author: BROOM, Justice, HAWKINS, Justice,

text:
    George WILSON v. STATE of Mississippi.
    No. 52408.
    Supreme Court of Mississippi.
    March 4, 1981.
    Rehearing Denied April 1, 1981.

      Jon M. Barnwell, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court:

Aggravated assault upon a law enforcement officer pursuant to Mississippi Code Annotated § 97-3-7(2) (Supp.1980) is the offense for which the defendant George Wilson was convicted in the Circuit Court of Leflore County. Pursuant to Mississippi Code Annotated § 99-19-83 (Supp.1980), he was mandatorily sentenced to life imprisonment, and on his appeal argues that (1) the state failed to prove assault as a matter of law, (2) the evidence was insufficient, and (3) he was unconstitutionally denied a jury trial on the issue of his two prior felony convictions. We affirm.

The facts upon which the indictment and conviction rested relate to an altercation in Greenwood, Mississippi, on February 4, 1980, at a cafe where the defendant hit one Boyd with a rifle. After the defendant left the cafe, Boyd called the police. Two officers came and talked with Boyd about making formal charges against the defendant who then emerged from his residence across the street from the cafe. At that point the defendant stated that he would kill Boyd if Boyd made out papers against him. When Boyd made it clear that he was going to file charges, the defendant re-entered his house and came back with a rifle in his hand which he aimed at Officer Stanciel and pulled the trigger. Fortunately, the gun did not fire. The defendant denied pointing the gun at anyone but said that he got the gun out because one Joe Wade cursed and threatened him. Other facts will be stated as appropriate in this opinion.

First argument made is that the state failed to prove an assault as a matter of law. This argument is based in the main upon the thesis that the evidence showed that the rifle used by the defendant was inoperable and would not fire. On this basis he says that even if it were true that he pointed the gun at the officer, there cannot be any assault because the gun was inoperable.

As to this aspect of the case, Officer Keys testified:

After we was talking to Mr. Boyd, Mr. Wilson (appellant) told Mr. Boyd for him to go down town and press charges. If he wanted to, he was going to kill him. Mr. Boyd said, “o.k., that was what he was going to do.” “Baby George” (appellant) turned — Officer Stanciel and me started walking back to the ear to get in the car — and so, he turned and run into the house—
* * * * * *
Mr. Wilson (appellant) there — “Baby George” — he turned and run into the house. Well, at that point I come around the front of the car to go on the other side. When I looked around again, I seen Mr. Wilson (appellant) — “Baby George” come to the door; had a rifle in his hand; pointed it at Officer Stanciel and it clicked. At the time it clicked, I was ducking — at the same time. I was ducking. When I saw the rifle, I started going down and I heard it click. When I heard the rifle click, Stanciel opened — he already had the car door open, he ducked. When he pulled the shotgun out of the car, he run around the back of the car and I went around the front of the car. He went into the house and I went around behind the house.

Officer Stanciel also testified that “. . . he (appellant) came back out with a rifle and pointed it at me and pulled the trigger.” Stanciel’s testimony was also supported by Joe Wade’s testimony.

We have previously held that in order for there to be a basis of a criminal charge, it is not necessary that the gun either be loaded or operable. As stated in Macon v. State, 295 So.2d 742, 745 (Miss.1974), “The gun was a deadly weapon even though it was not loaded.” Accordingly, there is no merit to this argument. See also Gray v. State, 389 So.2d 1384 (Miss.1980).

Next proposition argued is that the evidence was insufficient to sustain the verdict. This is without merit.

Most serious is the argument that the defendant had a constitutional right to a jury trial on the issue of whether he was an habitual criminal for having had two prior felony convictions. When the state rested its case as to the assault on the law officer, the court stated that the jury would not be permitted to hear anything regarding the two prior felony convictions. After a guilty verdict, the court would then hear evidence and make the determination as to enhanced punishment under §§ 97-3-7(2) and 99-19-83, supra. The former code section defines the crime of aggravated assault upon a law officer. The latter section provides for a sentence of life imprisonment if one has been convicted of having two prior felony convictions, one of which is a crime of violence for which such person served one year in a penal institution. Accordingly, under those circumstances the defendant would be sentenced to life imprisonment without suspension or reduction of sentence. Pertinent here is Rule 6.04 of the Uniform Criminal Rules of Circuit Court Practice adopted by this Court on August 15, 1979, which provides:

In cases involving enhanced punishment for subsequent offenses under the Habitual Criminal Statute, Miss.Code Ann. § 99-19-83 (Supp.1978):
(1) The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous felonies, the state or federal jurisdiction of previous conviction, and the date of judgment.

The indictment shall not be read to the jury.

(2) Separate trials shall be held on the principal charge and on the charge of previous convictions. In the trial on the principal charge, the previous conviction will not be mentioned by the state or the court except for impeachment purposes.
(3) If the defendant is convicted on the principal charge, a hearing before the court will then be conducted on the previous convictions. (Emphasis added).

The trial court construed Rule 6.04, supra, to mean that the “trial judge” (without a jury) should make the determination of whether the defendant was guilty of being an habitual offender. According to the defendant, a jury should determine whether he had been previously convicted under § 99-19-83, supra.

Mississippi Code Annotated § 99-19-83 (Supp.1980) is as follows:

§ 99-19-83. Sentencing of habitual criminals to life imprisonment.
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

This precise question has not been decided by this Court in a case where the issue was squarely presented. Lay v. State, 310 So.2d 908, 910 (Miss.1975) discussed the trend of our cases dealing with enhanced punishment but is factually distinguishable from the present case. Without deciding the issue now before us, this Court stated in Jackson v. State, 381 So.2d 1040, 1042 (Miss. 1980) that the “trial court held a distinct hearing following the jury’s guilty verdict” on the primary charge there involved, and at the separate hearing determination was made of the defendant’s status as an habitual offender for sentencing purposes. Jackson is not controlling because in it the issue of jury trial on the habitual offender aspect was not raised or argued.

Various aspects of the question of a jury trial in situations like that presented here were considered by the United States Supreme Court in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Spencer clearly leaves it up to the states to decide whether or not an accused must be accorded a jury trial in cases like the present one. Our conclusion is that Rule 6.04, supra, and § 99-19-83, supra, both contemplate that the court (in the second phase of the trial) without a jury should hear evidence and make a determination of whether the defendant has been previously convicted under § 99-19-83. At this second phase hearing, the burden rests upon the State of Mississippi to prove the previous convictions and prove them beyond a reasonable doubt.

