author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Bruce Quillan CARROLL v. STATE.
    8 Div. 387.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    As Modified on Denial of Rehearing March 17, 1981.
    No brief for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment convicting appellant of robbery, in accordance with the verdict of a jury, and sentencing him to imprisonment for fifteen years.

The evidence of guilt was strong and almost conclusive, but a witness for defendant, his former wife, testified positively as to an alibi, saying she and defendant were together in Florida at the time the robbery was committed. The defendant did not testify in the case.

Defendant requested thirty-seven written charges. They were all refused. More than one of them was patterned after charges that have been approved by the appellate courts of Alabama.

Defendant’s requested charge number 27 is:

“Ladies and gentlemen of the jury, I charge, that the legal presumption of innocence is to be regarded by the jury, in every case, as a matter of evidence, to the benefit of which the accused is entitled, and, as a matter of evidence it attends the accused until his guilt, by the evidence, is placed beyond a reasonable doubt.”

In all material respects, charge 27 is the same as charge number 4 in Brooks v. State, Ala.Cr.App., 380 So.2d 1012, 1014 (1980), where it is stated per Judge Bowen:

“The refusal of this requested charge is error and requires a reversal where it is not fairly and substantially covered in the court’s oral charge. Wilson v. State, 243 Ala. 1, 21, 8 So.2d 422 (1942); Brown v. State, 33 Ala.App. 97, 104, 31 So.2d 670 (1946); Salter v. State, 22 Ala.App. 86, 88, 112 So.2d 538 (1927); Diamond v. State, 15 Ala.App. 33, 39, 72 So. 558 (1916). The only exception to this rule is where the evidence is not conflicting and the general affirmative charge is given in the State’s favor. Bertrand v. State, 46 Ala.App. 631, 247 So.2d 386 (1971). Here, the evidence was conflicting and the affirmative charge was not given. Here also, the ‘generality of the oral charge ... was not sufficient to cover the principle, “as a matter of evidence,” ’ in the refused charge. Denson v. State, 50 Ala. App. 409, 412, 279 So.2d 580, 583 (1973). Consequently, the refusal of requested charge No. 4 was error.”

We repeat and apply what we have just quoted from Brooks to refused charge No. 27 in the instant case. For this reason, the judgment of the trial court should be reversed and the cause remanded. We think it unnecessary to discuss the rest of the refused charges, other than to say that most of them were unquestionably properly refused but that the refusal of a few of them is seriously questionable.

We think we should state for the benefit of all concerned that the reversal of this case is regrettable not only by reason of the overwhelming weight of the evidence against defendant, but also because of the possibility that the result thereof is not the aim or desire of anyone concerned. We find a basis for such a possibility in a combination of circumstances disclosed by portions of the record proper and the transcript of the proceedings, which we now narrate.

Defendant was represented on the trial by two employed, able counsel, one from Decatur and the other of Moulton, where the case was tried. They continued to represent him to and through the sentencing proceeding, at which time the court made it known to defendant that he could appeal within the prescribed time. About five days thereafter, he filed what purports to be a pro se notice of appeal, and affidavit of indigency, and a request for a free transcript and an attorney for him on appeal. The court ordered a free transcript and appointed his previously employed Moulton attorney to represent him on appeal. The attorney has filed no brief. The transcript also shows that members of the family of defendant, including his father and mother, were present at the sentencing proceeding, and that defendant’s Moulton attorney, in the presence of defendant, made known to the court that members of the defendant’s family desired to make “Restitution” of approximately the amount of the money stolen from the victim of the robbery, and that the court in sentencing the defendant said:

“All right. Then the Court, after determining your Pre-sentence Investigation and your prior record and the offense for which you have been convicted, and also considering the fact that your family has offered and made restitution here in the amount of Eight Hundred Dollars for the offense of Robbery, for which the jury has found you guilty, the Court sentences you to Fifteen (15) years in the State Penitentiary and remands you to the custody of the sheriff.”

The facts stated in this paragraph afford cause for wonder whether a reversal is for the best interest of appellant and whether his appeal was taken merely for the purpose of a delay of the execution of his sentence.

Pursuant to our duty to search the record for error prejudicial to defendant, we find it in the refusal of defendant’s requested charge No. 27. For that reason, the judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

In compliance with appellee’s request pursuant to Rule 39(k) of the Rules of Appellate Procedure, the following is added to the opinion on original submission:

The robbery took place on December 9, 1976. The defendant’s ex-wife testified as an alibi witness that she and the defendant accompanied an elderly couple to Ft. Lauderdale in December 1976. When questioned about the exact date on direct examination, the following occurred:

“Q. Do you recall when you may have left Alabama and when you may have returned, approximately?
“A. Not exactly the date.
“Q. Do you recall if you and Bruce Carroll were in Orlando, Florida, on December 9th and 10th.
“A. We were there the 10th, because that was my niece’s birthday and I didn’t get her anything.”
[Emphases are appellee’s].

The writer now observes inexactitude and oversimplification in his statement in the original opinion as follows: “The evidence of guilt was strong and almost conclusive, but a witness for defendant, his former wife, testified positively as to an alibi, saying she and defendant were together in Florida at the time the robbery was committed.” The statement is hereby modified to read, “The evidence of guilt was strong and almost conclusive, but a witness for defendant, who was married to him at the time of the alleged crime and who was thereafter divorced from him and married to another before and at the time of the trial, testified positively that she and defendant were in Orlando, Florida, on December 10, 1979.” In addition, the following is a part of her testimony:

“Q. Do you recall your whereabouts there the first two weeks of December of ’76?
“A. Well, we were living at my mother’s. That was just before we moved out in January. And we had taken a little vacation the first of December.
“Q. Where had you taken that vacation to?
“A. Fort Lauderdale.
“Q. And who went with you, if anyone? “A. It’s an old couple, an old lady that worked for me. It was her parents. It was Mr. and Mrs. Chambers.
“Q. And whereabouts in Florida did you go?
“A. We went to Fort Lauderdale; these people wanted to visit their children down there, and then we went on to Orlando.
“Q. All right. Do you know what time you got back?
“A. I don’t know. I think it was around the 13th or 14th or 15th, or something along there. I don’t remember the exact date, no.
“Q. Okay. Did you say where you were living in Alabama at that particular time, what town?
“A. We lived on Smith Lake.
“Q. Mrs. Bass, During your stay in Orlando, Florida on this trip that you have discussed, was Bruce away from you at any time on up to — come back to Alabama and back to Florida, that you recall?
“A. Why, no.
“Q. He wasn’t?
“A. No.
“Q. Were you all there in one car? “A. A pickup truck.
“Q. Were you separated on any particular night that you were there?
“A. No, sir. I didn’t go anywhere without him.”

On cross-examination thereafter is a part of her testimony:

“Q. ... When did you and Bruce Carroll go to Florida on this—
“A. I don’t remember the exact date, but I know it was around the first of December; it was the 3rd or 4th or something like that.
“Q. And this was 1970 what?
“A. ’77?
“Q. ’77?
“A. ’76.
“Q. Was it ’76 or ’77?
“A. It was in 1976, because we separated in 1977.
“Q. Are you sure?
“A. Oh, yes.
“Q. Could it have been in ’75?
“A. No, not hardly.
“Q. You all just went on a trip to Florida?
“A. Well, they hired us to take them. Well, they didn’t hire us, they told us that if we would like to go on a trip with them that they would pay all of our expenses, so we went.
“Q. Where did they stay?
“A. At their children’s.
“Q. And where was that?
“A. Fort Lauderdale.
“Q. And you stayed there?
“A. Well, not in just one particular place. We stayed there one night, the best I remember, and then we went on up to Orlando and visited a friend of ours.
“Q. What day of the week did you leave going to Florida?
“A. Now, that’s another question. I don’t know. I don’t even remember. “Q. What day of the week did you come back?
“A. I don’t remember that, either.
“Q. How long did you stay in Florida? “A. Gee, I don’t know; ten or twelve days.
“Q. All right. And you went in Chambers’ pickup?
“A. Uh-huh.
“Q. How many of you were there?
“A. Four.
“Q. Four?
“A. Mr. and Mrs. Chambers and Bruce and me.
“Q. A pickup truck?
“A. Uh-huh. He had a camper in the back.”

In its application for rehearing appellee states, “The trial court in his oral charge to the jury explained the presumption of innocence as follows: (R. 202-203).

