text:
    Dan WARREN, Jr. v. STATE.
    6 Div. 172.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.

      Michael C. Cornwell, Asst. Public Defender, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty under an indictment charging him with buying, receiving, concealing or aiding in concealing a ’74 model Chevrolet Impala automobile of the value of $2,550.00, knowing that it was stolen, or having reasonable grounds for believing that it was stolen, and not having the intent to restore it to the owner. The court fixed his punishment at five years imprisonment and sentenced him accordingly-

The owner of the automobile was Michael Beams. His wife, Mrs. Clara Beams, testified that on the morning of June 12, 1978, she drove the automobile to a downtown bank where she worked, left the automobile and its key in the custody of a parking lot attendant and then went to her work for which she was late. About 4:00 that afternoon she went for her automobile and found that it was not at the lot. It seems to be undisputed that the automobile was stolen from the parking lot between about 11:00 A.M. and 4:00 P.M. that day.

Michael William Beams, son of the owner of the automobile and his wife, testified that on the afternoon of June 30, 1978, his father sent him to a grocery store on Sky-land Boulevard to purchase some items. He went in his father’s truck, and, as he was in the process of placing the items in the back of the truck, he “looked over and saw a brown car that looked like” the stolen automobile. According to his further testimony, he left the grocery store area for a short time, asked someone to call the police, and returned to the place where he saw the automobile and waited for the police to arrive. While waiting on the police, he saw appellant approach the automobile, go to the trunk thereof as if “to put his groceries in,” and he had his key in his hand. He further said:

“I went over and asked him if it was his car and he said no, it was his little brother’s, that he had borrowed it to come buy groceries and I told him I had called the police to come pick up the car, that it was stolen and for them not to go anywhere.”

Appellant stayed as directed by young Beams until the police arrived within about five minutes. A police officer testified that he answered the call and was informed by defendant that he did not own the automobile but that he had borrowed it from his little brother.

The testimony narrated above constitutes all of the testimony directly bearing on the matter of the theft of the automobile on June 12, and as to what occurred and what was said by defendant as to his custody or possession of the automobile while in the vicinity of the grocery store on June 30.

The only issues expressly presented on appeal are based primarily on matters arising during the testimony of appellant’s “lit-tie brother” and the testimony of Officer Harold Jones,1 both witnesses called by the State.

Larry Warren, defendant’s “little brother,” sixteen years of age at the time of the alleged crime and seventeen years of age at the time of the trial, testified in part as follows:

“Q. All right, and how did you become acquainted with this vehicle?
“A. Well, I bought it.
“Q. You bought it?
“A. Yeah.
“Q. What did you pay for it?
“A. Six hundred and fifty dollars.
“Q. Six hundred and fifty dollars? All right, sir, do you have a job?
“A. No, sir.
“Q. Where did you get the six hundred and fifty dollars?
“A. I get Social Security from my dad. “Q. Social Security?
“A. Yeah.
“Q. How much do you get a month? “A. Eighty-nine.
“Q. Eighty-nine dollars and you used that money to buy the car?
“A. Yes, sir.
“Q. How many cars have you had in the past?
“A. Four.
“Q. Four? Did you buy all those cars? “A. Yes, sir.
“Q. And did your brother help you get one of those cars?
“A. One.
“Q. One. What kind of car was it? “A. Chevrolet. •
“Q. What model?
“A. Seventy-two.”

The witness further testified that he bought the automobile described in the indictment at a club from a person he did not know, who had the car at a parking lot with a for sale sign on it. He said he didn’t know “the dude’s name” but that he was, “Tall and had black hair and he was white.”

According to further testimony of Larry:

“Q. Did you keep it at your home? “A. Yeah.
“Q. And you kept it in your possession for two weeks?
“A. For a week.
“Q. For a week. Okay. At the end of that week, what did you do with it? “A. I left my brother drive it.
“Q. You let your brother drive it?
“A. Yeah.
“Q. And which brother are you talking about?
“A. Dan.
“Q. Okay. How long did Dan have the car?
“A. He had it for a week.
“Q. He had it for a week?
“A. Yeah.
“Q. Did he keep it at his house?
“A. I don’t know where he kept it at. “Q. You didn’t see it for that whole week?
“A. That is right.
“Q. What happened at the end of that week?
“A. I got it back and he said he wanted to borrow it to go to the grocery store. “Q. Now isn’t it a fact, Mr. Warren, that you told the police and you told me yesterday that you gave the car, you kept the car about a week and gave it to your brother to use and just told him to keep it?
“A. Yeah, I told him — you asked him did I tell him he could have it.
“Q. Didn’t you tell him to keep the car and use it?
“A. Yeah.
“Q. All right. And you didn’t say anything to us about him bringing it back that day did you, either time when you were talking to the police or me?”

