author: PER CURIAM. FAULKNER, Justice

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: Joel P. FROLIK v. STATE of Alabama).
    No. 79-679.
    Supreme Court of Alabama.
    Jan. 9, 1981.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for petitioner.
    Charles C. Partin, of Stone, Partin & Granade, Bay Minette, for respondent.
   PER CURIAM.

We granted certiorari to review the judgment of the Court of Criminal Appeals declaring Code 1975, § 13-6-18 facially over-broad and unconstitutional. We affirm.

The defendant/respondent, Joel P. Frolik, was charged and found guilty of using abusive, insulting or obscene language in violation of Code 1975, § 13-6-18. That statute provides, in pertinent part, that:

Any person who ..., in the presence or hearing of any girl or woman, uses abusive, insulting or obscene language, shall, on conviction, be fined not more than $200.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months.

For his conviction, the defendant was fined fifty dollars and sentenced to twenty-four hours in jail.

On appeal, the Court of Criminal Appeals declared § 13-6-18 unconstitutional “since it is ‘susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments.’” Frolik v. State, 392 So.2d 845 (Ala.Cr.App.1980). In reaching this conclusion, the court relied upon the notable United States Supreme Court decisions of Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

We agree that, as written, § 13-6-18 is “facially overbroad” and susceptible of application to speech which is constitutionally protected; however, this, without more, does not mean that the statute cannot be saved. State statutes designed to punish spoken words can be upheld if, as authoritatively construed by the state courts, they are narrowly limited in their application to speech that is not protected under the First and Fourteenth Amendments. See, e. g., Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). See generally, Annot., 39 L.Ed.2d 925 (1975). As stated by the United States Supreme Court in Gooding, supra, at 405 U.S. 521-522, 92 S.Ct. 1106:

The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 [62 S.Ct. 766, 768, 86 L.Ed. 1031] (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, 357 U.S. 513, 525 [78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460] (1958), “[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304 [60 S.Ct. 900, 903, 84 L.Ed. 1213] (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, supra [371 U.S.], at 433 [83 S.Ct., at 338]. [Emphasis supplied.]

The Court of Criminal Appeals could have supplied this “narrow specificity” by way of a narrowing construction. In failing to do so, it erred, but the error here is not prejudicial because the statute is unconstitutional in that it makes an unwarranted gender based distinction. The statute is based, in part, upon a concern for the sensitivities of females and was designed to protect females from insult at all times. Laney v. State, 105 Ala. 105, 17 So. 107 (1897); however, these laudable concerns to protect females as a class are no longer viable in light of the recent decisions of the Supreme Court of the United States. Statutory classifications that distinguish between males and females on the basis of “old notions” will no longer withstand judicial scrutiny under the Fourteenth Amendment to the United States Constitution. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975).

In reaching this decision, we are not condoning the defendant’s reprehensible conduct, nor are we holding that the obscene language he used did not amount to “fighting words,” for which he could have been prosecuted under Code 1975, § 13-6-100.

Accordingly, the judgment of the Court of Criminal Appeals is due to be affirmed because it reaches the correct result.

AFFIRMED.

MADDOX, JONES, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and FAULKNER and EMBRY, JJ., dissent.

ALMON, J., not sitting.

FAULKNER, Justice

(dissenting).

I dissent.

Joel P. Frolik was convicted of using abusive, insulting or obscene lánguage in the presence of a girl or woman contrary to § 13-6-18, Code 1975. He was fined $50.00 and sentenced to 24 hours in jail.

Briefly, the facts are that Mr. O. L. Bo-denhamer, his wife, and four year old granddaughter were traveling on U. S. Highway 98, in Baldwin County on the night of February 24, 1979. Frolik, returning from Pensacola, Florida, overtook and passed Bodenhamer. When he passed, Bodenhamer saw that Frolik’s backup lights burned constantly. Bodenhamer, after Fro-lik passed him, flipped his lights on bright, and immediately back to dim. When Frolik had increased the distance between them, Bodenhamer placed his lights back to bright. Frolik, immediately thereafter, stopped his car in the middle of the highway and jumped out and walked to Boden-hamer’s car that had stopped behind him. There, in a boisterous tone, he said, “If you don’t dim your fucking headlights, you son-of-a-bitch, I am going to kick them out.” Bodenhamer advised Frolik that he should repair his backup lights. Frolik’s uncouth response was, “Kiss my ass you son-of-a-bitch.” Without dispute, everyone in the Bodenhamer automobile could hear Frolik’s words.

The majority holds the statute unconstitutional because it makes an unwarranted gender based distinction. In other words, an uncouth person can utter filthy, profane and obscene words before females as well as males. I cannot say that I am in complete disagreement in all cases because some women can get in the gutter also and use vile language that would make a mule skinner shudder. But, here in this case, I would narrowly construe the statute and hold that its language should apply with narrow specificity to “fighting words." If Frolik’s words and demeanor were not intended to incite an immediate breach of the peace, I do not know what “fighting words” are. “Fighting words” have no First Amendment protection. Thus, I would reverse the Court of Criminal Appeals and affirm the trial court.

TORBERT, C. J., and EMBRY, J., concur.

      . The defendant’s conviction is based upon the following facts:
      On the night of February 24, 1979, O. L. Bodenhamer, his wife (Virginia Bodenhamer) and his four-year-old granddaughter were in their automobile traveling west on U. S. Highway 98 in Baldwin County, Alabama. The defendant, driving a Pontiac Trans Am, overtook and passed the Bodenhamer automobile. Mr. Bodenhamer testified that when the defendant had completed the passing maneuver, he turned his automobile headlights to bright and immediately back to dim to inform the defendant that he was clear of the Bodenhamer automobile and could return to the right side of the road. As the distance between the two vehicles increased,. Mr. Bodenhamer turned his headlights back to bright. When he did so, the defendant stopped his car in the road, jumped out and approached the Bodenhamer automobile. Standing at the front bumper of the vehicle, the defendant addressed abusive language to Mr. Bodenhamer and ordered him to dim his headlights. The district attorney’s complaint alleged that the defendant did, “in the presence or hearing of Virginia Bodenhamer, a woman, use abusive, insulting or obscene language, to wit: ‘dim your fucking lights you son of a bitch, or I’ll kick them out.’ ” These allegations were substantiated by the evidence at trial.