Our decision here was foreshadowed by Usry v. State, 378 So.2d 635 (Miss.1979), wherein we noted with approval that in the lower court on the principal or substantive charge of burglary, Usry was given a jury trial after which (without a jury) the court tried the issue of Usry’s prior convictions.

The substantive charge here was aggravated assault upon a law officer under § 97-3-7(2) as charged in the indictment which appropriately advised the defendant Wilson that if he were convicted of the primary charge he was subject to being sentenced as an habitual offender under § 99-19-83. Eutsey v. State, 383 So.2d 219 (Fla.1980) was very similar to the present case, and we commend it as quite instructive on the present issue. Of course, at the second stage of the trial when the habitual criminal issue is tried the defendant must be afforded ample opportunity to dispute the truth of the assertion made by the state that he is an habitual offender. The defendant must be accorded his right to be confronted with witnesses and cross examine them when appropriate in the conduct of the second stage of the trial. Of course at that time he will have his usual right to secure the presence of witnesses by process of the court. In consideration of § 99-19-83, supra, as to whether a jury should decide the issue of prior convictions, significant to us is the language of the title to that particular statute. The title reads, “Sentencing of habitual criminals to life imprisonment,” indicating legislative intent was negative as to a jury trial in applying the statute. Sentencing is ordinarily a function of the judge and under § 99-19-83, the “life imprisonment” sentence was mandatory after the prior convictions were extablished. State v. Guidry, 169 La. 215, 124 So. 832 (1929). The statute (§ 99-19-83) did not make it a crime for Wilson to be a multiple offenderbut simply provided a greater penalty because he was in a category of persons which the legislature required to be given a certain severe penalty. State v. Vale, 252 La. 1056, 215 So.2d 811 (1968).

The primary charge of aggravated assault against a law officer was properly tried by the jury, and we do not think it was necessary that the issue of prior convictions be submitted to the jury. We find no reversible error in the record, and therefore affirmance is required.

This case was considered by a conference of the judges sitting en banc.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P., JJ, and SUGG, WALKER and LEE, JJ, concur.

HAWKINS and BOWLING, JJ, dissent.

HAWKINS, Justice,

dissenting:

I respectfully dissent from the majority opinion, in its affirmance of the conviction of the defendant as a habitual criminal in the absence of a jury trial on the issue.

The section upon which the defendant was convicted as a habitual criminal is part of Chapter 470, General Laws of 1976.

Section 1 (now codified into 99-19-81 of the Code) reads as follows:

“Section 1. Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.”

This section simply states to a judge that after a person has been convicted of a felony, if it develops he has been previously convicted of felonies two times, the trial judge must give him the maximum sentence for the felony under which he is convicted, a sentence the judge would be empowered to give, though not mandated to do so, in any event.

Section 2 (now codified into 99-19-83 of the Code) reads as follows:

“Section 2. Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.”

A comparison of these two sections reveals a drastically different mandate is imposed upon the trial judge in each. In the former the trial judge upon conviction of the current offense with which the defendant is charged, upon a showing of two previous convictions for felonies, must impose the maximum penalty under the statute for which the accused is being tried. The judge is already authorized to impose such sentence in any event.

In the latter section, the trial judge has the somber unalterable duty upon proof of two previous felony convictions, with one involving a crime of violence, to sentence the defendant to life imprisonment, with the sentence never being reduced or suspended, and the defendant never eligible for parole or probation.

The indictment in this case charged the defendant with aggravated assault, Section 97-3-7(2), carrying a maximum penalty of 30 years, and also with being a habitual criminal under Section 99-19-83.

Following the procedure set forth by Section 6.04 of the Uniform Criminal Circuit Court Rules, the trial was conducted in two stages. The current offense of aggravated assault (Section 97-3-7(2)) for which the defendant was charged was tried before a jury, which found him guilty. I fully concur the verdict and judgment of conviction of this crime should be affirmed.

There remained before the circuit court the issues of fact to meet the requirements of Section 99-19-83, namely:

(1) whether the accused had been convicted twice previously of any felony, upon charges separately brought and arising out of separate incidents, at different times; and
(2) had been sentenced to and served separate terms of one (1) year or more in any state or federal penal institution, and that one of such felonies was a crime of violence.

If he were found guilty under these statutory requirements, it became the duty of the trial judge to sentence him to life imprisonment, and such sentence cannot be reduced or suspended, and the defendant will never be eligible for parole or probation.

On this second issue the defendant through his counsel demanded a trial by jury. The circuit judge, acting under the provisions of Section 6.04 of the Uniform Criminal Circuit Court Rules, heretofore adopted by this Court, ruled the hearing should be conducted by the court and not a jury. He did require the proof of the issues of habitual criminal to be proved beyond a reasonable doubt and to a moral certainty. Following proof, the circuit judge found the defendant guilty under Section 99-19-83, and imposed the sentence he was required by law to impose. I believe the defendant was entitled to a trial by jury to determine such guilt.

This Court with this opinion has ruled the defendant in such a case is not entitled to a trial by jury in determining the facts of whether he is in truth and in fact a habitual criminal under the provisions of Section 99-19-83. In this case it is manifest the trial court conducted a fair and impartial hearing on the issues of fact under Section 99-19-83, and had the accused been afforded a jury to hear these same facts, I have little doubt the result would have been the same.

That, however, is not the point. It is my respectful opinion that the defendant was entitled to a trial by a jury, and not simply by the judge, on the issues of fact of whether or not he was a habitual criminal under this section. I must therefore in profound deference to my Associates respectfully dissent from the majority opinion.

Upon the second state of facts which had to be proved, the accused was not getting the same sentence for the .crime with which he was charged, but the harshest form of penalty known to our law, short of the death penalty. Even convicted murderers are not locked in prison and the key thrown away.

Furthermore, upon conviction of being a habitual criminal the trial court had no leeway, no discretion whatever. The sentence had to follow the conviction.

To argue this second stage of the proceedings was only dealing with enhanced punishment might make better reasoning if the trial judge already had the power to impose such a sentence upon conviction of the current offense with which the defendant was charged. But, this statute imposes an additional, and as stated, the most severe penalty known to our law, short of the death penalty.