Promptly after the last question, defendant’s counsel objected, and the court said, “You may refresh his recollection.” Thereafter, counsel for the State continued to question the witness as to what he had previously stated, and defendant’s counsel renewed his objection, and the court ruled that State’s counsel could refresh the recollection of the witness as to what he had previously stated with reference to the stolen automobile that he had let his brother, the defendant, have. Thereupon, counsel for defendant asked the witness about some keys to another automobile that “were taken from you by the police officer.” The testimony of the witness continued as follows:

“Q. What were those keys to?
“A. To my car.
“Q. To your car?
“A. Yeah.
“Q. What kind of car was it?
“A. Seventy-two Chevrolet.
“Q. And did this happen approximately six months before you bought the 1974 Chevrolet?
“A. I don’t know.
“MR. CORNWELL: Your Honor, we object to this line of questioning.
“THE COURT: I don’t believe you can go into that.
“MR. MADDOX: If Your Honor please, we expect to connect this up by other witnesses. We have four other witnesses coming in to connect up this information but subject to connecting it up I need to lay the predicate.
“MR. CORNWELL: May we approach the bench, Your Honor, to see wRere Mr. Maddox is going?
“THE COURT: I will sustain the objection.
“Q. The keys were to your Chevrolet though?
“A. Yes, sir.
“Q. Was that Chevrolet that your brother—
“MR. CORNWELL: We object to Mr. Maddox’s questioning him about another automobile.
“THE COURT: Let’s don’t go into that. “Q. You testified earlier your brother helped you get a 1972 Chevrolet, is that correct?
“MR. CORNWELL: We object, Your Honor.
“MR. MADDOX: He testified to this. “THE COURT: Move on, gentlemen.
“Q. Is that the same car?
“A. Yes, sir.
“MR. MADDOX: Nothing further.
“THE COURT: Anything further for the defendant?
“MR. CORNWELL: Yes, sir, Your Hon- or.
“THE COURT: All right.
“MR. CORNWELL: We have some questions, Your Honor.
“THE COURT: All right. I don’t want to be unreasonable, but I would like to move on as fast as possible. I have some more cases to try.
“MR. CORNWELL: Your Honor, may we approach the bench?
“THE COURT: Yes, sir.
“MR. CORNWELL: Your Honor, the defense would object to the statement of the Court just now to the jury. We object on the ground that it is prejudicial to the defense case.
“THE COURT: Overruled.
“MR. CORNWELL: We move for a mistrial on those grounds.
“THE COURT: Overruled. Ladies and Gentlemen, if my comment about hurrying along in any way makes you feel like you could not give the defendant a fair trial will you indicate by raising your hand. If anything I said makes you feel like you could not give this defendant a fair trial would you please indicate it by raising your hand. All right, let’s go ahead gentlemen.”

At that point cross-examination of the witness was commenced by defendant’s counsel. He immediately showed by the witness that the stolen 1974 Chevrolet had dents on it, that the paint was “scratched up” and that the back was bent. After showing by the witness that he had the automobile about two hours between the time defendant had returned it to him after using it for a week and the time defendant borrowed it again to go to the grocery store, the witness was asked as to the 1972 Chevrolet that he had said he had purchased and that defendant had helped him purchase. The witness said that he had purchased that automobile over “behind the Greyhound Bus Station” at a used car lot and that defendant bought it “in his name.” On redirect examination, while counsel for the State was referring to the 1972 Chevrolet, the following occurred:

“Q. All right, now are those the only keys you have had taken away from you by the police?
“MR. CORNWELL: Your Honor, we object to Mr. Maddox going into that. “THE COURT: Overruled. You can refresh his recollection.
“MR. CORNWELL: Your Honor, there has been no he is doing so.
“MR. MADDOX: He testified earlier the police took the keys from that car.
“THE COURT: Move on, gentlemen. “MR. CORNWELL: Your Honor, may I get the ruling on my objection.
“THE COURT: Overrule the objection. “Q. Are those the only ones?
“A. Yeah.

The only witness called by the State after Larry Warren had testified was Mr. Harold Jones, an investigator for the Tuscaloosa Police Department. After some preliminary questions, the following occurred on direct examination:

“Q. I will ask you to state whether or not you had the occasion to obtain some automobile keys from the defendant’s brother, Larry Warren?
“MR. CORNWELL: We object to this whole line of questioning. May we approach the bench?
“THE COURT: No, let’s go ahead, gentlemen. I overrule the objection. Let’s move on. We can’t get bogged down in some side issues. Go ahead.
“MR. CORNWELL: Your Honor, may we approach the bench?
“THE COURT: No, sir, we don’t have time to keep coming up to the bench. We have a lot of other cases to try. I’m not trying to deny anybody their right to a fair trial.
“MR. CORNWELL: We object to Your Honor’s statement about other cases to try.
“THE COURT: Overrule the objection. “MR. CORNWELL: We move for a mistrial.
“THE COURT: Overrule the motion for a mistrial.
“Q. Mr. Jones, did you have the occasion to obtain some keys from Larry Warren? “A. Yes, sir, I did.
“Q. When did you do that?
“A. November 27, 1977.
“Q. All right, sir, what kind of keys were they?
“A. They were keys to a 1976 Pontiac. “Q. What color was that Pontiac?
“A. White.
“MR. CORNWELL: We object.
“THE COURT: Overruled.
“Q. And do you know who owned that Pontiac?
“A. Yes, sir.
“Q. Who owned it?
“MR. CORNWELL: We object.
“THE COURT: Gentlemen, I am going to have to sustain the objection. I don’t think we can get into any other—
“MR. MADDOX: May it please the Court, we have some law to cite to Your Honor.
“THE COURT: I don’t think we can go into any other vehicles.
“MR. MADDOX: May we approach the bench?
“THE COURT: Yes, sir. I will overrule. Let’s don’t get into any other vehicles. “MR. CORNWELL: Are you sustaining my objection?
“THE COURT: I am sustaining the objection to any other vehicles.
“MR. MADDOX: May we have a hearing in chambers on this?
“THE COURT: No, sir, I am ready to move on. Have a seat, gentlemen. My ruling is final.
“Q. Did Larry Warren own that car? “A. No, sir.
“MR. CORNWELL: Your Honor, again we object to this line of questioning.
“THE COURT: I will say, gentlemen, we cannot discuss any other vehicles.
“MR. MADDOX: Your Honor, we respectfully except to Your Honor’s ruling and cite to Your Honor 40 Ala.—
“MR. CORNWELL: Your Honor,.we. object to counsel testifying in Court.
“MR. MADDOX: I am not testifying, I am assigning cases.
“THE COURT: Sustain the objection to any other vehicle.
“Q. Are you familiar with the reputation of Larry Warren in the community in which he lives?
“MR. CORNWELL: Your Honor, I object.
“THE COURT: Sustain the objection.
“MR. CORNWELL: Object to him impeaching his own witness.
“THE COURT: Sustain the objection. “MR. MADDOX: May it please the Court may we approach the bench?
“THE COURT: I don’t want to hear any arguments about it. I’ve been on the bench fifteen years and I have some idea about the way a case should be tried. I am ruling now we can’t go into these other matters. I want to be fair to both sides, gentlemen.
“MR. MADDOX: May we please have a hearing in chambers about it?
“THE COURT: No, sir.
“MR. MADDOX: No further questions. “MR. CORNWELL: I have no questions of this witness, Your Honor.
“MR. MADDOX: The State rests.”