      . In Brown v. Oklahoma, 492 P.2d 1106 (Okl.Cr.1971), the Oklahoma Court of Criminal Appeals was called upon to make application of a statute strikingly similar to Code 1975, § 13-6-18. The Oklahoma appellate court concluded that the statute was clearly violated under the facts before it and, therefore, upheld the defendant’s conviction. Certiorari was granted by the United States Supreme Court, which vacated the lower court judgment and remanded the case for reconsideration in light of Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). On remand, the Oklahoma court declared the statute unconstitutional. Brown v. Oklahoma, 503 P.2d 571 (Okl.Cr.1972). This holding, however, is not what the Supreme Court mandated. It mandated reconsideration, not reversal. By way of contrast, the Louisiana courts, in Lewis v. City of New Orleans, 263 La. 809, 269 So.2d 450 (1972), adopted a limiting construction of a state statute when the case was remanded for reconsideration in light of Gooding. Gooding would necessarily control any construction of § 13-6-18. It does not, however, mandate a finding that the statute is unconstitutional per se.


source: Caselaw Access Project

author: TYSON, Judge. DeCARLO, Judge,

license: Public Domain

text:
    Steven Festus BULLOCK, alias v. STATE.
    4 Div. 815, 4 Div. 816.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      J.Allen Cook, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Steven Festus Bullock, alias, presents this Court with two appeals arising in reality from the same circumstances and which appeals will be treated together in this opinion. The first is from the extension of the appellant’s term of probation without notice, without advising the nature of the charges against him, or without giving the appellant a hearing or opportunity to respond to whatever charges may have been made and the reasons for extending the probation.

The second appeal presents the issue of the revocation of the appellant’s probation following a hearing at which the appellant was represented by counsel, but which revocation was based on the fact that charges had been made against the appellant growing out of an incident in an adjoining county when one Mr. C. P. Burks of Dozier, Alabama, reported a missing Remington shotgun from his truck on the night of January 5, 1980. This missing shotgun was found two days later in the trunk of the appellant’s car.

Thereafter, a hearing was held on the charge against the appellant of possession of stolen property, and the charges were dismissed in this proceeding.

The Circuit Court of Covington County proceeded to hear the recommendation of the probation officer and used the fact that the appellant had been arrested on the charge of possession of stolen property as the basis of revoking appellant’s probation.

Initially, Steven Festus Bullock had been charged in the Circuit Court of Covington County with grand larceny, buying, receiving or concealing stolen property, to-wit, one electric boat motor, and one Johnson 50 horsepower boat motor, the personal property of Zack D. Studstill.

Appellant is a white male Veteran of the Vietnam conflict and was sent to the Veterans Hospital for examination. Thereafter, the appellant appeared in Circuit Court and was sentenced to a term of three years, but placed on probation for a term of three years on July 30,1976, on the condition that he leave the State of Alabama and so remain throughout the three year period of probation. The present proceedings, for reasons not shown by the record, commence with a request for extension to the Circuit Court, indicating that the appellant’s probation was due to expire on July 30, 1979, and without notice to the appellant, or an opportunity to respond and appear in court, or to question the charges against him, the Circuit Court, on July 27, 1979, entered an order extending the appellant’s probation for a period of two years. The probation officer testified in court that he subsequently contacted the appellant, who had been living in Seattle, Washington, by telephone and advised him that his period of probation had been extended for two years and this occurred during September, 1979. The appellant testified that he came to the State of Alabama during the Fall of 1979 and was arrested and brought before the Circuit Court of Covington County in December, 1979, where counsel was appointed and a hearing conducted on whether the appellant had violated the terms of his probation. A second order was entered by the Circuit Court on December 20, 1979, directing that the appellant should remain out of the State of Alabama except for July 4, 1980, and Christmas, 1980, that he could only visit his son, Mike Bullock, during certain hours on those two days after first having contacted his former wife, and that he could not remove the child from the residence of its mother and must obtain permission in advance in writing to visit the child.

Subsequently, the Circuit Court of Cov-ington County issued a pickup order and directed that a hearing be held on February 21, 1980, on whether or not the appellant was in violation of the terms of his probation, this accusation growing out of certain charges which had been made against the appellant on January 8, 1980, charging the appellant with possession of stolen property in Crenshaw County, Alabama. Appellant’s counsel filed a habeas corpus petition challenging the action of the Circuit Court of Covington County, and following a hearing, the Circuit Court entered its order, dated February 21, 1980, that the habeas corpus petition should be denied, and that the appellant was not entitled to be released, but was in violation of the terms of his probation and directing that he be placed in the Covington County Jail. It is from these proceedings that these two appeals reached this Court.

I

The appellant and the State of Alabama both cite us to the provisions of § 15-22-54, Code of Alabama 1975. Sections (a), (b), and (c) of this read as follows:

“(a) The period of probation or suspension of execution of sentence shall be determined by the court, and such period may be continued, extended or terminated; provided, that in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years, nor shall the maximum probation period of a defendant guilty of a felony exceed five years. Upon the satisfactory fulfillment of the conditions of probation or suspension of sentence, the court shall, by order duly entered on its minutes, discharge the defendant.
“(b) The court granting probation may, upon the recommendation of the officer supervising the probationer, terminate all authority and supervision over said probationer prior to the declared date of completion of probation upon a showing of continued satisfactory compliance with the conditions of probation over a sufficient portion of the period of said probation.
“(c) At any time during the period of probation or suspension of execution of sentence, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence.”

