author: DARDEN, Justice, for the Court:

text:
    John Henry ANDERSON a/k/a June Anderson v. STATE of Mississippi.
    No. 53096.
    Supreme Court of Mississippi.
    May 5, 1982.

      T. H. Pearson, Clarksdale, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   DARDEN, Justice, for the Court:

John Henry Anderson was convicted in the Circuit Court of Coahoma County on a charge of uttering a forgery and was sentenced to a term of twelve years in the Department of Corrections. We affirm.

The testimony of three of the state’s witnesses showed that John Henry Anderson went into a family grocery store with a check and that he presented certain purported identification to the store manager and that the check was cashed. He had been in earlier and the manager refused to cash the check because he did not then have any identification. The check was a Social Security check which was the property of Eddie M. Williams and the testimony of two of the witnesses was that Anderson endorsed it with Williams’ name. The third witness saw Anderson give the check to the store manager but did not state whether or not she saw him endorse the check. A fourth witness for the state identified Anderson as having come into the store at the time the alleged utterance of the forgery took place but stated that she did not see the check, the identification, nor hear any of the transaction relating to the check itself.

Anderson did not deny being in the store when the check was presented for cashing to the manager. His version of the event was that he had picked up another person, whom he knew by the name of Boone and that Boone was the one who had the check and who was showing the purported identification. Anderson said he then left the store “to shield myself out of it.” The man Boone came out of the store and undertook to get a further ride with Anderson but Anderson turned him down and Boone paid Anderson two dollars for having brought him to the store from another neighborhood.

It was reported to the police that Eddie Williams’ Social Security check was missing and she testified she had not written the endorsement of her name on the check, which was taken without her permission. The police went to the grocery store where Anderson purportedly uttered the forged endorsement, and inquired about whether they had the check. The store manager told him that they did. He asked for a description of Anderson which was given to him and he subsequently took what was called a mug book, that is to say a book of pictures, to the store and the manager and her son, who was present at the time that the check was delivered to the store manager, identified Anderson from the mug book and said they would prefer to see him in person to make the identification positive.

On the next morning Anderson was arrested on a warrant which the police officer had obtained and was taken to the jail. He was given his Miranda rights, according to the police officer, both at his residence where he was arrested and later at the jail to which he was taken. He denied that he was “read his rights.” He was fingerprinted and specimens were taken of his handwriting apparently for comparison with the endorsement on the check. At that time he demanded that he be given a lineup. He was asked if he had an attorney or wanted one and he said that he wanted his mother to get in touch with an attorney but that he wanted an immediate lineup. The police then arranged for a lineup using persons of the general description of Anderson both in height and coloration and brought in the store manager and her son, both of whom identified Anderson by the number that he held. There were five persons in the lineup, four besides Anderson, and the identification was made positively, and the testimony indicates separately, by the store manager and her son and the testimony showed without contradiction that there was no prompting or effort on the part of the police officers to identify Anderson in the lineup, or otherwise influence those viewing the suspect.

Anderson told the police officers, according to his testimony, that he had picked up the man that actually delivered the check to the store manager and that he knew his name and address but he would not disclose that information to the police officers unless they would promise to release and exonerate him. They told him that that was impossible since he was the one who was named in the warrant. It was only after he was instructed by the court to answer the question that he finally gave that information on the stand during the course of his trial.

At the trial counsel moved for the suppression of the identification of Anderson on the grounds that he was not represented by counsel at the time the lineup was held and that incourt identification of Anderson by those persons who had viewed him in the lineup was improper. Neither the customer who had seen Anderson deliver the check to the store manager nor the one who testified that she had seen Anderson in the store, but did not testify as to the delivery of the check, participated in the lineup identification at the police station. The court overruled the defendant’s motion to suppress the testimony of the persons who participated in the lineup as to the identification of Anderson and permitted incourt identification over objection of Anderson by those persons who had seen him at the lineup.

On appeal Anderson assigns four errors. The third and fourth of which are that the court erred in refusing defendant’s requested instruction No. 1 and defendant’s requested instruction No. 2. We deal with these two assignments now because the other aspects of the case present more serious questions. Instruction No. 1 undertakes to give a definition in the abstract of reasonable doubt. It was properly refused by the court. In Isaacks v. State, 337 So.2d 928 (Miss.1976), it was stated that the Court properly refused to give an instruction on reasonable doubt since the term defines itself. The Court noted:

The court has spoken a number of times on the giving or failure to give jurors a definition of ‘reasonable doubt.’ Boutwell v. State, 165 Miss. 16, 143 So. 479 (1932). In Boutwell, we held that the court correctly refused to give such an instruction because ‘reasonable doubt’ defines itself and needs no definition by the court.
In Simmons v. State, 206 Miss. 535, 40 So.2d 289 (1949), the appellant argued that the trial judge erred in telling prospective jurors on voir dire examination that ‘reasonable doubt must be of the type that you can give a reason for when you get back in the jury room and discuss the matter .. .. ’ There the court cited Boutwell and pointed out that courts should not attempt to define ‘reasonable doubt.’ We said in Boutwell that the definition given (similar to the definition now before us) was erroneous and, even if the definition were correct, jurors need no definition of ‘reasonable doubt.’ The instruction as given in effect tells jurors that they should be able to state a reason why they have a doubt. Such an instruction is erroneous because, in our jurisprudence, jurors are never required to articulate any explanation of their decision although they are to consult with each other. Cannon v. State, 190 So.2d 848 (Miss.1966). Such a rule is not peculiar to this state — in most jurisdictions the rule seems to be that instructions which attempt to define ‘reasonable doubt’ are erroneous. 23A C.J.S. Criminal Law § 1280 (1961). That part of the instruction in controversy which defined ‘reasonable doubt’ as based upon reason and common sense may convey abstract logic, but the language ‘for which a reason (or reasons) can be given’ cannot be upheld. Burt v. State, 72 Miss. 408, 16 So. 342 (1894). [337 So.2d at 930]. (Emphasis added).

The Court had given adequate instructions otherwise in regard to the necessity of proof beyond a reasonable doubt of all the elements in the crime involved in the utterance of the forgery.

The second instruction refused by the court was a very detailed one which undertook to outline the several elements of the crime of uttering a forgery in this case. Among other elements that the instruction would have required the jury to find was that defendant intended to cheat and defraud Marguerite Gullick. The indictment charged that the forgery was feloniously, willfully, and unlawfully and presently uttered to injure and defraud Marguerite Gul-lick and divers other persons. The proof indicated that the money received as a result of the utterance of the forged endorsement had belonged to Toney’s Shopping Center, the grocery store. Mrs. Gullick was the manager of Toney’s Shopping Center and no objection was made on the occasion of the introduction of the testimony in reference to a discrepancy between the person alleged to have been harmed by the forgery in the indictment and the proof in the case, nor was there any proof in regard to whether or not Mrs. Gullick would have been required to have reimbursed Toney’s Shopping Center in regard to the loss. Further, no objection was interposed to an instruction of the state in which there was a requirement that defendant had intended to defraud Toney’s Shopping Center. Since the defendant did not object to the variance between indictment and proof at the trial, if any there was, it would appear that the variance between the indictment and the proof was harmless error. See Upshaw v. State, 350 So.2d 1358 (Miss.1977); Stone v. State, 242 So.2d 127 (Miss.1970). The requirement in the requested instruction that the proof show intent to defraud Marguerite Gullick was improper. The court held that he had already covered all of the elements of the crime in the other requested instructions and therefore refused to grant this one. The trial court is not required to grant several instructions on the same question in different verbiage as we held in Ragan v. State, 318 So.2d 879 (Miss.1975).

Moving now to the first assignment of error, the appellant complains that the lower court erred in overruling the defendant’s motion to suppress the testimony as to a post-arrest, post-charge lineup identification. In support of this position the appellant cites Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). Moore was one of the cases that has developed as a result of the so-called Wade Trilogy, that is to say the cases: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). These cases involved a question of deprivation of the rights granted by the Sixth Amendment to the United States Constitution having to do with the right of counsel, and those cases and the ones that followed them held, in effect, that the testimony in regard to a lineup or pretrial identification, after the institution of a “prosecutorial stage” in the proceedings against the defendant were inadmissible in the absence of counsel at the identification proceeding.

The hearing held before the court out of the presence of the jury in regard to the motion to suppress any evidence of identification that came about as a result of the lineup did not completely develop the facts of the matter, and it was only during the trial itself that the testimony in regard to the Miranda warnings, the response of the defendant to those warnings, and the other factors involved in the setting up and procedures that were followed in connection with the lineup came out. The defendant requested and was granted a continuing objection to the whole line of testimony in regard to identification that involved the matter of the lineup, and the testimony of the store manager and her son who had viewed the defendant in the lineup.

The police officer, Mitchell, who conducted the investigation, the arrest and who arranged for the lineup, testified on the trial that he had given the defendant his Miranda rights both at the time of the arrest and again at the police station and that “on January 1, right after he was arrested the suspect, John Henry Anderson insisted on a lineup being held and it was held at the county jail that same day.” Again, Mr. Mitchell testified in response to questions as follows:

Q. When you talked with him about his rights, did he not tell you that he wanted an attorney?
A. Yes, sir.
Q. Did you furnish him an attorney at that time?
A. That is normally done as a matter of course by the Sheriff and through the circuit clerk or somebody.
Q. But, even though he said he wanted an attorney, you still went on and conducted a line-up with him, didn’t you?
A. It was at his insistence, Mr. Pearson.
Q. But, he was insisting he wanted an attorney there also, did he not?
A. He only stated that he wanted — He wanted to talk to you [defense attorney]. He told his mother he wanted to talk to you at some time, but he was insisting on a line-up at that time.