Thereupon there was a motion by defendant to exclude the evidence, which was overruled. Then defendant renewed his motion for a mistrial, saying:

“. . .We make another motion for a mistrial based on the accumulative effect of Your Honor’s statement of the witnesses Mr. Maddox has called and that Mr. Maddox has gone into repeatedly after the defense’s objections were sustained and it is the defense’s feeling that the total tenure of all that is so prejudicial on the jury that the defendant cannot get a fair trial.”

To which the court responded, “Overrule. Now, gentlemen, may we move along with reasonable dispatch.” After further colloquy among the court and the respective parties, defendant’s counsel announced that defendant rested.

During the argument to the jury of counsel for the State, the record shows:

“. . . Well, where is that bill of sale? We had to put Larry Warren on that stand because of the second thing about the law I want to tell you about that Mr. Sullivan has already told you. If you can say that because a recently possessed something in other words they possessed it right after it was stolen that they probably knew it was stolen then maybe they ought to come up with an explanation for how they came to have that stolen property and we had to put that explanation on for you and the reason is we wanted to see, wanted you to see just how unreasonable a cock and bull story was—
“MR. CORNWELL: Your Honor, we object to that. Mr. Maddox is impugning his own witness.
“THE COURT: Go ahead, overrule the objection.
“MR. MADDOX: Thank you. Yes, I am impugning my own witness. He is the brother of the defendant and I submit to you that they had a common scheme going.
“MR. CORNWELL: Your Honor, I object to that. There is no evidence to that. “THE COURT: Overruled.
“MR. MADDOX: I submit to you they had a common scheme going whereby probably Larry Warren stole the car or maybe he did; I don’t know but the story was set up that if he got caught they were going to blame it on Larry. Why? Larry is a juvenile.
“MR. CORNWELL: We object to that, Your Honor.
“THE COURT: Overruled.
“MR. MADDOX: Larry is a juvenile. He has tried to blame his little brother and his little brother would get up and say oh, yeah, because his little brother knows nothing would happen to him.
“MR. CORNWELL: We object to that, Your Honor.
“THE COURT: Overruled.
“MR. MADDOX: So what do we have here? Do we have a reasonable explanation of why he had that ear? No, ladies and gentlemen, we don’t. We just don’t. We don’t have any bill of sale. We don’t have anything but a cock and bull story about totting $650 in cash around just bopping down the road and he sees a for sale sign and buys the car and then he gets caught and he tells the police oh, it belongs to my brother, I just borrowed it to come to the grocery store and then his brother tells the police as his brother said from the stand, oh, I let Larry I let Dan have the car about a week after I got it and said just keep it and use it and then he comes up to court here and says that day he brought it back to me and then he came back again a couple of hours later and asked to borrow it again to go to the grocery store. . . . ”

During the oral charge to the jury, the court said:

“The burden is not cast upon the defendant but you have the duty, ladies and gentlemen, to analyze the evidence and carefully consider it because you bring here and we know that you bring here to the jury box your common sense, your knowledge of men and their affairs. If somebody comes in here with a cock and bull story so to speak, your common sense I am sure will tell you such story is not true. So I am saying to you that you determine who is telling the truth and you analyze the evidence and use your common sense accordingly. . . .”

In taking the exceptions to the court’s oral charge, the record shows:

“MR. CORNWELL: Back on the record. Your Honor, the defense respectfully excepts to Your Honor’s comment about someone comes into court with a cock and bull story you know is not true, you can consider that specifically that attracts to the language of Mr. Maddox closing about the testimony of Larry Warren and the defense objects to that as a comment on the evidence or comment on Mr. Warren’s testimony, Mr. Larry Warren.
“THE COURT: All right. It was not my intention to say that anybody told a cock and bull story. I didn’t mean to infer that but I am not criticizing your objection but I was trying to impress upon the jury they determine what the truth is. Well, I will overrule the objection.”

The portions of the transcript quoted hereinabove have been unusually lengthy in order to reveal fully the objects of all of appellant’s assertions of reversible error, which he sets forth in his brief under three separate headings, I, II and III.

