author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Terry Glenn HILL v. STATE.
    3 Div. 115.
    Court of Criminal Appeals of Alabama.
    Dec. 4, 1979.
    Rehearing Denied Jan. 22, 1980.

      Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This case originated in the District Court of Montgomery County, where appellant was tried on a charge of disturbing an “assemblage of people met for religious worship.” On appeal from his conviction to the Circuit Court of Montgomery County, he was tried on an information that followed the form prescribed by Code 1975 § 15-8-150(46), which is expressly applicable to Code 1975 §13-6-102:

“Any person who wilfully interrupts or disturbs any assemblage of people met for religious worship, by noise, profane discourse, rude or indecent behavior or any other act, at or near the place of worship, shall, on conviction, be fined not less than $20.00 nor more than $200.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months.”

A jury found him guilty as charged, and the trial court fixed his punishment at six months imprisonment in the Montgomery County Jail and sentenced him accordingly.

A major insistence of appellant is that the law under which defendant was charged, tried and convicted, Code 1975, § 13-6-102, “is so vaguely worded as to fail to give fair notice of which acts the statute is meant to punish.” If the particular Section of the Code were a new, an unused and untested provision of law, it is conceivable that some people would not comprehend fully “what acts would be punished under this particular statute.” The “particular statute” has been in every Code of Alabama since the Code of 1852, without change “in one jot or one tittle.” There have been many trials of violations of the statute, many reported eases and doubtless many more unreported ones. Appellant cites no case in which any serious question has been raised as to the sufficiency of the statute to withstand an attack thereon on the ground of vagueness. It is difficult to reconcile the theory that it is too vague to be understood by rational people when in fact it has been understood by them almost without exception for more than a century.

We do not overlook the principle, or the cases supporting it, that “[Reasonable c]er-tainty is all the more essential when vagueness might induce individuals to forego their rights of speech, press, and association for fear of violating an unclear law.” Scull v. Virginia, 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865, 871 (1959). It is also to be recognized that the right of freedom of expression in Alabama, as elsewhere, has been precious in the minds of its people from the time the particular statute was adopted, and even long before, but few, if any, of the people who have been charged under the statute have challenged it on the ground that it was not understandable by reasonable people.

“A criminal statute is not rendered unconstitutional by the fact that its application may be uncertain in exceptional cases, nor by the fact that the definition of the crime contains an element of degree as to which estimates might differ, or as to which a jury’s estimate might differ from defendant’s, as long as the general area of conduct against which the statute is directed is made plain. It is not violative of due process of law for a •legislature in framing its criminal law to cast upon the public the duty of care and even of caution, provided there is sufficient warning to one bent on obedience that he comes near the proscribed area. Nor is it unfair to require that one who goes perilously close to an area of proscribed conduct take the risk that he may cross the line.” 21 Am.Jur.2d Criminal Law, § 17 p. 100.

We doubt that there are any, and are confident that there are not many, statutorily defined crimes that can be more readily understood by reasonable people than the one now under consideration, the old, the young, the rich and the poor, the learned and the unlearned, wherever they may be.

The question as to the vagueness of the statute was raised by defendant’s motion to quash the information. The trial court was not in error in overruling the motion or in ruling against defendant on the particular point in any other motion or request by defendant.

Appellant also insists that the statute as ■applied to his conduct is “in violation of the Constitution of the United States and Alabama in that it completely disregards the separation of Church and State and infringes upon the Defendant’s First and Fourteenth Constitutional Amendment rights of freedom of speech and expression.”

There was little, if any, dispute as to the material facts. According to the evidence, defendant and a few others, who lived in Montgomery, had voiced a difference between them and the First Baptist Church of Montgomery that resulted in a picketing of the church building by walking up and down the sidewalk immediately adjacent to the large flight of stone steps leading up to the front of the church building. Defendant had contacted the authorities of the city, including Mayor Folmar, as to a picketing permit. It seems that it was definitely and clearly understood by and between the authorities and the picketers, including defendant, that they should stay off the church property and out of the church building in their picketing activities, but that they would not be prohibited from picketing on the sidewalk. How many times they had engaged in picketing in front of the church is not clearly shown, but they had done so on Sunday, two weeks before Sunday, January 7, 1979, when the alleged offense was committed.

The services at the church commenced at 11:00 A.M. each Sunday.

According to the testimony of Mr. Boyd Christenberry, the chairman of the Board of Deacons of the First Baptist Church, he attended the 11:00 services; as he left the sanctuary at the conclusion of the services he saw defendant picketing on the sidewalk in front of the church with a mounted placard in his hands. He then saw defendant proceed up the steps with the placard, and he was met on the steps by the chairman of the Board of Ushers, Mr. Fred Waldo. Mr. Waldo told the defendant that he could go in the church, but not with the sign he was carrying. Still carrying the sign, defendant went into the vestibule where he was arrested by the police. This testimony in material respects was corroborated by that of Mr. Waldo and in general was corroborated by the testimony of defendant himself. It is made reasonably clear by the evidence that the activities of defendant and others in picketing in front of the First Baptist Church, as well as at some other places in Montgomery, had brought about the need in the view of the authorities, for a detail of policemen at the church on the morning of January 7, 1979. The Mayor, the Chief of Police, and Sergeant R. H. Hankins of the Police Department were there.

Sergeant Hankins testified that at approximately 11:50 o’clock he saw defendant picketing in front of the church and carrying a sign. He said they exchanged greetings. Hfe testimony continued as follows:

“Q. Would you please state to your own personal knowledge of what the defendant stated on that date to you?
“A. He said, ‘What will I have to do to be arrested?’
“Q. And what was your reply, if anything?
“A. I told him he could not go into the church with the placard. It had been told to me that he was welcome provided he would come inside without the placard but that he could not take the placard inside.
“Q. Okay. And where were you when you told him this?
“A. On the sidewalk immediately in front of the church.
“Q. What time did the church services end on that day?
“A. 12:00 or thereabouts. 12:00.
“Q. Alright, Sir. And at that point in time was the Defendant still present outside in front of the church picketing?
“A. Yes, Sir.
“Q. Okay, Sir. What if anything did you observe the defendant do after the congregation had started' leaving the church?
“A. Came up the stairs and started talking to Mr. Waldo, who was the Chairman of the Board of Ushers, I believe they call it.
“Q. Were you in close proximity to Mr. Waldo and the Defendant?
“A. Yes, sir.
“Q. Approximately how far away were you?
“A. No more than three or four feet.
“Q. Okay, Sir, did the Defendant have anything in his possession at that time?
“A. Yes, Sir.
“Q. What did he have?
“A. The placard.
“Q. Okay, what if anything did you hear?
“A. Mr. Waldo told Mr. Hill that he was welcome inside the church but that he could not carry the sign inside.
“Q. Okay, did you hear any reply from the Defendant, Mr. Hill?
“A. Not that I recall.
“Q. Okay, what then did the Defendant do?
“A. Just stepped to the side around Mr. W aldo and entered into the vestibule area of the church.
“Q. After the Defendant ignored Mr. Waldo and started walking up the steps what did you do?
“A. After he got inside the vestibule, just inside the front door I placed him under arrest.
“Q. Okay, what then happened, if anything?
“A. He was taken to headquarters and booked and transferred to the County Jail.
“Q. Okay, Sergeant Hankins, during the process of the Defendant going up the steps with the placard and your subsequent arrest of the Defendant I ask you whether or not you observed any members of the congregation around the scene when this occurred?
“A. There were several members of the congregation in the vestibule area.
“Q. Did you know of your own personal knowledge whether or not there was still members inside the sanctuary?
“A. There were several members in the sanctuary talking.”