In Wade the United States Supreme Court said:

Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an ‘intelligent waiver.’ [388 U.S. at .237, 87 S.Ct. at 1937, 18 L.Ed.2d at 1163].

The defendant, Anderson, took the stand in his own defense, and he never denied the testimony of Police Officer Mitchell that he had demanded the lineup immediately after being taken to the police station. In consequence, we find there was an intelligent waiver of his right to counsel at the time of the lineup which he himself was requesting and insisting upon. This conclusion obviates the necessity for us to make a determination in this case whether or not there had been a formal onset of prosecutorial proceedings at the time of the lineup, and we do not determine that question at this time.

Defendant’s second assignment of error is that the lower court erred in permitting incourt identification without establishing independent grounds therefor other than the illegal lineup identification. This objection to the action of the trial court, then, looks toward a failure to afford the defendant the due process rights contained in the Fourteenth Amendment as distinguished from the Sixth Amendment rights which the first suggestion of error maintains was violated by the failure to suppress the testimony in regard to the lineup identification. Here there is no per se rule of exclusion which does obtain in consideration of an objection on the basis of the Sixth Amendment violations where counsel has not been present during a lineup at a time after the prosecution had begun.

In the case of a Fourteenth Amendment objection it becomes incumbent on defendant to show that there was a failure of due process in permitting incourt identification following an alleged illegal lineup. In Stovall v. Denno, supra, the United States Supreme Court said in respect to a pretrial confrontation that whether or not an accused has been afforded due process of law, “depends on the totality of the circumstances surrounding it.... ”

Here there was a complete absence of any showing of a failure to afford Anderson due process. Not only had the store manager identified the defendant tentatively from the mug shots but had described him as wearing a hat, which the defendant himself admits he was wearing at the time he was in the store and had given an accurate general description of him to the officer. The testimony of the customer who saw the defendant in the store and saw him hand the check to the store manager could not have been tainted by any illegality of the lineup because she did not view the defendant at the lineup. Similarly, his cousin who saw him in the store but left before the check was presented to the store manager did not view him at the lineup. And finally, he very frankly admits that he was in the store but testifies that it was another person who uttered the forgery. This testimony on his part came after the state had rested and without any motion on the part of defendant for a directed verdict.

It follows that the identity of the defendant as a person who was in the store is admitted by him and he was properly identified as being there, the only question being the factual matter, left for the determination of the jury, as to whether he or the three state witnesses were correct in the statement that he and not someone else was the one who uttered the check with the forged endorsement.

We find that the instructions of the court fairly and adequately informed the jury of the law in this case; that there was a conflict of the evidence and that the jury was justified in finding beyond a reasonable doubt and under proper instructions as to the law that the defendant was guilty as charged in the indictment. We, therefore, affirm the case.

AFFIRMED.

All Justices concur.


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice,

license: Public Domain

text:
    Drue A. MARTIN v. STATE of Mississippi.
    No. 53159.
    Supreme Court of Mississippi.
    May 5, 1982.

      Upshaw & Ladner, Alan W. Carter, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Drue A. Martin and John L. Pace were jointly indicted in the Circuit Court of Lef-lore County, Honorable Webb Franklin presiding, for possession of a controlled substance (marijuana) with intent to deliver same. Pace entered a plea of guilty to the charge and was sentenced to serve a term of four (4) years with the Mississippi Department of Corrections. Martin was tried on March 30, 1981, convicted of possession of a controlled substance (the lesser-included offense), and sentenced by the court to a term of three (3) years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. He has appealed from that sentence and judgment and assigns four (4) errors in the trial below.

L — II.

Was the verdict of the jury contrary to the overwhelming weight of the evidence?

Did the lower court err in overruling appellant’s motion for a judgment notwithstanding the verdict?

The evidence for the State reflects that appellant, while working for Hartness Painting & Sandblasting Company in or near Chattanooga, Tennessee, fell from a “sky climber” and fractured both feet. He was hospitalized in Chattanooga for approximately three (3) weeks and then was removed to his home in Chesapeake, Virginia. Both legs and feet were immobilized in casts and he was confined to a wheelchair. On leaving Chattanooga, a pickup truck, owned by him, was stored at a friend’s home.

During the early part of February, 1981, appellant’s friend and co-indictee, John Pace, planned to go from Chesapeake, Virginia to Greenwood, Mississippi, for the purpose of visiting his family. Appellant accompanied Pace on the trip with the understanding that, on the return trip to Virginia, Pace would drive through Chattanooga where appellant could obtain his truck and follow Pace back to Virginia.

When appellant and Pace left Virginia, Pace assisted him in getting into the automobile and he put appellant’s wheelchair in the rear trunk. En route from Virginia, appellant and Pace smoked two (2) joints of marijuana. Pace told appellant not to worry about getting more because he had forty (40) to fifty (50) pounds of marijuana in the trunk of his car. He did not tell appellant why he was transporting such a large quantity of marijuana to Mississippi.

Appellant and Pace arrived in Greenwood on February 4,1981, and checked into Room 205 of the Golden Coach Inn. According to appellant, he left the hotel room on only two (2) occasions, first, to buy cold drinks in the motel, and second, to eat at a local restaurant. Appellant and Pace planned to leave Mississippi the following Friday night.

On Thursday morning, February 5, Pace brought several large green plastic garbage bags into the motel room and stored them in an open closet in plain view of the room’s occupants. Appellant testified that he opened one of the bags and saw marijuana in it, but that he never asked Pace what he was doing with same. Pace left appellant alone in the hotel room on more than one occasion that day. During the early morning hours of February 6 (Friday), an unidentified white male came to the motel room, spoke to Pace, and watched television with them until approximately 4:30 a. m. when he left. Appellant and Pace went to sleep shortly thereafter.

At approximately 5:00 a. m. on February 6, Richard Oakes, an agent with the Mississippi Bureau of Narcotics, received a telephone call from a confidential informant, who told him that John Pace and another white male were in Room 205 of the Golden Coach Inn; that John Pace was an ex-convict; and that the two men had been selling marijuana out of their motel room in one-pound quantities and were armed. Agent Oakes contacted his superior, Captain Charles W. Spillers, related the information to him, and was instructed to obtain a search warrant and proceed to the Golden Coach Inn where he would meet other officers. Agent Oakes obtained the search warrant and met Captain Spillers, agents of the Mississippi Bureau of Narcotics, Greenwood Police Chief James R. Stevens, and Leflore County Sheriff Ricky Banks. The officers knocked on the door of Room 205 at approximately 8:20 a. m. and executed the warrant.

Upon entering the room, appellant was seen lying on his back in the bed farthest from the door. The officers conducted a thorough search of the room, and found four (4) large green garbage bags of marijuana, a large brown paper bag in the closet, containing approximately four (4) pounds of marijuana, a set of triple beam scales on top of a dresser, two (2) boxes of “Zip-loc” plastic bags, and a clear plastic bag with less than one (1) pound of marijuana. Underneath the mattress of the bed upon which appellant was lying they found a .25-caliber Colt pistol and under the pillow of Pace’s bed they found a .32-20 caliber Smith & Wesson revolver. Later, at the Mississippi Crime Laboratory, an examination, of the plastic bags’ contents identified them as 48.1 pounds of marijuana.

Appellant contends the State failed to introduce sufficient evidence to prove that he exercised dominion and control over the contraband and did not show that he had constructive possession of it. The burden was upon the State to prove beyond reasonable doubt that appellant had knowledge of the character of the contraband and that he was in either actual or constructive possession of same. Those elements may be proved by circumstantial evidence. Wolf v. State, 260 So.2d 425 (Miss.1972). In discussing the requirements of establishing such possession, the Court said in Cherry v. State, 386 So.2d 203 (Miss.1980):

The State cites Curry v. State, 249 So.2d 414 (Miss.1971) which announced the constructive possession rule as follows:
“What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of ‘possession’ is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. In the instant case, all of the circumstances and these criteria were sufficient to warrant the jury in finding that appellant was in possession of the marijuana.” (Emphasis added). 249 So.2d at 416. [386 So.2d at 204],

The State’s evidence indicates specifically:

(1) On the trip from Virginia, John Pace told appellant he had 40-50 pounds of marijuana in the trunk of his car.

(2) Appellant admitted smoking two joints of marijuana with Pace on the drive to Mississippi.

(3) Appellant admitted he saw John Pace bringing the marijuana into their hotel room in the large green plastic garbage bags on the morning of February 5, one day prior to his arrest. Appellant also stated he looked into one of the bags and saw the marijuana.

(4) Appellant denied ownership or possession of the marijuana or the gun found beneath the mattress of his bed.