I

Appellant here contends that the court “erred in overruling appellant’s objections to the State’s efforts to impeach its own witness.” It is obvious that the reference is to the witness Larry Warren. It is readily observable from portions of the transcript quoted above that, although the witness was called by the State, he was understandably reluctant. Furthermore, some of his testimony evoked a statement from State’s counsel that he was surprised by the testimony of the witness. At one point, counsel for the State asked him if he had not told the police and told State’s counsel the day before that he had given the automobile to his brother to use and told his brother “to keep it.” Appellant contended on the trial, and contends now, that such a question constitutes an effort to impeach one’s own witness. It may well tend to lead to an effort to impeach one’s own witness, but it does not in and of itself constitute an effort to impeach one’s own witness. It constitutes an effort to refresh the recollection of one’s own witness, as the trial court ruled, as it should have done, that when a party is taken by surprise by the testimony of a witness called by him, he may refresh the recollection of the witness by asking him as to previous statements made by him that are at variance with his testimony. Gamble, McElroy’s Alabama Evidence, § 165.01(7) (1977), with authorities cited.

ii

Under this category, appellant contends that the court “erred in overruling appellant’s objection to questions about other vehicles and in overruling objections to improper, argument by the State’s attorney.” We here consider both phases of that insistence.

As to appellant’s objection to questions about other vehicles, it was earnestly urged by counsel for the State that defendant’s connection with activity of his brother, Larry Warren, sixteen years of age at the time, in procuring other automobiles, was pursuant to a plan or system designed by defendant whereby the two brothers by working together would obtain automobiles by larceny or the like, and for that reason evidence to that effect came within one of the exceptions to the rule of exclusion of evidence as to other crimes, for which there is ample authority. See McElroy’s Alabama Evidence, § 69.01(6) (1977). However, the court in the exercise of its discretion as to the extent the State should go in this respect, repeatedly sustained defendant’s objections to questions as to automobiles other than the one specified in the indictment in the instant case. It invariably sustained the objection except in two instances. One was as to a 1972 Chevrolet, as to which objections were sustained until defendant asked the witness some questions as to that automobile, which opened the door for further questions by State’s counsel as to it. The other instance was during the direct examination of Mr. Harold Jones, a witness for the State, which is quoted hereinabove. It is readily observable therefrom that there was nothing to indicate that the automobile as to which the witness was questioned was any automobile other than the 1972 Chevrolet. At that time, the court overruled defendant’s objection, but later when it developed that the automobile questioned about was a Pontiac, the court stated, “I am going to have to sustain the objection. I don’t think we can get into any other—.” The court continued to rule with the defendant on the point. We find no prejudicial error in any of the court’s rulings on defendant’s objection to questions about other vehicles.

The court was correct in overruling defendant’s objection to argument of counsel for the State to the effect that the evidence justified an inference that defendant, about a decade older than his juvenile brother, was aware of, if not responsible for the juvenile’s behavior.

Ill

By his third insistence on reversible error, appellant says that the court “erred by making prejudicial comments during the trial and by commenting on the evidence.” The targets of this contention have been quoted hereinabove. Included are two statements, during the time witnesses were being examined, to the effect that the court had other cases to try, that they didn’t have time to keep coming up to the bench and that they should move on as fast as possible. If there were anything in the record to indicate that the court’s concern as to delay on the trial was directed exclusively to defendant, it can be readily seen that the defendant could have been injured thereby. To the contrary, the record shows conclusively that the court was acting with absolute impartiality in its remarks, which of itself negates the charge that said comments were “prejudicial.”

Another contention of appellant under his third assertion of error is as to that part of the court’s charge, quoted herein-above, as to a “cock and bull story.” It is unfortunate, we think, that this graphic language was the same as that used by State’s counsel in his argument to the jury. Even so, it is clear to us that the use of it by the trial court bore no implication of any leaning toward the State; there is nothing in what was said, or in any other part of the transcript, to indicate that the court felt that there was any “cock and bull story” in the case. The agreement between the court and State’s counsel in the language of the four-word metaphor does not connote agreement between the court and State’s counsel as to the credibility of any of the evidence. The sensitiveness of the defendant to the particular language under the circumstances is understandable, but the repeatedly manifested impartiality of the court throughout the trial underscores our conclusion that the use of the expression in the court’s oral charge was not harmful to defendant.

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

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under 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.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Paul Bernard MARLER v. STATE.
    7 Div. 708.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Ralph L. Brooks, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for assault with intent to murder. Sentence was two years’ imprisonment.

It is clear that the trial court abused its discretion in not granting appointed defense counsel’s request for a continuance.

The defendant represented himself in the District Court. He appealed his conviction to the Circuit Court. On the day of trial the trial court appointed the Honorable John Thompson to help the defendant in striking the jury. After a jury was struck, impaneled and sworn, the defendant requested that the court appoint an attorney to represent him. The court determined that the defendant was indigent and appointed the Honorable Ralph Brooks to represent the defendant. Mr. Brooks was not present when the jury was struck.

After Mr. Brooks was appointed, he requested a short continuance.

“MR. BROOKS: I want to state for the record that I have just been appointed on this case and I am not familiar with it. “THE COURT: Do you want to ask for a continuance?
“MR. BROOKS: I want to ask for a little bit of time, anyway.
“THE COURT: I am going .to deny that. I will not state a reason; I will just simply deny it.”

This does not appear to be a situation where the request for appointment of counsel is used as a vehicle for achieving delay. Fisher v. State, 346 So.2d 4 (Ala.Cr.App.) cert. denied, 346 So.2d 8 (Ala.1977). The State has not alleged such and in fact admits error.

“The State respectfully declines to file- a brief in the above named cause. The record discloses that counsel was appointed for the defendant on the morning of the trial after the jury had been struck with the help of another attorney. When newly appointed counsel reported to the courtroom and requested ‘a little bit of time’ to confer with his new client this was refused by the trial court. The Office of the Attorney General is unable to justify the trial court’s action.”