‘Now, the Defendant in this case, just as the Defendant in every Criminal Case tried within the State of Alabama, is presumed innocent. The presumption of innocence of a Defendant in a Criminal Case attaches from the very time that the finger of the Law points toward the Defendant, up until his case is taken before the Grand Jury, up until he is indicted and brought before you, the jury, and I submit to you right at this very time, the Defendant is still presumed to be innocent, that he must still be shielded by that presumption of innocence until you have retired to the jury room, and from your consideration of all the evidence in this case you are convinced beyond a reasonable doubt and to a moral certainty that he is guilty. When and if, of course, after consideration of the evidence in this case you find that the state has met the burden of proof, and you are convinced beyond a reasonable doubt and to a moral certainty, then of course he is no longer entitled to the presumption of innocence, because it has been overcome by the evidence. And then it is just as much your duty to convict him, if you feel from the evidence that he is guilty, as it is to acquit him if the evidence fails to produce that abiding conviction in your mind. ‘So as a matter of Law, I charge you that you cannot convict the Defendant in this case until the presumption of innocence has been overcome by the evidence, which has been given to you in this case, and from that evidence and your considera-' tion of the evidence you are convinced beyond a reasonable doubt and to a moral certainty that he is guilty.’ ”

It is not clear whether appellee requests that the above quoted excerpt from the oral charge of the trial court be added to this opinion in accordance with Rule 39(k) of the Rules of Appellate Procedure. Although the inclusion thereof is not required by Rule 39(k), we think it well that we state that we have compared it with the transcript of the oral charge and find it to be an exact reproduction of the quoted portion thereof. We look in vain to find therein any statement setting forth the principle that the presumption of innocence is to be regarded by the jury, or that it attends the accused, “as a matter of evidence” until properly overcome by the evidence. The part of the oral charge quoted gives expression to the word “evidence” several times; in most of the times it is referable to the evidence against the defendant that overcomes the presumption. In no instance is there reference to the value of the presumption as if it were evidence in favor of defendant.

We make no special effort at this time to advocate or defend the well-established principle that the presumption of innocence in a criminal case is to be considered as attending the defendant as a matter of evidence until properly overcome and that a defendant is entitled to have the jury instructed accordingly. However, we find no basis whatever for concluding that the principle was substantially covered by the court’s oral charge.

We continue to wonder whether a reversal constitutes a Pyrric victory for appellant as indicated in our original opinion, but, whether so or not, in the absence of action by appellant in the nature of a motion to dismiss the appeal, we are required to seek and find, if we can, error in the record prejudicial to defendant and be governed accordingly, irrespective of its value to either party.

Unchanged is our opinion that calls for a reversal of the judgment and a remandment of the cause.

The application for rehearing should be overruled.

OPINION MODIFIED AND EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte State of Alabama. (In re Bruce Quillan CARROLL v. STATE of Alabama).
    80-433.
    Supreme Court of Alabama.
    Sept. 25, 1981.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for petitioner.

      Donald R. White, Moulton, for respondent.
   ALMON, Justice.

We granted the State’s petition for cer-tiorari to review the decision of the Court of Criminal Appeals which held that the trial court erred when it refused a jury charge requested by the defendant.

The defendant was indicted and tried on a charge of robbery. He requested thirty-seven written jury charges that were all denied. The jury found the defendant guilty and the judge sentenced him to fifteen years in prison. The case was appealed to the Court of Criminal Appeals, 407 So.2d 173, which reversed the trial court. The basis for the reversal was the refusal of the trial judge to give defendant’s requested charge number 27 which read as follows:

Ladies and gentlemen of the jury, I charge, that the legal presumption of innocence is to be regarded by the jury, in every case, as a matter of evidence, to the benefit of which the accused is entitled, and, as a matter of evidence it attends the accused until his guilt, by the evidence, is placed beyond a reasonable doubt.

As authority supporting its decision, the Court of Criminal Appeals cited the following language in Brooks v. State, 380 So.2d 1012 (Ala.Crim.App.1980):

... The refusal of this requested charge is error and requires a reversal where it is not fairly and substantially covered in the court’s oral charge. Wilson v. State, 243 Ala. 1, 21, 8 So.2d 422 (1942); Brown v. State, 33 Ala.App. 97, 104, 31 So.2d 670 (1946); Salter v. State, 22 Ala.App. 86, 88, 112 So.2d 538 (1927); Diamond v. State, 15 Ala.App. 33, 39, 72 So. 558 (1916). The only exception to this rule is where the evidence is not conflicting and the general affirmative charge is given in the State’s favor. Bertrand v. State, 46 Ala.App. 631, 247 So.2d 386 (1971). Here, the evidence was conflicting and the affirmative charge was not given. Here also, the “generality of the oral charge ... was not sufficient to cover the principle, ‘as a matter of evidence’”, in the refused charge. Denson v. State, 50 Ala. App. 409, 412, 279 So.2d 580, 583 (1973). Consequently, the refusal of requested charge number 4 was error, [emphasis added]

The oral charge given by the trial judge stated:

Now, the Defendant in this case, just as the Defendant in every criminal case tried within the State of Alabama, is presumed innocent. The presumption of innocence of a Defendant in a criminal case attaches from the very time that the finger of the law points toward the Defendant, up until his case is taken before the Grand Jury, up until he is indicted and brought before you, the jury, and I submit to you right at this very time, the Defendant is still presumed to be innocent, that he must still be shielded by that presumption of innocence until you have retired to the jury room, and from your consideration of all the evidence in this ease you are convinced beyond a reasonable doubt and to a moral certainty that he is guilty. When and if, of course, after consideration of the evidence in this case you find that the State has met the burden of proof, and you are convinced beyond a reasonable doubt and to a moral certainly, then of course he is no longer entitled to the presumption of innocence, because it has been overcome by the evidence. And then it is just as much your duty to convict him, if you feel from the evidence that he is guilty, as it is to acquit him if the evidence fails to produce that abiding conviction in your mind.
So as a matter of Law, I charge you that you cannot convict the Defendant in this case until the presumption of innocence has been overcome by the evidence, which has been given to you in this case, and from that evidence and your consideration of the evidence you are convinced beyond a reasonable doubt and to a moral certainty that he is guilty.

We feel the above oral charge correctly and adequately stated the appropriate rule of law. Under similar circumstances the Court of Criminal Appeals has held:

Under some circumstances refusal of a charge of like import containing the words “as a matter of evidence” is error. Bryant v. State, Ala.Cr.App., 348 So.2d 1136; Denson v. State, 50 Ala.App. 409, 279 So.2d 580(3).
But in the instant case we are of the opinion that reversible error is not made to appear in the refusal of the Court to give Charge No. 16, supra. Gordon v. State, 268 Ala. 517, 110 So.2d 334. See also, Murray v. State, 49 Ala.App. 590, 274 So.2d 365(1), certiorari denied. In re: Murray v. State, 290 Ala. 369, 274 So.2d 368. We are firmly convinced that the same rule of law was substantially and fairly given in the Court’s aforequoted oral charge.

Sellers v. State, 353 So.2d 535 (Ala.Crim. App.1977).

The Court in Sellers went on to state:

We wish to state parenthetically that some confusion, or maybe a reversal, might be avoided if the trial judge would inform the jury, by written or oral charge, that the presumption of innocence is evidence for the defendant. It might be helpful if the judge would also tell the jury that in assessing defendant’s guilt or innocence to consider this presumption along with the other relevant evidence.

However, it is the charge in its totality and not some “magic words” that must determine whether the defendant’s rights have been protected or error committed. In the present case the defendant was certainly protected and his right to the presumption of innocence was adequately put before the jury. Hence, there was no error committed by the trial judge in refusing the requested jury charge. The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur.


author: PER CURIAM.

text:
    Bruce Quillan CARROLL v. STATE.
    8 Div. 387.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
   PER CURIAM.

AFFIRMED ON AUTHORITY OF Carroll v. State, Alabama Supreme Court, 407 So.2d 177, 1981.

All the Judges concur.


author: TYSON, Judge.

text:
    Carl HOLDEN v. CITY OF HUNTSVILLE.
    8 Div. 445.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Alice J. Hancock of Malone, Owens, Hancock & Totten, Athens, for appellant.
    Roy Wesley Miller, Asst. City Atty., Huntsville, for appellee.
   ON REHEARING

TYSON, Judge.

Carl Holden was charged with resisting a lawful arrest in violation of § 19-55, Code of the City of Huntsville. He was found guilty by the Municipal Court of Huntsville and on appeal to the Circuit Court of Madison County for a trial de novo, the trial court found him guilty of resisting arrest and fined him $100.00 plus costs.

Around 3:00 a. m. on the morning of December 10, 1979, appellant drove his car into the path of Officer Bobby Hopkins of the City of Huntsville Police Department, who was in hot pursuit of a speeding automobile. Officer Hopkins had to lock his brakes to avoid a collision. Since Officer Hopkins had the right-of-way and it appeared that appellant had run a stop sign, Officer Hopkins stopped appellant for questioning. He “noticed an odor of alcohol about him” and conducted a field sobriety test which appellant failed. Consequently, Officer Hopkins proceeded to arrest appellant for “driving while intoxicated.”

The resistance occurred when appellant refused to be handcuffed. (Handcuffing is a standard practice in Huntsville for transporting persons to jail, especially in cases of this type where an officer is by himself). When appellant resisted and Officer Hopkins could not handcuff him using reasonable force, Officer Hopkins radioed for assistance. Two other officers arrived shortly and with their help the arrest was completed.

On April 21, 1981, this court unanimously affirmed this cause without opinion. Because of the earnestness of the appellant’s request and the issues asserted, we now set forth our views on the issues which are raised.

We do, however, note that both on original review and post conviction review, this court frequently affirms cases without opinion where such in the opinion of this court presents no new, novel or unusual legal question. See Craig v. State, Ala.Cr. App., 380 So.2d 385 (1980) and cases therein cited.

The appellant raises four issues on this appeal.