Captain Charles W. Spillers of the Mississippi Bureau of Narcotics testified that he interviewed Pace and appellant at the Lef-lore County Sheriff’s Office after they were arrested and had been given their Miranda warnings. Captain Spillers asked Pace in the presence of appellant where they obtained the marijuana and Pace told him that he and appellant picked it up from a large field in Illinois or Indiana. Captain Spillers said that appellant nodded his head in confirmation of the statement concerning the source of the marijuana.

Pace testified that the narcotics belonged to him, that appellant had accompanied him for the purpose of getting his pickup truck in Chattanooga and that appellant had nothing to do with the marijuana. Appellant denied any connection with same, and contended that his confinement to the wheelchair and his inability to move about corroborated his testimony in that regard.

We are of the opinion that under the disputed facts of this case, there was an issue for the jury as to the guilt of the appellant. All of the facts favorable to the State together with reasonable inferences support the verdict of the jury and it was not against the overwhelming weight of the evidence. The lower court correctly overruled the motion for a judgment notwithstanding the verdict, Wilks v. State, 408 So.2d 68 (Miss.1981); Warn v. State, 349 So.2d 1055 (Miss.1977).

III.

Did the lower court err in admitting testimony relating to the .25-caliber automatic pistol found underneath the mattress on appellánt’s bed and the .32-20 caliber revolver found under Pace’s pillow?

The prosecution did not offer in evidence the two (2) pistols found in appellant’s motel room, but did introduce testimony describing them and the places where they were found. The appellant objected to the introduction of such testimony and, after a hearing outside the presence of the jury, the lower court admitted same. Appellant argues that such testimony was irrelevant and highly prejudicial as evidence of another and separate crime and constitutes reversible error. The State contends that it is common knowledge persons working in the narcotics traffic usually carry weapons to protect themselves and their business and that such weapons constitute “tools of the trade.” On that theory, the lower court admitted the testimony.

In United States v. Picklesimer, 585 F.2d 1199 (1978) the Third Circuit Court of Appeals stated:

In any event, we believe that where a defendant is charged with narcotics conspiracy, evidence that weapons were found in his possession may be relevant and admissible. It often happens that illegal enterprises, such as narcotic conspiracies, are ongoing ventures, requiring the use of guns for protection of the contraband and in such a case, a weapon may be as much a tool of the crime as the van used to transport the narcotics. It lay within the sound discretion of the district judge to admit evidence concerning possession or use of weapons, and, on the facts of this case, there was no abuse of discretion in the admission of such evidence. [585 F.2d at 1204].

and, the Second Circuit Court of Appeals stated in United States v. Wiener, 534 F.2d 15 (1976):

Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glas-sine bags, cutting equipment and other narcotics equipment.
We hold that the gun was relevant to the issues upon which Wiener was tried and that the court did not abuse its discretion in holding that its probative weight was not overbalanced by the inflammatory tendency of the gun as evidence. See United States v. Campanile, 516 F.2d 288, 292 (2 Cir.1975); United States v. Fisher, 455 F.2d 1101, 1103-4 (2 Cir. 1972); United States v. Ravich, 421 F.2d 1196, 1204-05 (2 Cir.), cert. denied, 400 U.S. 834 [91 S.Ct. 69, 27 L.Ed.2d 66] (1970); United States v. Pentado, 463 F.2d 355, 360 (5 Cir. 1972), cert., denied, 409 U.S. 1079 [93 S.Ct. 963, 35 L.Ed.2d 271] (1972) and 410 U.S. 909 [93 S.Ct. 963, 35 L.Ed.2d 271] (1973). [534 F.2d at 18.].

We think the reasons given in the Federal cases, supra, for admitting the guns as evidence are sound and we hold that in the case sub judice the lower court properly permitted their introduction.

IV.

The fourth assignment of error to the effect that the lower court erred in overruling appellant’s motion for a new trial is without merit.

There being no reversible error in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.

      . It is doubtful that possession of the guns under the circumstances of this case constituted a crime.


text:
    Charles FUSON v. STATE of Mississippi.
    No. 53360.
    Supreme Court of Mississippi.
    May 5, 1982.

      Travis T. Vance, Jr., Eugene A. Perrier, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Charles Fuson was indicted and tried in the Circuit Court of Warren County, Honorable John E. Ellis, presiding, on a charge of murder. He was convicted of manslaughter and sentenced to twenty (20) years with the Mississippi Department of Corrections, from which sentence and judgment he appeals to this Court.

I.

Did the lower court err in admitting statements by the deceased into evidence as dying declarations?

Appellant and Mary Fuson, the victim, had been married for nineteen (19) years and had reared sixteen (16) children, all from previous marriages. On November 20, 1980, Mary Fuson left appellant and went to live with one of her children, Debbie McMillian, because of infidelity on the part of her husband. Appellant operated an auto repair shop adjacent to the Fuson home. Mrs. Fuson returned to the residence at periodic intervals.

Mrs. Fuson continued to live with her daughter, but on the night of December 8, 1980, she went to the home of Johnny and Peggy McMillian, at their invitation, to stay overnight. One of her other children called appellant to ascertain the whereabouts of Mrs. Fuson, stating that she wanted to inform her that a family friend had died. Appellant called several people attempting to find his wife and also made efforts to locate her the next morning.

On December 9, 1980, Mrs. Fuson returned to Debbie McMillian’s home about 8:30 a. m. for the purpose of changing her clothes. She seemed to be in a good mood and drove to the home of another daughter, Mary Ann Riley, to get her purse, having left it at the Riley residence the night before. She drank coffee there and Mrs. Riley gave her some children’s dresses to sell in her retail used clothing business. Mrs. Fuson told her daughter she was going to the Fuson home when she left.

Mrs. Fuson drove into the driveway of the Fuson home, exited the automobile and went inside. About 11:30 a. m., Mrs. Betty Lou Abies was driving a van vehicle north on Culkin Road near the Fuson home. She saw a woman, later identified as Mrs. Fu-son, running out into the middle of the street toward the van. She was waving her hands for Mrs. Abies to stop. Mrs. Abies stopped the van, rolled down the window and inquired as to whether she could render any help. She noticed that Mrs. Fuson had blood on her blouse and pants and when she attempted to steady herself by holding onto the side mirror of the van, she said, “Pve been shot. Please take me to the hospital.” Mrs. Abies told her to sit down and she would call an ambulance, whereupon, Mrs. Fuson replied, “Please don’t leave me here. Take me to the hospital right now. Please, I’m going to die.” Mrs. Fuson then fell back upon the street. As she fell, an automobile driven by Constable Herbert Stokes, who lived on the same street as the Fusons and knew them, arrived on the scene. He found Mrs. Fuson lying on the pavement and asked her, “Well, who shot you?” She answered, “Chuck [her husband] shot me.” Mrs. Fuson also told Stokes that after she was shot, she laid down, played dead, and, when her husband left, she ran out.

Soon thereafter, Sheriff Paul Barrett arrived, preceding the ambulance, and went to Mrs. Fuson’s side. She recognized him and Sheriff Barrett asked her what happened. Mrs. Fuson said, “Paul, take me to the hospital. I’m dying. Chuck shot me.” Sheriff Barrett asked her why appellant shot her. She told him they had been having some marital problems and that she had moved out of the house. When Mrs. Fuson came home that morning, appellant demanded that she tell him where she had been living. When she refused to tell him, he shot her. The officers conducted a search of the house and surrounding area and no knife, gun or other weapon was found. The officers searched the woods and area around the house for several hours in an attempt to find appellant, but their efforts were in vain.

Earl Fuson, son of appellant, returned to his own home that night and discovered appellant standing in his living room. Earl Fuson asked appellant if he knew Mrs. Fu-son had been shot five (5) times. At first, appellant did not answer, and then he said that he and Mrs. Fuson had an argument, she shot herself and he ran out the back door. Appellant did not mention anything about shooting his wife in self-defense.

When Mrs. Fuson was taken into the emergency room, Dr. Herman Kellum examined her. He told her that it would be necessary to perform exploratory surgery within her abdomen and that such an operation had a high risk and could be fatal. Dr. Kellum stated she accepted it, but did not respond. Mrs. Fuson spontaneously told Dr. Kellum that her husband, appellant, had shot her three (3) times and she fell to the floor. She also told him that she pleaded with her husband not to shoot her any more because she was dying. Dr. Kellum’s surgery revealed that Mrs. Fuson had five' (5) entry gunshot wounds. There were two (2) wounds in the chest, one (1) in the abdomen, and others in the lower right leg and right arm. The pancreas and other internal organs within the abdominal region were injured. Mrs. Fuson lived for five (5) days and died of pulmonary insufficiency as a direct result of the gunshot wounds.