While we recognize at the outset the initial action of the Circuit Court on July 27,1979, was to extend the appellant’s term of probation for a period of two years as opposed to being a proceeding to revoke appellant’s probation, nevertheless, we are of the opinion that the guidelines set forth in the opinion of the Supreme Court of Alabama in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), are here applicable. These conditions, with reference to a revocation proceeding are as follows:

“1. Written notice of the claimed violation of parole.
2. Disclosure to parolee of evidence against him.
3. Opportunity to be heard in person and to present witnesses and documentary evidence.
4. The right to confront and cross-examine adverse witnesses.
5. A neutral and detached hearing body, such as a parole board.
6. A written statement by the judge as to evidence relied on and reasons for revoking parole.”

We recognize the rule that a proceeding to revoke probation is not a criminal prosecution and that on a hearing thereof the trial court is not bound by the strict rules of evidence. Armstrong v. State, supra; and Wright v. State, Ala.Cr.App., 349 So.2d 124 (1977).

We also note that, following the appellant’s arrest in December 17, 1979, and a hearing before the Circuit Court of Coving-ton County, with counsel, his probation was continued, but that the order issued on December 20, 1979, prohibited the appellant’s appearance within the State of Alabama except for a brief period on July 4 and on Christmas of each year.

Moreover, the appellant’s subsequent arrest in January, 1980, and present incarceration arose out of a hearing conducted in February, 1980, in the Circuit Court, and an order issued in February, 1980, by the Circuit Court, denying his habeas corpus petition, revoking his probation, and directing that he be held by the Sheriff of Covington County pending further orders of the court.

We are of the opinion that the action of the Circuit Court in this respect was erroneous and in violation of the appellant’s constitutional rights. At the outset, we believe that the order of the Circuit Court in July, 1979, extending the appellant’s probation for two additional years, was in error as there was no notice or specification of the charges, or opportunity to appear at a hearing and confront his accusers.

For aught that appears, there were no charges whatever made against the appellant, the evidence being without dispute that the appellant was living at that time and working in Seattle, Washington. We are further of the opinion that the order of December 20,1979, directing that the appellant continue to remain outside the State of Alabama except for two brief periods each year was in violation of the appellant’s constitutional rights, and such order is hereby set aside and revoked. Armstrong v. State, supra; Warren v. Crane, 50 Mich. 300, 15 N.W. 465 (1883).

We are further of the opinion that the Circuit Court of Covington County was in error in revoking the appellant’s probation following the hearing on February 20, 1980, based upon the mere fact that the appellant had been charged in an adjoining county with possession of stolen property. Without dispute, these charges against the appellant had been dismissed in court following a hearing thereon. The action of the Circuit Court, using such charges as the basis of probation revocation was grossly in error, and such order is hereby overruled and set aside.

As stated by Judge Harris, speaking for a unanimous court, in Austin v. State, Ala.Cr.App., 375 So.2d 1295 (1979), “A cursory reading of the record in this cause is sufficient for a determination that the proceedings in the court below were wholly deficient under the above cited authorities.”

We are of the opinion that the orders of the Circuit Court of Covington County of July 27, 1979, December 20, 1979, and February 21, 1980, and March 17, 1980, are erroneous. Each of these orders is hereby set aside and held for naught under the foregoing authorities. Levert v. State, Ala.Cr.App., 373 So.2d 1263 (1979); Austin v. State, Ala.Cr.App., 375 So.2d 1295 (1979); and Hill v. State, Ala.Cr.App., 350 So.2d 716 (1977).

For the foregoing reasons this cause is reversed and remanded.

REVERSED AND REMANDED.

HARRIS, P. J., and BOWEN, J., concur.

BOOKOUT, J., concurs in result.

DeCARLO, J., dissents with opinion.

DeCARLO, Judge,

dissenting.

The Code of Alabama 1975, § 15-22-54, (a), (b) and (c), supra, clearly shows that a period of probation “may be continued, extended or terminated,” as long as it does not exceed a period of five years in a case where the defendant was found guilty of a felony.

As the majority opinion recognizes, Armstrong v. State, supra, applies to proceedings involving revocations. The application of Armstrong, supra, to the facts in the present case is an extension of that case’s purview which goes beyond its legal dictates.

Regarding the appellant’s revocation, the majority opinion points out that, after a “pick-up order” was issued, a hearing was held. The appellant was represented by counsel, and the trial court held that the appellant had violated the terms of his probation.

The violation of appellant’s terms of probation could have occurred at any place, and the court having original jurisdiction could have taken notice of the information.

All that is required by Armstrong, supra, is, (1) notice, (2) disclosure of incriminating evidence, (3) opportunity for appellant to be heard, (4) right of confrontation by appellant, (5) detached hearing body and, (6) written reasons for the revocation.

The majority opinion does not say that the requirements of Armstrong, supra, were not met at the time the appellant’s probation was revoked. Under these circumstances, it is my judgment that the proceedings in the Covington Circuit Court were not “wholly deficient” under the above cited authorities.

For these reasons, I respectfully dissent.


author: EMBRY, Justice.

text:
    Ex parte State of Alabama, ex rel. Attorney General. (Re: Steven Festus BULLOCK v. STATE).
    80-35.
    Supreme Court of Alabama.
    Jan. 29, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: TYSON, Judge.

text:
    Eddie PRINCE v. STATE.
    6 Div. 267.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.
    F. Wayne Keith of Keith, Keith & Keith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Elizabeth Ann Evans, Asst. Atty. Gen. for appel-lee.
   TYSON, Judge.

Eddie Prince was indicted by the grand jury for robbery in that he took the sum of $190.00 from one Willie Hopkins “against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same.” At trial Prince was found guilty by the jury and sentenced to serve twelve years in the state penitentiary. Prince has been represented at all stages by appointed counsel.