Nor am I persuaded by any argument that the second stage dealt primarily with records, or with issues of fact which could more efficiently be heard and conducted by a judge rather than a jury. Neither the complexity nor the simplicity of any factual issue involved has ever been a criterion for a citizen’s right to trial by jury.

If the factual elements of a criminal statute are required to be proved in open court before a judge is authorized to pass the sentence provided by that statute, it is elemental an accused is entitled to a jury to determine whether such facts are proved by the State. There is nothing about this statute which indicates to me the Legislature intended otherwise, and it is a rule heretofore adopted and approved by this Court which authorized the procedure followed by the trial judge. Yet even if the statute specifically so authorized such proceedings, it would be unconstitutional in my opinion. In any criminal case charging a felony the defendant has the right for a jury to decide whether or not the necessary facts are proved.

I concede an array of what might ordinarily be considered respectable authority from other states and even the Federal judiciary support the rationale of the majority opinion for reasons as above stated. These authorities (albeit uncomfortably on occasion) sanction a hearing before the trial judge, and in some jurisdictions on simply a preponderance of the evidence permit an extended sentence beyond the statutory maximum penalty of the current crime for which the defendant has been tried and convicted. My bemused examination of such reasoning leads me to conclude that if the statute authorized the death penalty for a habitual offender, under this logic the trial judge after a hearing, upon a preponderance of the evidence, could sentence the defendant to be hanged. This would reduce a lot of governmental expense, and I am not so sure but it would be almost as humane as putting a prisoner behind bars with no hope of freedom this side of death.

All such authorities to the contrary notwithstanding, my own is much simpler and much closer at hand: our Mississippi Constitution, which reads: the right to trial by jury shall remain inviolate.

This Court is the highest Court in the United States in determining what our State’s Constitution means. Here our right is absolute, and our responsibility non-dele-gable. We are the Court of last resort on this question, and are required to look nowhere else.

To this humble author, who happens at this time to be a member of this Court, at least to me it is too clear for argument the defendant’s right to trial by jury was violated. Our Constitution states as clearly as it can be stated that every citizen is entitled to a trial, and a trial by jury. The defendant had a trial, but no trial by jury.

The judge after conducting a trial on the factual issue of the defendant’s being a habitual criminal pronounced in court that he found the defendant guilty beyond a reasonable doubt and to a moral certainty. No judge has a right on a serious criminal charge to deprive a defendant of the right to a jury to make such determination of guilt or innocence.

Surely, any doubt of whether a defendant should or should not be given a right to trial by jury must be resolved in favor of preserving the right. Heretofore this Court with the constancy of Polaris has respected this right.

This case represents a cross-roads in criminal procedure for our State. In taking one route, the right to trial by jury is maintained, strong and virile. By the other route we surely emasculate a sacred right which mankind has purchased over the centuries at a very dear price.

Such a choice presents no difficulty to me. I cannot support any law or legal reasoning, the effect of which is to tamper with the greatest bulwark of freedom granted a citizen.

I would, therefore, reverse and remand this case for a trial by a jury solely on the question of whether the defendant is a habitual criminal under the provisions of the statute.

      . Usry’s habitual offender status was pursuant to Code § 99-19-81, but the principle there discussed is analogous to that involved here under § 99-19-83.

      . See: Usry v. State, 378 So. 635 (Miss.1979) approving procedure under Section 99-19-81, but even under Section 99-19-81 intimating a jury was entitled to pass on the issue: see p. 639 of opinion.

      . The pertinent portions of the indictment read as follows:
      "INDICTMENT - FORM 15 AGGRAVATED ASSAULT UPON A LAW ENFORCEMENT OFFICER: HABITUAL CRIMINAL STATUTE
      97-3-7(2)
      99-19-83.”
      “THE GRAND JURORS of the State of Mississippi, .. . upon their oaths, present: That GEORGE WILSON, late of the County aforesaid, on the 14th day of February, 1980, in the County aforesaid, did unlawfully, felo-niously, knowingly or purposely attempt to commit serious bodily injury to Austin Stan-ciel, a human being, by pointing a deadly weapon, to-wit, a rifle, at and toward said Austin Stanciel and attempting to fire said rifle by pulling the ammunition, said action being done by said George Wilson at a time when said Austin Stanciel was acting within the scope and duty of his office as a member of the Greenwood, Mississippi Police Department, such employment being well known to said George Wilson at the time of said incident, said George Wilson having been previously convicted in the Circuit Court of Lef-lore County, Mississippi of the crime of Burglary, a felony in cause number 18 516 on March 20, 1973 and sentenced to the Mississippi State Penitentiary for a term of three years and did serve one year or more therein, and having been convicted in this same Court of the crime of Aggravated Assault, a felony and a crime of violence, in Cause No. 18 758 on April 3, 1975, and sentenced to the Mississippi State Penitentiary for a term of four years sentence, against the peace and dignity of the State of Mississippi.”

      . Lay v. State, 310 So.2d 908 (Miss. 1975), cited in the majority opinion clearly shows this Court was then of the unanimous opinion the issue of previous conviction was for the jury. See pages 910, 914.

      . Not, however, the U.S. Supreme Court, which as yet has not passed upon the precise question presented in this case. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed. 606 (1967), cited in the majority opinion does not squarely address this particular question on a statute such as ours.

      . It is interesting in this particular case that at the conclusion of the trial of the second stage, the trial judge noted that he had been assistant district attorney when the two previous convictions had been secured, and therefore knew of his own personal knowledge the defendant was the same person who had been convicted of the previous felonies. Had the judge been a prospective juror, such knowledge would have disqualified him to serve as a juror on the case.


source: Caselaw Access Project

author: PATTERSON, Chief Justice,

license: Public Domain

text:
    Susie Mae WILLIAMS v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Anderson-Tully Company.
    No. 52,461.
    Supreme Court of Mississippi.
    March 18, 1981.
    Rehearing Denied April 1, 1981.

      Barry H. Powell, Alfred H. Rhodes, Jr., Jackson, David F. Baughn, Vicksburg, for appellant.
    Fred J. Lotterhos, Jackson, for appellee.
    Before PATTERSON, C. J., SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Susie Mae Williams appeals from the Circuit Court of Warren County where an order of the Board of Review of the Mississippi Employment Security Commission denying her unemployment compensation benefits was affirmed. The claims examiner initially disqualified Ms. Williams from receiving benefits because she refused an offer of suitable work. On appeal to the referee, this disqualification was reversed and Anderson-Tully Co. appealed to the Board of Review which remanded the cause to the referee for the taking of the employer’s testimony on September 28, 1979. The employer did not make an appearance whereupon on October 16, 1979, with no additional evidence before it, the board reversed the referee’s decision and reinstated the disqualification of Ms. Williams.