Expert evidence indicated that the projectiles removed from Mrs. Fuson’s body came from a .32-caliber Smith & Wesson revolver, similar to one owned by appellant (the murder weapon was not found). The evidence also indicated that the gun inflicting the wounds was fired at close range. Appellant testified, and his evidence indicated, that decedent had threatened his life previous to the day of the homicide; that he went into the Fuson home and his wife attacked him with a knife. Pertinent parts of his testimony, taken from the abstract, follow:

I walked in the front door and she was sitting on the couch in the dining room. Before I could say anything/she jumped up and moved toward me waving a knife in the air. She said, “I’m going to fix you for calling me. I’m just going to kill you.” She backed me up until I was cornered. The couch partially blocked my path to the doorway. I stood up on the couch and pulled out my pistol [a .32-caliber Smith & Wesson]. I said, “Mary, please don’t do that. Let’s talk this over.” She replied, “I’m going to kill you. I’m going to cut your guts out.” She just kept waving the knife at me and I pushed it off with my gun. I pleaded with her to stop. When she came at me again I shot her in the right arm in an attempt to disarm her. It seemed to have no effect on her, because she continued to come at me with the knife, so I shot her in the lower right leg. She just kept coming and shouting, “S.O.B. S.O. B.” She was acting wild. I panicked and when she was about three feet away from me, I started shooting. I don’t know how many times I shot, but when I stopped, I ran out the back door. I though she was chasing me because I never saw her fall. She knew how afraid I was of knives. Once I saw an uncle decapitated with a knife. I was only 13 years old at the time. I ran into the woods behind my home and it was raining and cold. I did not have a jacket. I wandered about in the woods and eventually got lost. I must have slipped, fell and hit my head, because when I awoke, I had a bump on my forehead. I wandered out to the highway and recognized where I was. I walked a short distance upon the road to the home of my son, Earl Fuson. The door was unlocked, so I stepped inside and waited. I must have lost the gun in the woods.

The appellant argues that the statements admitted into evidence, made by Mrs. Fuson to Mrs. Abies, Constable Stokes, Sheriff Barrett and Dr. Kellum, do not qualify as dying declarations and constitute reversible error. In Clark v. State, 398 So.2d 229 (Miss.1981), the requirements for establishing the bases for admission of dying declarations into evidence was stated as follows:

The essentials for a statement to constitute a dying declaration are: (1) the wounded person is in extremis, and dies after making the statement, (2) the person realizes that he is mortally wounded, and (3) he has no hope of recovery. [398 So.2d at 230].

Also see Lea v. State, 138 Miss. 761, 103 So. 368 (1925).

Without discussing this question further, we are of the opinion that the statements of Mrs. Fuson were admissible as dying declarations. Also, those statements, except the statement to Dr. Kellum, were admissible as a part of the res gestae, they having been made at a place and time which were closely connected to the shooting itself. The statements to Dr. Kellum were a repetition of the statements made to the other individuals, and, in our opinion, were cumulative and not prejudicial, even though they may not have been admissible as a dying declaration.

II.

The appellant argues that the Weathersby rule applies and that his version of the homicide should be accepted. For obvious reasons, the Weathersby rule does not apply, and there is no merit in that contention.

There being no reversible errors in the trial below, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and DARDEN, JJ., concur.


author: WALKER, Justice,

text:
    Roy Lee RIDDLE v. STATE of Mississippi.
    No. 53166.
    Supreme Court of Mississippi.
    May 5, 1982.

      Louis Fondren, Pascagoula, Darnell L. Nicovich, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before SMITH, WALKER and DAN M. LEE, JJ.
   WALKER, Justice,

for the Court:

Roy Lee Riddle was indicted for the kidnap and rape of an eight year old female child, and for the burglary at night of the dwelling within which the child was sleeping. The defendant was tried in the Circuit Court of Jackson County before a jury which found Riddle guilty of all three charges. The cases were consolidated and tried together by agreement. The trial court found that the defendant was an habitual offender under Mississippi Code Annotated section 99-19-81 (Supp.1981), and sentenced the defendant to life imprisonment and held that he was ineligible for parole. From this conviction, Riddle assigns, inter alia, the following:

1. The habitual offender statute was inappropriately applied.

2. The verdict of the jury is against the overwhelming weight of the evidence, and that the identification of Riddle by the prosecutrix was highly suspect.

3. The court erred in failing to permit newly obtained evidence to be presented to the jury.

I

The state has acknowledged that the habitual offender statute, Mississippi Code Annotated section 99-19-81 (Supp.1981), was inappropriately applied in the present case since there was insufficient proof that the defendant had been “convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times.” In the present case, the only previous crimes shown to have been committed by Riddle were crimes which arose out of a single incident. Therefore, this Court must remand the present case for resentencing since the habitual offender statute was inappropriately applied.

II

The fact that the prosecutrix was abducted and raped is not seriously questioned. The testimony established that the prosecutrix was asleep in her family’s trailer on the evening of September 11, 1980. She awoke to find a white male in bed with her who then put his hands over her mouth and took her from the trailer. The prosecu-trix was driven in her assailant’s car to an unknown location, where the assailant raped her. Thereafter, the child was dropped off by the assailant, and she went to a nearby home and found someone to return her to her mother. She was then taken to the hospital where an examination showed that she had been sexually assaulted. The main contention by the defendant on this appeal is that the evidence does not establish that he perpetrated the crime against the prosecutrix.

The prosecutrix gave a description of her assailant and identified the defendant as the assailant on four occasions: from a photographic lineup immediately after the rape occurred, upon confrontation at two preliminary hearings, and in court during the trial of the defendant. Although the prosecutrix was able to identify Riddle on all these occasions, the prosecutrix did so in an equivocal manner. However, even if this Court were to discount these identifications, other evidence was sufficient to establish that the defendant was the perpetrator of the crime.

The defendant was seen by police officers in the area in which the prosecutrix lived during the evening on which the crime was committed. The defendant approached the officers at a convenience store, identified himself as Riddle, and inquired about trailer parks in the area, stating that he was trying to locate his sister. The store was immediately adjacent to the park within which the prosecutrix and her family lived, and also, the defendant had no sister living in the immediate area. Riddle was, according to officers, wearing blue gym shorts and a light blue T-shirt, which were later found in the defendant’s apartment and entered into evidence. Also, officers noticed a black and white puppy in Riddle’s car.

Friends of Riddle testified that Riddle was in fact wearing a light colored T-shirt and blue gym shorts on the evening in question and positively identified the gym shorts in evidence. Furthermore, Riddle and his friends had been drinking that day and had gone to a local bar. These friends stated that they were unable to account for Riddle for the entire evening and they specifically noted his absence from the barroom during the latter part of the evening.

The prosecutrix described her assailant as a large person with blonde hair and a mustache, who was wearing blue gym shorts and a T-shirt. He took off these clothes just prior to his sexual assault of her. The prosecutrix identified the gym shorts which had been placed in evidence as the shorts her assailant had worn when he abducted her and just prior to his sexual assault of her.

The prosecutrix further testified that she defecated while her assailant was attempting to sexually assault her. Fecal material was discovered on panties of the prosecu-trix, and also on the gym shorts identified by all witnesses as the shorts that were worn by Riddle on the evening in question.

Furthermore, friends of the defendant, as well as police officers, saw Riddle with a small black and white puppy, which he had borrowed from a friend during the afternoon of September 11. The prosecutrix testified that a small black and white puppy was. in the car of her assailant, and Riddle’s landlady testified that a small black and white puppy was in Riddle’s apartment the day of his arrest, September 12.

Lastly, upon arrest, Riddle stated that he was with his wife during the evening in question. In fact, it was discovered by police officers, that Riddle was divorced from his wife and that she had been living in California for some period of time. Riddle, after he was confronted with this information, stated that he had not been truthful and that in actuality he was on drugs and alcohol and passed out at a local bar. Riddle told officers that when he awoke his car was missing and had been taken by friends. The friends of the defendant, who were with him that evening, denied that Riddle passed out and denied that they had taken his car. The defendant also told officers that afterwards he walked home and found a black and white puppy tied to his door knob, which was contradicted by the testimony of others.

The identification of Riddle as the assailant by the prosecutrix is consistent with other circumstances and conditions shown by the evidence pointing to Riddle’s guilt. The jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony. Where, as here, the jury convicts a defendant upon the testimony of a prosecutrix which is supported by other evidence, we have held that such conviction is not against the overwhelming weight of the evidence. Boyd v. State, 189 Miss. 609, 198 So. 561 (1940).

Ill

After both the state and the defense announced that they would rest, and after the jury was duly instructed by the trial judge, and still in deliberation, defense counsel announced that they had become aware of what is termed “newly discovered” evidence. This “evidence” was obtained from the nine year old victim by Mary Ann Epps, one of appellant’s witnesses, when this witness encountered the child alone outside a rest room. Epps obtained from her at that time an alleged description of the car of her assailant, which differed from the description which she and the police officers had earlier given into evidence. Epps had the victim write on a piece of paper that her assailant had a four-door dark blue car. Riddle’s car was a two-door lime-green Nova. The court, after reviewing Epps’ testimony and the testimony of others as to the circumstances under which it had been procured and relating thereto, stated that he felt that this evidence was not sufficient to require that a mistrial be entered or a new trial granted. The trial judge stated that he felt that this note was the result of suggestions to the prosecutrix that she write down the different description, and that, in fact, a close question was presented as to whether there had been an improper tampering with the witness. Therefore, the trial judge did not abuse his judicial discretion in overruling the defendant’s motion for a new trial which was based on the newly discovered evidence.