Willie Hopkins, the victim of the robbery, testified that, on Saturday, July 21,1979, he had been present at the laundromat in North Birmingham of which he was manager; also present were Darlene Wilson and Johnny Brown, the former engaged in washing clothes, the latter just visiting Hopkins. Hopkins stated that at some point Eddie Prince, a Russell Mitchell, and a third man Hopkins did not know all entered the laundromat; Hopkins testified that he knew appellant by sight, and had known him and his mother for a number of years. The third unknown man began talking about visiting relatives and leaving town, at which point Mitchell asked Hopkins for change to operate a soft drink machine. Upon being told by Hopkins that the machine would make change, Mitchell passed by Hopkins and then around behind him, at which time he placed a gun at Hopkins’ head and grabbed him around the face. Hopkins stated that Mitchell then removed the pistol that Hopkins usually carried and tossed it to appellant, telling appellant to “get the money” (R. 17). Appellant then reached into Hopkins’ pocket and jerked out a sum of money, tearing Hopkins’ pants and causing him to fall to the floor; the sum of money was stated to be $190.00. Appellant, Mitchell, and the third man, who had stood in the doorway during these events, fled the scene on foot. Hopkins was unsure about the time of the robbery, variously testifying that it was between one and two o’clock, or before noon. In any event he reported the robbery to the police, and at some later date talked to Sergeant Farrell of the Birmingham police.

Darlene Wilson testified that she was present in the laundromat on the day in question washing clothes and that she witnessed three men attack Hopkins. She stated that the man who remained in the door had a pistol and instructed her to move back around some washing equipment. The witness was unable to identify any of the three men.

Detective Sergeant J. C. Farrell of the Birmingham Police Department testified that he talked to Willie Hopkins some four days after the robbery, and at that time Hopkins told him that Eddie Prince was one of the trio that had robbed him. Farrell stated that he arrested appellant the next day and took him into jail. The State rested, and appellant's motion to exclude the State’s evidence was overruled.

Delwin Denise Prince testified for the defense that she was appellant’s sister, and that on the date in question she had accompanied appellant to a parts store so that appellant might obtain a part needed to repair their mother’s clothes dryer. Miss Prince stated that they had left home about one o’clock in the afternoon, and returned a little after two. During the return trip, the car ran out of gas on an interstate off-ramp, and appellant left the car to go get some gasoline while so stopped. Miss Prince stated that she saw a cousin, Willie Jackson, who stopped to render assistance. Upon appellant’s return with the gas, they proceeded home, where appellant finished repairing the dryer. The receipt from the parts store was identified by Miss Prince and received into evidence.

Gladys Prince stated that she was the mother of the appellant, and that on the date in question she had requested him to fix the dryer, a task that he commenced during the morning. She gave him the money with which to buy the needed part, and testified that he had left around one o’clock, returning around two-thirty. She stated that upon his return he fixed the dryer.

Willie Jackson testified that he was a cousin of appellant’s and on the date in question he had seen appellant and his sister stranded on an interstate off-ramp between two and two-thirty in the afternoon. He stated that he stopped to help but went on when appellant told him that he was only out of gas.

The appellant then took the stand in his own defense and testified that, on July 21, 1979, he had undertaken to repair his mother’s dryer. Upon discovering that he needed a part, he went to the parts store, leaving around one o’clock as the store closed at two. During the return trip, he stated that the car ran out of gas, and he was forced to walk to a gas station where he purchased a dollar’s worth of gasoline. He saved a small quantity to use for the carburetor. He testified that at that point his cousin came by. Appellant denied knowing anyone named Russell or Russell Mitchell.

The final defense witness was John W. Brown, who stated that he had been at the laundromat all day on the date in question, arriving there early that morning. He had left around eleven thirty to get some lunch but returned shortly thereafter. He testified that Darlene Wilson was present and that he witnessed the attack on Willie Hopkins. He also stated that, though he knew both Eddie Prince and Russell Mitchell, neither had been present during the robbery. At this point the defense rested.

I

At the conclusion of the State’s casein-chief, appellant moved the court to exclude the State’s evidence because the State’s main witness, Hopkins, “never pointed the defendant out, and it was never indicated on the court’s record that this was the one who robbed him” (R. 51). The motion was overruled, and appellant asserts that this action was error.

While it appears true, as appellant contends, that no formal in-court identification technique was employed by the State, examination of the record does reveal, inter alia, the following:

“Q. Mr. Hopkins, do you know the defendant, Eddie Prince?
“A. Sir?
“Q. Do you know the defendant, Eddie Prince?
“A. Yeah.
“Q. How long have you known him?
“A. From a boy up until what he is now [R.11].
“Q. And, how was it you were able to recognize them.
“A. ’Cause I knew them and been seeing them all the time. They didn’t have nothing over their face. They like he is right now [R.22],
“Q. Do you recall what else they were wearing?
“A. Some old black glasses. That’s all he had on. This boy just like he is right now [R.22].” [Emphasis supplied]

We believe that these quoted portions, together with the constant referrals to “the defendant” or “Eddie Prince” evident in the record, were quite sufficient to identify appellant as the Eddie Prince seen by Hopkins and named in the indictment. See, Bush v. State, Ala.Cr.App., 333 So.2d 186 (1976); Royals v. State, 36 Ala.App. 11, 56 So.2d 363, affirmed, 256 Ala. 390, 56 So.2d 368 (1951); United States v. McDonald, 606 F.2d 552 (5th Cir. 1979). The motion to exclude was properly overruled.

II

After the verdict was returned and appellant sentenced in accordance therewith, appellant filed a motion with the trial court averring that he was twenty-one years of age and requesting treatment as a youthful offender, pursuant to § 15-19-1, et seq., Code of Alabama 1975. The trial court duly ordered (R. 129) that an investigation of appellant be made by the Board of Pardons and Paroles, and upon receipt of the report conducted a hearing at which appellant, his counsel, and representatives of the State were present. At the conclusion of this hearing the trial court denied appellant’s motion to allow him youthful offender status.