Ms. Williams appeals from the Circuit Court of Warren County, assigning two errors.

1. The finding of fact of the Board of Review of the Mississippi Employment Security Commission cannot be based solely on hearsay evidence;

2. The denial of unemployment compensation benefits solely on the basis of hearsay evidence deprived appellant of her right to confront and cross-examine the witnesses against her in violation of the Fourteenth Amendment of the United States Constitution.

At the preliminary hearing before the referee, Ms. Williams testified she was laid off from her job as a boring machine operator at Anderson-Tully and thereafter filed a claim for unemployment compensation on May 21, 1979. In the early part of June, 1979, the secretary at Anderson-Tully informed her of a job opening, but according to appellant did not describe the pay or give her an opportunity to indicate whether she would accept the job. Instead, the secretary informed her she could wait until her old job reopened. Ms. Williams denied having refused the offer of work. The testimony of Anderson-Tully was not taken at this hearing.

Subsequently, Anderson-Tully appealed and stated in a letter to the Board of Review dated August 23, 1979, that Ms. Williams volunteered for lay-off on May 18, 1979, because of her pregnancy. Also, the letter stated that on June 7, 1979, Ms. Williams was offered a job paying $3.35 per hour which she refused to accept.

Anderson-Tully did not appear at the preliminary hearing nor did they appear at the second scheduled hearing following remand for the taking of additional evidence.

The sole basis for the decision of the Board of Review was Anderson-Tully’s letter stating that Ms. Williams had refused available, suitable work. This decision based solely on hearsay is the primary issue, and appellant contends that a finding of fact in unemployment compensation proceedings cannot be based solely on hearsay testimony.

The scope of judicial review on an appeal from an order of the Board of Review is confined to questions of law. MCA § 71-5-531 (1972) provides that “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law .. . ”. This requires a determination of the sufficiency of the evidentiary basis of the decision.

We are of the opinion that based on the particular facts and circumstances of the case before us the decision to disqualify Ms. Williams from receiving benefits was not based on sufficient evidence.

This Court has long applied the substantial evidence rule when reviewing the sufficiency of the evidence in workmen’s compensation cases. See Dunn, Mississippi Workmen’s Compensation, § 289 (2d ed. 1967). We are of the opinion the word “evidence” in § 71-5-531 should likewise be construed to mean substantial evidence. Application of the substantial evidence rule to the case on appeal would require reversal because uncorroborated hearsay is not substantial evidence, even though hearsay is admissible in an administrative proceeding. We think the letter which formed the basis for the board’s decision wholly failed to meet the substantial evidence standard. See Geegan v. Unemployment Compensation Commission, 45 Del. 513, 76 A.2d 116 (1950); Sinclair v. Director of Division of Employment Security, 331 Mass. 101, 117 N.E.2d 164 (1954).

Also upon remand to the referee, a second hearing was scheduled but not conducted; and the record does not reveal any notice given to Ms. Williams that the Board of Review would again consider it. We are of the opinion that notice to Ms. Williams was necessary before the board reconsidered and rendered its decision to reverse and disqualify the claimant. See MCA § 71-5-519 (1972) and § 71-5-523 (1972).

Therefore, we are of the opinion the decision should be reversed because it was not rendered on the basis of substantial, credible evidence nor was notice provided to claimant prior to the board’s decision to reverse. Reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Clarence William RICHARDS v. Patsy Ann Gatewood RICHARDS.
    No. 52490.
    Supreme Court of Mississippi.
    March 25, 1981.
    Harry L. Kelley, Jackson, for appellant.
    John C. McLaurin, Jr., McLaurin & McLaurin, Brandon, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED IN PART; REVERSED IN PART & REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and HAWKINS, JJ., concur.


text:
    James Lamar WALLS v. STATE of Mississippi.
    No. 52611.
    Supreme Court of Mississippi.
    March 25, 1981.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

John B. Farese, Farese, Farese & Farese, Ashland, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, LEE, and BOWLING, JJ., concur.

HAWKINS, J., took no part.


text:
    In re VALIDATION OF $6,000,000 GENERAL OBLIGATION BONDS OF 1980 OF MISSISSIPPI GULF COAST JUNIOR COLLEGE DISTRICT OF MISSISSIPPI. MISSISSIPPI GULF COAST JUNIOR COLLEGE DISTRICT OF MISSISSIPPI v. Jesse O. ADCOCK et al.
    No. 52616.
    Supreme Court of Mississippi.
    March 25, 1981.
    W. Joel Blass, Mize, Thompson & Blass, Roy B. Strickland, Gulfport, Arthur F. Jer-nigan, Jr., Bacon, Stone, Jernigan & Goodman, Jackson, for appellant.
    Harold J. DeMetz, Virgil G. Gillespie, Gulfport, for appellees.
   Appeal from Chancery Court, Harrison County; William L. Stewart, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and HAWKINS, JJ., concur.


text:
    Rodney P. MURY v. Roberta H. Mury Delapp GREGORY.
    No. 52578.
    Supreme Court of Mississippi.
    March 25, 1981.
    Roland B. Skinner, Biloxi, for appellant.
    Joe Ben Hawkins, Hawkins & Henry, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; William L. Stewart, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ.

REVERSED, RENDERED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and HAWKINS, JJ., concur.


text:
    Ronald Ray HUFF v. STATE of Mississippi.
    No. 52479.
    Supreme Court of Mississippi.
    March 25, 1981.
    Robert H. Broome, Batesville, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, LEE AND BOWLING, JJ., concur.


text:
    Danny JOHNSON v. STATE of Mississippi.
    No. 52569.
    Supreme Court of Mississippi.
    March 25, 1981.
    Buchanan Meek, Jr., Meek & Meek, Eupo-ra, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp., Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Webster County; Niles McNeel, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Walter Allen SANDERS v. Helen JORDAN.
    No. 52519.
    Supreme Court of Mississippi.
    March 25, 1981.
    Warren Ashley Hines, Lane & Henderson, Greenville, for appellant.
    R. V. Kimble, Jr., and Donald Hayden, Harty & Kimble, Greenville, for appellee.
   Appeal from Chancery Court, Washington County; Nat W. Bullard, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    June F. BROWN v. MISSISSIPPI STEEL DIVISION OF MAGNA CORP. and United States Fidelity & Guaranty Co.
    No. 52638.
    Supreme Court of Mississippi.
    March 25, 1981.
    Michael J. Malouf, Malouf & Malouf, Jackson, for appellant.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

