at this time. Security precautions required forty to fifty state troopers to constantly guard every floor. The trial court was of the well founded opinion that a trial of any of the pending cases against the appellant at that time would be to his disadvantage.

The record also contains a court order which discloses that the appellant himself requested two continuances in the present case. In one motion appellant’s attorney advised the court he was in federal court on one of the dates earlier set for trial, and in the second motion appellant’s attorney claimed surprise and lack of preparation. These two requests for continuances were granted.

In considering the appellant’s argument, we have examined and balanced the four factors set out by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Those factors are listed as length of delay, the reason for the delay; the defendant’s assertion of his right, and prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2192. When the evidence before us is weighed with the four factors detailed in Barker it becomes apparent that appellant’s second trial did not commence after an unreasonable time lapse from appellant’s first trial on May 22, 1978; that valid and perhaps compelling reasons existed which justified that expiration of time; that the appellant did not formally assert his right to a speedy trial in this particular case until little more than one month before the second trial commenced; and that the expiration of time which did occur, all factors considered, could not possibly have prejudiced the appellant’s right to a fair trial. Under the existing circumstances it is difficult to understand how appellant’s trial could have been held any sooner. Appellant’s speedy trial argument is therefore rejected.

After voir dire of the prospective jurors, appellant challenged for cause Juror Susan W. Robertson, an employee in the circuit court clerk’s office of Cullman County. Appellant maintained that, as Mrs. Robertson had access to the clerk’s files, she would have knowledge of the previous cases against him and “would not be expected to be unbiased.”

Thorough questioning by the trial judge revealed that Mrs. Robertson was aware that appellant had a file in the clerk’s office, but that she did not know “anything about it,” nor did she know appellant personally. Mrs. Robertson was generally unfamiliar with the criminal records in the office. “I just issue the subpoenas.” She had never issued subpoenas in any cases involving appellant other than the present one, and was unaware of any prior appeal to the appellate courts. Furthermore, Mrs. Robertson had never heard any discussion concerning appellant’s records from the circuit court clerk. Based on this evidence the trial court denied appellant’s challenge for cause.

While the statutory grounds enumerated in Alabama Code 1975, § 12-16-150 for challenges of jurors for cause are not exclusive, there must be some ground which indicates probable prejudice for a prospective juror to be disqualified. Motes v. State, Ala.Cr.App., 356 So.2d 712, 718. Qualification of a juror is a matter within the discretion of the trial court and, on appeal, this court will look to the questions propounded and to the answer given by the prospective juror to see if this discretion was properly exercised. Alabama Power Co. v. Henderson, Ala., 342 So.2d 323, 327. The trial judge here was satisfied that there was no cause to disqualify Mrs. Robertson for probable prejudice. The trial court’s decision on such questions is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion. We find that the trial court exercised its discretion prudently-

During the district attorney’s opening statement the following occurred:

“Mr. Chamblee (Defense Counsel): Objection. Take an exception.
“Mr. Bland (District Attorney): We expect to show that as evidence.
“Mr. Chamblee: May we document the record as to what Mr. Bland’s remarks were to the Jury. Just made the reference as I understand it, if I may state it, unless Mr. Bland can state it.
“The Court: Go ahead.
“Mr. Chamblee: Was to the effect that they expected the evidence to show that Mr. Floyd Collins, the Defendant, has not explained his possession of these goods to which he is talking about.
“We except. We say that that is improper.
“The Court: You except and say it is improper on what basis?
“Mr. Chamblee: On the grounds that it invades the Constitutional rights of the Defendant. And I would further reserve the statement to the Court, if I may, outside the presence of the Jury on that point? All right.
“The Court: Go ahead.”
# * * * * *

The state then called its first witness and during recess, before the witness had finished testifying, the following occurred outside the presence of the jury:

“Mr. Chamblee: [W]e would show to the Court that these remarks calculated and did, invade the right of the Defendant to remain silent and not to testify — not to be required to testify against himself. . [W]e would at this time move the Court for a mistrial on those grounds. “The Court: That is in regard to the remarks that you made with regard to the Defendant not having explained possession of these goods. Said Mr. Alexander stated that he had got them.
“Mr. Bland: Would testify.
“The Court: That he got them from Mr. Collins and that Mr. Collins had not satisfactorily explained his possession of the goods.
“Mr. Bland: That we intended to prove that proof whether he takes the stand or not.”

The trial court then informed the appellant’s counsel that he intended to instruct the jury fully in his oral charge concerning the state’s burden of proof and the accused’s right to remain silent, but “I will be happy to give the Jury some instructions now on those points, if you want to request it?” Appellant’s counsel rejected this offer. “I feel like, Your Honor, that that would further spotlight the error and make it more damaging to the Defendant.” In light of this response, the trial court, based on its belief that its oral instructions could eradicate any prejudice to the appellant, denied appellant’s motion for a mistrial. We note that the trial judge did, in his oral charge, admonish the jury to draw no inference from appellant’s failure to testify.

The remark made by the district attorney constituted either a direct or indirect comment adverse to appellant’s right to remain silent. If it was the appellant himself who had “not explained his possession of these goods”, the remark was a direct reference to his failure to testify. On the other hand, if it was Mr. Alexander who stated that appellant “had not satisfactorily explained (to Mr. Alexander) his possession of the goods", the remark was an indirect reference. We need not decide whether the comment was direct or indirect. “[I]t is concomitantly the duty of the prosecutor not to, in any manner, comment on the failure of the defendant to testify.” Beecher v. State, 294 Ala. 674, 320 So.2d 727, 734. (Emphasis added).

Under the Fifth Amendment to the United States Constitution and Article I, Section 6 of the Alabama Constitution of 1901, no person shall be compelled in any criminal case to be a witness against himself. Furthermore, Alabama Code 1975, § 12-21-220 provides:

“On the trial of all indictments, complaints or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel. . . . ”

Comments on a defendant’s failure to testify have been condemned time and time again by this court and by the Alabama Supreme Court. Beecher, supra; Qualls v. State, Ala.Cr.App., 371 So.2d 949, cert. denied, Ala., 371 So.2d 951; Robinson v. State, Ala.Cr.App., 352 So.2d 11, cert. denied, Ala., 352 So.2d 15.

Moreover, impermissible comments by the district attorney on an accused’s failure to testify need not be made only during closing arguments to work a reversal. Canada v. State, 22 Ala.App. 495, 117 So. 398. Neither the Alabama or the United States Constitution, nor Alabama Code 1975, § 12—21— 220, are so limiting. At least one Alabama case, Johnson v. State, Ala.Cr.App., 353 So.2d 62, has held that such remarks by a district attorney during opening statement is error.

It does not matter that during the opening statement the accused has or has not .taken the stand, his constitutional right to remain silent may still be violated. The argument that no harm can be ascertained from remarks indifferent to that right until closing arguments, after the accused has elected not to testify is ill conceived and ill thought out. Certainly, we would be remiss in our duty if we failed to recognize the danger of the district attorney, early in the proceedings, directly or indirectly focusing the jury’s attention on what the accused will or will not testify to, or on what he previously has or has not admitted. In many instances, if this tactic were allowed, the prejudice to the accused would be even greater than if the comment were made after all the testimony had been taken. If permitted, the jury would be on their constant guard, anticipating the accused’s “chance to tell his story.” This form of prejudice to an accused’s right to receive a fair trial will not be sanctioned or tolerated by this court. An accused’s right to remain silent is inviolable at every stage in the proceedings and must be afforded due protection.