The testimony of defendant himself was not of any great variance in material respects from the testimony already shown, but some of his testimony should be narrated in order to understand fully the position taken by him. According to him, he had had some arguments with the pastor of the First Baptist Church of Montgomery, who also testified in the case on call of the defendant. The defendant testified that he and two others, including his brother and another, who were all members of “The Spiritual Church of Jesus Christ,” met with Dr. White, pastor of the First Baptist Church of Montgomery, in the minister’s study, after an appointment had been made with him through his secretary; that while there a short discussion which started out as if it would be a long one, was abruptly halted, and the visitors left. Defendant said that thereafter he arranged with others to picket the church and in doing so inquired as to his rights. They picketed the church on Christmas Eve Sunday, and he said that he talked with Mayor Folmar about the activity, and the Mayor told him that he “was not to come on the first step of the church,” in picketing the church. He said that he did not come upon the first step on Christmas Eve Sunday. He arrived at the church on January 7 about “a quarter until eleven” that morning. He and his brother picketed on the sidewalk in front of the church, each bearing a sign. About the time the church services ended, he started walking up the steps. His testimony continues as follows:

“Q. All right. Let’s go to the occasion where you went up the stairs to the church or up the steps and previously you testified you had been told that you would be arrested and you were not arrested, is that a fact?
“A. Yes, Sir. That’s a fact, I walked directed [sic] toward Mayor Folmar.
“Q. Okay, did you have an occasion to encounter Mr. Waldo?
“A. Yes, I did.
“Q. Okay, what transpired between you and him?
“A. Mr. Waldo came down to me and grabbed my sign that I had in my hand and he said You are not to come up here any further. He said, You are welcome inside the church but your sign is not. “Q. All right, what else was — was that all the conversation you had?
“A. That’s all the conversation with Mr. Waldo that I had. I made no further statements to him.
“Q. What did you do then?
“A. I proceeded to the right. He let go of my sign and I walked toward the Mayor. The Mayor was directly to my right.
“Q. Where did he go?
“A. He walked up toward the front door of the steps.
“Q. Alright.
“A. And then right to the doors going into the corridor, so he walked up to it and he said let him come on in here so I freely walked on inside.
“Q. Alright, at that time did you think you were going to be arrested?
“A. No, I did not. I didn’t think I was bécause the church services were over with and there was nobody there.”

The evidence shows, and there is no contention to the contrary, that the difference between defendant and the target of his picketing activities was not a contest between the anti-religious and the religious. Whatever the nature of the difference between the two, the protesters were a group whose apparent leader conducted himself so as to manifest a belief that he could go to any length, short of personal violence, profanity or obscenity, to promote their religious views in an attempt to proselyte those of other religious views, contrary to their own expressed wishes, while assembled on their own premises.

Appellant has cited no case of the Supreme Court, the final arbiter of issues under the First Amendment, that supports, or nearly supports, his contention that to proscribe or punish his conduct is to violate the “Establishment” or “Free Exercise” provision of such Amendment. He is content with reference to, and quotations from, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971) and Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1948). Gillette dealt with “conscientious objector” cases and is without applicability, in what was held or written therein, to the facts of this case. Murdock v. Pennsylvania, supra, upheld the contention of Jehovah’s Witnesses that a license imposed upon them for the dissemination of their literature from door to door in the city of Jeannette, Pennsylvania, was in violation of the freedom of religion provision of the First Amendment. See also, Jones v. Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed.2d 1290 (1941) vac’ng previous judgment in 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691 (1941). Appellant argues that it follows from Murdock that defendant had the constitutional right to go into the First Baptist Church, under the circumstances shown by the evidence in this case, in order to spread his religious beliefs. Neither Murdock nor any other case has held that a trespass upon property is legally justifiable when committed in the course of evangelism. The most nearly the Supreme Court has ever gone in that direction was in Marsh v. Alabama, 326 U.S. 501/66 S.Ct. 276, 90 L.Ed. 265 (1946), in which was involved the distribution of religious literature on the streets of a “company-owned town.” Considering the anachronistic nature of the town in Marsh and distinguishing the situation therein presented from the facts in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), Mr. Justice Powell stated in the latter case:

“Although accommodations between the values protected by these three Amendments [First, Fifth and Fourteenth] are sometimes necessary, and the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscrimina-torily for private purposes only. Even where public property is involved, the Court has recognized that it is not necessarily available for speaking, picketing, or other communicative activities. . . ”
407 U.S. at 567-568, 92 S.Ct. at 2228, 33 L.Ed.2d at 142.

On the particular point, the Supreme Court in Lloyd Corp., relied heavily upon and quoted from Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), as follows:

“The state, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners’ argument that they had a constitutional right to stay on the property, over the jail custodian’s objections, because this ‘area chosen for the peaceful civil rights demonstration was not only “reasonable” but also particularly appropriate * * *.’ Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on, Cox v. Louisiana, [supra, 379 U.S. 536], at 554-555 and 563-564, [85 S.Ct. 453 at 464 and 480, 13 L.Ed.2d 471 at 483, 484, 491, 492]. We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose [emphasis supplied].” 385 U.S. at 47-48, 87 S.Ct. at 247, 17 L.Ed.2d at 156.

There are affirmative defenses to a civil trespass and special defenses to what would otherwise be a criminal trespass, but they do not include the claimed defense that one is privileged to enter upon the premises of another, without his consent express or implied, to express his views, however religious they may be. When there is an obtrusion upon an assemblage of people met for religious worship, it constitutes an invasion upon both their right “peaceably to assemble” and their freedom of religion guaranteed by the First Amendment.

There is no contention that the prosecution involves a violation of the equal protection of the laws provision of the Fourteenth Amendment, and there is no basis for any such contention. This makes inapposite such cases as Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1961).

It is to be noted also that there is no claim that there was involved any disagreement as to any business or social relationship between the members of the First Baptist Church and the protesters, or any persons for whom they were protesting. There was no semblance of a grievance in the nature of those that have given rise to picketing activities considered in many reported cases, which furnish no precedent to follow in the instant case.

The First Amendment affords defendant no protection in what he was doing; it affords members and visitors of the church concerned freedom and security against what he was doing. It is not contemplated by freedom of religion that one should be so free in the promulgation of his religious views that he can exercise unlawful force in his efforts to destroy the religious views of another. For government to support him in such efforts would tend toward the “establishment” of “religion” — in the name, but contrary to the meaning, of religious freedom.