I

The appellant’s first contention is that reversible error was committed by the trial court in admitting into evidence “City’s Exhibit No. 2”, a copy of Ordinance No. 77-516, which, among other things, amends the maximum fine for ordinance violations to $500.00. The ground of error is that there was no proof of due publication of this ordinance. Without reaching the merits of this contention, suffice it to say that even if error occurred, it was “harmless error” because the $100.00 fine assessed by the trial court did not exceed the limit ($100.00 maximum) set by Ordinance No. 62-56, which clearly met all the requirements for a valid ordinance and which was properly admitted without objection by appellant.

II

Appellant’s second contention is that the conviction for “resisting arrest” cannot stand because the ordinance under which appellant was convicted (§ 19-55, Code of the City of Huntsville) was never introduced into evidence. The record shows that a copy of the page of the Code that displayed § 19-55 was introduced by the prosecutor as a substitute for introducing the entire code (which was also displayed to the trial court) and was admitted as “Exhibit A”. (R. 4) The trial court did not specifically state that “Exhibit A is admitted into evidence”, but it is clear from the record that Exhibit A was introduced and properly admitted without objection by appellant. The trial court, during a bench conference did, in fact, ask counsel for appellant if there were any objections to admission of “Exhibit A.” There were no objections, and “Exhibit A” is included in the record. (R. 70).

III

Appellant’s third assertion is that the City of Huntsville abandoned prosecution on appeal, by failing to file, within the required fifteen day period, a copy of the Municipal Court judgment of conviction or an accusatory instrument such as an arrest warrant, complaint, or citation, as “other documents” required by § 12-14-70, Code of Alabama 1975. However, all of the documents held by the Municipal Court, a certification of the fine for resisting arrest (R. 64), a copy of the appeal bond (R. 65), and a copy of the Municipal Court’s Bill of Costs (R. 66), were timely filed; and a satisfactory complaint (R. 69) was filed in open court prior to the trial de novo. These papers are sufficient to satisfy the “notice and other documents” filing requirement of § 12-14-70. Alexander v. Posey, 32 Ala.App. 494, 27 So.2d 237 (1946).

This is especially true where, as here, appellant was fully informed of the charges against him and was cognizant of all the relevant evidence in the case. The city’s intention to pursue the prosecution was never in doubt.

IV

Appellant’s final contention is that the evidence was insufficient to support a conviction because, in fact, the appellant had already been “arrested” before the alleged resistance occurred. Appellant seeks to overturn the conviction upon the technicality that one cannot be charged with resisting arrest after he has been arrested. Even if this is true there is, nevertheless, sufficient evidence to support the trial court’s finding that the resistance occurred while the arrest was in progress. Therefore, the conviction for “resisting arrest” was justified under the evidence.

The application for rehearing is overruled and this cause is affirmed.

APPLICATION OVERRULED, AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Carl HOLDEN. (Re Carl HOLDEN v. CITY OF HUNTSVILLE).
    80-609.
    Supreme Court of Alabama.
    Nov. 6, 1981.
    Alice J. Hancock of Malone, Owens, Hancock & Totten, Athens, for petitioner.
    Roy Wesley Miller, Huntsville, for respondent.
   BEATTY, Justice.

Certiorari was granted to determine whether the Court of Criminal Appeals had correctly interpreted and applied the filing requirements of Code of 1975, § 12-14-70(d).

After the writ was granted in this case, this Court rendered the decision in Ex parte Hood, Ala., 404 So.2d 717 (1981), in which the requirements of § 12-14-70(d) were construed for application in municipal prosecutions not initiated by warrant of arrest and in which no demand for a complaint (statement of the charges) was made in municipal court. The record discloses that this prosecution originated from an incident leading to an arrest without a warrant; however, the record fails to disclose any demand for a complaint by the defendant while in municipal court. Accordingly, when, as the record discloses, the municipality filed in circuit court its certificate describing the charge, the offense, the conviction and fine, and the defendant’s appeal bond approved by the city recorder, the notice requirements of § 12-14-70(d) were met. Ex parte Hood, supra.

The decision of the Court of Criminal Appeals, 407 So.2d 179 is affirmed.

AFFIRMED.

All the Justices concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Howard Lee PERRY v. STATE.
    3 Div. 403.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Jeffery C. Duffey of Duffey & Wallace, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of burglary in the third degree. Code of Alabama 1975, § 13A-7-7 provides:

“(a) A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.
“(b) Burglary in the third degree is a Class C felony.”

§ 13A-5-6(a)(3) prescribes the punishment for a Class C felony at “not more than 10 years or less than 1 year and 1 day.” The court fixed defendant’s punishment at imprisonment for 10 years and sentenced him accordingly.

The indictment substantially followed the statute, but in doing so it alleged that defendant’s conduct was “with the intent to commit a crime therein, to-wit: theft of property.”

There was no proceeding under the Habitual Felony Offenders Act. Immediately upon the return of the verdict, the court proceeded with allocution and thereafter stated:

“Mr. Perry, in view of your prior record of three prior convictions of the offense of burglary, and the Jury having found you guilty of Burglary in this case, it’s the order and judgment of this Court that you be sentenced to serve a term of ten years in the penitentiary.”

The transcript shows that promptly after the jury was released, the following occurred:

“THE COURT: Let the record reflect that at the close of the State’s case, the Defendant and Defendant’s counsel made a motion to exclude the State’s evidence on the grounds that the State failed to prove a prima facie case in that they had failed to prove that there was an entry into the building involved, and also—
“MR. DUFFEY: The specific intent of committing a theft.
“THE COURT: Failed to prove the specific intent that he entered the building with the intent to commit theft of property therein.
“The Court duly overruled that motion and the Court received the verdict in this case.”

In urging that the judgment of the trial court should be reversed, appellant takes the same position that he did as to his motion to exclude the evidence and asserts the same grounds, which he encapsulates in this sentence in his brief, “Specifically the evidence failed to show that the appellant or anyone else entered Nixon’s Grocery Store or that the appellant intended to commit a theft.”

Much of the brief evidence, which consisted of the testimony of three witnesses called by the State, no witnesses on behalf of the defendant, is not pertinent to the issue or issues on appeal and is not included in our summary of the facts.

Mr. Henry Moore, an employee of the ABC Board Central Office, as a supply clerk, testified that, about 11:00 P.M. December 6, 1980, he was in the vicinity of Nixon’s Grocery Store, which according to the undisputed evidence was closed and locked at the time, and observed an individual at the corner of the building where the store is located and another person, whom he identified as the defendant, at the front door of Nixon’s Grocery Store. He further testified:

“Q. Could you tell the Court what, if anything, you observed him doing at that door?
“A. He was prying at the locks.
“Q. How was he doing it, sir?
“A. He had something ... I don’t know whether it was a screwdriver — it looked like a flat instrument — and he was jiggling the locks with it.
“And, at that time, I was getting out of my car, and I just kept across the street to the other place across the street.”

According to the witness, he called law enforcement authorities as soon as he could get to a telephone and reported what he had seen and there was a prompt response to the call. On cross-examination, the witness testified:

“Q. Did this person you saw fooling with the door, did they have their back to you, or did you see his face, or what?
“A. When I was going up there and he was jiggling with the door, just like I said, the individual on the other end was saying something to this person and he was looking up, but he still had hold of the lock.
“Q. Do you know what the person was saying?
“A. No, I didn’t. My window was rolled up, but I could tell he was talking to somebody down at the end of the building.
“Q. But you saw that person’s back jiggling with the door?
“A. No, his back wasn’t turned. His back was kind of facing me when I drove up.
“Q. His back was facing you?
“A. No, I didn’t say his back. He was facing me when I drove up.
“Q. He was facing you?
“A. Yes. Jiggling with the lock like he was talking to the individual. Like I turn this way here, but I still have something in front of me. But he was talking to somebody at the other end of the building.
“Q. How far away would you say ... you parked on the —
“A. The north end of the building.”

Officer M. A. Fontain of the Montgomery Police Department, who was with the second police unit that answered the call to Nixon’s Grocery Store, testified that, when he arrived at the scene, the personnel of the first unit to arrive were chasing a person, not the defendant, who had fled the scene, that he located and arrested the defendant at a lounge across the street from the store. The witness testified further:

“Q. And did you physically go to Nixon’s Grocery?
“A. Yes, sir, I did.
“Q. What, if anything, did you observe about the doors or the entrance to that place?
“A. When I arrived at the scene, the door was closed, and it appeared that the hasps on the lock had been pried off. And when the door was opened, inside the door were particles of wood and the hasp that came off a lock.
“Q. And this was on the inside of the building when you got there?
“A. Yes, sir.”

Mrs. Nixon, the proprietor of the store, testified that she knew the defendant, that he and his family had been customers of the store. She testified that she was home in bed the night of the incident involved, that the police officers called her from the store and she went to the store and observed what had happened. She testified, “There wasn’t anything moved about or wasn’t anything that I could tell was taken,” and that there “wasn’t anything missing at all that I could find or anything.” She further testified that, soon after the defendant was released on bond, he called her by telephone and the following conversation between them occurred:

“A. Well, he said he was Howard and said, I’m out. And, I said, yes. And, I said, out of jail? And he said, yes, I’m out on a four hundred dollar bond.
“Q. And did he say anything?—
“A. And then he said to me, he said, Ms. Nixon, I didn’t do it, I didn’t break into your place.
“Q. And did he say anything else?
“A. And he said, But I’m willing, if there is anything missing, I am willing to pay for it.”