To cause an absolute reversal, the court must be persuaded the remark was so grossly improper and highly prejudicial as to have been ineradicable. Arant v. State, 232 Ala. 275, 167 So. 540; Bachelor v. State, 216 Ala. 356, 113 So. 67. In our opinion the statement here referred to does not meet that qualification as it could have been removed or eradicated from the realm of jury consideration.

The issue we must now decide is since the statement could have been eradicated, but was not, did reversible error occur. We recognize that, after defense counsel either objects to the improper comment or moves to have the remark excluded, it becomes “the duty of the judge not only to sustain said motion or objection, but also to exercise a reasonable degree of effort to eradicate its effect from the mind of the jury.” Broadway v. State, 257 Ala. 414, 416, 60 So.2d 701, 702; Qualls, supra. And, further, the admonition to the jury to disregard such remarks must be strong and not merely perfunctory, and the trial court may err to reversal by saying too little to eradicate the damage. Qualls, supra; Lamberth v. State, 54 Ala.App. 233, 235, 307 So.2d 43.

In the instant case the trial court in considering the objection did offer to give curative instructions. Had this offer not been made reversible error clearly would have occurred. However, appellant refused this offer on the theory it would “further spotlight the error.” The trial court deferred to this request. While it was not incumbent upon appellant to choose whether curative instructions were to be given, that duty resting squarely upon the trial judge, a duty which he should not shirk, since he was given that choice and chose to refuse any corrective instructions, appellant may be said to have waived his original objection. “[A defendant] cannot by his own voluntary conduct invite error and then seek to profit thereby.” Aldridge v. State, 278 Ala. 470, 179 So.2d 51; “It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice.” Aldridge, 278 Ala. at 474, 179 So.2d at 54. We hold therefore, that in this case it was not error for the trial court, in deference to appellant’s request, not to give immediate curative instructions.

Lest we be misunderstood, it is better practice that the accused not be given a choice whether such instructions should be given. The trial court should, ex mero motu, strictly admonish the jury to disregard any reference to an accused’s failure to testify and, if necessary, poll the jury to ascertain if any juror has been biased or prejudiced by the district attorney’s comment.

The foregoing preliminary questions having been decided, we now consider the facts that were elicited at appellant’s second trial in this matter which commenced on March 19, 1979.

Bob Waldrop, vice-president of Schaefer Company, testified once more that on June 21, 1977, his company was in the process of installing two heat pumps at a Mormon Church in Cullman County. On June 22, he discovered that the units were missing from their concrete pads at the back of the church. No one had been given permission to take the heat pumps.

Mr. Waldrop explained that Schaefer Company was a subcontractor to Warnke Construction Company, the general contractor for the Mormon Church. Schaefer was responsible for the electrical and air conditioning installation at the church. Schaefer purchased the heat pumps from Air Engineers, Inc., and billed out their work on a percentage basis to Warnke as the work was completed. The day the heat pumps were stolen Schaefer had completed 98 percent of both the electrical and air conditioning installation. Mr. Waldrop testified that the heat pumps were owned and in the possession of Schaefer while they were being installed, not by Warnke or the church. “What we do, they pay us partially for these jobs as we buy materials and store them or either install them on the job. They never completely pay us for the job until it is completely finished and has been inspected by the architect and owner.” Final payment for the church job was not received until January, 1978.

Mr. Waldrop stated that the two heat pumps were General Electric Weathertron five ton units, beige in color, with model numbers BGWA860RLB and valued at $1,162.00 each. When called by the Cull-man Police Department to inspect the unit that was recovered, Mr. Waldrop testified he was 100 percent certain it was one of the stolen units by a touch up paint spot, even though the serial numbers had been removed.

The testimony of Javon Daniel and Brent Wheeler was essentially the same as it was in the earlier trial. We see no reason to repeat or further elaborate on that testimony here.

Alvin Alexander testified that he had known appellant as “Porky” for about twenty years and that “Porky”, who was accompanied by Shirl Brown, “drove up” to his house on Saturday, June 26, 1977, and offered to sell him a heat pump. “I ask him if it was hot. And, he said, no, not from around here. And, I said, well, is it stolen and he said, no ... I asked him again if it was hot or stolen you know, means the same thing. And, he said, no.” Appellant told Alexander he wanted $800.00 for the unit, the deal was made around 3:00 p. m. and appellant, along with Brown, borrowed Alexander’s truck “to go get it.”

Alexander stated that appellant and Brown returned to his house at about 9:00 p. m. with the heat pump loaded on his pickup. “I left it parked in my back yard until Sunday. And, then, I carried it down and put it in the barn at the farm on Brushy Pond” and “covered it up with a tarpaulin. . . . ” Alexander further testified that he had paid appellant $400.00 cash on the heat pump at the time it was “confiscated” by the police.

Shirl Brown testified that he, too, had known appellant as “Porky” all his life and had gone with him to Alvin Alexander’s house. Brown stated he heard appellant ask Alexander if he wanted to buy a heat pump and that Alexander told him, yes. Brown then rode “[s]omewhere’s out — Winston County” with appellant and loaded “an air conditioning thing” on Alexander’s truck. They returned to Alexander’s house around 8:00 or 9:00 at which time Brown saw Alexander give appellant some money.

During cross-examination, Brown stated that he started drinking beer early in the morning on the day he and appellant drove to Alvin Alexander’s. By 3:00 or 4:00 that afternoon he was “pretty well drunk.” Brown admitted that when he left with appellant to load the heat pump “[w]e was drinking going and coming back.”

Jack Alexander, Alvin Alexander’s son, testified that he owned part of the farm on Brushy Pond Mountain where the stolen unit was recovered. He stated that he had helped his father unload the unit at the barn. “My dad said he bought it from him (appellant).” Alexander became “enthused with the unit” and asked appellant about a week later if he had another one, “that I would like to purchase one if he had anymore.” He then testified that appellant “said at that time that he didn’t have any, but he had a possible chance that he could get me one.”

The state then rested. Appellant moved to exclude the state’s evidence on the grounds the state had not made out a prima facie case as to either Count I or Count II of the indictment; that the property in question, the heat pump, was a fixture and not personalty which is required for grand larceny or buying, receiving, or concealing; and that the testimony of Alvin Alexander, whom appellant contends was an accomplice, was not corroborated.

The trial court granted appellant’s motion as to Count I, the grand larceny count, on the basis that at the time the heat pump was taken it was affixed to the real estate and was thus a fixture. However, the trial court denied appellant’s motion as to Count II on the basis that if a fixture has been separated from realty for a period of time then it can be subject to the crime of buying, receiving or concealing stolen property.

The defense then rested without presenting any witnesses and appellant renewed the motion to exclude the evidence as to Count II on the theory that, if the heat pump was not personalty for the purpose of grand larceny, it could not acquire the status of personalty later for the crime of buying, receiving, or concealing. Appellant also renewed his argument that Alvin Alexander’s testimony was uncorroborated. These motions were denied and, after closing arguments and the court’s oral charge, the case was submitted to the jury.

Regarding the question as to whether the heat pump was a fixture, as opposed to personalty, the evidence reveals that a period of several days had elapsed from the time the unit was stolen until the time appellant became guilty of buying, receiving, or concealing the same. The unit was taken from the Mormon Church on June 21 or 22 and did not “show up” again until June 26 when appellant went “somewhere’s out — Winston County” to retrieve it for Alvin Alexander. The record nowhere indicates who took the unit from the church or where it was taken, only that, in the intervening time until the unit was loaded onto Alexander’s truck, the appellant had received the heat pump and had concealed it “somewhere’s out—Winston County.” There is no suggestion that in “one continuous act” the appellant stole the heat pump and concealed it until the time he sold it to Alvin Alexander. Indeed, an accused cannot be found guilty of both larceny and buying, receiving, or concealing stolen property; he is guilty, if at all, of either one offense or the other. Nicholson v. State, Ala.Cr.App., 369 So.2d 304; Davidson v. State, Ala.Cr.App., 360 So. 728, cert. denied, Ala., 360 So.2d 731.