Without question the trial judge abused his discretion in not granting defense counsel’s request. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Mars v. State, 339 So.2d 104 (Ala.Cr.App.), cert. denied, 339 So.2d 110 (Ala.1976); Browning v. State, 57 Ala.App. 217, 326 So.2d 778, cert. denied, 295 Ala. 392, 326 So.2d 783 (1975); Kearley v. State, 52 Ala.App. 405, 293 So.2d 322 (1974).

This judgment is hereby reversed and cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Victor Antonio GLOVER v. STATE.
    6 Div. 204.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Cecil M. Matthews, Columbiana, for appellant.
    Charles A. Graddick, Atty. Gen., Sandra M. Solowiej, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant urges that the evidence was not sufficient to support the verdict of the jury fipding him guilty of robbery of Linda Harris, for which the court sentenced him to imprisonment for ten years.

According to the testimony of the alleged victim, she drove an automobile about 5:15 P.M. on May 17, 1979, to a parking lot at Summit House Apartments at 1144 Sixteenth Avenue, South, Birmingham, Alabama, to visit a friend who lives there. As she was entering the parking lot, she observed, two black males in the lot walking toward the street; she parked the automobile about thirty feet from where she first observed the men; after listening to a song on the radio, she proceeded to leave the automobile with a cake in one hand and her purse in the other. When she opened the door to depart, she saw a pistol pointed at her. The pistol was in the hand of one of the two black males she had just previously seen; he was not the defendant. According to her positive and convincing evidence, the other man was the defendant. He was standing at the time about five feet behind the automobile. The person holding the pistol asked her for her purse, which was in her left hand. After asking him what he wanted with her purse, she stated that she only had a dollar, and at that time she dropped the cake. There was a struggle between the two for the purse. While struggling for it, the person with the pistol cocked it, but the victim still refused to give him the purse and he hit her on the head with the pistol. While all of this was taking place, defendant was standing behind the automobile. The man with the pistol succeeded in taking the purse from the victim and ran off with it, with the victim running after him. Defendant also ran off, running in front of the other man. She was unable to overtake them. They passed out of her view and she lost sight of defendant before she did of the man with the pistol. While defendant was standing behind the automobile, he turned his head from side to side. The two persons mentioned were the only persons the victim saw during any of the time that she was parking the automobile, was being assaulted by the person with the pistol, and while she was in fresh pursuit of him. While the two men were running, defendant was five or ten feet ahead of the man with the pistol. There was a rail dividing the particular parking lot from other premises and a “drop-off” therefrom to another parking lot. While she was in pursuit and had “rounded” a building, she saw defendant “and the other person at the rail and proceeding over the rail.” She did not go into the other parking lot, but she then saw some other people there and yelled for them, “stop him, he has my purse.” They “ran after them” but to no avail.

The only other witness in the case was Dennis Bates, twenty years of age, who said he knew defendant, and one Tyrone Tins-ley. He said that on May 24, 1979, he was with defendant and Tyrone Tinsley “at Tyrone’s house” and had a conversation with them. Some time that day he talked with Sergeant Roberson of the Birmingham Police Department. About a week or two thereafter defendant walked over to the witness in “UAB Park” and asked him “why did I bring the policeman to his house.” According to his testimony, defendant then proceeded to beat him with a ping-pong paddle and said to him that “he was going to kill me if I testified.”

In our opinion, there was ample evidence to support a finding that defendant was an accomplice to the robbery and therefore was guilty of the crime charged. Code of Alabama, 1975, § 13-9-1.

In regard to appellant’s assertion that the testimony of Dennis Bates was not admissible against defendant, it has been uniformly held that such testimony is admissible.

“The general rule is that a party’s attempt to suppress evidence is admissible against him. This suppression commonly comes in the form of threatening a witness that something terrible will happen to him if he testifies against the threatening party.
“Testimony of the nature being discussed is admissible as an implied admission of a party as to his guilt or negligence. Such is considered to be in the category of an implied admission from conduct. . . ”
Gamble, McElroy’s Alabama Evidence § 190.02 (1977).

The record is free of error prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BOYD, Justice. OVERTON, Justice,

text:
    Icie Lee Nowling McCOY, etc., Petitioner, v. Clyde E. LOVE et al., Respondents.
    No. 52814.
    Supreme Court of Florida.
    Dec. 27, 1979.
    Rehearing Denied May 14, 1980.
    Stanley B. Levin and James R. Green, of Levin, Warfield, Middlebrooks, Mabie, Ro-senbloum & Magie, Pensacola, and Allen W. Lindsay, Jr., of Beall, Lindsay & Lindsay, Milton, for petitioner.
    John E. Venn, Jr., of Smith, Sauer & Venn, Pensacola, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision of the court below, Love v. Elliott, 350 So.2d 93 (Fla.lst DCA 1977), on the ground that it is in conflict with a decision of another district court of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Mary V. Nowling Elliott, now deceased, brought an action seeking the cancellation of a deed. The trial court found that Mrs. Elliott, a simple, elderly woman who could neither read nor write, owned an undivided one-fifth interest in the minerals underlying a seventy-five acre tract of land. In January 1972 B. G. Russell offered to buy her entire interest, but she refused. She orally agreed to sell Mr. Russell two of the thirteen to fifteen mineral acres she owned for $3300.00. The trial court found further:

Defendant Russell prepared the mineral deed, and instead of the two acres of minerals agreed upon, fraudulently substituted the clause: “one-fifth (Vs) interest in and to all the oil, gas, and other minerals” and then inserted the legal description of the 75 acres. Obviously, one-fifth of 75 acres is 15 acres — a deal that the Plaintiff had consistently refused to make.