We are in agreement with the principles of law asserted by appellant. Prior to the effective date of the Alabama Criminal Code (Code of Alabama 1975, Title 13A) both a breaking and entry were essential elements of the crime of burglary, but a breaking has been eliminated as an essential element by §§ 13A-7-5, 13A-7-6 and 13A-7-7. To constitute an entry, there must be a penetration of the space within the building by some part of the body of the defendant, or an accomplice of the defendant, or by an instrument inserted for the purpose of perpetrating a felony in the building. In Walker v. State, 63 Ala. 49, 51-52 (1879), it was held:

“When one instrument is employed to break, and is without capacity to aid otherwise than by opening a way of entry, and another instrument must be used, or the instrument used in the breaking must be used in some other way or manner to consummate the criminal intent, the intrusion of the instrument is not, of itself, an entry.
“When entry is made by means of an instrument, it must be used for the purpose of effecting the felony, and not merely of gaining entrance for the defendant. Accordingly, the act of prying open a door with an iron bar does not constitute an entry, as it is not used for the purpose of committing a felony therein, but merely of breaking.”

To the same effect is Robinson v. State, 45 Ala.App. 74, 78, 224 So.2d 675 (1969), where it is stated:

“The evidence that the door ‘was pried open and the lock was busted with some type of instrument’ did not show an entry into the building.”

We do not find that the locking apparatus in Robinson v. State, supra, was like such apparatus in the instant case. It appears that there it did not contain a hasp and padlock. Here, there was a hasp, which of itself implies that the lock was a padlock, even though the word “padlock” is not found in the evidence.

We are not in agreement with appellant’s contention that there was no substantial evidence that defendant, or an accomplice of defendant, effected an entry into the building by some part of his body. The circumstantial evidence to the effect that, soon after the defendant had pried loose and broken the padlock and hasp device that locked the door on the outside thereof, the defendant left the door closed and went across the street, that no one else opened the door between that time and the arrival of the officers and that, upon opening the door by an officer part of the hasp and lock device and some particles of wood were observed on the floor inside of the building, constitutes substantial evidence, in our opinion, that the door was opened between the time the defendant was obviously attempting to effect an entry and his departure from the door. Under the undisputed evidence, such opening of the door could hardly have been accomplished by anyone other than the defendant. Furthermore, there was no occasion for opening the door with the instrument used in prying off the hasp and lock. The door was then no longer locked. To have opened the door to such an extent that some of the hasp and lock apparatus and some of the wood to which it was fastened moved from outside the door to the floor on the inside of the building without a penetration by some part of the body of the defendant of the space inside the door would seem less reasonable than the contrary. In our opinion, a jury question as to such an entry was presented.

We disagree also with appellant’s contention that any entry by defendant was not made with an intent to steal. There is no suggestion that defendant had some other specific intention, which would be readily conceivable if the building had not been some kind of a building, such as a store, which ordinarily a trespasser would enter solely for the purpose of taking something of value therefrom. Although a breaking is not an essential element of the crime charged, the breaking and entry at the time and under circumstances shown by the evidence lead to a reasonable conclusion that the person breaking and entering the store intended to steal something therefrom.

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

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Stanley FIELDS v. STATE.
    3 Div. 452.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Stanley Fields, pro se.

      Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

Petitioner, an inmate of Kilby State Penitentiary located in Montgomery County, appeals from the summary denial of his petition for writ of habeas corpus.

Petitioner alleges in his petition that his guilty plea was coerced and involuntary, that he was physically threatened, assaulted and beaten while incarcerated in the Laud-erdale County Jail following his arrest and that he was denied proper medical attention while incarcerated in the county jail.

A circuit judge of Montgomery County denied the writ without requiring that any return be made. Alabama Code 1975, Section 15-21-8.

Habeas corpus issues against void, and not merely voidable, judgments. Weathington v. City of Birmingham, 52 Ala.App. 77, 289 So.2d 645 (1973), cert. denied, 292 Ala. 757, 289 So.2d 649 (1974). It cannot be used as a substitute for writ of error, certiorari, or appeal, Price v. Holman, 279 Ala. 324, 184 So.2d 835 (1966), and, in fact, matters that could have been considered on appeal cannot be reviewed by writ of habeas corpus. LaBryer v. State, 45 Ala.App. 33, 222 So.2d 361, cert. denied, 284 Ala. 732, 222 So.2d 366 (1969).

While habeas corpus will issue when the record shows an excess or a lack of jurisdiction on the part of the convicting court, State v. Thurman, 205 Ala. 677, 88 So. 899 (1921), an allegation of errors and irregtilarities in the conduct of the trial will not be considered.

“Even an allegation that a prisoner’s ‘incarceration is due to failure to observe that fundamental fairness essential to every concept of justice’ will not be sufficient. For the writ to apply, the judgment under which the convicted person is held must be void on its face; parol evidence can not be introduced to establish procedural or substantive errors that may have occurred. ‘Where the court proceeding and the conviction under which the prisoner is held are of a court of competent jurisdiction and are regular on their face, and no invalidity appears on the face of the proceedings, the petition for the release of the prisoner in a habeas corpus proceeding is properly denied.’ Thus, a fourteenth amendment violation not apparent in the record can not provide a basis for a writ of habeas corpus; extrinsic evidence necessary to establish a violation of the prisoner’s constitutionally protected rights is inadmissible.”
(citations to authority omitted)
Post Conviction Remedies in Alabama (29 Ala.Law Rev. 617, 623) (1978).

As can be observed, beyond the concept of an excess of jurisdiction, habeas corpus in Alabama is not a very effective means of post conviction relief. Habeas corpus has been described in terms of Matthew 7:14: “Because strait is the gate, and narrow the way ... and few there be who find it.” A. Cates, Post Conviction Remedies, 28 Ala. Law. 257, 262 (1967). Habeas corpus “is no mere jumble of post conviction archeological tools to explore willy nilly the bones of old criminal trials.” Aaron v. State, 43 Ala.App. 450, 451, 192 So.2d 456 (1966).

The alleged involuntariness of petitioner’s guilty plea could and should have been raised on direct appeal. Lewis v. State, 55 Ala.App. 397, 316 So.2d 228 (1975). A petition for habeas corpus is an inappropriate method of bringing the subject matter of this case before this Court for review.

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

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Mary E. HOOD v. CITY OF BESSEMER.
    6 Div. 516A.
    Alabama Court of Criminal Appeals.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
   HARRIS, Presiding Judge.

AFFIRMED — NO OPINION.

REHEARING DENIED — NO OPINION.

All the Judges concur.


text:
    Ex parte Mary E. HOOD. (Re: Mary E. HOOD v. CITY OF BESSEMER).
    80-794.
    Supreme Court of Alabama.
    Oct. 30, 1981.
    David A. Sullivan, Birmingham, for petitioner.
    No brief for respondent.
   BEATTY, Justice.

Writ denied on the authority of Ex parte William and Michael Hood v. City of Bessemer, Ala., 404 So.2d 717 (1981). 407 So.2d 188 (Ala.Cr.App.).

WRIT DENIED.

All the Justices concur.


author: OVERTON, Justice. SUNDBERG, Chief Justice,

text:
    GAME AND FRESH WATER FISH COMMISSION, Colonel Robert M. Brantley, Executive Director, George R. Langford, Julian V. Smith, Sr., Julian Vereen Smith, Jr., Fincher Williams Smith, Mallory E. Horne, W. C. Vereen, Jr., Robert Fokes, James J. Richardson, Andrew M. Beverly, Ralph E. Proctor, Jr., W. Stanley Proctor, Bryan W. Robinson, A. G. Clements, Sam Perry, James C. Whelchel, Hoyt H. Whelchel, R. B. Wright, Jr., F. R. Pidcock, III, John M. Carlton, Jr., and S. G. McCall, Appellants, v. LAKE ISLANDS, LTD., a Florida limited partnership, Madison M. Mosley, W. M. Hildebrandt, and Albert A. Simpler, III, Appellees.
    No. 56868.
    Supreme Court of Florida.
    April 16, 1981.
    Rehearing Denied Jan. 11, 1982.
    Jim Smith, Atty. Gen., and Carol Z. Bellamy, Asst. Atty. Gen., Tallahassee, G. Kenneth Gilleland, Tallahassee, and James J. Richardson of Richardson Law Offices, Tallahassee, for appellants.
    Benjamin K. Phipps, Tallahassee, for ap-pellees.
   OVERTON, Justice.

This is an appeal from a trial court judgment holding chapter 65-1841, Laws of Florida, and the implementing administrative rule, unconstitutional as applied to ap-pellees. Chapter 65-1841 authorizes the Game and Fresh Water Fish Commission to regulate the use of motorboats on the public waters of Lake Iamonia in Leon County. By rule 16E-14.02, Florida Administrative Code, the commission invoked this authority to absolutely prohibit the use of motorboats, including airboats, on the lake during duck hunting season. The trial court found the law and the rule to be constitutional as applied to the general public, but to be unreasonable and arbitrary as applied to island owners seeking access to their property. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution, and we affirm.