James F. Mixsori, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellees.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    George T. SUMRALL v. Mrs. Linda A. JOHNSON.
    No. 52581.
    Supreme Court of Mississippi.
    March 25, 1981.
    Davis Hall Smith, Jackson, for appellant.
    Phillip J. Brookins, Walker, Brookins & Walker, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Rueben V. Anderson, Special Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    Jessie GILBERT and Hal Neilson v. STATE of Mississippi.
    No. 52467.
    Supreme Court of Mississippi.
    March 25, 1981.
    Edwin T. Neilson, Jr., Lexington, for appellant.
    Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Holmes County; Webb Franklin, Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.


text:
    David Warren BONDERER v. Helen Dian BONDERER.
    No. 52525.
    Supreme Court of Mississippi.
    March 25, 1981.
    John G. Corlew, Corlew, Krebs & Hammond, Pascagoula, for appellant.
    Karl Wiesenburg, Wiesenburg & Reed, Pascagoula, for appellee.
   Appeal from Chancery Court, Jackson County; Kennth B. Robertson, Chancellor.

Before PATTERSON, C. J., and WALKER and HAWKINS, JJ.

AFFIRMED.


text:
    Clarence William RICHARDS v. STATE of Mississippi.
    No. 52521.
    Supreme Court of Mississippi.
    March 25, 1981.
    Harry L. Kelley, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and HAWKINS, JJ., concur.


text:
    Lena HONEYCUTT a/k/a Lener Honeycutt a/k/a Lena Hunnicutt v. STATE of Mississippi.
    No. 52609.
    Supreme Court of Mississippi.
    March 25, 1981.
    Fred L. Cooper, Columbia, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ. and SUGG, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Manuel SULLIVAN v. STATE of Mississippi.
    No. 52558.
    Supreme Court of Mississippi.
    March 25, 1981.
    James H. Heidelberg, Fielding L. Wright, Wright & Heidelberg, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert Pritchard, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.

SMITH, and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: EMBRY, Justice.

text:
    Ex parte Joseph W. HAPONSKI, Jr. (Re TODD FARMS, INC. v. Joseph W. HAPONSKI, Jr.)
    79-765.
    Supreme Court of Alabama.
    Feb. 5, 1981.
    Richard C. Belser and John M. Bolton, III, of Robison & Belser, Montgomery, for petitioners.
    M. R. Nachman, Jr. and G. Griffin Sikes, Jr., of Steiner, Crum & Baker, Montgomery, for respondents.
   EMBRY, Justice.

Petition for certiorari was granted on the issue of whether an agreement to pay fifty percent of the costs of “installing necessary curb, gutter, and pavement which may be required by the City of Montgomery” included the costs of installing an underground storm sewer system as an integral part of constructing a street.

The relevant facts and the relevant portion of a letter setting forth the terms of the contract are set out in the Court of Civil Appeals opinion. See 385 So.2d 638 (1980). We are concerned with the meaning of the following words of the contract contained in a letter from the respondent, Todd Farms, Inc. to petitioner, Joseph W. Hapon-ski, Jr.:

... We agree, therefore, that at such time as you may wish to plat the remainder of your property along Plantation Way, as extended, we will join with you in the dedication of such Easterly extension of Plantation Way and that we will join with you in installing the necessary curb, gutter, and pavement which may be required by the City of Montgomery. Water and sewer mains already are installed along the proposed Easterly extension of Plantation Way, and we will not obligate ourselves to make any additional sewer laterals or water tap installations for your benefit, but we do specifically and affirmatively agree to pay 50% of the cost of the Easterly extension of Plantation Way for curb, gutter, and pavement to the Easterly boundary of Parcel “A,” whenever either you or we determine that such extension should be made. Conversely, we shall expect the same cooperation from you.

The Court of Civil Appeals reversed the trial court’s judgment and held that the “cost of installation of necessary curb, gutter, and pavement as required by the City of Montgomery” included the construction expense of a storm drainage system for which petitioner was to bear fifty percent of the costs. The basic facts are not in dispute; instead, resolution of this issue is a question of interpretation of the words of the contract.

The contract explicitly mentions the items for which costs were to be shared. Regardless of whether the storm drainage system had to be installed before the street was paved, or whether such a storm sewer is required by the City of Montgomery when a street is constructed, the specific wording of the agreement provided only for sharing costs of curbing, guttering and pavement. We have refused to extend the meaning of “paving” in a statute to include as an integral part thereof underground surface water drainage installed beneath the pavement. City of Mobile v. Mobile Light and Railroad Co., 141 Ala. 442, 38 So. 127 (1904). Similarly the meaning of “curbs, gutters, and pavement” should not be extended to include underground storm drainage systems. The agreement contained in respondent’s letter specifically named the items for which the petitioner was to pay fifty percent of the costs. A familiar maximum of statutory construction, expressio unius est exclusio alterius, is equally applicable in contract to construction of contract language so that specific mention of one of a class of things implies the exclusion of those items not mentioned. Black’s Law Dictionary, p. 521 (5th Ed. 1979). It is axiomatic that if a contract is ambiguous the court will construe the contract most strongly against the party who drew it; in this case, Todd Farms. Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157 (1975).

Where, as here, the language of the contract is unambiguous and plain in its expression, the court cannot alter the agreement by construction but rather must expound it as it is made by the parties. Flowers v. Flowers, Ala., 334 So.2d 856 (1976); Springdale Gayfer’s Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855 (1967). The terms of this contract are clear as to what items of cost are to be shared, but even if they were considered to be ambiguous, the relevant rules of construction mandate reversal of the decision of the Court of Civil Appeals. The judgment of the Court of Civil Appeals is due to be and is hereby set aside and the judgment of the Circuit Court of Montgomery County reinstated.

REVERSED AND RENDERED.

TORBERT, C. J., and FAULKNER, JONES, ALMON, BEATTY and ADAMS, JJ., concur.

MADDOX and SHORES, JJ., dissent.


author: TORBERT, Chief Justice. MADDOX, Justice

text:
    Cathy Ann B. McGOUGH, etc. v. Francis B. SLAUGHTER et al.
    79-396.
    Supreme Court of Alabama.
    March 6, 1981.