This Court in Peeples v. State, 218 So.2d 436 (Miss.1969), stated the following:

[T]he fact that a witness changes his testimony after the trial is not alone an adequate ground for granting a new trial or a writ of error coram nobis. Dolan v. State, 195 Miss. 154, 13 So.2d 925 (1943) [The witnesses subsequently retracted their statements]; Powers v. State, 168 Miss. 541, 151 So. 730 (1933); Carraway v. State, 167 Miss. 390, 148 So. 340 (1933). A writ of error coram nobis will only issue in cases such as the one at bar when the prosecuting officials knowingly use perjured testimony to obtain a conviction. Dolan v. State, supra. A trial court has wide discretion in granting new trials and may consider all the relevant facts in reaching its decision. King v. State, 254 Miss. 917, 183 So.2d 494 (1966) and Blade v. State, 240 Miss. 183, 126 So.2d 278 (1961). A court will usually deny a new trial based on recanting testimony where it is not fully satisfied regarding the truthfulness of the testimony. The determination should be left to the sound discretion of the trial court and should not be set aside unless clearly erroneous. Recanting testimony has been shown to be extremely unreliable and should be approached with suspicion. A meticulous study of the record and briefs convinces us that the trial judge was amply justified in refusing to accept the veracity of the altered testimony. (218 So.2d at 438-439).

We are unable to say that the trial court erred in overruling appellant’s motion for a new trial under the circumstances presented by this record.

There being no other assignments of error which are meritorious, we affirm the conviction of Riddle as to rape, kidnapping and burglary. However, we remand the case for resentencing since the habitual offender’s statute was inappropriately applied.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

      . Mississippi Code Annotated section 97-3-65 (Supp.1981) provides: In all cases where the female child is under the age of twelve (12) years it shall not be necessary to prove penetration of the female’s private parts where it is shown the private parts of the female have been lacerated or torn in the attempt to have carnal knowledge of her.” See Horton v. State, 374 So.2d 764 (Miss.1979).


author: PER CURIAM. McDONALD, Justice,

text:
    James Ernest HITCHCOCK, Appellant, v. STATE of Florida, Appellee.
    No. 51108.
    Supreme Court of Florida.
    Feb. 25, 1982.
    Rehearing Denied May 27, 1982.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Robert L. Bo-gen, Asst. Atty. Gen., West Palm Beach, for appellee.

      . Numerous questions were answered before the state had time to object and those answers were not stricken. In such instance, a defendant cannot complain because, even if sustaining the objection were error, the witness’ answer cured any error. Childers v. State, 74 Fla. 288, 77 So. 99 (1917).

   PER CURIAM.

James Ernest Hitchcock appeals his conviction of murder in the first degree and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

A jury convicted Hitchcock of first-degree murder for the death of his brother’s thirteen-year-old stepdaughter under an indictment charging one count of premeditated murder. After weighing the aggravating and mitigating factors, the trial court agreed with the jury’s recommendation and imposed the death sentence. We affirm both the conviction and sentence.

Unemployed, ill, and with no place to live, Hitchcock moved in with his brother Richard and Richard’s family two to three weeks before the murder. On the evening of the murder, appellant wacched television with Richard and his family until around 11:00 p. m. He then left the house and went into Winter Garden where he spent several hours drinking beer and smoking marijuana with friends.

According to a statement Hitchcock made after his arrest, he returned around 2:30 a. m. and entered the house through a dining room window. He went into the victim’s bedroom and had sexual intercourse with her. Afterwards, she said that she was hurt and was going to tell her mother. When she started to yell because he would not let her leave the bedroom, Hitchcock choked her and carried her outside. The girl still refused to be quiet so appellant choked and beat her until she was quiet and pushed her body into some bushes. He then returned to the house, showered, and went to bed.

At trial Hitchcock repudiated his prior statement. He testified that the victim let him into the house and consented to having intercourse. Following this activity, his brother Richard entered the bedroom, dragged the girl outside, and began choking her. She was dead by the time appellant got Richard away from her. When Richard told him that he hadn’t meant to kill her, Hitchcock told him to go back inside and that he, the appellant, would cover up for his brother. According to Hitchcock, he gave his prior statement only because he was trying to protect Richard.

On appeal, Hitchcock raises numerous points which will be addressed in order of presentation to this Court.

I. In his first point, Hitchcock claims that the trial court improperly restricted his presentation of evidence corroborating his defense theory, his impeachment of a key prosecution witness, and his explanation of his false “confession.” An examination of the record does not reveal that the trial judge committed error as Hitchcock alleges.

Defense counsel called the defendant and a series of Hitchcock’s relatives — a brother and his wife, several sisters, and Hitchcock’s mother — to the stand, asking each essentially the same questions, specifically, details of the defendant’s conduct around children, the early lives of the two brothers, and whether Richard Hitchcock had ever exhibited violent tendencies. The state objected successfully to most of such questions on the grounds of immateriality and irrelevance.

The person seeking admission of testimony must demonstrate why sought-after testimony is relevant. See Haager v. State, 83 Fla. 41, 90 So. 812 (1922). Hitchcock has presented nothing to show that he made a clear offer of proof which would overcome the state’s objections. We find the excluded testimony regarding Hitchcock’s conduct around children and his relationship with Richard so remote and so slightly probative of any relevant issue that the trial judge, in his discretion, could properly exclude the testimony.

The testimony of family members who would be called to establish that Richard Hitchcock had a violent nature and a reputation for violence was also properly excluded. The trial court found the proffered testimony irrelevant and refused to admit it. Appellant claims this evidence would impeach Richard and would tend to prove his substantive defense that Richard, not the appellant, committed the murder.

A defendant has the right to present witnesses in his own defense but must comply with established rules of procedure and evidence designed to assure both fairness and reliability. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness. Fulton v. State, 335 So.2d 280 (Fla.1976). For impeachment purposes the only proper inquiry into a witness’ character goes to reputation for truth and veracity. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940). The excluded testimony could have been relevant only to show Richard Hitchcock’s alleged bad acts and violent propensities and, thus, was properly excluded for impeachment purposes. Nor is there merit to appellant’s claim that the testimony concerning Richard’s character would tend to prove that Richard committed the murder. The testimony offered in the instant case was too remote to be relevant.

II. Hitchcock’s next point concerns the trial court’s communication with the jury during its deliberations. As a general rule, it is error for a judge to respond to a jury’s question without the parties being present and having the opportunity to discuss the request. Ivory v. State, 351 So.2d 26 (Fla.1977).

In the instant case, the jury sent the following note to the judge: “Is it required for us to recommend death penalty or life at this time?” Because the jury was then deliberating on guilt or innocence, the judge wrote back: “You should not consider any penalty at this time — only guilt or innocence.” These notes are marked as being filed in open court, but the record is silent as to whether or not the parties were present during this exchange. This communication does not fall within the scope of Florida Rule of Criminal Procedure 3.410, and Hitchcock has failed to demonstrate anything more than harmless error regarding this point.

III. Hitchcock also contends that the exemption, on request, of mothers with young children from jury service denied his right to a jury drawn from a fair'cross-section of the community. In McArthur v. State, 351 So.2d 972 (Fla.1977), this Court held that mothers with young children do not comprise a constitutionally significant class. Excluding such women, therefore, does not infringe upon a defendant’s right to a jury composed of a fair cross-section of the community.

Hitchcock cites Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), to support his contention. Duren held unconstitutional a Missouri statute which, upon request, exempted all women from jury service. Section 40.01, Florida Statutes (1975), on the other hand, provides only a limited exemption, and we find nothing in Duren which makes it necessary to recede from the Court’s previous rulings on this issue.

IV. As his fourth point on appeal, Hitchcock challenges the sufficiency of the evidence to convict him of first-degree murder. He alleges that the evidence presented was insufficient to show either premeditation or felony murder.

A judgment of conviction comes to this Court with a presumption of correctness, and a claim of insufficiency of the evidence cannot prevail if substantial competent evidence supports the verdict. Spinkellink v. State, 313 So.2d 666 (Fla. 1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d-1221 (1976). Furthermore, when it is shown that the jurors have performed their duty faithfully and honestly and have reached a reasonable conclusion, more than a difference of opinion as to what the evidence shows is required for this Court to reverse them. Alvord v. State, 322 So.2d 533 (Fla.1975), cert., denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). At trial, Hitchcock testified that the girl consented to intercourse, that his brother Richard discovered them, and that Richard strangled the girl. . The jury, however, also heard Hitchcock’s prior statement that he choked the girl while still in her bedroom and then carried her outside where he again choked and beat her until she was quiet and finally hid her body in some bushes.

It is well settled that the credibility of witnesses and the weight to be given testimony is for the jury to decide. Coco v. State, 80 So.2d 346 (Fla.), cert. denied, 349 U.S. 931, 75 S.Ct. 774, 99 L.Ed. 1261, cert. denied, 350 U.S. 828, 76 S.Ct. 57, 100 L.Ed. 739 (1955). Choking the girl, taking her outside, and then choking her again — -all to make her be quiet — is substantial evidence to have supported a finding of premeditation. In addition, the total circumstances, including the time of night, entry through a window, the victim’s tender years, and medical testimony that the child was of previously chaste character, refuted Hitchcock’s claim of consent and could be a basis to find that the sexual battery was committed on the victim by force and against her will, thus warranting the instruction on felony murder. Under these circumstances, the jury could easily have considered Hitchcock’s contention that the girl consented to have been unreasonable. See Conner v. State, 106 So.2d 416 (Fla.1958).

We hold, therefore, that the evidence was sufficient to allow the state to take the case to the jury on theories of both premeditation and felony murder.