The elements necessary to prove a prima facie case of buying, receiving, or concealing stolen goods are (1) that the goods in question had been feloniously taken and carried away by someone; (2) that the defendant bought, received, concealed, or aided in concealing the goods, knowing that they were stolen; and (3) that the defendant bought, received, concealed, or aided in concealing the goods without the intent to restore them to the owner. Walker v. State, Ala.Cr.App., 355 So.2d 755, 757; Scott v. State, 55 Ala.App. 318, 314 So.2d 921; Bills v. State, 49 Ala.App. 726, 275 So.2d 706. Most of these elements are usually shown by circumstances from which the jury, using their everyday common sense and observation, must draw their conclusions. Walker, supra; Tyler v. State, 17 Ala.App. 495, 496, 86 So. 93. Scienter, or necessary knowledge and intent, may be inferred by the jury from the facts and circumstances of the entire transaction. Vacalis v. State, 204 Ala. 345, 86 So. 92; Walker, supra; Vines v. State, 57 Ala.App. 117, 326 So.2d 307. If the heat pump was personal property at the time appellant had it concealed “somewhere’s out—Winston County,” we have no problem in deciding the state proved a prima facie case in accordance with the jury verdict.

It has been recognized that the subject of fixtures is one of great difficulty and that, when doubt arises as to whether or not a certain piece of property is a fixture, this doubt must be decided by the circumstances of each individual case. Langston v. State, 96 Ala. 55, 11 So. 334. Several rules were listed by the court in Langston for determining the character of a fixture. They are:

“(1) Actual annexation to the realty or to something appurtenant thereto;
(2) appropriateness to the use or purposes of that part of the realty with which it is connected;
(3) the intention of the party making the annexation of making permanent attachment to the freehold. This intention of the party making the annexation is inferred (a) from the nature of the article annexed; (b) the relation of the party making the annexation; (c) the structure and mode of annexation; (d) the purposes and uses for which the annexation has been made.”

Without question, based on the above rules, had appellant been caught “red-handed” stealing the heat pump, a conviction for grand larceny could not be sustained because the heat pump being 98 percent installed at the church would have been a fixture. See Parker v. State, Ala.Cr.App., 352 So.2d 1386, cert. denied, Ala., 352 So.2d 1391.

However, this was not the case. Appellant was convicted of buying, receiving, or concealing stolen property. As previously stated, several days had elapsed from the time the heat pump was stolen until there was any evidence appellant was guilty of any crime at all. At the time the heat pump was “somewhere’s out—Winston County” it was no longer attached to the church building. It had been “severed” for quite some time from the church and had lost its fixture characteristics as outlined in Langston, supra. The facts in this case closely parallel those in Fuller v. State, 34 Ala.App. 211, 39 So.2d 34.

The theory that if property is a fixture at the time it is stolen it cannot at a subsequent time become personalty is erroneous. The property remains stolen until such time it is returned to its rightful owner; only its quality as a fixture or personalty changes, which is dependent solely on an indefinite intervening period of time. To require that an intervening actor steal the property from the original thief, after the property has lost its characteristics as a fixture, before the property can become subject to the crime of buying, receiving, or concealing stolen (personal) property by yet a third person would be unwarranted. We can find no precedent or logic which would support such a strange rule. Indeed, the holding in Fuller, supra, is contrary and we deem the reasoning there sound.

We hold, therefore, that the trial court was correct in granting appellant’s motion to exclude the evidence pertaining to grand larceny, but conclude that at the time the heat pump was concealed “somewhere’s out — Winston County” it was personalty. Thus, the jury determination of appellant’s guilt as to buying, receiving, or concealing stolen property was justified.

Without belaboring the question as to whether or not Alvin Alexander was an accomplice as appellant suggests, based on the testimony of Shirl Brown and Jack Alexander, we may conclude that Alvin Alexander’s testimony was sufficiently corroborated. Jacks v. State, Ala.Cr.App., 364 So.2d 397, cert. denied, Ala., 364 So.2d 406.

In addition to the arguments presented by the appellant we have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

      . Collins v. State, 6 Div. 768, [Ms. June 30, 1978],

      . State of Alabama v. Tommy Lee Hines.

      . In Johnson, supra, the error was cured by disregard the comments. clear and immediate instructions to the jury to


source: Caselaw Access Project

author: PER CURIAM. TORBERT, Chief Justice

license: Public Domain

text:
    Ex parte Floyd Leldon COLLINS (Re Floyd Leldon Collins v. State of Alabama).
    79-191.
    Supreme Court of Alabama.
    June 6, 1980.

      Carl E. Chamblee, Birmingham, for petitioner.
    Charles A. Graddiek, Atty. Gen., J. Anthony McLain, Sp. Asst. Atty. Gen., for respondent.
   PER CURIAM.

We granted certiorari in this case to review the Alabama Court of Criminal Appeals’ decision affirming the conviction of petitioner, Floyd Collins, for buying, receiving or concealing one G. E. Weathertron five-ton capacity heat pump valued at $1,162. The appellate court held, inter alia, that even though the petitioner was subjected to two trials, his constitutional right to be free from being twice placed in jeopardy had not been violated. For the reasons stated below, we reverse.

We will recite those facts pertinent to our decision. A more detailed statement of facts is contained in the Court of Criminal Appeals’ opinion. Collins v. State, 385 So.2d 993 (Ala.Cr.App.1979). Petitioner was first indicted by the Cullman County Grand Jury on January 10, 1978. He was charged in a two-count indictment with grand larceny and with buying, receiving, or concealing “one General Electric Weath-ertron 5 ton capacity heat pump, beige in color, Model No. BGWA860RLB, Serial No. 301913640, of the value of $1,162, the personal property of The Scheafer Company, Inc., a corporation, against the peace and dignity of the State of Alabama.” The heat pump was taken from the grounds of a Mormon Church. Petitioner was charged with grand larceny in count one; he was charged with buying, receiving or concealing the same heat pump in count two.

A jury was impaneled and the first trial was commenced May 22, 1978. Three State’s witnesses testified at petitioner’s first trial before the proceedings were terminated. During the course of these witnesses’ testimony, the prosecutor discovered that between the time the heat pump was taken from the Mormon Church and recovered by the authorities the serial number on it had been removed. Two heat pumps had been taken from the grounds of the Mormon Church. Because the serial number had been removed from the recovered unit, no State’s witness was able to verify which of the two stolen heat pumps had been recovered.

The prosecutor requested that petitioner consent to an amendment of the indictment striking out the serial number; this petitioner refused to do. The prosecutor moved the trial court to dismiss the prosecution as per Code 1975, § 15-8-91, which motion the trial court granted. The petitioner was then reindicted. The second indictment duplicated the wording of the first except that the serial number of the heat pump was excluded and the spelling of “The Schaefer Company” was changed.

Over petitioner’s objection that trying him again was unconstitutional because it violated the double jeopardy clauses of both the Alabama and United States Constitutions, petitioner was tried and convicted. He appealed, raising various points of error, including his constitutional claim. The Court of Criminal Appeals affirmed the conviction. Because we find that petitioner was unconstitutionally twice placed in jeopardy for the same offense, we pretermit discussion of petitioner’s other specifications of error.