Mrs. Elliott lived with her daughter, who could read, write, and understand simple things. The daughter looked over the instrument Russell had prepared. Although she did not understand the deed, she advised Mrs. Elliott that she guessed it was all right.

Several days later, Russell contacted Mrs. Elliott and told her that he had made a mistake in drawing up the deed. He offered to pay her $15,000 for the interest that had been conveyed. She refused and insisted on a reconveyance of that portion of the interest which she had not intended to sell. “[0]n February 16, 1972, Russell and his wife purported to reconvey to Plaintiff the thirteen seventy-fifths (13/reths) interest of which she had been defrauded.” On February 11,1972, however, Russell conveyed a substantial portion of the same mineral rights to C. P. McClelland, who later conveyed to respondents Messrs. Love, Harris, and Carpenter. Mrs. Elliott remained ignorant of the Russell-McClelland and subsequent transactions until October 1973 when she wanted to sell more of her mineral rights and a title search revealed them. She sued for cancellation of the deed. The trial court held in her favor, concluding:

By trick and fraud the Plaintiff was induced to sign a conveyance other than the one she intended to sign. Therefore, there was no lawful delivery of such instrument. The instrument is void. In light of her lack of education and attained age, the Court finds she was free of any negligence or inattention.

On appeal, the district court reversed. The court characterized the central question as being whether a deed procured by such fraud as was found in this case is void at law, as the trial court held, or merely voidable in equity on petition of the defrauded grantor. If the deed was void, then no legal title passed to the grantee. If the deed was only voidable in equity, then the equitable defenses of laches and of a bona fide purchaser are available. See Holley v. May, 75 So.2d 696 (Fla.1954); Bryson v. Bridges, 51 Fla. 395, 41 So. 28 (1906).

A bona fide purchaser has the right to rely on the record title of his grant- or, but this protection extends only to those purchasing a legal title. Myers v. Van Buskirk, 96 Fla. 704, 119 So. 123 (1928). The recording of a void or forged deed is legally insufficient to create a legal title, and affords no protection to those claiming under it. Reed v. Fain, 145 So.2d 858 (Fla.1962); Wright v. Blocker, 144 Fla. 428, 198 So. 88 (1940). (The question of whether a void or forged deed can constitute the root of title under the operation of the Marketable Record Titles law, chapter 712, Florida Statutes (1977), is not at issue in this case.)

The district court implicitly held that the deed in the instant case was voidable, as is indicated by the court’s discussion of the applicability of the defenses of purchaser-without-notice and laches. In so doing it created conflict with Houston v. Mentelos, 318 So.2d 427 (Fla.3d DCA 1975).

The trial court cited Houston v. Mentelos in support of its holding that the deed was void. In that case, the plaintiff had orally agreed to lease her land. She signed two documents prepared by the purported lessee. One was a contract for sale and the other a warranty deed. The trial court found “that plaintiffs signature on the ‘Warranty Deed’ was obtained through the fraud of the defendant Thomas E. Mentelos who misrepresented that the documents which plaintiff signed embodied the oral lease agreement.” 318 So.2d at 430. Also, the contract for sale was altered subsequent to its execution “by the addition of language which made the document to read like a contract to convey the subject real property rather than a lease agreement.” Id. at 428. Mentelos, the fraudulent grantee, then executed a mortgage in favor of a mortgagee for value who had no notice of the fraud. Based on the trial court’s conclusions that there was fraud and that there was no negligence on the part of the grantor, the district court held that the deed was void. We disapprove the holding of Houston v. Mentelos, 318 So.2d 427 (Fla.3d DCA 1975), to the extent that it held that a deed, the execution of which is procured by fraud, is void ab initio.

In Houston v. Mentelos, the court relied on the cases of Houston v. Adams, 85 Fla. 291, 95 So. 859 (1923) and Houston v. Forman, 92 Fla. 1,109 So. 297 (1926). The rule enunciated in those cases was that where a grantor executes a deed and then places it in escrow, subject to conditions agreed to in a contract for sale, and the grantee gets possession of the deed through fraud, the deed is void, there is no conveyance, and a bona fide purchaser from the grantee will not be protected.

Delivery is an essential requisite of the execution of a deed conveying valid legal title. Without delivery, nothing passes to the grantee. Bould v. Coe, 63 So.2d 273 (Fla.1953); Lance v. Smith, 123 Fla. 461, 167 So. 366 (1936); Parken v. Jafford, 48 Fla. 290, 37 So. 567 (1904); Ellis v. Clark, 39 Fla. 714, 23 So. 410 (1897). The rule of Houston v. Adams that a deed procured by fraud is void is limited to situations where the fraud in the execution is such that it can be said there was a complete failure of delivery.

In Houston v. Adams, the grantor had attempted to condition the delivery through an escrow agreement. The grant- or thus had given up actual possession of the deed but attempted to place conditions on its delivery. The grantor did not participate in the events leading to the grantee’s obtaining possession of the deed. No act of his made the fraud possible. The court likened the grantor’s passivity in this matter to the situation where a safe is broken into and an undelivered deed stolen. We hold that the rule applied there is not appropriate to this case. Here, the execution of the deed, including delivery, was complete in all its legal requisites. The trial court’s findings of fact that the grantee committed fraud and that the grantor was not negligent do not compel the conclusion that there was such a substitution of documents as to constitute failure of delivery or such an alteration of documents as to be the equivalent of a forgery. The grantor knew that she was executing and delivering a deed of mineral rights. The law charged her with the responsibility of informing herself as to the legal effect of the document she was signing. See Lewison v. Frumkes, 64 So.2d 321 (Fla.1952); Ross v. Richter, 187 So.2d 653 (Fla.2d DCA 1966).