Great emphasis is placed by appellant upon the undisputed fact that appellant’s ascent of the front steps of the church and his entry into the vestibule with the picketing placard in his hands, contrary to definite directions of those in charge of the premises, occurred after the conclusion of the services and after some of the attendants had left the sanctuary and were in the process of dispersing. He argues therefrom that his conduct did not constitute a violation of Ala.Code § 13-6-102, which is entitled, “Disturbing Religious Worship,” but which words are not found in the body of said Section and are to be distinguished from those in the Section itself, “disturbs any assemblage of people met for religious worship.” There was still an assemblage of people who had met for religious worship. Kinney v. State, 38 Ala. 224 (1862) is dispos-itive of the contention of appellant in this particular respect. In following a Tennessee case based on a similar statute, the Alabama Supreme Court said in Kinney:

“On the trial of an indictment founded on the act just cited, it was proved that after the services were over, and the congregation had been dismissed, and begun to leave, some being still in the church, some in the church-yard, and others left for home, the defendants, with others, excited and disturbed the congregation, . there then being present a good many ladies and gentlemen. Upon these facts, the defendants asked the court to charge, that if the worship had closed, and the congregation had been dismissed, and had begun to disperse, part having left the ground at the time the disturbance occurred, then the defendant could not be convicted. This the court refused, but charged the jury, that if the worship had ceased, and the congregation had been dismissed, then, unless a reasonable time had elapsed for the dispersion of the congregation after such dismission, the defendants would be guilty, if they did acts calculated to disturb those on the grounds. On appeal to. the Supreme Court, it was decided, that there was no error in the rulings of the circuit judge; the court holding, that the act not only protects from disturbance a congregation while actually engaged in worship, but extends its protection also to all congregations which had assembled for the purpose of worshipping; and that this protection continues, from the time the congregation so assembles, until it disperses and ceases to be a congregation. — Williams v. State, 3 Sneed, 313.
“This decision, which we readily adopt as a correct construction of our own statute, is precisely in point in the present case, and shows that the court did not err in refusing the charge asked by the defendant.” [Emphasis supplied]

We decline to hold otherwise. “Remove not the ancient landmark, which thy fathers have set.” Prov. XXII:28.

With some possible exceptions, there is generally an assemblage of the worshippers before the services commence, and the assemblage continues for a reasonable time after the amen of the benediction, or the particular services terminate otherwise.

A more difficult problem than any considered above is to be found in the following sentence in appellant’s brief:

“. . . His acts were not reckless nor malicious and if the law was broken at all, it was a borderline case and the actions complained of were committed by the Defendant merely to promulgate his religious beliefs and ideas and not for any selfish or malicious reason. . . . ”

It is not for us to take issue with any of such statement, not even with the statement that this is a “borderline” case. To the credit of all concerned it can be said that none of the members of the church or the city authorities present treated defendant as if he were acting selfishly and maliciously. They conducted themselves gentlemanly and treated him accordingly.

Malicious malice and selfishness are not essential elements of the crime. Wilfulness is, and it is conceivable that defendant had good reason to doubt that he was violating the law. It may have been hard for him to distinguish between what he apparently was accorded the right to do on a public sidewalk and what he deemed to be his right on the steps of the church. At that time it would have been more nearly a borderline case than when he entered the vestibule with the picketing placard in his hand, on his way to the auditorium in which the services were conducted. It appears that the officers waited until all doubt had been removed as to his violation of the law and as to whether he had crossed the border line between law observance and law violation. Whether he had done so before he entered the vestibule is not an issue before us, but that he did so wilfully was the judgment of the District Court, the finding of the jury to whom the trial court properly submitted the issue. It also properly overruled defendant’s motion for a new trial. We agree with the actions taken. Whatever right there may have been in the mind and conscience of defendant, he was wrong in law in what he did.

The contention of appellant that he should have been tried under Ala. Code § 13-2-105, instead of § 13-0-102, misses its mark. Section 13-2-105 is entitled, “Entering or remaining in church or on church premises contrary to request.” The two Sections are for different purposes and embrace different acts or activities. The evidence shows that he would not have been guilty of violating Section 13-2-105, for the reason that, in their kind consideration of appellant, they had never requested that he not enter or remain in church or on the premises. On the contrary, they expressly stated to him that he was welcome there as a visitor, a worshipper, or as an observer, but not as a picketer with a placard.

Appellant challenges the severity of the punishment imposed upon him by the trial court. This question is not within our province to decide. Perhaps we should observe, however, that the entire proceedings we have reviewed indicate no hatred, no ill will, no spirit of vindictiveness on the part of anyone concerned.

We find no error in the record. 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

AFFIRMED.

All the Judges concur.

      . It appears that the placard, and other signs, bore citations to, but not quotations from, the New Testament.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Terry Glenn HILL. In re Terry Glenn Hill v. State.
    79-335.
    Supreme Court of Alabama.
    March 28, 1980.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Jerry Lee STEWART v. STATE.
    1 Div. 42.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      Thomas M. Haas, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of grand larceny. The property was described in the indictment as “one John Deere tractor, of the value of $15,000 the personal property of John Schaff.” He was sentenced to imprisonment for six years.

The corpus delicti was unquestionably established by the testimony of John M. Schaff, the owner of the tractor, who said that it was stolen at Foley, in Baldwin County, on November 1, 1977.

The recovery of the stolen tractor was unquestionably established by the testimony of Baldwin County Deputy Sheriff Joe Rizzo, who testified that on February 23, 1978, he recovered the identical tractor at or near Grove Hill, Clarke County.

Willie Sheffield, called as a witness by the State, testified that about ten thirty on a morning between November 30, 1978, and January 1, 1979, defendant drove a truck that brought the particular tractor to his “place just south of Grove Hill.” He said he paid sixty-five hundred dollars in cash. He said he did not pay Jerry Lee Stewart for the tractor but that he paid Ricky Day for it “in front of everybody else.” He said he had never seen defendant before that occasion, on which he was introduced to him. He further testified that he also had been indicted for stealing the truck, but that he did not know that the truck was stolen at the time he purchased it.

After Sheffield had testified, the State rested, and defendant moved to exclude the evidence, which motion was overruled. Appellant insists that the only'evidence against him at that time was the uncorroborated testimony of an accomplice. Even though Sheffield had been indicted for the same offense as appellant, that fact alone did not make him an accomplice. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266, 271 (1974).

Although there was evidence indicating some guilt on the part of Sheffield of the crime of buying, receiving or concealing stolen property, there was none to indicate that he was a participant in the theft of the property. That one is guilty of buying stolen property does not make him an accomplice of the thief. Rice v. State, Ala.Cr. App., 365 So.2d 1007, cert. denied Ala., 365 So.2d 1010 (1978).

There was substantial evidence of defendant’s guilt, and the court was not in error in overruling defendant’s motion to exclude the evidence.

After the court’s denial of the motion to dismiss, defendant called Willie Sheffield as a witness, who then testified that the man who drove the truck with the tractor on it to Clarke County and whom he identified as Jerry Lee Stewart, looked some different from the way defendant looked in court. He said:

“Yes, sir, I would say a little different. Hair was a little longer and maybe a little stringier, a little longer than it is now.”

Ricky Day testified as a witness for the defendant that he had never been with Jerry Stewart at any time in Clarke County. He said he had known the defendant all of the life of the witness, that he had never been with Stewart “when he might have met Willie Sheffield.” He said he had never sold Sheffield a tractor. He had also been indicted for stealing the particular tractor.

Bill Hinote, also a co-defendant as to the larceny of the tractor, testified that he knew both Willie Sheffield and Jerry Stewart, but that he had never gone with Jerry Stewart to Clarke County and that Jerry Stewart was not “involved in a sale of a tractor to Willie Sheffield.” On cross-examination, Hinote was interrogated as to some purportedly self-contradictory statements by him, in part as follows:

“Q. You never did that, you never went up there [Clarke County] and told him [Sheffield] that you were a John Deere representative?
“A. No, sir.
“Q. Did you ever make a statement that you had gone up there and told him you were a John Deere factory representative?
“A. No, sir.
“Q. Did you ever make a statement that you and Ricky Day had sold him a John Deere tractor? Do you recall making the statement to Joe Rizzo?
“A. No, sir. Do I recall him telling me what to say. I recall him talking to me about it.
“Q. You didn’t make the statement to him?
“A. No, sir.
“Q. You didn’t tell him that you went to Foley and looked at some tractors and took the key when the salesman wasn’t looking out of a 2840 and later you and Jerry Stewart went to Clarke County and stole it?
“A. No, sir, did I sign that, sir?
“Q. No.
“THE COURT: You answer his question. “MR. NORTON:
“Q. You say you never made that statement?
“A. No, sir.”