The Alabama Constitution prohibits a person from being twice placed in jeopardy for the same offense. Const, of Ala. of 1901, Art. I, § 9. Alabama courts have held that jeopardy attaches when a jury has been impaneled and sworn, and the indictment has been read to the jury. Anthony v. State, 49 Ala.App. 462, 273 So.2d 222 (1972). In Anthony a jury had been impaneled and sworn; however, before the indictment had been read to the jury, before defendant had made any plea to the indictment in the presence of the jury, and before there had been an opening statement, a mistrial was declared. The appeals court held that jeopardy had not attached. See also Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Garsed v. State, 50 Ala. App. 312, 278 So.2d 761 (1973).

The United States Constitution also prohibits a person from being twice placed in jeopardy. U.S.Const., Amend. V. The double jeopardy clause of the Fifth Amendment has been made applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1973). In Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), the Supreme Court held that the same constitutional standards of determining when jeopardy attaches must apply equally in both federal and state courts. In Crist, the court held that jeopardy attaches when the jury is impaneled and sworn. We are constitutionally mandated to follow this rule.

It is clear that jeopardy had attached in the case at bar, under either the standard developed in our own Alabama cases, or under the standard constitutionally mandated by Crist. The jury had been impaneled and sworn, and the indictment had been read. In fact, three witnesses testified before the proceedings were terminated. However, simply because jeopardy had attached does not prohibit subsequent proceedings against an accused. Where jeopardy has attached in a trial, the accused may be subject to a second trial where the prosecutor demonstrates a manifest necessity for terminating the first trial. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); cf. Woods v. State, 367 So.2d 982, 984 (Ala.1978).

The difficult point for all courts to determine is under what circumstances it is permissible for the state to try an accused more than once without violating the accused’s constitutional right to be free from being twice placed in jeopardy. Obviously, when an accused is placed on trial, the trial runs to completion, the accused is convicted, and the conviction on appeal is reversed because of error in the proceedings, the accused is subject to a second trial without violating his constitutional rights. Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). Just as obviously, when an accused is placed on trial, the trial runs to completion, and the accused is acquitted, the accused is no longer subject to a second trial without violating his constitutional rights. Kepner v. United States, 195 U.S. 100, 126-28, 24 S.Ct. 797, 803-04, 49 L.Ed. 114 (1904); United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). This case falls in the not so obvious middle ground.

In Arizona v. Washington, supra, the court explained the standard to be employed to determine whether trial proceedings had been terminated due to some “manifest necessity.” Mr. Justice Stevens, writing for the court, stated:

“The words ‘manifest necessity’ appropriately characterize the magnitude of the prosecutor’s burden. For that reason Mr. Justice Story’s classic formulation of the test has been quoted over and over again to provide guidance in the decision of a wide variety of cases. Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Indeed, it is manifest that the key word ‘necessity’ cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” 98 S.Ct. at 830-31.

In the case at bar the trial was terminated because of an erroneous indictment in accordance with Code 1975, §§ 15-8-90, -91. These statutory provisions provide, respectively, that where there exists a variance, defined as an incorrect description of property or as an incorrect description of a person, in the indictment, the indictment may be amended if the accused consents, or if the accused refuses to consent, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be sought at a subsequent time.

In the instant case, the petitioner refused to consent to an amendment of the indictment. The prosecutor, therefore, moved to dismiss the indictment, the motion was granted, and the prosecutor obtained a second indictment. Even though the prosecutor’s actions were consistent with the statutory scheme, the dismissal of the indictment must have been due to some “manifest necessity” before the petitioner is constitutionally subject to retrial. Arizona v. Washington, supra; United States v. Tateo, supra, Wade v. Hunter, supra; Gori v. United States, supra. We hold the dismissal was not due to “manifest necessity.”

As the Court of Criminal Appeals correctly points out, there was unquestionably a variance between the indictment and the proof offered. But whether the variance was so material that had the petitioner been convicted on the indictment as first drawn, his conviction would be due to be reversed, is another determination. Apparently, the Court of Criminal Appeals was of the opinion that the variance would render any conviction erroneous because while the Court of Criminal Appeals said that the State could prove a prima facie case, that court also said that where a particular kind of property is specifically described in an indictment, it must be proved as laid, citing Bell v. State, 364 So.2d 420 (Ala.Cr.App. 1978) and Lee v. State, 20 Ala.App. 334, 101 So. 907 (1924). Thus, the Court of Criminal Appeals held that since the State could not prove the indictment as laid, any conviction based upon the indictment would fail.

We are not so convinced. The accused has a valued right to have his case completed before a properly empaneled tribunal. Wade v. Hunter, supra. We have previously noted the Court of Criminal Appeals’ finding that the State could have presented a prima facie case to the jury. What the Court of Criminal Appeals may have overlooked is that the jury may have acquitted the accused after deliberation concerning the State’s case. The petitioner was entitled to that opportunity, United States v. Ball, 163 U.S. 662, 669-70, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1890), unless there was a “manifest necessity” for terminating the initial proceedings, or unless the ends of public justice would otherwise be defeated. United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1820).

In the case at bar there was no manifest necessity for dismissing the prosecution. True, there was a variance between the indictment and proof. However, our Alabama case law is clear that there must be a material variance between indictment and proof before a conviction will be overturned for that reason. See e. g., House v. State, 380 So.2d 940 (Ala.1979) (no material variance between indictment which charged defendant with assaulting Edward Wilburn, engaged “in the active discharge of his lawful duty or duties as deputy sheriff for Morgan County, Alabama” and proof which showed that Wilburn was in fact engaged in his lawful duties as a jailer at the time of the assault), and Dailey v. State, 374 So.2d 414 (Ala.Cr.App.1979) (no material variance between forgery indictment, in which number of check was described as “1881,” and proof that check was numbered “1886”). Since there was no material variance between the indictment and proof in the case at bar, there was no manifest necessity for dismissing the proceedings. By dismissing the initial proceedings and making the petitioner stand trial again, the State violated petitioner’s constitutional right to be free from being twice placed in jeopardy.

We are not persuaded by the holding of the Court of Criminal Appeals that the second indictment did not place the petitioner in double jeopardy because it alleged a separate and distinct offense. As we noted, the second indictment duplicated the wording of the first, except for removing the serial number and changing spelling. It therefore alleged the identical offense; the same transaction.

We are aware that the prosecutor’s actions were statutorily authorized. However, the statutory scheme, as applied to the facts of this ease, is not consistent with the principles laid down in Crist and its predecessors. Crist and its predecessors hold that a prosecution cannot be constitutionally terminated unless there is a manifest necessity for doing so. We have shown there is no fixed standard for determining when a manifest necessity arises, but clearly dismissing a prosecution because an indictment contains any variance, no matter how slight, as the statute authorizes, is inconsistent with the manifest necessity doctrine as that doctrine is stated in the federal cases.

We emphasize that the decision we reach today is based upon the policy of recognizing that an accused’s valued right to have his trial completed by a particular tribunal will not be subordinated to the public’s interest in fair trials designed to end in just judgments unless there is a manifest necessity for determining the first trial; and it is additionally based upon the policy of holding litigants on both sides of a criminal trial to standards of responsible professional conduct in the clash of an adversary criminal process. As Mr. Justice White recognized in his dissent in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973);

“ * * * it must be remembered that the inability to amend an indictment does not come into play, and a mistrial is not necessitated, unless an error on the part of the State in the framing of the indictment is committed. Only when the indictment is defective — only when the State has failed to properly execute its responsibility to frame a proper indictment — does the State’s procedural framework necessitate a mistrial.
“Although recognizing that ‘a criminal trial is, even in the best of circumstances, a complicated affair to manage,’ ibid., the Court has not previously thought prosecu-torial error sufficient excuse for not applying the Double Jeopardy Clause. In Jorn [United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971)], for instance, the Court declared that ‘unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process,’ id., at 485-486, 91 S.Ct., at 557, and cautioned. ‘The trial judge must recognize that lack of preparedness by the Government ... directly implicates policies underpinning both the double jeopardy provision and the speedy trial guarantee.’ ” Id., at 486, 91 S.Ct. at 557. 93 S.Ct. at 1076.