Appellant initially challenges the failure of the trial court to advise appellant of the advantages of youthful offender status and to seek his consent to submit to the background investigation. The usual procedure mandated by the Youthful Offender Act is that the court advise the youthful offender of the existence and advantages of the Act before any trial has begun, thus allowing the offender the option of whether to incur the background investigation, or proceed with a trial by jury. § 15-19-1, et seq., code of Alabama 1975; Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975); Johnson v. State, 56 Ala.App. 582, 324 So.2d 297, cert. denied, 295 Ala. 407, 324 So.2d 305 (1975). But where this has not been done, and the offender has proceeded to trial and been found guilty by a jury, a complete reversal has not been mandated by our appellate courts; instead, the cause is remanded to the trial court so that the proper procedures might be implemented. Thus, as noted by the Supreme Court in Clemmons v. State, supra:

“Upon completion of the investigation, he should then proceed to examine the defendant. If, in his discretion, he determines that the defendant is entitled to youthful offender treatment, the sentence imposed in the ... case should be set aside, and the defendant should be afforded youthful offender treatment under the provisions of the statute. If, after the investigation and examination, the court determines that the defendant is not entitled to youthful offender treatment, the judgment of conviction and the sentence imposed stand.”

In scrutinizing the procedures employed in the instant case, we find that the trial court employed the services of a probation officer, something not required under the terms of our statute, Clemmons, supra; Morgan v. State, Ala.Cr.App., 363 So.2d 1013 (1978). Additionally, the court conducted a hearing and presumably examined the appellant, who was present, though no transcript of those proceedings is before us in the record. In any event, a formal hearing is not required, but only some measure of inquiry or examination. Morgan v. State, supra. There was no error in the procedures employed by the court in this case, and appellant’s contentions to that effect are plainly without merit.

Finally, however, appellant argues that the trial judge abused his discretion in denying youthful offender treatment to appellant, especially in light of the favorable report from the probation officer; the trial court gave no reasons in its order (R. 133) denying youthful offender status. We find the case of Morgan v. State, Ala.Cr.App., 363 So.2d 1013 (1978), instructive here. In that decision, Judge Bowen opined:

“While we have no indication of why youthful offender status was denied in this case, the trial judge is not required to state his reasons for denying youthful offender status. This court will not overturn that exercise of discretion except where it affirmatively appears that the decision of the trial judge was arbitrary or made without some examination or investigation of the youthful offender. Watkins v. State, Ala.Cr.App., 357 So.2d 156; cert. denied, Ala., 357 So.2d 161 (1977). It is not for this court to overturn the decision of the trial judge in denying youthful offender status simply because we would not have made that same decision.”

While the terms of the report were undoubtedly favorable to appellant (R. 131), given the gravity of this offense and other factors available to the trial judge upon a hearing, we are unable to say that the trial judge manifestly abused his discretion in denying appellant youthful offender status. Morgan v. State, supra; Reese v. State, Ala.Cr.App., 381 So.2d 107 (1980); Barnett v. State, Ala.Cr.App., 348 So.2d 512 (1977); McLendon v. State, Ala.Cr.App., 341 So.2d 174 (1976).

We have carefully examined the record in this cause and find no error in the proceedings below; therefore, the judgment is due to be and is

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex Parte Eddie PRINCE. (Re: Eddie Prince v. State of Alabama).
    80-30.
    Supreme Court of Alabama.
    Jan. 29, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    Wynn Everett FREE, alias v. STATE.
    4 Div. 825.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.
    Alice L. Anderson, Chancellor, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Wynn Everett Free brings this appeal from the judgment and order of the Circuit Court of Covington County finding him in violation of the conditions of his probation and revoking that probation. From the record it appears that in 1977 appellant was indicted in Covington County for the possession of marijuana in violation of the Alabama Uniform Controlled Substances Act, § 20-2-1, et seq., Code of Alabama 1975, and upon pleading guilty to the charge was sentenced by the trial court to serve three years in the state penitentiary. Appellant filed a timely request for probation, and after investigation the court placed appellant on probation for a term of five years, provided that he serve the first six months of the term in the county jail and not breach certain conditions contained in the court’s written order. The condition relevant to this appeal provided that appellant “not ... violate any Federal or State laws or municipal ordinances” during the term of his probation.

It appears that, on March 16,1980, appellant was arrested near the town of Loxley in Baldwin County and charged with reckless driving, driving while under the influence of narcotics and violating the Uniform Controlled Substances Act by being in possession of a quantity of marijuana. Pursuant to this sequence of events, on March 18, 1980, the probation officer for Covington County filed a written charge of delinquency against appellant in the Circuit Court of that county, setting forth the events of March 16 and requesting that appellant’s probation be revoked. That court issued a writ of arrest for appellant for probable probation violation on March 20, and appellant was served with written notice of the charge against him while in the Baldwin County jail on March 21. Appellant signed the notice, which stated that a hearing would be held May 9,1980. At the hearing on that date, several witnesses were called for both the State and appellant, and appellant, represented by counsel, was afforded the opportunity of examination and cross-examination of witnesses, and testified in his own behalf. The court, after the hearing, concluded in its written order that, based on the evidence presented at the hearing, appellant had indeed violated the condition relating to the violation of Federal and State laws through his arrest for violating the Controlled Substances Act, and ordered that appellant’s probation be revoked.

The State’s evidence*, adduced primarily through the evidence of Officer Michael L. Gerard of the Loxley Police Department, tended to show that appellant was stopped by that officer on March 16, after appellant had run the officer off of a highway near Loxley. When appellant was finally pulled over, he got out of the car, and the officer observed that he was unsteady on his feet, that his speech was slurred and his eyes bloodshot. At this point appellant was arrested for driving while intoxicated. At the Robertsdale police station, appellant consented to an intoximeter test, which proved negative, and appellant was thus charged with driving under the influence of narcotics. He was informed of his rights, said he understood them, and signed a written consent in the presence of several officers for Officer Gerard to return to appellant’s car, which had been left where it had been stopped, and search it. A search of the car disclosed the presence of marijuana, contained in a plastic bag and in a soft drink cup, and concealed beneath the front seat, and a large amount of money, similarly concealed. The officer confirmed that two other individuals riding with appellant had been left asleep in the car under the watch of the Loxley police chief. A further search of appellant’s person revealed a Sucrets can containing traces of marijuana.