The defendant took the stand and denied having any knowledge of and taking any part in the larceny of the tractor. He said he had never known Sheffield, but that he did know Ricky Day and Bill Hinote.

After defendant rested, the State recalled Officer Joe Rizzo. Thereafter, a large part of the record is devoted to the State’s interrogation of the witness as to a lengthy statement in printed and written form, which became the State’s Exhibit 1, which interrogation was interspersed by objections by defendant and rulings of the court, which resulted in the admission, over defendant’s objection, of State’s Exhibit 1. State’s Exhibit 1 consists of seven pages of printed and handwritten material, the printed material on each page being the same and consists of the caption “VOLUNTARY STATEMENT” and what purports to be the form used in taking confessions or incriminating statements from an accused, with an acknowledgment in detail of its voluntary character and a waiver of the right to talk with an attorney. Some of the blank spaces in such statement are filled in with the time thereof, February 28, 1978, the name of Bill Hinote as the one making the statement, and the person and office of the one to whom the statement was made, Deputy Sheriff Joe Rizzo, who signed each page of the statement as a witness. On each page of the statement is a place for the “Signature of person giving voluntary statement,” but thereunder in each instance is the handwritten statement, “Refused to sign.” In the interrogation of Officer Rizzo it was shown that he, by his own hand, placed in the exhibit all of the handwritten material therein, that Hinote consistently refused to sign, but that Hinote voluntarily, and after appropriate warning, gave Officer Rizzo an oral statement in question (by Officer Rizzo) and answer (by Hinote) form, which the witness said he recorded in State’s Exhibit 1 at the time, as the statement of Hinote. The record is in pertinent part as follows:

“Q. Did you record that statement as it was made to you?
“A. Yes.
“MR. GRANADE: Your Honor, we object to this. This is simply irrelevant in this case, completely irrelevant, it couldn’t have anything to do with Jerry Stewart’s guilt or innocence, this statement.
“MR. NORTON: It was to impeach the credibility of one of the Defendant’s witnesses.”

The court then excused the jury. While the jury was out a two-page colloquy of the court and attorneys for the respective parties occurred, during which the court overruled some objections by defendant, but indicated that they should proceed in the presence of the jury with the interrogation of Officer Rizzo and that it would consider any further objections by defendant as to the statement of Hinote.

Upon resumption of the testimony of Officer Rizzo and some further testimony by him as to the time and place and circumstances the statement by Hinote was made, the record shows:

“Q. Did you sign each and every page to it?
“A. Yes, sir.
“Q. We would offer this as State’s Exhibit No. 1.
“MR. GRANADE: Same objection.
“THE COURT: Are you objecting to it on the same grounds that you previously stated?
“MR. GRANADE: We are also objecting to the introduction on the best evidence rule.
“THE COURT: Any other grounds?
“MR. GRANADE: As well as the grounds we set out earlier.
“THE COURT: Overrule the objection. It is ordered admitted.”

We find no authority or justification for the admission in evidence of State’s Exhibit 1. The correct trail was blazed in Vastbinder v. Metcalf, 3 Ala. 100 (1841), clearly marked in Acklen’s Executor v. Hickman, 63 Ala. 494 (1879), and has since been firmly established in Alabama. Sovereign Camp W. O. W. v. Screws, 218 Ala. 599, 119 So. 644 (1928); Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948); Bennefield v. State, 281 Ala. 283, 202 So.2d 55 (1967). In Acklen’s Executor, supra, at 498, it is stated:

“The law recognizes the right of a witness to consult memoranda in aid of his recollection under two conditions: First, when, after examining a memorandum made by himself, or known and recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as a matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinguishing difference between testimony thus given, and ordinary evidence of facts, is that the witness, by invoking the assistance of the memorandum, admits that, without such assistance, his recollection of the transaction he testified to, had become more or less obscured. In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to the jury, unless opposing counsel call out the same on cross-examination. This he may do, for the purpose of testing its sufficiency to revive a faded or fading recollection, if for no other reason. “In the second class are embraced eases in which the witness, after examining the memorandum, can not testify to an existing knowledge of the fact, independent of the memorandum. In other words, cases in which the memorandum fails to refresh and revive the recollection, and thus constitute present knowledge. If the evidence of knowledge proceed no further than this, neither the memorandum, nor the testimony of the witness, can go before the jury. If, however, the witness go further, and testify that, at or about the time the memorandum was made, he knew its contents, and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. The two are the equivalent of a present, positive statement of the witness, affirming the truth of the contents of the memorandum. — 1 Greenl. Ev. §§ 436-7; Bondurant v. Bank, 7 Ala. 830.”

The record is clear that the only valid reason for the use of State’s Exhibit 1 was for the purpose of the witness’ refreshing his recollection as to what Hinote had told him, which the State succeeded in showing in its effort to impeach Hinote as a witness. There is no indication whatever that the witness Officer Rizzo was not able from his own memory, after such memory had been refreshed by the exhibit, to testify as to what Hinote had said. In this circumstance, the document was not admissible in evidence. The difference between the circumstances under which the document is admissible and those under which it is not, as stated in the cases cited, is fully considered under the topic of Present Recollection Revived as distinguished from Past Recollection Recorded and topic Past Recollection Recorded, in Gamble, McElroy’s Alabama Evidence, § 116.01, § 116.03 (1977) respectively.

A more difficult question is whether defendant assigned appropriate grounds for his recurring objections to the offer of State’s Exhibit 1 in evidence and the questions leading to the offer. According to Bondurant v. Bank, supra, the document “is but hearsay,” but hearsay was not expressly and specifically assigned as a ground of the objections. There is little more than the general ground of the objections that were made. Even so, we feel that, as circumstances of the presentation of evidence were themselves so involved and came as such a surprise to defendant’s counsel, who evidently had not seen the exhibit prior to its production in open court during the testimony of Officer Rizzo and who first thought it was not in the handwriting of Officer Rizzo, and as there was basis for uncertainty as to the purpose of the evidence, justice would be served, and the rationale of applicable principles of law would not be violated, by treating the objections made by defendant as sufficient to entitle appellant to a review of the question whether the admission of the document constitutes prejudicial error. We think the evidence meets some of the accepted tests of sufficiency for a review of its admissibility, such as, that it is illegal and irrelevant on its face (McClellan v. State, 117 Ala. 140, 23 So. 653), is patently objectionable and illegal (Downey v. State, 115 Ala. 108, 22 So. 479) and is patently and palpably inadmissible for any purpose (Washington v. State, 106 Ala. 58, 17 So. 546), and was incapable of being made admissible by other evidence. It clearly meets the following test, found after a comprehensive analysis of the cases on the subject:

“Properly interpreted, the most popular and current test would seem to be as follows: A general objection if overruled is sufficient to present for review on appeal the point that the evidence admitted was violative of a specific rule if such evidence is illegal, and according to the common probabilities of experience, there is a fair likelihood that such evidence cannot be made legal by the introduction of other evidence or by otherwise framing the inquiry made to the witness.” Gamble, McElroy’s Alabama Evidence § 426.01(10), pp. 801-802 (1977)

We should note also that neither party on appeal endeavors to make any point about the sufficiency of the objection. The issue between them is as to the admissibility of the evidence. The only authority cited by appellee on the point is Parker v. State, 266 Ala. 63, 94 So.2d 209 (1957). The case is inapposite. The paper there involved was not admitted in evidence. At 266 Ala. 69, at 94 So.2d 214, it is stated:

“. . . The solicitor then offered the paper in evidence which was refused by the court, on objection of the defendant. “The appellant argues that it was reversible error for the court to permit the solicitor to cross-examine the defendant from a paper that purported to be a written transcription of a tape recorded statement made by the defendant to police soon after the fatal shooting.
“. . . The solicitor merely used the paper to refresh his own memory when propounding questions to the defendant on cross-examination. In other words, the character of the paper was nothing more than private notes of the solicitor.”