V. At the close of the state’s evidence, Hitchcock moved for a judgment of acquittal, claiming insufficiency of the evidence to show either premeditation or felony murder. The trial court denied the motion as to premeditation but reserved ruling on the felony aspect until the defense concluded its presentation. Defense counsel renewed the motion for acquittal, which the judge denied, at the close of testimony.

Hitchcock now claims that reserving ruling on the felony evidence prejudiced him by forcing him to proceed with his defense without knowing whether the question of felony murder would go to the jury. To support his claim that the partial reservation was error, Hitchcock cites Adams v. State, 102 So.2d 47 (Fla. 1st DCA 1958), and State v. Rolle, 202 So.2d 867 (Fla. 2d DCA 1967). Both Adams and Rolle declared such reservation to be error. We agree and hold that trial courts should not reserve ruling on motions for judgment of acquittal presented at the close of the state’s case. Under the circumstances of this case, however, the error was harmless.

Since the motion was not granted, however, it could and should have been considered denied. Because a factual basis supported the felony-murder theory, the partial reservation was harmless and did not prejudice the defendant. Hitchcock testified that the victim consented to having intercourse. This testimony constituted the defense’s only evidence to rebut felony murder and shows that the defense, as it should have, treated the partial reservation as a denial. Since the victim of the sexual battery was dead, it does not appear that the defense could or would have proceeded in a different manner regarding the felony-murder theory even if the court had not reserved ruling on the motion for acquittal.

VI. Hitchcock also claims that the trial court offered him a sentence of life imprisonment in return for a plea of nolo contendere as charged. He concludes that the court imposed the death penalty because he exercised his right to a jury trial.

Hitchcock’s version of the facts surrounding this point, however, is not supported. Rather, it appears from the record, as supplemented, that the judge agreed only to consider such an agreement if Hitchcock were to plead guilty. Because Hitchcock refused to consider a plea, the court never had to consider whether to accept the plea bargain. When defense counsel reminded the judge during sentencing proceedings of the plea negotiations, the judge responded, “there was never any understanding because your client didn’t want to consider any plea.” There is nothing in the record even hinting that the trial court imposed the death penalty because Hitchcock chose to have a jury trial. Instead, as shown in the court’s findings of fact, the evidence supports the propriety of the death sentence in this case.

VII. Hitchcock also argues that his conviction and sentence must be overturned because, prior to trial, he had no notice of the aggravating circumstances that the state intended to show and on which the judge and jury relied. This contention is without merit. Menendez v. State, 368 So.2d 1278 (Fla.1979). See Clark v. State, 379 So.2d 97 (Fla.1979); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

Section 921.141(5), Florida Statutes (1975), sets out the aggravating factors to be considered in determining the propriety of the death sentence. The statutory language limits aggravating factors to those listed. Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Thus, there is no reason to require the state to notify defendants of the aggravating factors that the state intends to prove.

VIII. In his final point on appeal, Hitchcock alleges numerous infirmities in his sentencing. First, he claims the trial judge improperly assessed the aggravating and mitigating factors. The court found three aggravating circumstances: the murder was committed in the course of an involuntary sexual battery; the purpose of the murder was to eliminate a witness in order to avoid arrest; and the murder was especially heinous, wicked, or cruel.

After reviewing the record, we find the consideration of these aggravating factors amply supported. Regarding the felony-murder aggravating circumstance, the judge stated that the record did not substantiate Hitchcock’s assertion that the girl consented to the admitted sexual intercourse. As determined earlier in this opinion, the totality of the evidence supported the felony-murder instruction, and this first circumstance was properly considered. In his post-arrest statement Hitchcock said that he choked and beat the child to make her be quiet and to keep her from telling her mother. In view of proof this strong, murder to eliminate a witness is properly considered in aggravation. See Riley v. State, 366 So.2d 19 (Fla.1978). -The trial judge did not elaborate on his finding that the murder was especially heinous, wicked, or cruel, but that finding is supported by the facts of this case.

The judge found only one mitigating factor, Hitchcock’s age (20 years). Hitchcock now contends that the court erroneously failed to find that he suffered from extreme mental and emotional disturbance, that he was under extreme duress or the domination of another person, and that his capacity to appreciate the criminality of his conduct was substantially impaired. This claim, however, is not supported by the evidence. During the sentencing phase, defense presented only one witness, one of Hitchcock’s brothers. In an attempt to mitigate the possible sentence, this brother testified that, as a child, Hitchcock had once “sucked on gas” and that afterwards his mind seemed to wander occasionally. During the guilt phase, Hitchcock testified that he had been drinking heavily and smoking marijuana prior to committing the crime. Apparently neither the jury nor the judge found this testimony sufficiently compelling to cause mitigation of the sentence. We do not find differently. Compare Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979), and LeDuc v. State, 365 So.2d 149 (Fla.1978), cert. denied, 444 U.S. 88, 100 S.Ct. 175, 62 L.Ed.2d 714 (1979), with Burch v. State, 343 So.2d 831 (Fla.1977), and Jones v. State, 332 So.2d 615 (Fla.1976).

In his second sentencing challenge, Hitchcock claims that the rape portion of section 921.141(5)(d) is so vague and confusing as to be unconstitutional because the crime of “rape” no longer exists in this state. The trial judge substituted the words “sexual battery” for rape in his charge to the jury in listing the aggravating factors. In his charge to the jury during the initial phase of the trial, the trial judge defined involuntary sexual battery. The former definition of rape, “ravishes or carnally knows a person of the age of eleven years or more by force and against his or her will,” section 794.01(2), Florida Statutes (1973), was substantially included therein. The defendant’s conduct in this case conformed to this definition. See Adams v. State, 412 So.2d 85 (Fla.1982). A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that contemplated conduct is forbidden. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). On the other hand, a statute is not void if its language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947). Accordingly, we find no merit to appellant’s contention on this point.

Hitchcock next claims that section 921.141 unconstitutionally limits the consideration of mitigating factors and that he was improperly limited in presenting mitigating evidence. Again, we find no merit to these contentions. As stated in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), “all relevant circumstances may be considered in mitigation, and . . . the factors listed in the statute merely indicate the principal factors to be considered.” 365 So.2d at 700. After the jury returned its verdict, defense counsel asked for time to prepare for sentencing and was given a week for that purpose. At sentencing, however, defense presented only one witness. There is nothing in the record indicating that the trial judge limited the defense’s presentation. Rather, it appears that the defense itself chose to limit that presentation.

Hitchcock’s final claims — that section 921.141 is unconstitutional on its face, that the death penalty is inconsistently applied, and that there are no standards for weighing aggravating and mitigating factors— have been discussed elsewhere. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Alvord v. State, 322 So.2d 533 (Fla.1975), cert., denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

The conviction and sentence are affirmed.

It is so ordered.

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

McDONALD, J., concurs in part and dissents in part with an opinion, in which OVERTON, J., concurs.

McDONALD, Justice,

concurring in part and dissenting in part.

I would affirm the conviction in this cause but would reduce the sentence to life imprisonment or at least grant Hitchcock a new sentencing hearing.

I am not satisfied that Hitchcock received the benefit of all mitigating circumstances available to him. A person can know right from wrong and therefore be responsible for his actions but at the same time have impaired judgment and inability to conform his behavior to the requirements of law. This latter situation presents mitigating circumstances as to his sentencing. § 921.-141(6)(f), Fla.Stat. (1975).

In this case there was testimony that from childhood Hitchcock’s mind had not been entirely normal. Prior to the commission of this crime Hitchcock had been drinking heavily and smoking marijuana. Returning from his “night on the town,” he entered the bedroom of the thirteen-year-old victim and engaged in sex with her. When she announced that she had been hurt and was going to tell her mother he reacted impulsively. From the record I can discern no basis for the jury or the trial judge’s failure to find that the defendant committed this crime while under the influence of extreme mental or emotional disturbance or that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Certainly his actions fall far short of showing a reasoned planning or reasoned knowledge of what he was doing when he strangled the victim.

I further do not feel that finding the aggravating factor of especially heinous, atrocious, or cruel was proper. This crime was not accompanied by such additional acts as to set the crime apart from the norm. It did not show a conscienceless or pitiless crime which is unnecessarily torturous to the victim. The test of cruel and heinous simply is not met in this case. See Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). See also Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

I therefore conclude that the sentence of death should be vacated and a life sentence imposed. At the very least the cause should be remanded for a complete, new sentencing hearing.

OVERTON, J., concurs.

      . We note that one female juror in this case had a child younger than 15 years and, thus, was eligible for exemption from jury service.

      . We repeated this holding in Vasil v. State, 374 So.2d 465 (Fla.1979).

      .Defense counsel failed to object when the judge announced that he would reserve ruling on the felony-murder portion of the motion.

      . Defense did not try to refute the medical testimony that the victim had engaged in intercourse. Hitchcock’s only defense to the underlying felony, therefore, rested on the victim’s consent.

      . We note that the trial court would have been justified in finding an additional aggravating circumstance. At the time of. the murder Hitchcock was on parole from Arkansas, and being on parole has been construed as being under sentence of imprisonment. Aldridge v. State, 351 So.2d 942 (Fla.1977), cert., denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978). See also Peek v. State, 395 So.2d 492 (Fla.1980). The failure to consider this aggravating circumstance, however, does not impair the validity of the death sentence imposed here because both the jury and the judge found sufficient aggravating factors to outweigh any mitigating evidence.