The testimony for appellant rested on several theories, and appellant claimed that a bad spot in thé highway had caused his car to swerve in front of Officer Gerard’s that night. He denied any knowledge of the marijuana, but claimed that it belonged to a companion in the car with him.

I

Appellant contends that the trial court erred in revoking his probation, though we are somewhat unclear as to the grounds upon which this argument is based. Alternatively appellant seems to claim that he was not afforded a meaningful hearing or that there was no basis for the trial court’s decision. As to the first branch of appellant’s contentions, we have carefully examined the record, and find that the trial court fully complied with the requirements and guidelines for probation revocation as set forth in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). Cf., Borst v. State, Ala.Cr.App., 377 So.2d 3 (1979) [no written statement as to evidence and reasons]; Austin v. State, Ala.Cr.App., 375 So.2d 1295 (1979) [proceedings “wholly deficient” under Armstrong]; Levert v. State, Ala.Cr.App., 373 So.2d 1263 (1979) [insufficient evidence, no written statement as to evidence and reasons]; Corley v. State, Ala.Cr.App., 372 So.2d 879, petition dismissed, Ala., 372 So.2d 881 (1979) [Bookout, J., dissenting]; Jenkins v. State, Ala.Cr.App., 368 So.2d 329 (1979) [no written statement as to evidence and reasons].

Likewise, we find that the decision of the trial court in revoking appellant’s probation was wholly justified by the record, and therefore no abuse of discretion in this regard occurred. Although it is fairly clear that a “mere arrest” or the filing of charges in themselves would be insufficient grounds for the revocation of probation, see Hill v. State, Ala.Cr.App., 350 So.2d 716 (1977), and Bullock v. State, Ala.Cr.App., 392 So.2d 848 (1980), it is equally clear that neither our statute, § 15-22-54, Code of Alabama 1975, nor the Constitution requires a final conviction of probationer on the offense charged before his probation may be revoked. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960); Dixon v. State, 42 Ala.App. 341, 164 So.2d 509 (1964); English v. State, 53 Ala.App. 656, 303 So.2d 156 (1974); United States v. Brugger, 549 F.2d 2 (7th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 2186, 53 L.Ed.2d 231 (1977); Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976); United States v. Webster, 492 F.2d 1048 (D.C. Cir. 1974); Amaya v. Beto, 424 F.2d 363 (5th Cir. 1970); United States v. Markovich, 348 F.2d 238 (2d Cir. 1965). This stems from the recognition that a probation revocation proceeding is not criminal in nature, and therefore no formal trial is required nor is the court required'to follow formal rules of evidence. Armstrong v. State, supra; Thompson v. State, Ala.Cr.App., 356 So.2d 757 (1978); Wright v. State, Ala.Cr.App., 349 So.2d 124 (1977). But while the standard of proof is not reasonable doubt or the preponderance of the evidence, Armstrong v. State, supra, “the State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.” Hill v. State, supra; Fiorella v. State, supra.

Our examination of the record reveals that there was ample evidence from which the trial court could have reasonably held that appellant had breached the terms of his probation by violating the Uniform Controlled Substances Act, and thus we hold that the trial court did not abuse its inherent discretion in revoking appellant’s probation. The order of the trial court is therefore

AFFIRMED.

All the Judges concur.


text:
    Ex parte Wynn Everett FREE. (Re: Wynn Everett Free v. State).
    80-131.
    Supreme Court of Alabama.
    Jan. 29, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: DeCARLO, Judge.

text:
    Brenda Sue HEAD v. STATE.
    6 Div. 981.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.
    Larry Waites and J. Wilson Dinsmore of Dinsmore, Waites & Stovall, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Brenda Sue Head was indicted by the Jefferson County Grand Jury for first degree murder of her husband, Roy Anthony Head. At arraignment, with retained counsel present, she pleaded not guilty. After a jury trial, she was found guilty of second degree murder. Later, she was sentenced to ten years imprisonment in the penitentiary-

The evidence at the trial showed that the deceased’s natural mother saw her son approximately two days prior to his death. She testified that she later saw his body at the Davenport Smith Funeral Home. Further, she said that her son had been raised by his godmother, Mrs. Margaret Moore Head, from the time he was one year old.

During cross-examination, the witness stated that her son carried a gun in his car.

Margaret L. Head testified that her adopted son, the deceased, owned a 1976 Regal Buick and lived at 901 Goldwire Way, S. W., in Birmingham, with his wife, the appellant. According to the witness, her son had been married to the appellant, a student at Jefferson State College, for about one year.

On June 1,1978, at about 5:15 p. m., Mrs. Head had met her daughter-in-law, who insisted that the witness have dinner with the appellant and her mother. According to Mrs. Head, this was the first time she had been invited to dine away from home with the appellant; however, the witness had eaten with the appellant on Sundays on a number of occasions.

About an hour after they had returned home, Mrs. Head received a telephone call from the appellant. She sounded excited and told Mrs. Head that there was blood “and something white all over the utility room.” At that time, Mrs. Head asked the appellant if she saw the deceased or his automobile. The appellant responded that she did not. Mrs. Head instructed her daughter-in-law to stay there until she arrived and to call the detectives. Before Mrs. Head could leave her house, the appellant appeared and the two drove to the appellant’s house. After arriving, Mrs. Head saw “blood and brains all over the utility room.” At that point, Mrs. Head called the police. When the police arrived they talked to Mrs. Head and the appellant.

During cross-examination, Mrs. Head testified that her son was found on the Tuesday of the week after June 1, 1978.

Officer L. E. Strickland, an evidence technician for the Birmingham Police Department, responded to a call and went to the nineteen hundred block of 9th Avenue North on June 6, 1978. When he arrived, he saw a 1977 Buick Regal, bearing a ’78 tag numbered ABE-687, which was parked in a metered parking area. Although other officers were there, the car and the trunk were still locked. When the lock was pried off the trunk, a body, wrapped in a light colored blanket, was discovered. The body was in a deteriorated state, and photographs were made at that time. A .25 caliber automatic pistol and a Jefferson State ID card belonging to Windrell Floyd were found in the car.