Lake Iamonia is a navigable lake in northern Leon County. In it are a number of islands, some of which are owned by appellees. The navigability of the lake is described by the trial court as follows:

3. The shallowness as well as the vegetation upon the lake has made navigation upon the lake difficult. While boat paths have been cut by persons using the lake, they do not provide ready access to some of the islands. For access to some of the islands boats must be poled or an airboat used. As to a few of the islands, the water level is too low for even a poled boat and an airboat is the only method of reaching them.
4. Navigation upon the lake has been made more difficult by a drawdown begun by the [commission] in 1977. This drawdown was deemed necessary because the natural outlet, a sinkhole at the eastern end of the lake, had been dammed off several years earlier. The dam had been constructed to prevent the lake from going periodically dry. Natural fluctuations from completely dry to flood had previously occurred with some regularity for decades, perhaps centuries before. After the dam had had its desired effect of keeping the water in the lake basin, it was discovered that the natural fluctuations were required to maintain the ecology of the lake. The lack of periodic drying out resulted in an “undesirable” plant growth, the white water lily, becoming predominant. The purpose of the drawdown was to allow the lake to again go dry. The hope is that this will result in killing off the white water lily so that more desirable vegetation will return along with open water.

During the 1978 duck hunting season, Lake Islands, Ltd., a limited partnership that owns some of the lake islands, requested from the commission a permit to use airboats on the lake in order to take prospective purchasers out to see the property. When the commission refused, Lake Islands sought and obtained from the circuit court of Leon County a temporary injunction restraining the commission from enforcing its rule against Lake Islands during the hunting season. The court later entered a final judgment requiring the commission to issue permits to the island owners for reasonable use of motorboats and airboats on the lake during the hunting season. In its judgment the trial court found that the rule prohibiting motorboats and airboats on Lake Iamo-nia during hunting season was not unconstitutional per se as a taking of property without just compensation, but that substantive due process required a regulation not be arbitrary or unreasonable, specifically finding that: “Riparian rights over navigable waters amount in substance to the right of the owner of an island on Lake Iamonia to be guaranteed the right of ingress and egress to his property.” The trial court further found that: “[E]ven though the regulation is a reasonable exercise of police power, and in general any restriction it creates constitutional, it is unreasonable and arbitrary not to allow island owners at least some access to their property which is a well established common law right incident to ownership of property.” The trial court then directed the commission to grant permits, upon application, to each island owner who applied, allowing them the use of motorboats or airboats for the limited purpose of transportation for egress and ingress to the owner’s island.

We agree with this holding. Riparian rights under both common law and Florida statute include the right of ingress and egress. Thiesen v. Gulf, Florida and Alabama Railway, 75 Fla. 28, 78 So. 491 (1918); § 197.228, Fla.Stat. (1979). In Ferry Pass Inspectors’ & Shippers’ Association v. White’s River Inspectors’ & Shippers’ Association, 57 Fla. 399, 48 So. 643 (1909), this Court, speaking through Chief Justice Whitfield, set forth in detail the rights of riparian owners as follows:

Riparian rights are incident to the ownership of lands contiguous to and bordering on navigable waters. The common-law rights of riparian owners with reference to the navigable waters are incident to the ownership of the uplands that extend to high-water mark. The shore or space between high and low water mark is a part of the bed of navigable waters, the title to which is in the state in trust for the public. If the owner of land has title to high-water mark, his land borders on the water, since the shore to high-water mark is a part of the bed of the waters; and, if it is a navigable waterway, he has as incident to such title the riparian rights accorded by the common law to such an owner.
Among the common-law rights of those who own land bordering on navigable waters apart from rights of alluvion and dereliction are the right of access to the water from the land for navigation and other purposes expressed or implied by law, the right to a reasonable use of the water for domestic purposes, the right to the flow of the water without serious interruption by upper or lower riparian owners or others, the right to have the water kept free from pollution, the right to protect the abutting property from trespass and from injury by the improper use of the water for navigation or other purposes, the right to prevent obstruction to navigation or an unlawful use of the water or of the shore or bed that specially injures the riparian owner in the use of his property, the right to use the water in common with the public for navigation, fishing, and other purposes in which the public has an interest. Subject to the superior rights of the public as to navigation and commerce, and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings bath houses, wharves, or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by individuals who are specially and unlawfully injured. Riparian owners have no exclusive right to navigation in or commerce upon a navigable stream opposite the riparian holdings, and have no right to so use the water or land under it as to obstruct or unreasonably impede lawful navigation and commerce by others, or so as to unlawfully burden or monopolize navigation or commerce. The exclusive rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon; and these rights may not be so exercised as to injure others in their lawful rights.. . .
The rights of the public in navigable streams for purposes of navigation are to use the waters and the shores to high-water mark in a proper manner for transporting persons and property thereon subject to controlling provisions and principles of law. The right of navigation should be so used and enjoyed as not to infringe upon the lawful rights of others. All inhabitants of the state have concurrent rights to navigate and to transport property in the public waters of the state. As to mere navigation in and commerce upon the public waters, riparian owners as such have no rights superior to other inhabitants of the state. A riparian owner may use the navigable waters and the lands thereunder opposite his land for purposes of navigation and of conducting commerce or business thereon, but such right is only concurrent with that of other inhabitants of the state, and must be exercised subject to the rights of others. The right of access to the waters from the riparian lands may in general be exclusive in the owner of such lands, but as to the use of the navigable waters and the lands thereunder, including the shore, the rights of riparian owners and of others of the public are concurrent, and subject to applicable rules of law. A riparian owner has a right to enjoin in a proper proceeding the unlawful use of the public waters or the land thereunder including the shore which is a part of the bed, when such unlawful use operates as a special injury to such riparian owner in the use and enjoyment of his riparian lands. In the absence of a valid statute providing otherwise, the injury must relate to riparian lands or business conducted thereon, and not to business conducted on the waters by virtue only of the right of navigation. It is not essential that the unlawful use of the waters or the land thereunder be in actual contact with the lands of the riparian owner, if the lawful use and enjoyment of the riparian holdings are in fact appreciably injured as the proximate result of such unlawful use of the waters or the lands thereunder. In the absence of a valid grant from the state, no riparian owner or other person has an exclusive right to do business upon public waters of the state whether such waters are in front of the land of the riparian owner or not. As the shore or space between high and low water marks is a part of the bed of the navigable waters, one who holds to high-water mark is a riparian owner, and, as such, has common-law riparian rights as incidents to his title to the abutting lands.

Id, 57 Fla. at 402-03, 48 So. at 644-45 (citations omitted; emphasis supplied).

It is a recognized general rule of law that a riparian owner’s interest in waterway navigation is the same as a member of the public except where there is some special injury to the riparian owner. See F. Maloney, S. Plager & F. Baldwin, Jr., Water Law and Administration, The Florida Experience (1968). We fully recognized this special injury exception in Webb v. Giddens, 82 So.2d 743 (Fla.1955). In that case Giddens was the owner of a parcel of land located on a small arm of Lake Jackson in Leon County. He was in the business of renting boats to people who came to fish. To reach the main part of Lake Jackson, his customers had to pass under a wooden state highway bridge that stretched across this arm of the lake. The state road department improved this road by removing the wooden bridge and replacing it with a fill completely spanning the arm and blocking Giddens and his customers from the main part of the lake. The trial court rejected the state road department’s contention that one’s riparian rights ended when he reached the water and held that the owner had a legal right of access to the main body of the lake for purposes of fishing, hunting, and boating. We approved that lower court decision, holding that one common law riparian right was ingress and egress to and from the water over the owner’s land and that the issue was whether the denial of ingress and egress deprived the owner of “a practical incident of his riparian proprietorship.” We concluded that Gid-dens’ right of ingress and egress would be virtually meaningless unless he were allowed access to the main body of the lake. The Webb case is discussed as an appropriate illustration of a special injury to a riparian owner in F. Maloney, supra, at 100-04. We agree with the two conclusions reached therein that Webb stands for the following: (1) “for travel over a navigable body of water to be materially obstructed by the state there must be an overriding public interest that justifies depriving either the public or the riparian of the enjoyment of this right,” and (2) “whether such an obstruction is called a public nuisance from which the riparian owner sustains special injury, or whether it is called a private nuisance as to him, the riparian owner has the individual right to object and to have the courts hear his objection.” Id. at 102.

For the riparian right of ingress and egress to mean anything, it must at the very least establish a protectable interest when there is a special injury. To hold otherwise means the state could absolutely deny reasonable access to an island property owner or block off both ends of a channel without being responsible to the riparian owner for any compensation. A waterway is often the street or public way; when one denies its use to a property owner, one denies him access to his property. This is particularly so in the case of island property. As stated rhetorically in F. Maloney, supra, “What good is access to a thirty-foot-deep channel a hundred yards or so long and blocked at both ends?” Id. at 104. Reasonable access must, of course, be balanced with the public good, but a substantial diminution or total denial of reasonable access to the property owner is a compensa-ble deprivation of a property interest.