Where all the essential legal requisites of a deed are present, it conveys legal title. Fraud in the inducement renders such a legally effective deed voidable in equity. Anders v. Anders, 143 Fla. 721, 197 So. 451 (1940). We hold that the district court was correct in holding that the deed was merely voidable, and that it conveyed a legal title to the grantee.

Because of its holding that the deed was void, the trial court granted summary judgment in favor of the plaintiff. Therefore there were no findings of fact on the issue of the good faith of the purchasers from McClelland. While the district court was correct in holding the deed voidable rather than void, there was no basis for it to conclude from the record that the defendants were bona fide purchasers. The case should be remanded for trial of this factual issue.

The decision of the district court, insofar as it held the deed voidable, is approved. It decision holding for the respondents is quashed with directions that the cause be remanded to the trial court for further proceedings consistent with this opinion.

It is so ordered.

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

OVERTON, J., dissents with an opinion, with which ADKINS, J., concurs.

OVERTON, Justice,

dissenting.

I dissent. The decision of the trial court was correct. I would hold the deed void under the factual circumstances of this case, which I find consistent with our holding in Houston v. Adams, 85 Fla. 291, 95 So. 859 (1923).

ADKINS, J., concurs.


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR. Petition of Gregory M. PAHULES.
    No. 52658.
    Supreme Court of Florida.
    Feb. 21, 1980.
    Rehearing Denied April 18, 1980.
    Judith H. Hayes of Heiman, Krieger, Freidin & Silber, Miami, for petitioner.
    Neil J. Berman, Bar Counsel, Miami, for respondent.
   PER CURIAM.

Gregory Pahules, a suspended member of The Florida Bar, has petitioned for reinstatement to membership in good standing in The Florida Bar. The matter was referred to a referee, who recommended that the petition be denied. The Board of Governors of The Florida Bar concurs in that recommendation. It is this Court’s duty to enter an appropriate judgment. Art. V, § 15, Fla.Const.; Fla.Bar Integr. Rule, art. XI, Rule 11.11(10).

Mr. Pahules was suspended March 18, 1970, for a period of six months and thereafter until he could demonstrate rehabilitation. The misconduct at issue then was misuse of a client’s funds. The Florida Bar v. Pahules, 233 So.2d 130 (Fla.1970). In this proceeding The Florida Bar had recommended disbarment.

Subsequent to his suspension, the petitioner was convicted of at least two counts of grand larceny and four counts of petit larceny. The conduct which gave rise to the convictions took place around the time of his suspension. He received a number of sentences of imprisonment in county jail, which were served concurrently. After serving a year of imprisonment, he was placed on probation. His probation continues until June, 1982. Among the conditions of his probation is an obligation to make full restitution to the victims of his crimes.

Following his release from county jail, the petitioner, in 1973, worked for a newspaper. From May, 1973 to January, 1975, he worked as a restaurant manager. During 1975 he was employed by an automobile dealership and a bail bond agency. From 1975 until the present time he has been employed as a law clerk in the office of a practicing Florida attorney.

During the period from 1967 to 1970, a number of complaints against Mr. Pahules were filed with The Florida Bar. The Bar initiated a number of different grievance proceedings. These various proceedings progressed independently. One disciplinary proceeding culminated in the judgment of suspension. Apparently the Bar then discontinued investigation and prosecution of other alleged instances of misconduct. The judgment imposing the discipline of suspension was rendered prior to the petitioner’s criminal convictions. Had these other instances of misconduct and the criminal convictions arising from them been before the Court at the time it was imposing discipline on the petitioner, the discipline imposed would almost certainly have been more severe than six months suspension with reinstatement conditioned upon proof of rehabilitation.

The petitioner did not seek reinstatement until September, 1977. The question before us is whether he is fit to resume the practice of law.

The referee held hearings on March 21,1978 and on April 10,1978. Both parties had the opportunity to present evidence.

The Florida Bar advertised the subject matter of the hearing in the Miami Review, a legal newspaper. Article XI, Rule 11.-ll(6)(b) contemplates that any interested persons and any local bar association may appear at the hearing to speak in support of or in opposition to the petition. No one appeared or requested to appear in opposition to the petition.

After reciting the substance of the testimony of various witnesses and that of the petitioner, the referee stated:

Attached to the Petition are a number of letters from reputable attorneys and individuals commenting on the Petitioner’s reputation and character, all of which are good. The witnesses who testified on behalf of the Petitioner also gave opinions that his character was good and that he should be reinstated. Nevertheless, the original suspension was based on one act of misuse of client’s funds. In fact, Petitioner was adjudged guilty of at least six instances of crimes involving the misuse of clients’ funds. One instance could be considered poor business judgment. Six instances have resulted in the one year jail term and the probation through 1982.
In my opinion, Petitioner should be required to complete his sentence of probation before being considered for reinstatement. It is further my opinion that before reinstatement is considered the Petitioner should be required to successfully pass the Florida Bar exam.

We agree with the referee that rehabilitation will not be accomplished until he has successfully completed his probation. In addition, the petitioner does not allege, nor does the evidence show, that Mr. Pa-hules has had his civil rights restored. Restoration of civil rights is a prerequisite for reinstatement of a suspended attorney who has been convicted of a felony. The Florida Bar v. Clark, 359 So.2d 863 (Fla.1978).