Strickland testified that, on either June 6, 1978, or June 8, 1978, he had gone to 901 Goldwire Way and had made an examination of the utility room. He said that he found “minute reddish stains” on the back of the dryer and the washing machine, but the identity of the stains was never determined.

J. M. Glass, chief of medical investigation for Jefferson County Coroner Medical Examiners’ Office, testified that, on June 6, 1978, he had assisted in the performance of an autopsy on the deceased. According to Glass, the body was in a state of advanced decomposition and contained five gunshot wounds, four in the head and one in the chest. Three of the gunshot wounds to the head could have caused Roy Head’s death. Glass removed the projectiles from the body and turned them over to the Department of Forensic Sciences.

Lauden Yates, firearms identification expert with the Alabama Department of Forensic Sciences, testified that he received five spent projectiles which had been removed from the deceased’s body. These were identified as .22 caliber projectiles of unknown origin.

Detective Sergeant William T. Gaut of the Birmingham Police Department’s homicide division was in charge of investigating the death of Roy Anthony Head. Gaut was present when the body of the deceased was recovered from the automobile.

During the trial, an extensive voir dire examination was held out of the presence of the jury. The examination concerned a statement made by the appellant to Sergeant Gaut. The testimony at that voir dire hearing indicated that Gaut’s investigation was focused on someone other than the appellant at the time she blurted out an incriminating statement. Sergeant Gaut’s testimony indicated that, after talking to her at her home and in his office approximately fifteen times, he had never considered her a suspect.

The issue during the voir dire hearing was whether a statement she made, which was later recorded and transcribed, was in fact voluntary. The defense attorney argued that the inducement held out to the appellant was, in essence, an offer of protection to her. She had stated to Sergeant Gaut and Sergeant Wallace that she was afraid. At the conclusion of the testimony on voir dire, the court ruled that, under the circumstances, a motion to suppress would not be granted.

After the voir dire examination, Sergeant Gaut testified that he had gone to the appellant’s home on June 6, 1978. At that time, he observed the utility room “and in an area between the washer and dryer there was substantial amount of bloodstains, both on the floor and on clothing laying there in the floor.” On the morning of June 13, 1978, Gaut and his partner, Sergeant Wallace, visited the appellant at her home. That same day, Gaut returned to the appellant’s home and had a conversation with her. Before the conversation, appellant was not a suspect and had not been advised of her constitutional rights. During the conversation, the appellant made a statement indicating that she and Windrell Floyd, whose “ID” had been found in the deceased’s automobile, were the guilty parties in the homicide. Gaut immediately stopped the conversation, advised the appellant of her constitutional rights and carried her to the police station. In the detectives’ room at the police station, he again advised her of her constitutional rights, then made a recording of her statement, which was later transcribed. In that statement, the appellant said that the deceased had threatened to kill her many times and that she had told her friend, Windrell Floyd, about the threats. She stated that she had also told her mother, her aunt, and a friend named Toni, about the threats. At the suggestion of her aunt, she had talked to an attorney, Drayton James, and had told him “everything.”

The appellant said in the statement, that, about three weeks prior to the homicide, she had discussed with Windrell Floyed, at Jefferson State, the idea of killing the deceased. They developed a plan which was to be carried out on a Thursday afternoon when her husband arrived home.

On the day the deceased was reported missing, Floyd went to the appellant’s home. The appellant allowed Floyd to enter the house. Her mother, who lived there, had no knowledge of Floyd’s visit. The appellant then left the house with her mother, leaving Floyd alone, and they went to the deceased’s mother’s home. Floyd waited in the house for the deceased to arrive home. Floyd intended to talk with Head about why he wanted to kill the appellant. According to the appellant, Floyd had to shoot the deceased because he had attacked Floyd. He told the appellant that he had shot the deceased in the head with a .22. She recalled that she had seen Floyd loading the gun in her house on the day of the shooting. Further, she said that Floyd had told her that he had placed the body in the trunk of the car.

In the statement, the appellant said that, when she returned home and saw the blood, she was not sure what had happened. She said she thought “it was Windrell’s blood at first.” However, the next day she talked with Windrell.

Gaut testified that he had taken the appellant home after the statement was made and did not arrest her until two days later.

At the end of Gaut’s testimony, the defense moved to exclude the State’s evidence on the grounds that the State had failed to prove a prima facie case.

The motion was overruled and the appellant, after calling a character witness, her next door neighbor, and the attorney, Dray-ton James, took the stand in her own behalf. The appellant denied that she took any part in the killing of her husband. She testified that she had told Floyd about the threats the deceased had made on her life and that it was Floyd’s idea to come to her house on June 1, 1978. According to the appellant, she had told Floyd that the deceased carried a pistol. She also told Floyd that she wanted no part of anyone getting killed or hurt. Further, she said that the deceased had told her that he was going to kill Floyd.

During cross-examination, she admitted that, on Thursday, June 1,1978, the day her husband was killed, she let Floyd in the house. Further, she admitted that Floyd, at that time, showed her a pistol and she saw him load it.

I

The appellant contends that the trial court committed reversible error when it denied the portion of her motion to produce pertaining to the co-defendant’s, and accomplice’s, statement because the denial deprived her of information pertinent and material to the preparation of her defense.

Immediately prior to empanelling the jury, the defense counsel brought to the court’s attention the motion to produce which he had previously filed. At that time, the court inquired as to what the defense needed and what he had not obtained. The defense counsel stated that he desired a booklet taken from the deceased’s mother’s house and a statement which was made by the co-defendant. The court informed the appellant that a statement of the co-defendant would not be admissible. Counsel for the appellant listed other items which they desired, including a gun and a rope. The matter of the gun and rope was disposed of subsequently.