      Terry P. Wilson of Turner, Wilson & Christian, Montgomery, for appellant.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and J. L. Chestnut of Chestnut, Sanders & Sanders, Selma, for appellees.
   TORBERT, Chief Justice.

The issue presented in this appeal relates to the admissibility of the results of a blood test for intoxication where the blood sample is taken from a deceased person by an embalmer. More specifically, we must decide whether blood alcohol test results from samples obtained by authority of Code 1975, § 22-19-80, are per se admissible. We find that compliance with § 22-19-80 alone does not make the blood tests admissible, and we hold that general evidence principles regarding admissibility of scientific test results are applicable. Because the circuit court admitted evidence for which no predicate was laid, we reverse.

A pickup truck driven by Thomas McGough collided with a tractor-trailer driven by Francis Slaughter. The incident occurred at night, and, at the time of the collision, the Slaughter tractor-trailer was blocking the road on which Mr. McGough was traveling. The impact killed Mr. McGough, and his body was taken to Jones Funeral Home in Greenville, Alabama, for burial preparation.

At the direction of a law enforcement official, a licensed mortician took a blood sample from the body of Mr. McGough. The mortician, Larry Jones, was not a doctor, registered nurse, or licensed clinical lab technologist or technician. Laboratory analysis showed alcohol in the blood sample amounted to .18 grams percent by weight.

Cathy McGough, the administratrix of the estate of Mr. McGough, filed suit against Mr. Slaughter, alleging the wrongful death of Mr. McGough. The attorney for plaintiff filed a motion in limine, seeking to exclude evidence of the blood test and results. At the motion hearing, plaintiff argued that the blood test was not taken in conformity with either Code 1975, § 32-5-193, or the Court of Civil Appeals interpretation of that statute in the case. Lankford v. Redwing Carriers, Inc., 344 So.2d 515 (Ala.Civ.App.1977). The defendant argued that the legislature abrogated Lankford by passing Code 1975, §§ 22-19-80 through -82. The judge agreed with defendant and denied plaintiff’s motion.

At trial defendant’s attorney sought to introduce results of the test. Over plaintiff’s objection, the test results were revealed to the jury. Plaintiff’s motions for directed verdict, judgment notwithstanding the verdict, and for new trial challenged, among other things, the admission of the results of the test on the ground the results were from tests not taken in conformity with Code 1975, § 32-5-193, and on the ground no proper predicate was laid before admission of the results. All the motions were denied, and plaintiff appealed from the trial judge’s failure to grant a new trial.

I.

As a preliminary matter, we address defendant’s motion to dismiss plaintiff’s appeal. As grounds for his motion, defendant asserts that in her brief plaintiff does not argue error in the judge’s failure to grant a new trial. Instead, plaintiff argues there was error in the judge’s ruling on the motion in limine and in his ruling on the admissibility of the alcohol blood test results. Defendant, however, fails to recognize that the scope of appellate review is not limited by the notice of appeal designation of the judgment or order appealed, whether appeal is taken from the final judgment or from the order denying a motion for new trial. ARAP 3(c); Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979). Except in rare instances (e. g., sufficiency of the evidence), errors asserted at trial may be raised on appeal without regard to whether such errors were raised, or whether adverse rulings were invoked, in the motion for new trial. ARAP 4(a)(3); Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979). The issues raised in plaintiff’s brief are properly before us, and defendant’s motion is denied.

II.

The legislature has by statute remedied many of the problems involved in laying a foundation for admission of intoxication test results, at least where the action arises from operation of a vehicle. See Code 1975, § 32-5-193.

Under [such a statute], the questions of relevancy, and to a large extent of weight, of the evidence, have thus been legislatively resolved. The [statutory intoxication] presumptions have been upheld by the courts ... and the prescription for test procedures adopted by the state health agency has been taken as acceptance of the general reliability of such procedures in showing blood-alcohol content.

E. Cleary, McCormick’s Handbook on the Law of Evidence § 209 at 513 (2d ed. 1972) (footnotes omitted).

A party offering results from tests shown to be given in conformity with the statute is relieved of the burden of laying the extensive predicate generally necessary for admission of scientific test results.

Code 1975, § 32-5-193, applies to admission of blood alcohol test results into evidence.

§ 32-5-193. Admissibility of results of test in evidence; presumptions; how and by whom tests made; immunity from liability; evidence of refusal to submit to test.
(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person’s blood at the time of the chemical test or tests authorized by this division as shown by chemical analysis of the person’s blood, urine or breath shall be admissible as evidence ....
(b) Chemical analyses of the person’s blood, urine or breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the state board of health and by an individual possessing a valid permit issued by the state board of health for this purpose. The state board of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state board of health.
(c) Only a physician, registered nurse or duly licensed clinical laboratory technologist or clinical laboratory technician acting at the request of a law-enforcement officer may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath or urine specimens.

Code 1975, § 32-5-193 (repealed, 1980 Ala. Acts, No. 80-434, § 15-106, replaced by Code 1975, § 32-5A-194 (Supp.1980)). Strict compliance with the requirements of § 32-5-193 is a condition precedent to the admissibility of the results of tests made pursuant to the statute. Patton v. City of Decatur, 337 So.2d 321 (Ala.1976); Lankford v. Redwing Carriers, Inc., 344 So.2d 515 (Ala.Civ.App.1977).

In the case of Rehling v. Carr, 295 Ala. 366, 330 So.2d 423 (1976), we enforced the plain wording of the statute to allow only physicians, nurses, or laboratory technologists or technicians to take blood samples for alcohol content analysis. The plaintiff widow brought an action for injunction against the state toxicologist and a coroner seeking the return of a blood sample taken by the coroner from the body of the widow’s deceased husband. Since there was no statutory authorization for a coroner to take blood samples for alcohol content analysis, we required that the blood sample be returned to the widow.

Although Code 1975, §§ 22-19-80 through -82, had not been enacted at the time, the Court of Civil Appeals decided that blood alcohol test results were inadmissible where the blood samples were taken by a mortician. In the case of Lankford v. Redwing Carriers, Inc., 344 So.2d 515 (Ala. Civ.App.1977), the petitioner assigned as error the trial court’s ruling that Ala.Code tit. 36, § 155 (1940) (Recomp.1958) (Supp.1973) (or Code 1975, § 32-5-193), applied only to cases in which living persons were being prosecuted for some violation of the law. The Court of Civil Appeals agreed with the petitioner and found that the statute applied to blood alcohol tests performed on the dead as well as the living. Additionally, the Court gave effect to the specific wording of the statute which made intoxication test results admissible not only in criminal actions, but also in civil proceedings.