To the extent that Carmazi v. Board of County Commissioners, 108 So.2d 318 (Fla.3d DCA 1959), conflicts with our decision in the instant case, it is disapproved. We find Moore v. State Road Department, 171 So.2d 25 (Fla.1st DCA), cert. denied, 177 So.2d 475 (Fla.1965), is distinguishable upon its facts since there was no denial of the property owners’ reasonable access to either their property or to any navigable waters; what was impaired was the access of deep sea ships to the property in question.

In the instant case the trial court concluded that as a matter of law island owners on Lake Iamonia have no reasonable method of transportation to their islands without the use of motorboats or airboats, and made an express finding that poling or paddling a boat to these islands was not reasonable under the circumstances of this cause. Rule 16E-14.02 is an absolute prohibition during part of the year against the only reasonable means of transportation to and from the islands for property owners, and we agree with the trial court in its conclusion that the rule is unreasonable and arbitrary as applied to these property owners.

The rule is, however, constitutional in general application. When the question of ingress and egress of an island property owner is removed, we do not find that the mere restriction on the means of navigation on the lake violates any constitutional rights. See Moore v. State Road Department. We reject the assertion of an unlawful delegation of legislative authority by chapter 65-1841 because of the uniqueness of the constitutionally established Game and Fresh Water Fish Commission and its express, constitutionally directed responsibilities.

For the reasons expressed, the judgment is affirmed.

It is so ordered.

ADKINS, BOYD and McDONALD, JJ., concur.

SUNDBERG, C. J., dissents with an opinion with which ENGLAND and ALDERMAN, JJ., concur.

SUNDBERG, Chief Justice,

dissenting.

I must respectfully dissent to that portion of the majority opinion which holds that the act and implementing rule is unreasonable, arbitrary and unconstitutional as applied to island owner appellees. The majority finds the law and rule to be a reasonable exercise of the police power vis-a-vis the general public, but unreasonable as it affects the appellees because it unreasonably limits their common law riparian rights of ingress and egress.

Regrettably, the majority misconceives both the issue and the extent of the right of ingress and egress inuring to riparian ownership. As is clear from both the trial court’s judgment and this Court’s opinion, the issue is one of navigation across the waters of Lake Iamonia. This case has nothing to do with ingress and egress to and from the uplands from the waters edge, i. e., “access to and from the navigable waters.” Merrill-Stevens Co. v. Durkee, 62 Fla. 549, 558, 57 So. 428, 431 (1912). The distinction is crucial, because while the right to ingress and egress is an exclusive right adhering in riparian ownership, the right to navigation is not.

As framed by the pleadings, adjudged by the trial court and held by the majority, the riparian owners enjoy a greater right of navigation across the waters of Lake Iamo-nia, than does the public in general. This simply is not the law. If the act and regulation is efficacious as to the public in general, then it is valid as applied to the island owners. This is so because the right of a riparian owner to navigation rises no higher than the right of the public in general. “The common-law riparian proprietor enjoys [the right of ingress and egress] and that of unobstructed view over the waters and in common with the public the right of navigating, bathing, and fishing, ...” (Emphasis supplied.) Thiesen v. Gulf, F. & A. Ry. Co., 75 Fla. 28, 58, 78 So. 491, 501 (1917).

The vital distinction between the exclusive right to ingress and egress inuring to a riparian owner and the right in common with the public to navigation is pointed out with clarity by Justice Whitfield in one of the earliest decisions of this Court dealing with the subject of riparian rights, Ferry Pass I. & S. Association v. White’s River I. & S. Association, 57 Fla. 399, 48 So. 643 (1909). The clarity and erudition of that discussion is such that it bears repeating in full.

Riparian rights are incident to the ownership of lands contiguous to and bordering on navigable waters. The common-law rights of riparian owners with reference to the navigable waters are incident to the ownership of the uplands that extend to high-water mark. The shore or space between high and low water mark is a part of the bed of navigable waters, the title to which is in the state in trust for the public. If the owner of land has title to high-water mark, his land borders on the water, since the shore to high-water mark is a part of the bed of the waters; and, if it is a navigable waterway, he has as incident to such title the riparian rights accorded by the common law to such an owner.
Among the common-law rights of those who own land bordering on navigable waters apart from rights of alluvion and dereliction are the right of access to the water from the land for navigation and other purposes expressed or implied by law, the right to a reasonable use of the water for domestic purposes, the right to the flow of the water without serious interruption by upper or lower riparian owners or others, the right to have the water kept free from pollution, the right to protect the abutting property from trespass and from injury by the improper use of the water for navigation or other purposes, the right to prevent obstruction to navigation or an unlawful use of the water or of the shore or bed that specially injures the riparian owner in the use of his property, the right to use the water in common with the public for navigation, fishing, and other purposes in which the public has an interest. Subject to the superior rights of the public as to navigation and commerce, and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings bath houses, wharves, or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by individuals who are specially and unlawfully injured. Riparian owners have no exclusive right to navigation in or commerce upon a navigable stream opposite the riparian holdings, and have no right to so use the water or land under it as to obstruct or unreasonably impede lawful navigation and commerce by others, or so as to unlawfully ■burden or monopolize navigation or commerce. The exclusive rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon; and these rights may not be so exercised as to injure others in their lawful rights....
The rights of the public in navigable streams for purposes of navigation are to use the waters and the shores to high-water mark in a proper manner for transporting persons and property thereon subject to controlling provisions and principles of law. The right of navigation should be so used and enjoyed as not to infringe upon the lawful rights of others. All inhabitants of the state have concurrent rights to navigate and to transport property in the public waters of the state. As to mere navigation in and commerce apon the public waters, riparian owners as such have no rights superior to other inhabitants of the state. A riparian owner may use the navigable waters and the lands thereunder opposite his land for purposes of navigation and of conducting commerce or business thereon, but such right is only concurrent with that of other inhabitants of the state, and must be exercised subject to the rights of others. The right of access to the waters from the riparian lands may in general be exclusive in the owner of such lands, but as to the use of the navigable waters and the lands thereunder, including the shore, the rights of riparian owners and of others of the public are concurrent, and subject to applicable rules of law. A riparian owner has a right to enjoin in a proper proceeding the unlawful use of the public waters or the land thereunder including the shore which is a part of the bed, when such unlawful use operates as a special injury to such riparian owner in the use and enjoyment of his riparian lands. In the absence of a valid statute providing otherwise, the injury must relate to riparian lands or business conducted thereon, and not to business conducted on the waters by virtue only of the right of navigation. It is not essential that the unlawful use of the waters or the land thereunder be in actual contact with the lands of the riparian owner, if the lawful use and enjoyment of the riparian holdings are in fact appreciably injured as the proximate result of such unlawful use of the waters or the lands thereunder. In the absence of a valid grant from the state, no riparian owner or other person has an exclusive right to do business upon public waters of the state whether such waters are in front of the land of the riparian owner or not. As the shore or space between high and low water marks is a part of the bed of the navigable waters, one who holds to high-water mark is a riparian owner, and, as such, has common-law riparian rights as incidents to his title to the abutting lands.

57 Fla. 399, 402-408, 48 So. 643, 644-45 (citations omitted, emphasis supplied).

Again in Merrell-Stevens Co. v. Durkee, 62 Fla. 549, 57 So. 428 (1912), Justice Whitfield stated:

At common law, all navigable waters and the lands thereunder were held by the sovereign for the benefit of the whole people, and the owner of land abutting on navigable waters had no exclusive right in the waters, below ordinary highwater mark or in the lands under the waters, except the right of access to and from the navigable waters, and rights in the land growing out of accretion or reliction.

62 Fla. 549, 558, 57 So. 428, 431. No statutory rights are involved here. Section 197.-228, Florida Statutes (1979), merely recognizes such riparian rights as exist at common law.

The most recent decision to consider the distinction between rights of ingress and egress and rights of navigation is Carmazi v. Board of County Commissioners of Dade County, 108 So.2d 318 (Fla. 3d DCA 1959). In that case riparian owners sought damages for encroachment upon their property rights as a result of a proposed dam to be located downstream from their waterfront property located on a navigable river. The dam would completely deny access by water from their property on Little River in Miami to Biscayne Bay. The court canvassed the earlier decisions of this Court, including those cited herein, and concluded that the riparian owners were entitled to no relief because the dam was in the public interest and the private rights of the owners were no different than those of the public in general to navigation. Hence, there was an appropriate exercise of the police power vis-a-vis the riparian owners. In particular, the court quoted the same excerpt from Thiesen v. Gulf, F. & A. Ry. Co., supra, which is quoted above and noted that:

The above quoted section recognizes the right of the riparian landowner to navigate, bathe and fish in the bay, and observes that this right is held in common with the public.

108 So.2d at 323 (emphasis in original).

The Carmazi court also correctly observed that the views expressed in Thiesen are supported by the majority of decisions as well as text writers in this country and still constitute the law in this state. In doing so the district court confronted the decision of this Court in Webb v. Giddens, 82 So.2d 743 (Fla.1955). In that case we held that a property owner situate on an arm of Lake Jackson in Leon County was entitled to compensation when the State Road Department replaced a bridge with a fill which cut off the landowner’s access to the main body of the lake and interfered with his boat renting business. The district court distinguished the case on the basis that the Webb Court cited with approval thé principle in the Thiesen case without overruling or receding from it and concluded that riparian rights were a field of law “which is unusually dependent upon the facts and circumstances of each case.” 108 So.2d at 745.