As a part of the court’s oral charge it said:

“Insofar as proving the material aver-ments of the indictment, if you find from the evidence that the Defendant was in the unexplained possession of property recently the subject of a theft then the State has met its burden and has, in that regard, proven its case.”

At the conclusion of the court’s oral charge, the court called upon the parties for exceptions, and the following occurred:

“MR. CROSBY: I would like to object to part of the oral charge, in substance it is this, the charge was that if you find the property was in the Defendant’s possession and then the State has met the burden of proof, that was the substance of the charge. We object to this on two grounds. Number 1, this is not the law, this is insufficient to prove the State’s case in the larceny case. Number 2, this charge was prejudicial regarding the law of grand larceny.
“MR. GRANADE: One thing, Judge. You mentioned in your charge that unexplained possession means the State has proved its case. We would request that be clarified to the jury.
“THE COURT: Are you objecting to that portion of the charge in which the Court said that evidence of unexplained possession of recently stolen property constitutes a prima facie case?
“MR. GRANADE: I believe the Court stated that the State has proved its case.
“THE COURT: All right. Then you have your exception.”

In endeavoring to uphold the portion of the court’s oral charge to which an exception was taken, diligent counsel for appellee urge that the statement is to be taken into consideration in connection with all of the court’s oral charge which, inter alia, contained correct, emphatic instructions as to the presumption of innocence, the nature and extent of the burden of proof upon the State, “to convince each member of the Jury beyond a reasonable doubt as to the truth of the material averments contained in the indictment.” Nevertheless, there still remained in the oral charge an incorrect instruction, to which an exception was taken and which was left to go to the jury unmodified. The instruction is even stronger in favor of the state than that which was held erroneous by Judge Tyson in Buckles v. State, 50 Ala.App. 548, 280 So.2d 810, aff’d on rehearing, 291 Ala. 359, 280 So.2d 823 in overruling. 291 Ala. 352, 280 So.2d 814.

In determining whether a particular portion of a court’s oral charge to which an exception is duly reserved constitutes reversible error, we are mindful of the established rule of construction that such portion is not to be isolated from the rest' of the charge and that all parts of the instructions of the court must be considered together. Gosa v. State, 273 Ala. 346, 139 So.2d 321 (1962); Wright v. State, 269 Ala. 131, 111 So.2d 596 (1959); Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied, Ala., 358 So.2d 791 (1978). We look to the entire charge and do not find therein any correction or qualification of the erroneous. instruction. We quote it again, this time in the context of the immediately preceding and the immediately succeeding portions of the court’s oral charge:

“. . . In this case, as in all other cases, where he has plead not guilty, the burden of proof is upon the State to convince each member of the Jury beyond a reasonable doubt as to the truth of the material averments contained in the indictment.
“Now those material averments are these. That the property belonged to or was in the legal possession of another and that the Defendant removed it intending to deprive the rightful owner of its use. “Insofar as proving the material aver-ments of the indictment if you find from the evidence that the Defendant was in the unexplained possession of property recently the subject of a theft then the State has met its burden and has, in that regard, proven its case. The term reasonable doubt means a doubt which has some good reason for arising out of the evidence and such a doubt as you are able to find a reason for having. It means an actual and substantial doubt growing out of some unsatisfactory nature of the evidence in the case. . . . ”

There is nothing in the quoted context or in any other portion of the court’s charge that negates or ameliorates the erroneous instruction as to the conclusive effect of the unexplained possession of property recently stolen.

We have no difficulty in determining that the error as to the admission in evidence of the lengthy statement of Hi-ñóte as “recorded” by Officer Rizzo and the part of the oral charge of the court as to the effect of the unexplained possession of property recently stolen, when considered together and when considered separately, constituted error of a harmful nature and of a probably harmful result. Notwithstanding the sufficiency of the evidence to support a verdict, the only substantive evidence against defendant was that of Sheffield who, although not an accomplice of appellant, was not a witness whose credibility was above question.

For the errors indicated, 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.


author: JONES, Justice.

text:
    Ex parte State of Alabama, ex rel. Attorney General. In re Jerry Lee STEWART v. STATE.
    79-330.
    Supreme Court of Alabama.
    March 28, 1980.
   JONES, Justice.

WRIT DENIED.

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


author: LEIGH M. CLARK,

text:
    Bobby Clyde JOHNSON v. STATE.
    1 Div. 79.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    Rehearing Denied March 18, 1980.
    Warren L. Finch and John R. Lockett, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK,

Retired Circuit Judge.

Appellant was indicted for murder in the second degree. A jury found him guilty of manslaughter in the second degree and fixed his punishment at six months at hard labor. He was sentenced accordingly.

The alleged victim was Tossie McDonald.

Appellant was married about 3:00 P.M. on November 18,1978. There was a change of scene for the wedding reception that night. It was adjacent to a bar in a club. The testimony of most of the witnesses was to the effect that many of the guests had been drinking heavily. There were some words and an altercation on the part of defendant and one Robert Merchant on the one hand with Tossie McDonald, the alleged victim. There was testimony that Merchant and defendant hit McDonald once each on the head, that Merchant hit first, that after defendant hit McDonald, McDonald did not rise. He was taken to the hospital and died four days thereafter. The testimony of his physician and the physician who performed the autopsy upon him was positively that his death was caused by a cerebral hemorrhage. They found no evidence of external injury to the head. Both physicians testified that the hemorrhage could have been caused by a blow to the head and that it could have been caused by a congenital lesion or some vascular abnormality unrelated to recent trauma.

The victim never regained consciousness after he was hit by defendant. Upon his admission to the hospital, and thereafter he was continuously “brain dead.”

Appellant’s only insistence on error is that the evidence was insufficient to support a finding that the deceased died from a blow inflicted upon him in the altercation in which he was hit on the head by Merchant and the defendant. Although defendant denied that he hit McDonald, there is no contention that there was not evidence to the contrary. There is no contention that the death of McDonald could not have been caused by a blow upon his head by a fist of another person. Each of the physicians testified that the hemorrhage and resultant death could have been caused by such a blow.

The instant case is not one in which no effort was made by the State to show by the opinion of available expert witnesses that the victim died from the act of the defendant as alleged in the indictment, which was a factor in the division of the view of the judges on appeal in Dismukes v. State, Ala.Cr.App., 346 So.2d 1170, cert. denied, 346 So.2d 1177 (Ala.1977), wherein previous cases on the subject [ Welch v. State, 45 Ala.App. 657, 235 So.2d 906 (1970); Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975) and James v. State, Ala.Cr.App., 339 So.2d 1047 (1976), cert. denied, Ex parte State ex rel., Attorney General, Ala., 339 So.2d 1052] were comprehensively considered. The expert witnesses in the case before us clearly and convincingly testified as to all phases of the cause of death other than as to whether it was the result of trauma on the one hand or intra-cranial abnormalities on the other. As to this, neither definitely stated any opinion. Whether he would have done so upon more specific hypothesization of evidence that the victim had been finally felled by a blow to his head by the fist of defendant, is not clear.