Defendant argues that the legislature responded to the ruling in Lankford by enacting Code 1975, §§ 22-19-80 through -82. Defendant asserts that the sections make admissible test results derived from blood taken by a licensed embalmer.

§ 22-19-80. Authority of coroners, deputy coroners, state toxicologist and law enforcement officers; purpose of taking samples.
(a)Each duly elected or appointed coroner in the state of Alabama is authorized to withdraw and retain or direct the withdrawal and retention of blood and/or urine from the dead body of a person who died unattended by a physician, or who died under suspicious circumstances, or where there is reasonable cause to believe the person died from unnatural and/or unlawful causes.
(b) Each duly elected or appointed deputy coroner shall have the same authority to withdraw and retain or direct the withdrawal and retention of a blood and/or urine sample when acting for the coroner.
(c) The state toxicologist and his designated or appointed assistants are authorized to withdraw and retain or direct the withdrawal and retention of blood and/or urine from the dead body of a person who died unattended by a physician, or who died under suspicious circumstances, or where there is reasonable cause to believe the person died from unnatural and/or unlawful causes.
(d) A law enforcement officer investigating a fatal motor vehicle accident is authorized to direct the withdrawal and retention of blood and/or urine from the body of any such fatality.
(e) The purpose of any withdrawal and retention of blood and/or urine shall be for analyses or studies to assist in determining the cause, manner and circumstances of death, including a chemical or other test or tests for drugs and/or poisons.
§ 22-19-81. Persons who may be directed to withdraw samples.
Only a physician, registered nurse, duly licensed clinical laboratory technologist, clinical laboratory technician, mortician, licensed embalmer or licensed practicing embalmer may be directed by a coroner, deputy coroner, a law enforcement officer or the state toxicologist or his designated or appointed assistants to withdraw blood and/or urine for the purpose or purposes cited in section 22-19-80.
§ 22-19-82. Exemption from civil and criminal liability.
(a) No coroner, deputy coroner, the state toxicologist and his designated or appointed assistants, mortician, licensed embalmer, physician, registered nurse, duly licensed clinical laboratory technologist or clinical laboratory technician or employers of the aforementioned persons shall incur any civil or criminal liability as a result of the proper withdrawal or securing or retention of a blood and/or urine specimen as provided by this article.
(b) The state toxicologist and his desig-náted or appointed assistants shall incur no civil or criminal liability as a result of the proper analyses or studies of blood and/or urine specimens withdrawn and retained as provided in this article.

Code 1975, §§ 22-19-80 through -82.

In particular, defendant believes § 22-19-80(e) speaks to the admissibility of the results of tests taken pursuant to the statutes.

We do not agree with defendant, because the sections do not address the evidentiary value accorded blood sample tests when the blood samples are taken by a mortician. They authorize state officers to collect blood or urine samples from the bodies of persons who die under “suspicious” or certain other circumstances and relieve the officer of civil or criminal liability which might be incurred. The purpose of the statutes, as set forth in § 22-19-80(e), is to provide an investigative tool to aid officials in their determination of the cause, manner or circumstances of death.

The procedures established by § 32-5-193 insure reliability of test results, but §§ 22-19-80 through -82 have no procedure by which reliability of results is assured. In order to be reliable, and thus relevant to the matter at issue, results must be from generally accepted tests conducted under conditions which do not impeach the reliability of the testing procedure. Absent the predicate mandated by general evidence principles and without statutory procedure and other assurances of uncontaminated test results, the bare fact the legislature gave certain persons authority to take test specimens does not render the results of the tests admissible as evidence.

Since we have decided that § 22-19-80 does not control the admissibility of the blood alcohol test results, for the results to have been admissible, either defendant must have shown the tests were taken in conformity with § 32-5-193, or he must have laid the proper foundation for their admission under general evidence principles. It is manifest the tests were not taken pursuant to the guidelines set down in § 32-5-193, and we have examined the record and found absolutely no attempt to lay the foundation otherwise necessary. We find that the trial judge erred when it admitted the test results over plaintiff’s objection.

Because the foregoing issue is resolved in plaintiff’s (appellant’s) favor, we do not address her challenge to the blood sample chain of custody.

MOTION DENIED; REVERSED AND REMANDED.

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

MADDOX, ALMON and ADAMS, JJ., concur in part and dissent in part.

MADDOX, Justice

(concurring in part; dissenting in part).

The majority opinion, applying a rule of strict construction to the Alabama Chemical Test for Intoxication Act (Code 1975, § 32-5-190, et seq.), the so-called “Implied Consent” law, correctly proves that an embalmer is not authorized to draw blood from a dead body under the provisions of that law, and correctly concludes that the statutory presumption of intoxication provided for in that law would be inapplicable in this case because the blood sample was not drawn by a person authorized under the “Implied Consent” law to draw the blood sample. In other words, the majority correctly makes a distinction between the admissibility of evidence under traditional rules of evidence and a statutory presumption on the effect of evidence. I, therefore, concur in those portions of the majority opinion which conclude that the statutory presumption of intoxication provisions of the “Implied Consent” law were not available in this case, and I also concur in those portions of the majority opinion which conclude that the results of a chemical test of blood is admissible, whether the presumption of intoxica tion is available or not, provided a proper predicate is laid. I dissent from that portion of the opinion which holds that a proper predicate was not laid in this case.

The plaintiff filed a motion in limine to exclude the evidence of the results of the blood sample.

Larry Jones, a licensed embalmer and funeral director, testified at the hearing on the motion in limine and also at trial. Jones testified, at trial, that he took the blood sample from the dead body of Thomas McGough at the request of a State trooper and explained in some detail how he drew the blood sample. He testified:

Q. All right, and did you get it in a tube of some kind, or what?
A. I got it in a regular blood sample tube, a vial.
Q. All right, had that tube been cleaned out, cleaned thoroughly before you put Mr. McGough’s blood in it?
A. It was packaged. I purchase the tubes of this nature from the local drug store, and it was packaged, and I took it out of the package and put the blood in it.
Q. In other words, it never had been used?
A. No.
Q. Was it, in your judgment, uncontaminated with any foreign matter whatsoever?
A. In my judgment, it was.
Q. And, did you seal it up?
A. Yes, sir, and tagged it.
Q. Sealed it and tagged it?
A. With my name, date and my signature.