We hold that the circumstances presented before us do not permit retrial under the double jeopardy standards upon which we rely. This cause is thereby due to be, and is hereby, reversed and remanded to the Court of Criminal Appeals for decision consistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, EM-BRY and BEATTY, JJ., concur.

TORBERT, C. J., and ALMON and SHORES, JJ., dissent.

BLOOD WORTH, J., not sitting.

TORBERT, Chief Justice

(dissenting):

I dissent for the reasons stated by the Court of Criminal Appeals in its opinion affirming the conviction of petitioner Collins.

ALMON and SHORES, JJ., concur.


author: PER CURIAM.

text:
    Floyd Leldon COLLINS, alias v. STATE.
    6 Div. 40.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
   PER CURIAM.

Reversed and rendered on authority of Ex Parte Collins (Re: Floyd Leldon Collins v. State) 385 So.2d 1005 (Ala.1980).

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Marvin Junior HUGHES v. STATE.
    3 Div. 186.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.

      See also, Ala.Cr.App., 385 So.2d 1015.
    George W. Cameron, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Elizabeth Ann Evans, Asst. Atty. Gen., Montgomery, for appellee.
   CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty of rape. The court fixed his punishment at imprisonment for life and sentenced him accordingly.

No contention is made on appeal as to the sufficiency of the evidence to support the verdict. Nevertheless, a short summary of the evidence should be conducive to a better understanding of the only issue raised on appeal.

According to the undisputed evidence, the alleged victim, a mentally retarded black female about twenty-one years of age, was raped by one or both of two white males early on the morning of June 23, 1979, who had picked her up by admitting her into an automobile in which they were riding. The defendant was the driver of the automobile. They rode around for a while and turned off on a dirt road. The rape took place in a wooded area near the automobile. The victim had been previously injured in her back and was wearing a body cast at the time. At the scene of the rape she was shot three times by a pistol that was in the automobile driven by defendant. Both the men left her where she was shot. In the meantime, the victim was soon reported missing, officers were called into service as to the matter, and the victim was found and promptly taken to a hospital in Montgomery where she was thoroughly examined. Expert testimony is extraordinarily strong to the effect that penetration had taken place, that intersexual action had occurred and that the victim’s hymen had been recently breached. The expert conclusions were based on objective symptoms alone. The victim was mentally incapable of telling or explaining what had occurred.

Defendant testified that he had taken his brother-in-law to work in the automobile of his brother-in-law and that after driving around he saw a man hitchhiking and picked him up. The man said his name was Larry Johnson. While they were driving around they smoked marijuana. They saw the alleged victim who appeared to be waving them down. They picked her up. He thereafter drove at the direction of the hitchhiker and went down highway 143 toward Millbrook, and the hitchhiker told him to turn off on a little dirt road and stop. According to him, the hitchhiker took “the keys out of the ignition” and he and “the young girl got out.” The next thing he “heard was one short scream” from her. Thereafter, the hitchhiker said to defendant, “Why don’t you go ahead and get some?” He said that he did get on her but that he was impotent. Upon his returning to the automobile, the hitchhiker went back to the victim and “done it to her again.” The hitchhiker then returned to the automobile and saw “the hand gun” and “picked it up and went back to the victim and shot her three times while she was on the ground. The shots were not in rapid succession. Defendant further said:

“And then he dropped the gun and the car keys, because the car keys and gun were in the same hand, and then he turned and ran into the woods.”

According to the defendant, he became scared and left the scene in the automobile after picking up the keys and the gun.

Appellant states the only issue in the form of a question as follows:

“Did the trial Court err to reversal by permitting the prosecutrix, after she had been found by him to be mentally incompetent to be a witness, to be sworn, take the witness stand, answer one question propounded by the solicitor, denying cross-examination by the defense, all over the objection of the defense?”

The transcript of the proceeding shows that after four witnesses had testified on behalf of the State, the following occurred:

“THE COURT: Let me see you-all just a minute.
“(At this time, an at-bar discussion out of the hearing of the Jury and the Court Reporter.)
“THE COURT: Ladies and gentlemen, let’s recess for lunch and be back, if you would, in the jury box at 1:15.”

While the jury was at lunch, the victim “after having been first duly sworn to tell the truth, the whole truth, and nothing but the truth, took the stand and testified.” She was interrogated by State’s counsel. The last questions asked her and the last answers given by her were as follows:

“Q. Do you know what sex is?
“A. No.
“Q. Do you remember having sex with anybody when you got shot?
“A. No.”

The transcript of the proceedings continues as follows:

“MS. BROOKS: I think that is all, Judge.
“THE COURT: Well, I think it is obvious that she is not capable of relating, so I would so rule. Now, do you-all want to discuss anything else?
“MR. GILLETT [State’s counsel]: No, Your Honor. Again, our initial position was we felt we at least had to make an offer. We are not surprised about the ruling.
“THE COURT: Well, I want you-all to be heard on this. They would be entitled for the jury to see her and for the jury to know that the court had ruled in the manner that the court did.
“MR. CAMERON [Defendant’s counsel]: Well, I guess, just being practical about it, Judge, that they would probably know, the jury would, the effect of your ruling.
“THE COURT: I will explain it to them.
“MR. CAMERON: Just bring her in and I will identify her?
“THE COURT: Maybe just simply ask her name and take her back out.
“MR. CAMERON: Well, could we do this: Let them do that and let me get an objection.
“THE COURT: Sure. Sure.
“Let the record show that this is all, her being identified to the Jury, is over the objection of the defendant but the Court feels that the Jury is entitled to see the prosecutrix. And I think in all fairness to the Jury, it would be incumbent on the Court to explain the Court’s ruling that I just made.
“(At this time, luncheon recess was had by all. Subsequent thereto, the following was had and done of Record in the presence of the Jury).
“THE COURT: Over the lunch hour, ladies and gentlemen, as the law says, it is the Court’s responsibility to ask Ms. Stewart enough questions to ascertain in my mind that she really does not understand the nature of what allegedly took place. And in the Court’s judgment, too, she does not understand the nature of testifying in Court nor is she able to relate in an understandable way, one that would be intelligible, any testimony at all. As the law says, this is a problem that the court has to address itself to, to which I have, and I have said that I do not think that she is a competent witness. I do think that you-all are entitled to know the basis for that and to know the basis for her not being called upon to give fact testimony. I do think that you-all are entitled to see her and since she is an integral part of this case, I am going to permit them to call her, ask her her name and we will not embarrass her any further or go any further with that. She will be excused.
“MS. BROOKS: Your Honor, may her sister come with her?
“THE COURT: Yes.
“DIRECT EXAMINATION CONTINUED
“BY MS. BROOKS:
“Q. Shirley, can you tell me your name? “A. Shirley Stewart.
“Q. Shirley Stewart?
“A. (Witness nods head in an affirmative manner.)
“MS. BROOKS: Thank you, Shirley.
“(At this time, the Witness was excused and released.)”

We are not apprised as to the subject matter or content of the “at-bar discussion out of the hearing of the jury and the court reporter” that took place just before the jury was excused for the lunch recess, but it is hardly doubtful that the discussion was with reference to the appropriate method of determining whether the prosecutrix was mentally competent to testify as a witness, presumably on call of the State as the State had not rested its case at the time. There is no indication of any objection on the part of the defendant as to the procedure that immediately followed out of the presence of the jury.