      . Ch. 74-121, Laws of Florida, amended ch. 794, Fla.Stat., to replace the former rape statute with the crime of sexual battery. See § 794.011, Fla.Stat. The word “rape” in § 921.141(5)(d) has not yet been changed to “sexual battery.”


author: OVERTON, Judge. SUNDBERG, C. J.,

text:
    Bonnie Lou Brodie Chapman LAMM, Petitioner, v. Joe Allen CHAPMAN, Respondent.
    No. 59922.
    Supreme Court of Florida.
    March 11, 1982.
    Rehearing Denied May 26, 1982.
    Joseph R. Boyd and W. Crit Smith of Boyd & Smith, Tallahassee, and Chriss Walker, Dept, of Health and Rehabilitative Services, Child Support Enforcement, Tallahassee, for petitioner.
    Elizabeth S. Baker and Stephen Maher, Legal Services of Greater Miami, Inc., Miami, and Kathy Hamilton of Carres, Gamble & Hamilton, Coral Gables, for respondent.
   OVERTON, Judge.

This is a petition to review the decision of the Third District Court of Appeal reported as Chapman v. Lamm, 388 So.2d 1048 (Fla.3d DCA 1980), which assertedly invalidated a remedy provided under section 409.-2561, Florida Statutes (1979), which conflicts with the Second District Court of Appeal’s holding in Andrews v. Walton, 400 So.2d 790 (Fla.2d DCA 1981). We have jurisdiction under article V, section 3(b)(3), Florida Constitution (1980).

The district court in Chapman determined that sections 409.2561(l)-(3) infringe upon the constitutional right to be free from imprisonment for debt prescribed by article I, section 11, Florida Constitution (1972), to the extent those sections allow the department to institute civil contempt proceedings to collect child support arrear-ages in repayment of state public assistance payments. Sections 409.2561(l)-(3) authorize the Florida Department of Health and Rehabilitative Services to seek reimbursement from a responsible parent of state public assistance funds paid for the benefit of a dependent child when the parent has failed to pay court-ordered child support. Section 409.2561(3)(c) specifically states that the department may pursue “civil and criminal enforcement of support obligations.” It should be noted that the real party in interest as petitioner in this ease is not Bonnie Lamm, but is the State of Florida through the Department of Health and Rehabilitative Services.

We hold, in agreement with the Second District Court in Andrews, that the department can constitutionally assert the custodial parent’s right to enforce the child support obligation through a civil contempt proceeding and disapprove that portion of the Chapman opinion which holds to the contrary. We affirm, however, the finding that, under the circumstances of this case, the trial judge could not properly commit respondent to jail for contempt.

The relevant facts are not in dispute. Petitioner, Bonnie Lou Brodie Chapman Lamm, and respondent, Joe Allen Chapman, were married in 1972; a child, Joe Allen Chapman, Jr., was born in early 1973; a final judgment of dissolution was entered on October 10, 1973, after default by respondent. The final judgment contained a provision requiring respondent to pay $27.50 per week for the support of his minor child. Respondent Chapman was not personally served with notice of the dissolution proceeding, nor does the record show he was personally served with a copy of the final judgment. The affidavit for service of process by publication, filed in 1973, showed that respondent resided in Louisiana.

Respondent did not make any payments to his ex-wife for child support. In May, 1979, the state attorney, acting on behalf of the state and as representative of petitioner pursuant to section 409.2561, filed a petition with the circuit court alleging that Ms. Lamm received public assistance moneys under the Aid to Families with Dependent Children program. The state requested that all support payments from Mr. Chapman be made through the circuit court clerk’s office with the clerk directed to forward the payments to the Department of Health and Rehabilitative Services. This petition was granted on May 11, 1979. In June, 1979, the state attorney filed a motion for contempt against respondent, who was then residing in Fort Pierce, Florida, for failure to make child support payments.

At the evidentiary hearing on the contempt motion, both respondent and petitioner testified. Neither refuted the state attorney’s assertions that respondent’s total child support arrearage was $8,135 and that the state had paid petitioner $2,987.50 in public assistance for which it sought reimbursement. The evidence established that respondent was a fishing boat captain; his income tax return for the previous year showed that his gross salary had been approximately $4,379. It was also revealed at the hearing that respondent had remarried and that his second wife was seven months pregnant. On these facts, the trial judge found that respondent had the ability to pay child support, had refused to do so, and was in willful contempt of court. The judge then ordered that respondent be confined to jail for ninety days, though he could purge himself of the contempt by paying $8,135, $2,987.50 of which was to be paid to the State of Florida.

On appeal, the district court reversed the commitment order on three alternative grounds. We agree with the first two findings: (1) the trial court did not acquire personal jurisdiction over respondent in the dissolution proceeding and, therefore, the child support order could not be enforced by a contempt proceeding, Peacock v. Peacock, 160 Fla. 630, 36 So.2d 206 (1948); Gelkop v. Gelkop, 384 So.2d 195 (Fla.3d DCA 1980); Wood v. Wood, 276 So.2d 527 (Fla.3d DCA 1973); and, (2) the record did not support the determination that respondent had the ability to pay the child support, see Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).

The third ground upon which the district court reversed the contempt order is of considerable significance to the State of Florida. The district court expressly found that the order holding respondent in contempt was constitutionally impermissible because it imprisoned him for money owing to the State of Florida in violation of the guarantee against imprisonment for debt in article I, section 11, Florida Constitution. The district court recognized that the obligation to pay child support or alimony is not considered a debt for purposes of article I, section 11, but is considered a duty owed to the family which may be enforced by contempt proceedings. Faircloth. The district court said, however: “When the obligation has been converted into a debt to a third person, it no longer carries the public necessity for enforcement by imprisonment. . . . The fact that the State is the third party does not transfer to the State a greater right to the remedy of contempt than that held by a private litigant.” 388 So.2d at 1049 (citations omitted). This holding substantially limits the state’s choice of remedies when pursuing “civil . . . enforcement of support obligations,” section 409.2561(3), by prohibiting the state’s use of contempt proceedings.

Respondent argues that the language of section 409.2561(1) confirms the correctness of the district court’s holding. That section states: “Any payment of public assistance money made to, or for the benefit of, any dependent child creates a debt due and owing to the department by the responsible parent. . . . ” Respondent asserts that the use of the term “debt” indicates the legislature’s intent to prohibit the state from using contempt to secure reimbursement of the moneys owed to it. Respondent further argues that State ex rel. Cahn v. Mason, 148 Fla. 264, 4 So.2d 255 (1941), controls the disposition of this ease. In Cahn, this Court granted a writ of habeas corpus to an ex-husband who had been jailed for contempt. As part of the property settlement, the ex-husband had agreed to assume payments on certain promissory notes and the final divorce decree had required him to make those payments directly to the bank. We found that the ex-husband’s liability on the notes constituted a debt owed to the bank even though the liability arose out of a marital obligation formalized in the divorce decree. Since the debt was owed to a third party rather than to the ex-wife, we concluded that the ex-wife could not seek a contempt order to force her ex-husband to make the payments to the bank.

We reject the district court’s decision on this issue, as well as respondent’s arguments. The error in the argument that the legislature intentionally used the term “debt” in section 409.2561(1) to restrict the state’s use of civil contempt becomes clear upon examination of the entire statutory scheme for Aid to Families with Dependent Children. In sections 409.235-.2597, Florida Statutes (1979), the legislature created a comprehensive program to furnish financial and rehabilitative assistance to dependent children and established guidelines for program entitlement and payment. The legislature also expressed the intention to limit the expenditure of public funds for this program by stating: “It is declared to be the public policy of this state that this act be construed and administered to the end that children shall be maintained from the resources of responsible parents, thereby relieving, at least in part, the burden presently borne by the general citizenry through public assistance programs.” § 409.2551, Fla.Stat. (1979).

Section 409.2561 is designed to implement this policy by laying out a procedure whereby the state is authorized to fulfill its responsibilities both to dependent children and to the taxpayers. Section 409.2561 consists of three interrelated provisions: sub-paragraph (1) directs that the department obtain, from those responsible parents who have the ability to pay, reimbursement for public assistance moneys expended to benefit dependent children, while, at the same time, giving priority to securing continuing reasonable child support from the responsible parent; subparagraph (2) specifies that any judicial determination of the responsible parent’s liability to repay the state be based on the parent’s ability to pay; and, subparagraph (3) provides that the acceptance of public assistance effects an assignment to the state of the recipient’s interest in child support in the amount of public assistance paid and allows the state to act for the recipient in all matters relating to child support, including the pursuit of civil remedies to enforce the support obligation.

After considering all of the provisions of section 409.2561, together with the declared public policy regarding child support, we conclude the legislature did not intend to prohibit the state from using civil contempt as one means of securing repayment of public moneys and of ensuring that responsible parents fulfill their obligation to provide continuing reasonable child support. In our view, the term “debt” in section 409.2561(1) was used in the broad sense to indicate that a responsible parent who has the ability to pay child support will not be allowed to avoid this obligation solely because the state, through necessity, has provided public assistance. By the express authority of section 409.2561(3)(c), the state is empowered to act in the place of the public assistance recipient in seeking civil enforcement of the child support obligation; no limitations are placed on the state’s choice of remedies. We construe section 409.-2561(3)(c) to authorize the state’s use of the identical remedies against the responsible parent as are available to the child’s custodian, including, but not limited to, the use of civil contempt. We agree with the decision of the Second District Court of Appeal in Andrews v. Walton that the assignment of the child support obligation to the state, under section 409.2561(3), does not change the nature of the obligation, nor does it limit the means by which the obligation may be enforced. Of course, the requirements of Faircloth, that the responsible parent have the ability to pay but willfully refuse to do so, apply to any contempt order obtained by the state.