It is the judgment of this Court that the petition for reinstatement is denied without prejudice to the petitioner’s right to petition again when he has successfully completed his probation, made restitution or has made satisfactory arrangement therefor, and furnished evidence that his civil rights have been restored.

We decline to assess The Florida Bar’s costs against the petitioner.

It is so ordered.

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

ALDERMAN, J., concurs in part and dissents in part with an opinion.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I concur with the majority decision denying Pahules’ petition for reinstatement without prejudice but dissent to that portion of the decision declining to assess the Florida Bar’s costs against Pahules. Normally where the Bar prevails, as it did in this case, the costs of the proceedings are taxed against the suspended lawyer. It is unfair to the other members of the Bar to require them to bear the costs which were incurred as a result of Pahules’ misconduct.


author: BOYD, Justice.

text:
    In re ESTATE of Ruth W. PARKER.
    No. 56899.
    Supreme Court of Florida.
    March 6, 1980.
    Rehearing Denied May 14, 1980.
    Law Offices of Day, Williamson, Grant-ham & Hess, Lake Worth, and Larry Klein, West Palm Beach, for petitioners.
    William A. Johnson of Johnson, Acker-man & Bakst, West Palm Beach, Richard C. Sorgini, Lake Worth, and Edna L. Caruso, West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review a decision of the district court of appeal. In re Estate of Ruth W. Parker, 369 So.2d 1034 (Fla. 4th DCA 1979). That court certified that the decision passed upon a question of great public interest. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The case arises from a petition to establish and for probate of a lost or destroyed will pursuant to section 733.207, Florida Statutes (1977). The respondent estate sought to establish the lost or destroyed will by way of an asserted “correct copy” and the testimony of the personal representative. The circuit court held that the purported copy of the lost or destroyed will was not a “correct copy.” The district court reversed this holding, concluded from the evidence that the draft was an accurate reproduction of the lost original, and held that the copy was a “correct copy” within the meaning of the statute and could be established by the testimony of one witness. Recognizing the far-reaching effect of its decision, the district court determined the issue to be one of great public interest, and certified to this Court the following question:

Under Chapter 733.207(3) of the Florida Statutes (1977) does the language “correct copy” mandate an identical copy such as a carbon or xerox copy or will a substantial copy suffice?

In Florida there is a well established rule that “when a will has been lost or destroyed, the presumption of law is that the testator destroyed it with the intention of revoking it, and the burden of proving to the contrary is on the propounder of the will.” In re Washington’s Estate, 56 So.2d 545, 545 (Fla.1952). The first step in overcoming this presumption is by the establishment and admission to probate of the lost or destroyed will pursuant to section 733.-207.

Section 733.207(3) requires that the contents of a lost or destroyed will be proved by the testimony of two disinterested witnesses or by the testimony of one disinterested witness and a “correct copy” of the lost or destroyed will.

Black’s Law Dictionary, 405 (Rev. 4th ed. 1968), defines “copy” as “the transcript or double of an original writing,” citing In re Jane’s Estate, 18 Cal.2d 512, 116 P.2d 438 (1941). It was said there that “ ‘copy’ implies that the instrument so labeled is identical with another instrument.” Id. at 516, 116 P.2d at 441. The word “copy” is also defined as “a true transcript of an original writing,” Bouvier’s Law Dictionary 674 (3d Rev. 1914), and “a reproduction of an original work.” Ballentine’s Law Dictionary 271 (3d ed. 1969).

The word “correct” is defined as “adhering or conforming to an approved or conventional standard.” Its synonyms are “right, regular, proper, true, faultless, perfect, strict, accurate, precise, exact.” Webster’s Third New International Dictionary 511.

The word “copy,” then, means a double of an original instrument, such as a carbon or photostatic copy. The word “correct” modifies and qualifies the word “copy.” It strengthens the already strong word “copy.” We therefore conclude that the words “correct copy” means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy.

The draft which the respondent introduced as a “correct copy” of the lost will does not fulfill the requirements established by the aforementioned definitions of either of the statutory terms. It is not a “copy” because a draft is not a double or a true transcript of an original writing. It is not “correct” because it is not the approved or conventional way of making a copy of an original writing.

A draft which is an accurate and correct reflection of the contents of a lost will is not the same as a “correct copy.” To prove the former the statute requires the testimony of two witnesses. To prove the latter, the testimony of one witness suffices. Had the legislature intended for a substantial copy to be admitted to probate on the testimony of one witness, it would not have made the distinction found in section 733.-207(3). We answer the certified question by holding that a “correct copy” is an identical copy such as a carbon or photostatie copy.

The petitioners argue that the district court erred in deciding that the presumption of revocation of the lost will was overcome by the evidence since the circuit court declined to admit the purported will to probate. We agree. The trial court correctly held that the draft put forward as a “correct copy” did not meet the statutory requirement for establishment and proof by the testimony of one disinterested witness. Therefore the district court erred in holding that the presumption of revocation was overcome.

The decision of the district court is quashed with directions that the cause be remanded for further proceedings consistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUND-BERG and McDONALD, JJ., concur.

OVERTON and ALDERMAN, JJ., dissent.

      . 733.207 Establishment and probate of lost or destroyed will.
      (1) The establishment and probate of a lost or destroyed will shall be in one proceeding. The court shall recite, and thereby establish and preserve, the full and precise terms and provisions of the will in the order admitting it to probate.
      (2) The petition for probate of a lost or destroyed will shall contain a copy of the will or its substance. The testimony of each witness must be reduced to writing and filed and shall be evidence in any contest of the will if the witness has died or moved from the state.
      (3)No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised. The content of the will must be clearly and distinctly proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.