We are unable to determine the nature or point of the statement of defendant’s counsel, “Well, could we do this. Let them introduce that and let me get an objection,” but the court apparently construed the statement as an objection of the defendant to the witness’s “being identified to the jury.” It is certain that no other objection was voiced by defendant and that the particular issue now raised by appellant to the effect that there was a denial of “cross-examination by the defense” was not raised on the trial.

We agree with appellant that the right of cross-examination is a constitutional right. We disagree with appellant in his contention that there was a denial of his right to cross-examination.

In the first place, we do not find any assertion of any right to cross-examine the witness. In addition, the answer of Shirley Stewart in giving her name in reply to a question by State’s counsel did not establish a status of a witness adverse to defendant.

Appellant correctly states that the English rule, often called the “wide open rule,” prevails in general in Alabama, to the effect that the cross-examiner may elicit from the witness relevant and material evidence even though it is not connected with any matter related by the witness on direct examination. This principle, however, pertains to the question of the allowable scope of cross-examination; it does not delineate under what circumstances a person becomes a witness within the meaning of the word “witness” as such word is employed when reference is made to the “cross-examination” of witnesses. Judge McElroy deals with that question as follows:

“The mere fact that a party summons a person to be a witness, has him sworn in or places him under the rule does not make such person the witness of such party. Nor does the mere fact that a party calls a person to the stand make him the witness of such party. Such person becomes the witness of the party who called him when that party first elicits from him facts having some relevancy in the case. The mere elicitation of testimony from a person as to his name and address, or other fact without probative value on an issue in the ease, or testimony as to his lack of knowledge about the matter which he is asked about, does not make such a person the witness of the party who called him to the stand and elicited such worthless testimony. If the party who calls a person to the stand does no more than elicit testimony of the kind just mentioned and the opponent thereafter proceeds to elicit relevant testimony from such person, the latter becomes the witness of the opponent.
“If the trial judge calls a person to the stand for the avowed purpose of being the court’s witness, but the person under the judge’s question has not testified to any relevant fact, such person is not the judge’s witness within the meaning of the rule that any party may impeach a witness called by the judge.”
Gamble, McElroy’s Alabama Evidence § 171.01(1) (1977)

See Peoples v. State, 257 Ala. 295, 58 So.2d 599 (1952); Randolph v. State, Ala.Cr.App., 331 So.2d 766, cert. denied 331 So.2d 771 (Ala.1976).

Within the meaning of the subject “cross-examination of a witness,” Shirley Stewart was not a witness for two reasons: (1) She had been determined by the court to be mentally incompetent to testify and (2) in merely stating her name to the question calling for her name, she said nothing that was of any probative value in the case.

Although it is not necessarily applicable to evidence in criminal cases, support for what has been stated above is found in the last sentence of Rule 43(b) of the Alabama Rules of Civil Procedure:

“Except as stated in the last preceding sentence, any witness called by a party and examined as to any matter material to any issue may be cross-examined by the adverse party upon all matters material to every issue of the action, (emphasis supplied).”

The Supreme Court of Delaware had occasion recently, while construing a statute, to consider the refinements of the word “witness” and the word “cross-examine” as used together. The case itself is not in point here, but the following discussion is:

“Second, the Statute requires the witness to be ‘subject to cross-examination.’ Cross-examination has been given the following definition:
“‘CROSS-EXAMINATION. In practice. The examination of a witness upon a trial or hearing, or upon taking a deposition, by the party opposed to the one who produced him, upon his evidence given in chief, to test its truth, to further develop it, or for other purposes.’
“Black’s Law Dictionary 450 (rev. 4th ed. 1968). See also Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358, 365 (1953). In this country cross-examination has been tied to the content or at least to the occurrence of direct examination. See Philadelphia and T. R. Co. v. Stimpson, 39 U.S. (14 Pet.) 448, 10 L.Ed. 535 (1840), discussed at 10A Words and Phrases, ‘Cross-Examination’ p. 250; White v. Dougherty, 1 Boyce 355, 24 Del. 355, 76 A. 609 (Super.Ct.1910), rev’d on other grounds, 2 Boyce 316, 25 Del. 316, 80 A. 237 (Sup.Ct.1911); A. H. Angerstein, Inc. v. Jankowski, 5 Storey 304, 55 Del. 304, 187 A.2d 81 (Super.Ct.1962). In short, cross-examination does not simply mean the right of an adversary to examine the witness. It generally means the right of the adversary to examine the witness after the witness has been examined by direct examination. Thus, in the present case, the state had the burden of examining the witness on direct examination under the Statute.”
Keys v. State, Del., 337 A.2d 18, 22-23 (1975)

Wray v. State, 154 Ala. 36, 45 So. 697 (1908), relied upon by appellant, is interestingly close but essentially distinguishable. The court held in a case in which defendant was charged with the murder of one Freeman that there was a denial of his right of cross-examination of a man by the name of C. M. Landsdowne, who was called by the State and was asked and answered one question. Other evidence had shown that Landsdowne was in the room at the time Freeman was shot. A vital issue in the case was: Who shot Freeman? The question asked Landsdowne was: “Mr. Landsdowne, did you kill George Freeman?” The witness answered: “No, sir.” The witness was gravely ill and “was scarcely able to speak.” He was brought into court in the presence of the jury on a cot. Defendant objected to the examination of the witness, stating that “He appeared to be mentally and physically not in condition to be cross-examined.” The court overruled the objection and allowed defendant to show the physical condition of the witness by testimony of a physician. Upon hearing the testimony, the trial judge said:

“ . . .1 don’t believe this man is in a physical condition to go through the ordeal of an examination. I think it would be wrong and inhuman, I don’t feel like taking the responsibility, because I don’t need a physician to tell me he is not in condition to go through the ordeal of an examination. He is a mighty sick man, and his condition is such that an examination might bring on complications that might prove fatal, and I don’t feel like taking the responsibility myself, and will not do it.”

Defendant’s attorney asked the court whether or not he refused to allow the defendant to cross-examine the witness. The opinion of the Supreme Court states: “The court held that he did not so refuse.” Defendant did not attempt to cross-examine him and made it clear that the reason he was not doing so was that the physical condition of the witness was such that he should not be cross-examined.

The essential difference between Wray and this case is that in Wray the witness was asked a vital question on direct examination and gave a categorical answer unfavorable to the defendant. In the instant case, the question and answer presented nothing of any value whatever on any legal issue in the case or on any controversy between the parties.

We find no error in the record prejudicial to the 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 § 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: BOWEN, Judge.

text:
    Marvin Junior HUGHES v. STATE.
    3 Div. 213.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    See also Ala.Cr.App., 385 So.2d 1010.

      George W. Cameron, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for assault with intent to murder a twenty-one year old mentally retarded black female. Sentence was ten years’ imprisonment. The defendant, in a separate trial, had been convicted for rape of this same individual. Sentence in that case was life imprisonment.

The evidence in this case is similar to that presented in the rape case. Hughes v. State, Ala.Cr.App., 385 So.2d 1010 (1980).

I

The defendant contends that his pri- or conviction for rape barred his trial for assault with intent to murder under the principles of former jeopardy. Despite the State’s insistence, the defendant’s plea was timely. Barnett v. State, 373 So.2d 1226 (Ala.Cr.App.), cert. denied, 373 So.2d 1230 (Ala.1979).

A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and on fact as the former one relied on under the plea even if both cases are founded on the same facts but the crimes charged are not the same in law. Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973); Brown v. State, 367 So.2d 557 (Ala.Cr.App.), cert. denied, Ex parte Brown, 367 So.2d 559 (Ala.1978); Beckley v. State, 357 So.2d 1022 (Ala.Cr. App.1978).