There is not involved in the instant case any question as to any possible independent intervening cause of death between the time of the blow and the victim’s death, which has been a troublesome factor in other cases.

Cases more nearly like the one before us than other cases are Harvey v. State, 15 Ala.App. 311, 73 So. 200 (1916) and Gurley v. State, 36 Ala.App. 606, 61 So.2d 137 (1952).

In Harvey v. State, supra, at 73 So. 201, it is stated:

“Counsel argue at some length that the deceased was a sickly, delicate woman, and that the state failed to show that the blow inflicted by defendant was the cause of her death. The state’s testimony, as given by Mamie Zeigler, an eyewitness, was to the effect that defendant struck deceased over the head with a piece of green stovewood; that immediately deceased sank to the ground and presently stretched out unconscious, remaining so for some time. This was about 1 o’clock p. m., and the deceased died the following day at about 7 a. m. While it would appear that the blow on the head was the sole efficient cause of death, it need not have been; even if it was only a partial cause or contributing factor that accelerated her death, defendant would, in the eyes of the law, have been none the less guilty.”

In Gurley v. State, supra, at 61 So.2d 138, 139, it was held:

“The evidence is without dispute that the fender of accused’s automobile struck deceased’s head; she was thrown twelve to fifteen feet by the impact. When picked up she was unconscious and remained unconscious until her death in a hospital five days later. Under the evidence, the question as to whether deceased died as a result of the injuries inflicted by defendant was for the jury.
“If there is any proof, whether circumstantial or direct, to establish the corpus delicti, the sufficiency of such proof is for the jury and not for the court. Driver v. State, 18 Ala.App. 261, 89 So. 897; Moss v. State, 32 Ala.App. 250, 25 So.2d 700, certiorari denied, 247 Ala. 595, 25 So.2d 703.”

It is readily recognized that ordinarily a lick on one’s head by the fender of a moving automobile or by a stick of stove wood would more likely be lethal than one by a human fist; but if any such case is presented for the determination of the cause of death, without the benefit of an opinion of an expert as to the cause, the circumstances of the particular incident could be as convincing one way or the other in any one of the three situations as in either of the other two. The jury had the benefit of seeing the defendant and of observing the witnesses as they described the altercation. There is nothing in the record to indicate that their finding does not represent their belief from the evidence beyond a reasonable doubt that the death resulted from a blow to the head as charged in the indictment. We conclude that the issue was properly submitted to the jury.

There is no error in the record prejudicial to appellant. 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.


text:
    Victor Carios LANGLEY, Jr. v. STATE
    1 Div. 88.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.
    Donald E. Brutkiewicz, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of an assault with intent to murder and a sentence to imprisonment for ten years.

The victim was Freddie Bates, twenty-two years of age. The relationship between defendant and the victim and the circumstances surrounding the alleged crime are fraught with then existing or previous illicit relations with women, which gave rise to quarrels and violence among all concerned.

According to the undisputed and unquestioned evidence, Bates, while sitting in an automobile, was shot in the middle of an arm by a shotgun in the hands of defendant, standing on the outside of the automobile, while the muzzle of the gun was only a few inches from the arm of Bates. The shot resulted in an almost complete severance of the arm at or about the elbow and a complete surgical amputation and treatment promptly thereafter. At the time of the shooting, an eighteen-year-old girl friend, a former and subsequent roommate of the victim, was in the automobile with him. She was the daughter of the wife of defendant, whom he married about five months before the incident involved and with whom he had lived prior to the marriage. At the time of the shooting, the two were living in a trailer on property owned by the defendant. It was at the trailer one night in June 1978 that the shooting occurred.

In or about the trailer, at the time of the violence that erupted and resulted in the shooting, were defendant’s wife and defendant’s sixteen-year-old son, who was sitting in the trailer looking at the television about the time the shooting occurred.

Bates and his girl friend testified on call of the State. Defendant, his wife and his sixteen-year-old son testified on the call of the defendant.

There was testimony that Bates had been drinking rather heavily. There was also testimony that indicated defendant had been drinking. The evidence is without dispute that there was hard feeling on the part of defendant toward Bates, whether justified or not, that he had ordered Bates off his property before and that upon learning that he was there in the automobile, he ordered him off again, that Bates responded with curses and that defendant took a shotgun and fired twice at the grill of the automobile. In attempting to get away, Bates backed into a tree. Defendant’s version of what occurred then was to the effect that an argument ensued between him and the victim in which the victim insisted that he be allowed to get his car started and off the premises and defendant insisted that he leave the automobile, walk away, and send for a wrecker to get it. Upon the victim’s failure to do so, defendant went to the automobile and, with the barrel of the gun, broke the glass of a window and started poking Bates with the barrel of the gun. His testimony was in part as follows:

“Q. You wanted him to abandon his car and get off the property.
“A. That’s right.
“Q. Okay. That’s when you shot him. When he wouldn’t leave his car.
“A. I tell you the truth. I don’t believe I shot him. The gun just went off.
“Q. Sir, you’re a hunter, aren’t you?
“A. No.
“Q. You use the shotgun. You used it many times. You used the gun many times, haven’t you?
“A. Yes.
“Q. You used this gun many times.
“A. Well, shooting birds.
“Q. You know how that gun works, don’t you?
“A. Yes.
“Q. You knew it was loaded?
“A. Yes, sir. I knowed there was one more—
“Q. And you showed this Jury that you were poking this man just like that and you had your hand on the trigger. Now, you knew what could happen doing that, didn’t you?
“A. I had my hand on down on the stock part of it.
“Q. You knew it could go off, didn’t you?
“A. (No response)
“Q. Didn’t you?
“A. I know it did go off.”

There was evidence tending to show that during the time defendant had the shotgun in his hand he could have shot Bates in the head or in some other vital part of the body. This fact and the circumstances as a whole afford logic to the position taken by appellant that he did not intend to murder Bates. Appellant insists that there was no substantial evidence to show either an intent to kill or malice. There is no disagreement among the parties that to constitute an assault with intent to murder there must be both intent to kill and malice, that an assault with intent to murder is an assault with the intent to take life, under circumstances which if successful would constitute murder, either in the first degree or in the second degree. McArdle v. State, Ala.Cr.App., 372 So.2d 897, cert. denied, 372 So.2d 902 (1979); Sanders v. State, Ala.Cr.App., 354 So.2d 44, cert. denied 354 So.2d 48 (1977); Douglas v. State, 42 Ala. App. 314, 163 So.2d 477 (1963), cert. denied, 276 Ala. 703, 163 So.2d 496 (1964).

Appellant says the instant case is similar to McArdle, supra, in which a conviction for assault with intent to murder was reversed on the ground of the insufficiency of the evidence. In that case, defendant brandished a gun and fired it four times into a floor, but he did not present the gun at the alleged victim and did not fire it in her direction. Appellant says that the instant case is similar also to Smith v. State, 54 Ala.App. 96, 304 So.2d 914 (1974), in which defendant was convicted of manslaughter in the first degree. It was not held therein that the evidence would not have supported a verdict of murder in the second degree. Pertinent to the question now before us, is what was stated at 304 So.2d 918:

“In a prosecution for murder, it is for the jury to determine the claim of the accused that the shooting was accidental. Harrell v. State, 160 Ala. 91, 49 So. 805; Powell v. State, 219 Ala. 557, 123 So. 34; Macon v. State, 36 Ala.App. 651, 63 So.2d 32; McMillan v. State, 44 Ala.App. 216, 205 So.2d 603.”

Perhaps no person knows better than defendant the state of his mind or the state of his heart at the time the gun was fired, but the jury was not required to accept his recollection thereof as testified to by him.