On cross examination, Jones testified:

A. The blood that I collected — the first blood that came from the jugular vein went into the blood sample vial.
Q. How did you get it from the vein into the vial?
A. By placing the vial to the opening in the vein where I had made the incision, then placing pressure from the lower part of the vein, then — .
Q. Where did you cut him, on his neck, or arm — ?
A. The right common carotid artery, was what was raised.
Q. All right, so what ever else was in that area was also picked up in the test tube?
A. The sample was taken from that area, the test tube had to touch that area, yes.
Q. But, you do not use a jugular tube at all?
A. Yes, I did, after — .
Q. To actually get the blood from the body into the container?
A. I did not use that at all to get the blood into the container, no.
Q. You just took a test tube and stuck it up to where you cut a hole, and you got the blood out, is that correct?
A. That’s correct.
Q. Okay, you didn’t clean that area around there before you cut the man?
A. No, sir.
Q. You didn’t sterilize it at all?
A. No, sir.
Q. And, I believe you testified that you received no instructions, no training at all from the Alabama State Board of Health, of any rules or regulations that they may have promulgated regarding the preservation of blood samples?
A. That’s correct, I have not.

Plaintiff’s attorneys made the following specific objections:

BY MR. THORNTON: Judge, at this point, we would object to Mr. Jones’s testimony and ask it to be excluded, and any other testimony regarding this blood sample. Based on his testimony, Mr. Jones clearly stated that the procedures were not used to insure that the blood sample was kept in an uncontaminated state. Mr. Jones testified on cross examination that he had received nothing from the State Board of Health as to how to properly preserve the blood, how to keep it from becoming contaminated, he testified that it laid out there on a table some hour and fifteen minutes before it was delivered to Trooper Hammonds, and we feel that unless the Defendants in this case can show that this blood was kept in an uncontaminated state and that it was withdrawn properly, that any other testimony that they may have, according to both these statutes that we cited in our previous motions, and they both require the proper drawing of the blood, and a proper preservation of it, and I submit that when you use a test tube to make a cut on somebody’s body, then just stick it up there without sterilizing it, without doing anything, that you certainly have a strong possibility of contamination of that sample, and that would invalidate any tests that may be later run on it.
BY MR. WILSON: Your Honor, secondly, we would again note that the Code of Alabama, 32-5-193-C, notes only certain people who are authorized to take blood tests for the purposes of determining the amount of alcohol content therein, and Mr. Jones has clearly stated he is not one of these people.
BY MR. THORNTON: Yes, and one purpose of this statute, which is 32-5-193, and — well, the entire statute is to insure that the specimens will be taken according to proper procedures and to insure that no contaminants could be in the specimen, and we submit to Your Honor again that 22-19-80, and 81 are strictly to allow the blood to be taken. It says nothing about admissibility later in Court. If you will look at this particular statute, 32-5-191—
BY MR. WILSON: And, 193.
BY MR. THORNTON: It says the reason is to make sure that the procedure is followed to be sure that there is no contamination.
BY THE COURT: I think that 193 has to do with the presumptions that follow. I don’t think they are entitled to any of the presumptions that go with it, but I think they are entitled to take it, and your motion is denied. [Emphasis supplied.]

The record also shows that a state toxicologist who examined the blood sample testified as follows:

Q. Did you test it?
A. Yes, sir.
Q. Would you tell us the blood alcohol content that you found?
A. Yes, sir, I identified ethyl alcohol in the specimen at a level of .18 grams percent by weight.
Q. All right, would blood taken by cutting an artery and placing a vial in the area where the blood would drain directly from the artery into the vial, is that an accepted way of taking blood?
A. That is not the normal way, but I do not see how it could have contaminated the same.
Q. Now, in your judgment, that sample taken in that fashion would be uncontaminated?
BY MR. ESPY: Objection.
BY THE COURT: Overruled, this man is an expert, he can testify.
By Mr. Black:
A. In this particular case, I do not see where it would contaminate it, as far as ethyl alcoholic content.
Q. All right, Mr. Adair, what level of blood alcohol is considered intoxicating?
BY MR. THORNTON: Objection.
BY THE COURT: Sustained.
By Mr. Black:
Q. .18 level of — did you say ethyl alcohol?
A. Yes, sir.
Q. What is the source of ethyl alcohol?
A. It is the source of the fermentation of sugar.
Q. Is it what we commonly call whiskey or beer?
A. Those are two sources of it, there are many others, however.
Q. Do you have a judgment as to whether or not a person with .18 grams of ethyl alcohol would be drunk or not?
BY MR. THORNTON: Objection.
By Mr. Black:
Q. And, based upon your experience and training—
BY THE COURT: Sustained, I’ll let you ask him what a man — what actions a man like that could do.
By Mr. Black:
Q. Could you describe what actions a man with that level of alcohol in his blood would be able to perform?
BY MR. THORNTON: Objection, no proper predicate to ask that question.
BY MR. BLACK: He’s an expert, Your Honor.
BY MR. THORNTON: I don’t think he’s an expert on the effects of alcohol on each individual person.
BY THE COURT: If he can testify that he knows what they are, I’ll let him answer.
By Mr. Black:
Q. Do you know what the effects that this would have?
A. Well, first of all, I’d like to say that there are broad ranges for these. In this particular area, generally you would have mental confusion, lack of coordination, and inability to perform certain learned skills efficiently-
Q. Would it affect his driving?
A. Yes, sir, in my opinion, it would. Q. Would it affect his judgment?
A. Yes, sir.
Q. How about reaction time?
A. Yes, sir.
Q. Would it be considered driving under the influence of liquor?
BY MR. THORNTON: Objection.
BY THE COURT: Sustained.
BY MR. BLACK: That’s all.

Based on the foregoing, I am completely convinced that a proper predicate was laid to permit the introduction into evidence of the blood sample. Consequently, I must respectfully dissent from the conclusion by the majority that no proper predicate was laid.

ALMON and ADAMS, JJ., concur.

       In any event, plaintiff properly presented the issues because each of the issues argued was in fact included as a ground in plaintiffs motion for a new trial. See, State v. Ward, 293 Ala. 516, 306 So.2d 265 (1975) (decided before adoption of the ARAP).