I would not be so charitable. The Webb case to me represents an erroneous interpretation of Thiesen principles under the guise of applying equitable principles. By defining the landowner’s navigational access to the main body of the lake as “a practical incident of his riparian proprietorship,” the Court was less than faithful to the principles carefully articulated in Thiesen. There is much mischief in this. Although the Webb decision may have wrought an equitable result just as the result of the majority here may be equitable, nevertheless, such a result-oriented decision does a disservice to a body of law which has a pervasive effect on a state with such an abundance of riparian or littoral lands. See Hayes v. Bowman, 91 So.2d 795 (Fla.1957). I would recede from Webb v. Giddens.

There remains only to deal with Hayes v. Bowman, which was also relied upon by the trial judge. Although the Hayes decision speaks in terms of “common law riparian rights to an unobstructed view and access to the Channel over the foreshore across the waters toward the Channel” of a navigable bay, a careful analysis of the issue in the case makes it apparent that Justice Thornal was concerned only with the correlative rights between two upland riparian owners and an “equitable distribution” as between them of the submerged lands between the upland and the Channel. The resolution of the case turned on the manner in which one should measure the boundaries of riparian rights as they extend into submerged lands toward the channel of navigable waters. The Court concluded that those boundaries neither need be an extension of the upland property boundaries nor need they run at right angles with the shore line. Hence, the rule was prescribed that “riparian rights of an upland owner must be preserved over an area ‘as near as practicable’ in the direction of the Channel so as to distribute equitably the submerged lands between the upland and the Channel.” 91 So.2d at 802. It is obvious that such an equitable distribution can only exist between two upland riparian owners and affects the general public not one whit, because submerged lands while in the hands of the state are held for the benefit of the public in common, including riparian owners. Justice Thornal’s citation of Thiesen and Merrill-Stevens with approval in his opinion makes this clear.

Consequently, once the majority finds the act and regulation in the instant case a reasonable exercise of the police power over navigation insofar as the general public is concerned, it must be found reasonable as to the island owners because they enjoy no greater rights to navigation on the lake than does the public in general. I would reverse the judgment of the trial court.

ENGLAND and ALDERMAN, JJ., concur.

      . Chapter 65-1841, Laws of Florida, provides in its entirety:
      Section 1. The game and fresh water fish commission is authorized to regulate fully, to the extent of prohibiting, the use of motor-driven boats on the public waters of lakes Iamonia and Jackson in Leon county.

      . Rule 16E-14.02, F.A.C., provides in pertinent part:
      The operation or use of any boat, sled, sea skiff, swamp boat, speed boat or other power boat, pushed, pulled or propelled by air propeller, or any boat propelled by water propeller driven by motor or motors, singly or in the aggregate, is prohibited in Leon County on Lake Iamonia ... at any time from 12:01 AM on the opening day of any open season for taking ducks until 12 midnight of the closing day of any open season for taking ducks.

      . Section 197.228(1), Florida Statutes (1979), provides:
      Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing and fishing and such others as may be or have been defined by law. Such rights are not of a proprietary nature. They are rights inuring to the owner of the riparian land but are not owned by him. They are appurtenant to and are inseparable from the riparian land. The land to which the owner holds title must extend to the ordinary high watermark of the navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland.

      . 82 So.2d at 745.

      . 91 So.2d at 801.


text:
    In re FLORIDA RULES OF CIVIL PROCEDURE and Florida Rules of Judicial Administration—Court Documents Disposal.
    No. 55134-A.
    Supreme Court of Florida.
    Nov. 12, 1981.
    Joseph P. Klock, Jr., Chairman, Committee on the Rules of Civil Procedure, Miami, for petitioner.
   PER CURIAM.

The Committee on the Rules of Civil Procedure has unanimously recommended that we modify the amendment to Rule of Civil Procedure 1.340(e), set forth in our September 10, 1981, opinion, to assure that a court file reflects as record activity a party’s utilization of interrogatories. This will be accomplished by the filing of a notice that the interrogatories have been served. We adopt the Committee’s recommendation and amend rule 1.340 as follows:

RULE 1.340 INTERROGATORIES TO PARTIES

(e) Form. Interrogatories shall be arranged so that a blank space is provided after each separately numbered interrogatory. The space shall be reasonably sufficient to enable the answering party to insert the answer within the space. If sufficient space is not provided, the answering party may attach additional papers with answers and refer to them in the space provided in the interrogatories. The original and a copy of the interrogatories shall be served on the party to whom the interrogatories are directed and copies on all other parties. A certificate of service or an attached notice that the interrogatories have been served, giv-interrogatories served and the name of the party to whom they were directed shall be filed. The completed interrogatories shall be filed and served by -the answering party served upon the party originally propounding the interrogatories and a copy shall be served upon all other parties by the answering party. The original or anv copy of the answers to interrogatories may be filed bv anv party when the court should consider the answers to interrogatories in determining anv matter pending before the court. The court may order a copy of the answers to interrogatories filed at anv time when the court determines that examination of the answers to interrogatories is necessary to determine anv matter pending before the court.

This amendment supersedes the amendment of the same rule in our September 10, 1981, order, 403 So.2d 926, and shall become effective at 12:01 a. m., January 1, 1982.

It is so ordered.

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


author: ADKINS, Justice. ENGLAND, J.,

text:
    William D. CHRISTOPHER, Appellant, v. STATE of Florida, Appellee.
    No. 55698.
    Supreme Court of Florida.
    Dec. 10, 1981.

      Jack 0. Johnson, Public Defender and James R. Wulchak and David A. Davis, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen. and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellee.
   ADKINS, Justice.

We have before us a direct appeal from a judgment imposing the death sentence upon William D. Christopher. Jurisdiction is pursuant to article V, section 3(b)(1), Florida Constitution.

The appellant was found guilty on two counts of first-degree murder. The findings of fact by the trial court are as follows:

The defendant was charged and found guilty of the First Degree Murder of George Ahern and of the First Degree Murder of Bertha Skillin. The jury recommended to the Court in its advisory opinion that the Court impose a sentence of death. The Court is hereby accepting the advisory opinion of the jury and is hereby imposing a sentence of death upon William D. Christopher.
The Court finds that there are sufficient aggravating circumstances to impose the death penalty and there is [sic] insufficient mitigating circumstances to support a sentence of life imprisionment [sic]. The court finds that the aggravating circumstances were:
1. The defendant was previously convicted of other felonies involving the use of violence to some person. In fact, as much as can be determined from the pre-sentence investigation, it appears that the defendant has been convicted of a great many felonies that did not invoke [sic] the use of force. However, pursuant to the applicable statute, the Court has only considered the felonies involving the use of violence to a person.
On June 19, 1972 in Memphis, Tennessee the defendant, William D. Christopher, was convicted of (1) assault with intent to commit murder in the first degree and, (2) attempt to commit felony (Rape) along with a non-violent felony... .
2. The two capítol [sic] felonies that were commited [sic] by the defendant, William D. Christopher, are especially heinious [sic], atroscous [sic] and cruel. The defendant had a duaghter [sic], Norma Sands, who was born out of wedlock to defendant and Patricia Sands Stock. At the time of the birth of the illegitimate child, the defendant was in prison, so the mother gave the infant up for adoption to one of the murder victims, Bertha Skillin and her husband. Bertha Skillin and Norma moved to Florida and the child was reared in this state. The defendant first met his 14 years [sic] old daughter in December 1975 in Memphis, Tennessee while Norma was in that city for a visit. On approximately the first of August, 1976, the defendant arrived in Naples, Florida and made contact with his daughter, Norma. The defendant was without funds. One of the murder victims, Bertha Skillin and the other murder victim, her boyfriend, George Ahern, invited the defendant to stay in their apartment. Soon the defendant and his daughter, Norma, were engaged in a sexual affair. Mrs. Skillin discovered that Norma was planning to leave Naples and return to Memphis, Tennessee with the defendant. Mrs. Skillin confronted the defendant on the day of the murders and attempted to call the police. The defendant then killed her with a pistol, and then dragged her body into the bathroom and closed the door. During this time, George Ahern was fishing. He returned to the apartment and the defendant persuaded George Ahern to withdraw $300.00 from his bank account so the defendant could return to Memphis. They went to the bank, withdrew the money and returned to the apartment. When they returned to the apartment the defendant knocked Mr. Ahern down. Mr. Ahern ran for the bedroom and attempted to shut the door. The defendant pushed open the door and shot the victim while [he] was sitting on the bed. The defendant and his daughter then fled to Tennessee where he was apprehended. After apprehension, he confessed to both murders....

Appellant presents six procedural issues upon which he relies for reversal of the sentence of death, remand for a new trial, remand for imposition of a life sentence, or remand for a new sentencing hearing.