To what we have said, we should add that there was testimony by Bates and by his girl friend that at about the time Bates was wounded, defendant said, “I’ll kill you.” Furthermore, an officer testified that before he started questioning defendant, defendant said, “Hell, yes, I shot him. If I hadn’t run out of shells I would have killed the S.O.B. He brought dope here and I meant to kill him. And at that time I had to stop him.”

Appellant takes the position that there was prejudicial error in the court’s failure to order a mistrial by reason of the effort of the prosecution to show on cross-examination of defendant that he had been convicted of an assault with a gun. Immediately after the question was asked, the following occurred:

“MR. BRUTKIEWICZ: Hold on just a minute. It’s not a crime involving moral turpitude, Judge. I would have to object.
“THE COURT: Well, I’m not so sure about that.
“MR. BRUTKIEWICZ: Assault with a gun is not a crime involving moral turpitude.
“MR. NEWMAN: I withdraw the question.
“MR. BRUTKIEWICZ: All right. Judge, I’d ask Your Honor to instruct the Jury that they shouldn’t give that any confidence.
“THE COURT: All right. I instruct the Jury to disregard that. The question has been withdrawn.
“MR. BRUTKIEWICZ: You know, you knew that was improper.
“MR. NEWMAN: I did not know that was improper.”

Thereupon, counsel for the parties continued to contradict each other as to whether State’s counsel knew the question was improper. At one time, the court reporter’s notes show “(Unintelligible — Both attorneys talking at once.)” After further argument as shown in about one page of the record, the court excused the jury. The argument continued, and, as indicated in about four pages of the proceedings out of the presence of the jury, the particular charge had been nol prossed, though this is not absolutely clear. After the jury returned to the courtroom, it was informed by the court that the State had withdrawn the question, “concerning prior conviction of this man or reputed prior conviction” and instructed the jury “to completely disregard that question and answer.” After asking the jury whether they could “do so,” the court said, “All right,” and proceeded with the rest of the trial. There was little said in the presence of the jury that could have been a valid ground for a mistrial. Nothing that was said would have justified the court’s ordering a mistrial ex mero motu.

Thirty-nine charges were requested in writing by defendant. Eighteen of them were given. Appellant says there was error in refusing each of the twenty-one refused charges, but he makes no particular reference to any one or more of them. We have considered them all and find that any and all of them that state correct propositions of law and were applicable to the evidence in the case were fully covered in substance by the oral charge, or the written given charges, or both. This is especially true as to the applicable principles of law governing the difference between the crime of assault with intent to murder and lesser included offenses. The refusal of none of the requested charges constituted prejudicial error.

We have searched the record for error prejudicial to defendant and have .found none. 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: HARRIS, Presiding Judge.

text:
    Anthony TURNER v. STATE.
    4 Div. 735.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    W. Donald Morgan, Jr., of Smith & Smith, Phenix City, for appellant.
    Charles A. Graddiek, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years in the penitentiary. Throughout the trial proceedings appellant was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel represents appellant on this appeal.

Appellant was convicted of assault with intent to murder and sentenced to twenty years in the penitentiary growing out of this same robbery. His appeal to this court was reversed and rendered on October 2, 1979, on the ground that he was denied a speedy trial as mandated by the Constitutions of the United States and Alabama.

The chronology of events subsequent to the commission of these two crimes is identical and reference thereto is made to the opinion released by this court on October 2, 1979, Ala.Cr.App., 378 So.2d 1173.

This case is reversed and rendered on authority of the October 2, 1979, opinion, supra.

REVERSED AND RENDERED.

All the Judges concur.


author: BOYD, Justice. PER CURIAM.

text:
    GULF COAST MOTOR LINE, INC. et al., Petitioners, v. Paula F. HAWKINS et al., Respondents.
    No. 55591.
    Supreme Court of Florida.
    Nov. 8, 1979.
    Rehearing Denied March 6, 1980.
    Ansley Watson, Jr., of MacFarlane, Ferguson, Allison & Kelly, Tampa, for Gulf Coast Motor Line, Inc.; Gregory A. Presnell and Robert B. Nadeau, Jr. of Akerman, Senterfitt & Eidson, Orlando, for Tamiami Trail Tours, Inc. d/b/a Trailways, and John H. Wilbur of Milam & Wilbur, Jacksonville, for Greyhound Lines, Inc., petitioners.
    Prentice P. Pruitt and M. Robert Christ, Florida Public Service Com’n, Tallahassee, for respondents.
    Richard M. Davis and J. B. Curasi of Curasi & Davis, Tallahassee, for Lindo’s Tours U.S.A., Inc., intervening respondent.
   BOYD, Justice.

The Court has for review Order No. 14420 of the Public Service Commission, granting a motor carrier certificate. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.; § 350.641, Fla.Stat. (1977).

Lindo’s Tours & Rent-a-Car U.S.A., Inc., sought and was granted authority to offer sightseeing carriage service and charter carriage service originating at points on state road 699 in Pinellas County. Petitioners, regular route common motor carriers, protested the application and now seek a writ of certiorari on the ground, among others, that the commission is without authority to grant the certificate.

Petitioners contend that the grant of charter carriage authority was beyond the commission’s statutory power, citing section 323.032(1), Florida Statutes (1977), which provides, in pertinent part, “In no event may the commission grant charter rights except in conjunction with the grant of regular route certificates to motor common carriers of passengers.”

The commission in its order acknowledged the possibility of a legal impediment when it noted that

the amended statute contains the general limitation that charter rights may be granted only “in conjunction with the grant of regular route certificates to motor common carriers of passengers.” § 323.032(1), F.S. Unless the Commission excludes “sightseeing carriers” from classification as “regular route, motor common carriers of passengers,” Lindo’s appears eligible for award of charter rights. In this regard, statutory changes require revision of Commission sightseeing rules (§§ 25-5.43 and 5.45, F.A.C.). The Commission staff should clarify “sightseeing” as well as “charter carriage” (discussed below) through rulemaking procedures authorized by §§ 120.54 and 323.07, F.S.

Thus the commission’s theory is that the grant of charter authority is permissible because it is in conjunction with an award of sightseeing carriage authority, and that the latter fulfills the statutory requirement as a regular route certificate awarded to a motor common carrier of passengers.

Examination of the commission’s rules relating to sightseeing carriers reveals that it is not any statutory change, but rather the decision under review, that would require their revision.

Rule 25-5.43(1), Florida Administrative Code, defines “regular common carriers of passengers” as “all common carriers of passengers operating between fixed termini, over regular routes and on fixed schedules who are not . . . ‘limited common carriers of passengers’ as said terms are hereinafter defined.” Rule 25-5.43(3) defines “limited common carriers of passengers” as “all common carriers of passengers operating over irregular routes or not between fixed termini or not on fixed schedules, provided that said term shall include sightseeing carriers . . . .”

Rule 25-5.43(1) makes clear that the commission regards the two categories “regular common carriers of passengers” and “limited common carriers of passengers” as mutually exclusive. Rule 25-5.43(3) makes clear that sightseeing carriers fall into the latter category. Thus, a certificate authorizing sightseeing carriage is by definition not a “regular route certificate” as that term is used in section 323.032(1), Florida Statutes (1977).

The commission order, in its discussion of the applicability of the prohibitory language of section 323.032(1), Florida Statutes (1977), referred to it as a “general limitation” to be distinguished from the directly applicable statutory prohibition that was removed by chapter 77-434, Laws of Florida. Prior to amendment, section 323.-01(10), Florida Statutes (1975), provided in pertinent part:

Charter carriage, as defined herein, in the interest of safety on the highways and safety of the traveling public, shall be performed only by regular route common carriers of passengers as set forth in s. 323.14, whose motor vehicles meet the specifications of this part and are operated under the supervision and the rules and regulations of the commission.