It is important, in this context, to consider the unique relationship of the state to the family unit. As a matter of public policy, the state has historically occupied two roles with respect to family matters: that of an interested party in matters pertaining to the custody, support, and well-being of children and that of the sovereign having a parens patriae interest in the welfare of the minor child. We have said generally that the legislature has the power to regulate, modify, or abolish rights growing out of a marriage relationship without violation of any constitutional provision. Rotwein v. Gersten, 160 Fla. 736, 36 So.2d 419 (Fla.1948). While it is true that, as in Cahn, a private third party cannot use civil contempt to enforce a debt which is grounded in an assignment of a financial obligation resulting from a marriage dissolution or child support order, the state is not the same as a third party bank. The state is acting both as an interested party and as parens patriae to further the best interest of the dependent child. Cahn does not control this situation.

We note that, although contempt may be the most generally used means of enforcing the child support obligation, it is not the only remedy available to the state or to the child’s custodian. Either could obtain a judgment for an arrearage of child support. In the event that such a judgment is obtained, it constitutes a judgment debt upon which execution may issue and for which traditional enforcement remedies, including liens and levies, may be utilized. The contempt power of the court is no longer available to enforce the child support obligation for those arrearages which have been reduced to a judgment debt for which execution may issue, regardless of whether the judgment was obtained by the department or by the custodial parent.

We hold that the acceptance of public assistance for the support of a dependent child vests in the department the authority to proceed with all remedies available to the child’s custodian. The state must have the power to ensure that the responsible parent, to the extent that he or she has the ability to pay, reimburse the state for public assistance moneys expended for the benefit of a dependent child and provide continuing reasonable child support. The result of the district court’s decision in this case is affirmed, but, for the reasons expressed, the opinion is approved in part and disapproved in part. We expressly approve the decision of the Second District Court of Appeal in Andrews v. Walton and disapprove the decision of the Third District Court of Appeal in Mackey v. State ex rel. Mackey, 402 So.2d 41 (Fla.3d DCA 1981), which reversed a contempt order in reliance on that court’s holding in Chapman.

It is so ordered.

ADKINS, ALDERMAN and MCDONALD, JJ., concur.

SUNDBERG, C. J.,

concurs in part and dissents in part:

“I concur with the majority’s approval of the findings (i) that the trial court did not acquire personal jurisdiction over respondent in the dissolution proceedings, thereby making the child support order unenforcible by contempt proceedings, and (ii) that there is no record support for the determination that the respondent had the ability to pay the child support, and, hence, reversal of the trial court’s contempt order was correct. However, I dissent from the majority’s holding with respect to article I, section 11, Florida Constitution. I would approve the district court opinion in toto.”

       Sections 409.2561(1) — (3) provide as follows:
      Public assistance payments debt to department; assignment of rights; subrogation.—
      (1) Any payment of public assistance money made to, or for the benefit of, any dependent child creates a debt due and owing to the department by the responsible parent in an amount equal to the amount of public assistance so paid, except that if there has been a prior court order or final judgment of dissolution of marriage, the debt is limited to the amount provided by such court order or decree. If there is no prior court order, the court shall establish the liability of the responsible parent, if any, for repayment of public assistance moneys paid. Priority shall be given to establishing continuing reasonable support for the dependent child. The department may petition the appropriate court for modification of a court order on the same grounds as either party to the cause and shall have the right to settle and compromise actions brought pursuant to this act.
      (2) In determining the amount to be paid by the responsible parent, the court shall consider the recommendation, if any, of the department, which recommendation shall be based on the income, earning capacity, resources, and needs of the responsible parent and the needs of the dependent child for whom support is sought.
      (3)By accepting public assistance for, or on behalf of, a dependent child, the recipient is deemed to have made an assignment to the department of any right, title, and interest in any child support obligation owed to or for said child up to the amount of public assistance money paid for, or on behalf of, the dependent child. The recipient is also deemed to have appointed the department as his attorney in fact to act in his name, place, and stead to perform specific acts relating to child support, including but not limited to:
      (a) Endorsing any draft, check, money order, or other negotiable instrument representing child support payments which are received on behalf of the dependent child as reimbursement for the public assistance moneys previously or currently paid.
      (b) Compromising claims.
      (c) Pursuing civil and criminal enforcement of support obligations.
      (d) Executing verified complaints for the purpose of instituting an action for the determination of paternity of a child bom, or to be born, out of wedlock.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Melvin BRATTON, Respondent.
    No. 59414.
    Supreme Court of Florida.
    March 18, 1982.
    Rehearing Denied May 27, 1982.
    John A. Boggs, Asst. Staff Counsel, Tallahassee, Jay M. Levy, Bar Counsel, Miami, and Donald Klein, Chairman, Grievance Committee 11 H, Miami Beach, of The Florida Bar, for complainant.
    Melvin D. Bratton, in pro per.
   PER CURIAM.

This attorney-discipline proceeding is before the Court upon the complaint of The Florida Bar, the report of a referee, and the petitions of both parties for review. Our jurisdiction and procedure are governed by article V, section 15, Florida Constitution and the Integration Rule of The Florida Bar, article XI, Rule 11.09.

The Florida Bar filed a two-count complaint against respondent Melvin D. Brat-ton. The first count charged a violation of Integration Rule 11.02(4) and Disciplinary Rule 9-102(B)(4) of the Code of Professional Responsibility for failure to return to a client $10,000 that had been posted as a bond in a foreclosure proceeding. It was alleged that the client had entrusted this money to respondent for the specific purpose of making the bond. Respondent’s first argument in response was that the client had tendered the money as partial payment for attorney’s fees owed and that respondent had then advanced the money to the client for the purpose of posting the bond. His second argument was that when the money was released from the bond, he had a right to retain it by virtue of a lien for attorney’s fees owed.

The second count charged respondent with violation of article VIII of the Integration Rule and Disciplinary Rule 3-101(B) in that he continued to practice law while under suspension for not paying his Florida Bar membership dues.

The referee found that the Bar proved the allegations of both counts of the complaint by clear and convincing evidence. The client’s funds, the referee found, were entrusted to respondent for the specific purpose of posting a bond and not in partial payment of any fees, and when released should have been returned to the client regardless of any outstanding attorney’s fees. The referee concluded that respondent had no lien on the funds since, again, the money was given for a specific purpose unrelated to the services for which the unpaid fee was claimed.

The factual allegations having been proved, the referee concluded that respondent had violated the Integration Rule and Code provisions as charged. The referee recommended suspension for eighteen months for count one and a public reprimand for count two.

Respondent contends that the referee’s findings of fact on count one are erroneous. We conclude that the findings are not clearly erroneous and therefore must be upheld. State ex rel. The Florida Bar v. Bennett, 246 So.2d 107 (Fla.1971); The Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968).

Respondent argues that he held a lien on the $10,000 and was entitled to retain it. Although article XI, rule 11.02(4) provides for retention of money or property upon which a lawyer has a lien and for “payment of agreed fees from the proceeds of transactions or collections,” these provisions are not applicable when funds have been entrusted for a specific purpose and there is no agreement for payment of fees therefrom. An attorney must not allow his claim of a fee for past services rendered to conflict with his duties as a trustee when entrusted with money for a specific purpose of his client. This potential conflict is resolved by a general principle of law, cited by the referee, that property delivered for a specific purpose is not subject to a retaining lien. See 7 Am.Jr.2d, Attorneys at Law, § 318 (1980).

Regarding the second count, respondent argues that when he belatedly paid his dues, his reinstatement to the practice of law was retroactive and cured any problem of having practiced law while not in good standing. We do not agree that reinstatement functions retroactively so as to excuse the misconduct of practicing law while under suspension for nonpayment of dues. To so hold would undermine the purpose of the proscription against practicing law while in arrears on dues.

We therefore adopt the findings of the referee that respondent is guilty of violating the Integration Rule, article VIII and article XI, Rule 11.02(4), and Disciplinary Rules 9-102(B)(4) and 3-101(B).

The Florida Bar in its petition for review argues that the referee’s recommended discipline is too lenient and that respondent should be disbarred. Although respondent’s offense is serious, we find some mitigation in the fact that respondent and the aggrieved client are brothers-in-law. Respondent had performed several services for the client on a relatively informal basis. We recognize in this context the regrettable possibility that the informality and emotion arising from the family tie may have influenced the course of events leading to respondent’s breach of ethics.

Therefore, adopting the referee’s recommended discipline, we suspend respondent Melvin D. Bratton from the practice of law for eighteen months and thereafter until proof of rehabilitation. The suspension shall be effective April 19, 1982, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. We hereby further publicly reprimand respondent and assess against him the costs of these proceedings in the amount of $1,739.61.

It is so ordered.

ADKINS, A. C. J., and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.