The six issues presented for our consideration are as follows:

1. Did the trial court systematically exclude for cause prospective jurors who did not state they were irrevocably committed to vote against the death penalty, but voiced only general, indefinite reservations to capital punishment, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and article I, sections 9 and 16 of the Florida Constitution?
2. Did the trial court err in admitting appellant’s confession because (a) he did not freely and voluntarily confess, and (b) the police failed to honor his request to cut-off questioning, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and article I, section 9, of the Florida Constitution?
3. Did the trial court commit reversible error in allowing over defense objections and a motion in limine, testimony regarding the sexual relationship between the appellant and his daughter?
4. Did the trial court err in denying appellant’s motion for a medical evaluation and for administration of sodium pentothol at county expense?
5. Did the trial court’s granting of the state’s motion to preclude the appellant from introducing evidence of his polygraph test render the death sentence unconstitutional?
6. Were the aggravating factors found by the court improper; should mitigating factors have been found; and did the mitigating factors outweigh the aggravating factors?

As to the first issue, the law is settled that the competency of a challenged juror is a mixed question of law and fact and is to be determined by the trial judge in his discretion. Manifest error must be demonstrated before the judge’s decision will be disturbed. Singer v. State, 109 So.2d 7, 22 (Fla.1959); Ashley v. State, 370 So.2d 1191, 1194 (Fla.3d DCA 1979). No such error has been demonstrated in the case sub judiee.

Turning to the second issue, the admissibility of the confession, we find no evidence that the appellant exercised his right to halt the interrogation. The appellant continued his conversation with the interrogating deputies of his own free will.

The test for admissibility of a confession is whether it is freely and voluntarily made. Howell v. State, 66 Fla. 210, 63 So. 421 (1913); Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975), cert. denied, 328 So.2d 845 (Fla.1976).

Appellant claims improper coercion during the course of the interrogation. A case in which improper coercion was found is Jarriel v. State, cited above. In Jarriel the defendant was improperly urged by direct or implied promises to make a statement. The interrogating officer told defendant his wife would be arrested unless defendant made a statement. 317 So.2d at 141. No such urging or promising took place in the case sub judice. The confession was freely and voluntarily made, and was, therefore, properly admitted.

Next we proceed to the third issue, concerning the admissibility of the testimony regarding the appellant’s sexual relations with his daughter. Appellant’s claim is that the prejudicial impact of this evidence far outweighs its probative value, and therefore, the evidence should not have been admitted. We disagree. The trial judge found that incest was one of the theories upon which the state tried the case and that incest was a motive for the murders. The state contended that the primary reason for the murders was appellant’s jealousy and anger over Ahern’s sexual advances toward Norma. Appellant knew that Ahern had fondled Norma’s breasts and that he had entered Norma’s room at night and lifted her covers to see if she was naked. The state also contended that the abnormal relationship between appellant and his daughter was why he planned on taking Norma away from Naples, and that the plan resulted in two murders because Skillen tried to prevent Norma’s departure by calling the police. It is well-established that “any material evidence tending to show motive is admissible on the trial of one charged with the offense of murder in the first degree.... ” Beard v. State, 131 Fla. 512, 180 So. 1, 2 (1938). See also, McVeigh v. State, 73 So.2d 694, 696 (Fla.), appeal dismissed, 348 U.S. 885, 75 S.Ct. 210, 99 L.Ed. 696 (1954); and Dodson v. State, 334 So.2d 305 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1081 (Fla.1977).

In Smithie v. State, 88 Fla. 70, 101 So. 276 (1924), a first-degree murder case, this Court held that certain evidence which tended to show an illegitimate intimacy between the defendant and the sister-in-law of the deceased, was admissible. The Court found that “some of the evidence obtained ... was relevant and perfectly proper, as showing motive or cause for antagonism between the two men. . .. ” 101 So. at 279. The Court further determined that “[t]he fact that the evidence also tended to show the defendant to be guilty of another crime, that of criminal intimacy with a girl not 18 years of age, would not render it inadmissible as evidence of so important an element as motive for the killing of the deceased.” Id.

The testimony concerning appellant’s sexual relations with his daughter was admissible.

We turn now to the fourth issue on appeal, whether the trial court, during the sentence proceeding, erred in denying the appellant’s motion for a medical evaluation and for administration of sodium pentothol at county expense. We consider this issue in light of this Court’s pronouncement in the case of Knight v. State, 97 So.2d 115, 118 (Fla.1957).

There is no scientifically recognized drug that inevitably causes its subject to speak the truth. The so-called “truth serums”, including ... sodium pentothol, are said to affect states of altered consciousness, so that the subject’s ability to associate thoughts and give them inhibited expression is impaired; but no such drug insures pure truth. It is said to produce merely an uninhibited state of mind in which the subject is prone to relate facts not deliberately altered. In 5 University of Florida Law Review 6 (1952) it is said:
Along with those facts, however, fantasy unfolds; and here lies one of the greatest objections to the accuracy of the truth serum. Since the truth is mixed with impressionistic creations peculiar to the subject, the reliability of any truth serum testimony will depend mostly upon the examiner’s interpretive skill and experience. Without such experts, therefore, there is not even a scientific acceptance of the serum’s reliability. Moreover, in order for truth serums to bridge the experimental-demonstrable gap, there must be a showing that while the subject is under the influence of such drugs there can be no intentional fabrication. The courts so far have indicated a distrust for the assertion that the subject has no control over his utterances by regarding statements made under influence of the drug as merely self-serving declarations.

The trial court, in the case, sub judice, made the following findings:

THE COURT: All right. The Court is of the opinion that sodium pentothol comes under the same rules as polygraph examination. It’s not admissible. The only time it is admissible in the trial is when both sides would agree to it being considered by a jury.
Due to the fact that it’s not admissible, it’s not material to the trial, and the Court is not going to require the county to pay for such an examination knowing in advance that it’s not going to be admitted at the trial. Therefore, the Court is going to deny your motion.
Now this is not to say if you do want to make a proffer you may not do so, but any funds expended on such a test will have to come from the defendant or from the public defender’s office.
Now, the Court is going to deny this motion. Now, in the event that we go into a penalty phase trial, the Court will hear further from you as to how it could be presented for the Court to make a decision in the case.

The judge acted properly. Appellant’s fourth point is without merit.

We now consider the fifth issue, whether the trial court erred during the sentencing in granting the state’s motion to preclude the introduction of polygraph results. Section 921.141, Florida Statutes (1977), is not ambiguous with respect to what evidence is admissible at the sentencing hearing. The statute provides that evidence as to any matter the court deems relevant to sentencing may be admitted. It is within the discretion of the trial court to determine what is relevant in the sentencing proceeding. Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Absent a showing of abuse of this discretion we will not disturb the finding of the trial judge. No such abuse has been shown in the case sub judice. The granting of the state’s motion to preclude the introduction of the polygraph results was proper.

We now reach the final issue on appeal, the sufficiency of the trial court’s findings with respect to aggravating and mitigating factors. The first aggravating factor found by the trial court is that the defendant was previously convicted of other felonies involving the use of violence to some person. Documents introduced by the state demonstrated that he was convicted for assault with intent to commit murder in the first degree, and for an attempt to commit rape. In addition, the appellant admitted the crime of assault with intent to commit first degree murder in one of his taped confessions. Furthermore, the pre-sentence investigation report ordered by the trial judge reflected a conviction for assault with intent to commit first degree murder, and a conviction for attempted rape. Appellant’s challenge to this finding is without merit.

The second aggravating factor found by the trial court is that the murders were heinous, atrocious, or cruel. The facts support this finding. The appellant was in Naples to visit his daughter. He had no money and no place to stay. Bertha Skillen and George Ahern invited appellant to stay in their apartment. When Mrs. Skillen discovered that Norma was planning to leave Naples with the appellant she attempted to call the police. Appellant shot and killed Skillen at that time. Shortly after this Ahern returned to the apartment. He and Christopher went to the bank so that Ahern could give Christopher some money. When they returned to the apartment Christopher knocked Ahern down. Ahern then ran for the bedroom and tried to shut the door. Christopher pushed open the door and shot Ahern while Ahern was sitting on the bed.

It is common knowledge that discretion and judgment are essential to the judicial process and are present at all stages of its progression — arrest, arraignment, trial, ver-diet, and onward through final appeal. State v. Dixon, 288 So.2d 1, 6 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Judicial discretion in the context of the sentencing statute, section 921.141, Florida Statutes, must be reasonable and controlled, rather than capricious and discriminatory. Id. at 7. The discretion exercised by the trial judge in entering a sentence of death was reasonable and controlled, as required in Dixon.

We also held in Dixon that when one or more aggravating circumstances are found, the death penalty is presumed proper unless the aggravating circumstance or circumstances are overridden by one or more of the mitigating circumstances. 283 So.2d at 9. In the instant case it does not expressly appear from the specific findings of fact that the trial judge found the existence of any mitigating circumstances. Indeed, his written findings expressly negate the existence of any mitigating circumstances.

The findings of the trial court are supported by the facts and testimony in the record. No reversible error has been demonstrated. We therefore hold that the judgment and sentence of death upon the appellant, William D. Christopher, are affirmed.

It is so ordered.

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

SUNDBERG, C. J., concurs in the result only.

ENGLAND, J.,

dissents.