Assault with intent to murder and rape involved separate and distinct intents and actions. The State did not split a single offense into two or more parts and convict the defendant for each separate part. Compare Wilkerson v. State, 41 Ala.App. 265, 130 So.2d 348, cert. denied, 272 Ala. 712, 130 So.2d 350 (1961). This is not a case of two offenses being predicated upon a single assault. The defendant’s two convictions do not violate the principles expressed in Whalen v. United States,-U.S.-, 100 S.Ct. 1432, 64 L.Ed.2d 715 (1980).

II

The defendant contends that his requested charge number three should not have been refused by the trial judge. That charge reads:

“The Court charges the Jury that if they believe from the evidence that defendant and one Johnson were at the scene of the crime morning the shooting is said to have been done, and an offense was committed by one of them from causes having no connection with the common object for which they happened to be there, the responsibility for such offense rests soley (sic) on the actual perpertrator (sic) of the crime, and the Jury cannot find defendant guilty simply because he happened to be present at the time the offense was committed.”

Since a written instruction must be given or refused in the terms in which it is tendered, a requested charge that contains a misspelled word or a verbal inaccuracy is properly refused. Bascom v. State, 344 So.2d 218, 222 (Ala.Cr.App.1977). Additionally, the requested charge contains two related principles of law. Where a requested charge states several distinct propositions of law, the court may properly refuse it if one of them is fully covered in its oral instructions to the jury. Nolen v. State, 376 So.2d 1145, 1147 (Ala.Cr.App.), cert. denied, 376 So.2d 1148 (Ala.1979). Here the trial court instructed the jury:

“The mere presence without motive, the mere presence without this pre-arrangement can be formed in a flash, but it is necessary. Just being there without that pre-arrangement is not enough.”

For each of these two reasons, the refusal of the defendant’s requested charge was not error.

We have searched the record as required by law and found no preserved error prejudicial to the defendant. He received a fair trial and the judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Ex parte Arthur KENDRICK.
    3 Div. 289.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Arthur Kendrick, pro se.
   BOOKOUT, Judge.

The petitioner has filed in this court an original, pro se petition for writ of mandamus to be directed to B. W. Hatfield, whom he describes as “Captain of the Guard” of the Fountain Correctional Center, and to the Alabama Board of Corrections to dismiss a disciplinary charge against the petitioner for a violation of certain prison rules. This case would ordinarily not warrant an opinion from this court. However, we have received innumerable petitions over the past few years requesting this court to intervene in all types of prison disciplinary proceedings, computation of sentences, and computation of good time. So that there will be no confusion in the minds of those prisoners who obviously read and carefully study the opinions of this court, we deem it proper at this time to set forth in opinion form the law governing our refusal to review such petitions.

The jurisdiction of the Court of Criminal Appeals is established by Article VI, Amendment No. 328, Constitution of Alabama 1901, commonly known as the Judicial Article. Section 6.03(d) sets out the jurisdiction of this court in pertinent part as follows:

“The court of criminal appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Said court shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction . . . .” (Emphasis supplied.)

The corresponding provision of the Judicial Implementation Act, now codified as § 12-3-11, Code of Ala.1975, states in pertinent part as follows:

“Each of the courts of appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Each court shall have authority to grant injunctions and issue writs of habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction . . .”

Neither the Constitution nor any statute gives this court appellate jurisdiction over the State Board of Corrections. No statute authorizes an appeal to this court from any administrative hearing conducted by the Board of Corrections or by its agents under its authority. Our authority to issue remedial and original writs is limited to the necessity of this court to exercise its general superintendence and control over inferior courts on matters over which we have exclusive appellate jurisdiction. See: Tetter v. State, Ala., 358 So.2d 1046 (1978).

The jurisdiction of this court to issue original writs of mandamus is limited by the above constitutional and statutory provisions “to matters in which said court has appellate jurisdiction.” Therefore, having no appellate jurisdiction over administrative hearings conducted by a state agency, we can exercise no original jurisdiction in issuing writs of mandamus directed to such agencies. This court, therefore, lacks jurisdiction to consider the instant petition.

PETITION DISMISSED.

All the Judges concur.


text:
    Rene RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2079.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Kirk W. Munroe, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment of conviction and sentence under review is reversed and the cause is remanded to the trial court with directions to order a new trial upon a holding that: (a) the trial court committed reversible error when it responded ex parte to a jury request, made after the jury had begun its deliberations, by sending to the jury certain photographs introduced in evidence by the defendant without the prosecuting attorney, the defendant, and the defendant’s counsel being present in court prior thereto with an opportunity to participate in the discussion of the action to be taken on the jury’s request, Ivory v. State, 351 So.2d 26 (Fla.1977), and (b) the trial court committed reversible error in refusing to instruct the jury, upon the defendant’s request, on the maximum and minimum penalties which could be imposed with reference to the crimes for which the defendant was charged as required by Fla.R. Crim.P. 3.390(a). Tascano v. State (Fla.1980) (case no. 55,394, opinion filed June 5, 1980).

Reversed and remanded.


author: JOHN H. MOORE, II, Associate Judge.

text:
    Annita Louise KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 77-2029/NT4-80.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Rehearing Denied July 30, 1980.
    David M. Porter, Public Defender, Titus-ville, and Joan H. Bickerstaff, Asst. Public Defender, Rockledge, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West. Palm Beach, for appellee.
   JOHN H. MOORE, II, Associate Judge.

The appellant, Annita Louise Kennedy, was convicted of the first degree murder of her husband, Charles Dwight Kennedy, and sentenced to life imprisonment. She now appeals her conviction on the ground that the admission of certain hearsay evidence, over defense objection, was erroneous and prejudicial to such a degree that it resulted in a denial of due process. Appellant urges that, but for the introduction of this prejudicial testimony, the jury would not have returned a guilty verdict. We find the admission of the evidence prejudicial and reverse.

The objectionable testimony involves two witnesses. Judy Spangler, an employee of the State Attorney’s office, was allowed to testify that approximately three to four weeks prior to the murder the victim had told her that, “He wanted something to keep his wife away from him, that he was afraid that she was going to blow up his camper, and that she was around him twenty-four hours a day.” On cross-examination, she testified that it was her opinion the deceased was in fear of the appellant.

The other witness, Gary Hood, a friend of the deceased victim, was allowed to testify that he knew the deceased fairly well, and that approximately one month prior to the victim’s death, the victim told him that he was afraid of the appellant. He also testified that the victim “thought his wife would shoot him with a pistol” and that she always had a pistol with her which she was not afraid to use. On cross-examination, Hood further testified that the deceased victim told him that he didn’t park his camper (in which he was living) in the same place so that he did not establish a pattern which his wife could follow. On redirect examination, Hood testified that the deceased told him that he did not want to establish a pattern because he was afraid his wife would send “her boys” out to find him.

Following the testimony of Mr. Hood, the court instructed the jury that Mr. Hood’s testimony was to be considered

. only as evidence of Mr. Kennedy’s state of mind at the time he made any statements . . . it is not evidence that a shooting in fact occurred or evidence that Mrs. Kennedy was involved in Mr. Kennedy’s death. It is only evidence of the state of mind Mr. Kennedy had at the time he talked to Mr. Hood.

No limiting instruction was given regarding the testimony of Judy Spangler.