Section 323.14(2), Florida Statutes (1975), which contains the limitation referred to by the above-quoted statute and which was repealed by chapter 77-434, provided, “In no event may the commission grant charter rights except in conjunction with the grant of regular route certificates to motor common carriers of passengers.”

The Commission has conceded in its order that these two statutory provisions, prior to their repeal by chapter 77-434, constituted a direct statutory prohibition against granting charter service authority in conjunction with a grant of nothing more than sightseeing carriage authority. But section 323.-032(1), Florida Statutes (1977), as it is written today, contains just as clear a prohibition.

The order under review purports to award a certificate authorizing charter service by a carrier not authorized to engage in regular route motor common carriage of passengers. It exceeds the commission’s statutory power and is hereby quashed.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

ON REHEARING

PER CURIAM.

The Court’s opinion of November 8, 1979, is adhered to in all respects except that the decision and mandate are clarified as follows.

That portion of Public Service Commission Order No. 14420 which purports to award a certificate authorizing charter service by a carrier not authorized to engage in regular route common carriage of passengers exceeds the commission’s statutory power and is hereby quashed. The portion of Order No. 14420 that grants authority to offer sightseeing carriage service is approved.

The Petition for Rehearing and Clarification having been considered in light of the revised opinion is hereby denied.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.


author: McDonald, justice. ALDERMAN, Justice,

text:
    Elliott BUCHMAN, etc., Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, Respondent.
    No. 54394.
    Supreme Court of Florida.
    Feb. 21, 1980.
    Rehearing Denied April 14, 1980.
    Walter H. Beckham, Jr. and Joel D. Eaton, of Podhurst, Orseck & Parks, Miami, and the Law Offices of Wagner, Cunningham, Vaughan, Hapner & Genders, Tampa, for petitioner.
    George D. Lynn, Jr. and Stephen C. Chumbris, of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for respondent.
    Robert J. Beckham, of Beckham, McAli-ley & Proenza, Jacksonville, for Academy of Florida Trial Lawyers, amicus curiae.
    DuBose Ausley and William M. Smith, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Florida Railroad Ass’n, amicus curiae.
   McDonald, justice.

This Court has granted certiorari under article V, section 3(b)(3), Florida Constitution. There is apparent conflict on the issue of admissibility of expert testimony as defined in Seaboard Coast Line Railroad Co. v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971), writ discharged 270 So.2d 359 (Fla.1972), and Public Health Foundation v. Cole, 352 So.2d 877 (Fla. 4th DCA 1977), cert. denied 361 So.2d 834 (Fla.1978).

The facts of this case are stated in the opinion of the Second District Court of Appeal, 358 So.2d 836 (Fla. 2d DCA 1978), and are not repeated here. Although other issues were discussed by the District Court, the sole basis for reversal was the admissibility of expert testimony. Our discussion is therefore limited to that issue.

At the outset it is observed that the trial judge was most careful in his consideration of the expert testimony in dispute. We are reminded that in the absence of a clear showing of error a trial judge’s determination of admissibility should not be disturbed on review. Seaboard Air Line Railroad Co. v. Lake Region Packing Assn., 211 So.2d 25 (Fla. 4th DCA 1968), cert. denied 221 So.2d 748 (Fla.1968); Myers v. Korbly, 103 So.2d 215 (Fla. 2d DCA 1958).

There are two elements to be considered when admitting expert testimony. First, the subject must be beyond the common understanding of the average layman. Second, the witness must have such knowledge as “will probably aid the trier of facts in its search for truth.” Mills v. Redwing Carriers, Inc., 127 So.2d 453, 456 (Fla. 2d DCA 1961).

The district court, relying on Seaboard Coast Line Railroad Co. v. Kubalski, 323 So.2d 32 (Fla. 4th DCA 1975), ruled that the testimony of three experts invaded the province of the jury and should not have been admitted. Kubalski concerned the death of a motorist whose pickup truck was struck by a train while stopped on a railroad track because of traffic backed up from a red light. In Kubalski, the district court reversed and remanded on the basis of improperly admitted expert testimony. On the other hand, the admission of expert testimony concerning an automobile-train collision had been upheld in Seaboard Coast Line Railroad Co. v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971).

The Fourth District Court of Appeal reconciled its rulings in Kubalski and Hill by stating:

In Hill there were extraordinary circumstances and the expert was allowed to opine as to how these unusual circumstances would affect the human response. In Kubalski there were no unusual circumstances to warrant any inroads upon the province of the jury to decide what the reasonable man should do or would do in that situation.

Public Health Foundation v. Cole, 352 So.2d 877, 879 (Fla. 4th DCA 1977).

In our opinion, the instant case contains enough “unusual” circumstances to support the trial judge’s admission of expert testimony. It was within his discretion to find that the Twin Lakes Boulevard intersection with both the Seaboard tracks and Busch Boulevard, coupled with the conditions inside Mrs. Buchman’s car, presented such a deceptive quality in the environment as to warrant the admission of expert testimony. The experts involved did not invade the province of the jury by -testifying about this complicated intersection. Rather, their testimony offered assistance to the jury as to reaction times, as to audibility of the train whistle, and as to how the crossing measured up to minimum design standards.

For the reasons set out above, the district court’s decision reversing the judgment against Seaboard on grounds that the expert testimony was inappropriate is quashed, and the judgment of the trial court is reinstated.

ENGLAND, C. J., and ADKINS, BOYD and OVERTON, JJ., concur.

ALDERMAN, J., dissents with an opinion.

SUNDBERG, J., dissents.

ALDERMAN, Justice,

dissenting.

I agree that the testimony of a “human factors” expert may be admissible where extraordinary circumstances exist and where the significance of and the reaction of a human being to these factors might reasonably involve a knowledge that is within the sphere of the witnesses’ expertise and beyond the scope of jurors’ common knowledge. Public Health Foundation v. Cole, 352 So.2d 877 (Fla. 4th DCA 1977). I disagree, however, with the majority’s conclusion that such unusual circumstances, warranting inroads upon the province of the jury to decide what a reasonable man should do or would do in this situation, existed in the present case. Seaboard Coast Line Railroad Co. v. Kubalski, 323 So.2d 32 (Fla. 4th DCA 1975).

Judge Grimes, speaking for the Second District in the present case, correctly concludes:

[T]he testimony of the plaintiff’s experts referred to above had the effect of invading the province of the jury. The testimony was particularly prejudicial in this case because there was no independent evidence of specific acts of negligence. Expert testimony can be very helpful in explaining complicated subjects which are beyond the knowledge of the average jur- or. On the other hand, the practical effect of permitting an expert to testify is to advise the jury that this is a person whose opinion is worth considering. Therefore, allowing an expert to testify on matters of common knowledge creates the very real possibility that the jurors will be unduly influenced by the opinion of one whose advice was not needed by them to reach an intelligent conclusion.
All of the factors which Mr. Fowler said would cause confusion at this crossing were matters which could be readily appreciated by any person who drives an automobile. Counsel could have very properly pointed out the so-called “confusion factors” to the jury in his closing argument since they were predicated upon facts admitted into evidence. However, permitting Mr. Fowler to make the same observations effectively put the stamp of expertise upon an issue that the jury was fully competent to decide.

358 So.2d at 842.

I would approve the decision of the Second District.