The statements which a murder victim purportedly makes to a third party, prior to a fatal incident, to the effect that the defendant intended to kill the victim in the future, are in almost all cases inadmissible as hearsay. See, State v. Wauneka, 560 P.2d 1377 (Utah 1977); People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (1969); State v. Kump, 76 Wyo. 273, 301 P.2d 808 (1956). While such statements are not always inadmissible, the courts have found few exceptions to the general rule of inadmissibility. A good discussion of some of these notable exceptions can be found in United States v. Brown, 490 F.2d 758, 767 (D.C.Cir.1973), where the Court stated:

While there are undoubtedly a number of possible situations in which such statements may be relevant, the courts have developed three rather well-defined categories in which the need for such statements overcomes almost any possible prejudice. The most common of these involves defendant’s claim of self-defense as justification for the killing. When such a defense is asserted, a defendant’s assertion that the deceased first attacked him may be rebutted by the extrajudicial declarations of the victim that he feared the defendant, thus rendering it unlikely that the deceased was in fact the aggressor in the first instance. Second, where defendant seeks to defend on the ground that the deceased committed suicide, evidence that the victim had made statements inconsistent with a suicidal bent are highly relevant. A third situation involves a claim of accidental death, where, for example, defendant’s version of the facts is that the victim picked up defendant’s gun and was accidentally killed while toying with it. In such cases the deceased’s statements of fear as to guns or of defendant himself (showing that he would never go near defendant under any circumstances) are relevant in that they tend to rebut this defense. Of course, even in these cases, where the evidence is of a highly prejudicial nature, it has been held that it must be excluded in spite of a significant degree of relevance.

It is significant that in those situations where such statements by the victim were admissible, the basis for admissibility was the relevance of the statement to an issue of proof. In this case, none of the purposes of admissibility cited in Brown, supra, are present. The appellant has not alleged self-defense, suicide, accident or any other defense where the prior threats made against the deceased, or the deceased’s state of mind, are relevant to the defense asserted.

Succinctly stated, the state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant at the time the statement is made if that is at issue in the ease. Under the facts of this case, the victim’s state of mind was not at issue. Although the testimony of Spangler and Hood was allegedly admitted for the purpose of demonstrating the declarant’s state of mind, its real effect was to show the truth of its content, i. e. that the appellant had a preconceived design to kill the deceased. The State made no attempt to rely upon the felony murder rule to establish premeditated design. Rather, the State attempted to show that the murder was the result of a fully-formed, conscious intent on the part of the appellant to kill her husband.

Because premeditation is an essential element of the crime for which appellant was convicted, the introduction of inadmissible hearsay testimony to prove this element was clearly erroneous. Even though such evidence may have a degree of relevance, if its probative value is outweighed by its prejudicial effect, then it must be excluded. See, Brown, supra. The only proper purpose for which the deceased’s statements could have been admitted was to show the deceased’s state of mind, a factor clearly irrelevant to the issues at trial. See, Van Zant v. State, 372 So.2d 502 (Fla. 1st DCA 1979).

We also reject the State’s argument that the statements of the deceased qualify as res gestae utterances and are thus excepted from the hearsay rule. As defined in Smith v. State, 311 So.2d 775, 777 (Fla.3rd DCA 1975),

The term res gestae includes words, declarations, and acts so closely connected with a main fact in issue as to constitute a part of the transaction.

The statements made by the deceased prior to his death were simply too remote in time to constitute res gestae utterances. The statements lacked the sort of substantial contemporaneity necessary to bring them within the res gestae exception to the hearsay rule.

We now focus on the cumulative, prejudicial effect of these statements in light of the quantum of other admissible evidence tending to establish the guilt of the appellant. The State primarily relied upon the testimony of two other participants in the murder and that given by the appellant. These other participants were the appellant’s son by a previous marriage and a friend of his, both of whom were charged with murder in the first degree and both of whom had been allowed to enter pleas of guilty to the lesser included offense of murder in the second degree. Neither had been sentenced at the time of trial; thus, their testimony was of questionable credibility.

In relating a rather bizarre sequence of events leading up to the victim’s demise, the appellant’s son and his friend, David McDonald, each testified that the appellant planned and participated in the execution of the murder. The substantial difference in their testimony concerned who actually committed the murder. The appellant’s son thought McDonald had pulled the trigger, whereas McDonald testified that appellant fired the fatal shots. McDonald did, however, admit to striking the victim on the head with a crowbar prior to the shooting. The appellant, testifying on her own behalf, stated that she had no intention of killing her husband on the night of the murder and that she merely met with him to discuss some financial affairs. She further testified that she was not present when the fatal shots were fired and that she observed McDonald carrying a gun immediately after she heard the shots. She acknowledged that she had not notified the police on the evening of the murder, and in fact, told the police that she had not been with her husband on the day of the murder. Thus, her testimony was also suspect.

Although we are mindful that the testimony of the other two participants in this crime clearly inculpated the appellant, it is also of significance that the severity of the sentence to be imposed against these culprits in all likelihood depended upon the nature of their testimony. Furthermore, we find limited value in the “curative” instruction given by the court after Hood testified regarding statements made to him by the deceased. Notwithstanding such an instruction, there was still an ever present danger that the jury was unable to confine its deliberations to the purpose of the testimony sanctioned by the court. Even that purpose was improper in this case.

We share the conclusion reached by the court in People v. Ireland, supra, 450 P.2d at 585:

The error was prejudicial. The statement in question not only reflected Ann’s state of mind at the time of the utterance; it also constituted an opinion on her part as to conduct which defendant would take at a future time. On the basis of this hearsay opinion the jury might reasonably have inferred that Ann several hours before the homicide, had concluded that defendant had then formed the intention to kill her. The next logical inference, to wit, that Ann’s assessment of defendant’s then intention was accurate and defendant had in fact formed an intention to kill several hours before the homicide . . . strikes directly at the heart of the defense. The judgment, must therefore, be reversed.

The Court went on to say that:

The quantum of prejudice ... is highest when the circumstantial facts in the statement are intimately related to the issue to be proved. In the context of homicide cases, such as this, it is clear that where the improper purpose for which the jury might consider the evidence bears closely on the central question of defendant’s guilt or innocence there is less likelihood that the jury will confine itself to its proper realm. Here the functional utility of the limiting instruction becomes most doubtful. This is the lesson of the famous case Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933).

See also, State v. Wauneka, supra.

In determining whether the improper admission of evidence was prejudicial error, a determination must be made of the probable impact of the improper evidence on the minds of an average jury. See, Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). We hold this impact to be of great proportion in this case.

The facts here indicate more than a reasonable probability that the improperly admitted evidence contributed to the verdict. The average jury could have found the State’s case significantly less persuasive had the testimony of the deceased’s mortal fear of the appellant been excluded. The impact of this testimony on the jury was that the deceased feared that he might be shot and killed by the appellant. A few weeks after he vocalized these fears, he was shot and killed. Therefore, the jury probably concluded that the shooting and killing was planned and performed by the appellant. The appellant was thus accused of the premeditated murder of the deceased by the deceased’s own words from beyond the grave. With no opportunity to contradict or rebut the words of the dead victim, the appellant was denied due process of law as mandated by the United States and Florida Constitutions.

We are also mindful of the admonition set forth in Coggins v. State, 101 So.2d 400, 403 (Fla.3rd DCA 1958) which states:

Not all errors are prejudicial and unless such errors go to the fundamental rights of the accused to a fair and impartial trial or deprive him of due process, a conviction otherwise free of error should not be disturbed. It is true that an accused is clothed with a cloak of innocence from the day of his indictment until a jury has returned a verdict of guilty against him; nevertheless, once the cloak has been swept away by an adjudication of guilt after a fair and impartial trial in accordance with due process, the rights of the State and society require that such conviction should not be lightly set aside by an appellate court.

Nevertheless, we feel the error to be so prejudicial as to warrant a new trial.

REVERSED and REMANDED for a new trial.

MAURICE M. PAUL, Associate Judge, concurs.

SPENCER C. CROSS, Associate Judge, dissents without opinion.