The appellant, under McLaren v. State, Ala.Cr.App., 353 So.2d 24, would not have been entitled to the statement:

“No absolute right to pre-trial discovery of a statement made by an accomplice to the police, implicating the defendant as the perpetrator of the crime charged, exists in Alabama ....
“In these cases unless the defendant shows an important reason to discover the contents of an accomplice's statement, such as to impeach the testimony of a witness or to uncover evidence tending to exonerate the defendant or aid in the preparation of his case, then generally the discovery is not allowed.”

In the present case, the appellant has failed to show any reason or need for the co-defendant’s statement. The co-defendant was not called as a witness, and the statement was not alluded to nor referred to during the trial. Beard v. State, Ala.Cr.App., 337 So.2d 1372.

II

The appellant insists the trial court committed reversible error when it allowed into evidence the appellant’s statement admitting her participation in the homicide. She argues that the statement was procured through promises given by the police and, thus, was involuntary.

Whether a confession is voluntary is determined by an examination of the totality of the circumstances surrounding the giving of the confession. Rogers v. State, Ala.Cr.App., 365 So.2d 322.

In the present case, an extensive voir dire examination concerning the admissibility of the appellant’s confession was conducted outside of the jury’s presence. Sergeant Gaut testified that, on June 1, 1978, he received a missing person’s report concerning the disappearance of the deceased. Five days later, he met the appellant in his office to inform her that her husband’s dead body had been discovered. During the next week, Gaut met the appellant approximately twelve to fifteen times and at no time during this period did he consider her a suspect.

On June 13, 1978, when Gaut went to the appellant’s residence and had the following conversation with her, he realized that she was involved in the homicide.

From the record:

“Q. On that occasion or at that point in time was Mrs. Brenda Sue Head a suspect in the death of Roy Anthony Head?
“A. Not really, no, sir.
# # # # * $
“Q. What, if anything did you say to her on that occasion, and what if anything did she say to you?
“A. I went there to her home, and once inside I called Mrs. Head and her mother into the living room. And told her that I was fairly certain that we now knew who in fact had killed her husband, or we thought we knew.
“Q. All right. When you made that statement did you have a suspect in mind at that time?
“A. Yes, I did.
“Q. And who was that suspect?
“A. The suspect was Jack T. Israel.
“Q. O. K. Would you go ahead and tell us what else you said to Mrs. Head and what did she say to you at that time?
“A. I told her that we thought we knew the man who had killed her husband. And we also thought and felt like in talking to her that she had information that would be vital to the proving of the case. That we realized that she was scared, that she was scared to talk to us. And she apparently had indicated that in prior discussions or we had gotten that general idea. And we told her that it was now, you know, time for her to go ahead and just tell us exactly what she knew about the case and to not hold anything back. And tell us everything she could so we could prosecute the man that killed her husband.
“Q. All right. Let me ask you this: The suspect, Jack T. Israel, where did he live, if you know, Sergeant?
“A. He lived across the street from Mrs. Head.
“Q. All right. What if any response did Mrs. Head make to that statement?
“A. At that point she said 0. K., she knew that she would have to talk to me sooner or later. And that she had been wanting to talk to me for nearly "the entire week. And she asked her mother—
“THE COURT: Let me stop you here. Was this Israel fellow a legitimate suspect?
“THE WITNESS: Yes, sir.
“THE COURT: You really thought that he was the man?
“THE WITNESS: Yes, sir.
“A. She asked her mother to leave the room. And her mother got up and walked out. And she said, 0. K., I’m going to go ahead and tell you all about it. That me and Windrell, and she stopped there. And she said y’all know about Windrell? And I said, who is Windrell? And she said, Windrell Floyd, y’all have got his ID card. And she said it was me and Windrell. And I stopped her then and I said, wait a minute. We’re apparently not talking about the same thing.
“And at that point I stopped the conversation and told her that I thought we should go downtown and talk further.
“Q. All right. Out there at the house did you advise the defendant of her constitutional rights?
“A. I advised her of her constitutional rights at that point immediately prior to leaving, but not prior to the conversation.
“Q. All right.
“THE COURT: Excuse me. Who was Israel? Who is that?
“THE WITNESS: Jack T. Israel was a fellow, a young man in his 20’s that lived directly across the street from Mrs. Head. Investigation indicated that he was a known narcotics addict. On the particular day, back on June the 1st, we had gone through several police reports and found some several reports of violence at or about the the exact time that we thought that Mr. Head had disappeared. He had attacked his mother and father. The police had been called to him a number of times. The last thing that we had from his mother and father was that he was acting like a wild man. And at or about 4:30 or 5:00 on that afternoon he had run out of the house, and as I said, he was completely violent. He had attacked, like I said, his mother and father.
“In discussing Mr. Israel with his mother and father we found out that he had some contact with Roy Anthony Head, the defendant’s husband, across the street in a narcotics type situation. And from that standpoint we had come to the assumption that Jack Israel was a prime suspect and that possibility of the death might have occurred perhaps due to some narcotics dealings or something.
“THE COURT: What did you think she knew about it?
“THE WITNESS: We thought at the time that she might have known that Jack Israel or at least suspected that Jack Israel had killed her husband but was too scared to talk about it because Jack had a reputation in the neighborhood of being very violent. And we thought that she was literally terrified to tell us anything because of being afraid of Jack Israel.
“THE COURT: You may continue.
Q. At the time that statement was made to you, Sergeant Gaut, did anyone in your presence or knowledge or hearing threaten or abuse the defendant in order to induce her to make that statement about her and Windrell?
“A. No, sir.
“Q. 0. K. You took her on down to the station; is that correct?
“Q. That’s correct; yes, sir.
“Q. And when you got to the station—
“THE COURT: And you gave her her constitutional rights there at the house?
“THE WITNESS: I gave them both there at the house and again at the police headquarters.
“THE COURT: Would you go into that, please, sir?
“MR. NAIL: O. K., sir.
“Q. Well, we’ll take up the time at the house. How did you advise the defendant of her constitutional rights there at the house?
“A. I read from a card.
******
“A.And I asked her if she understood, and she replied she did.
“Q. All right. Did anyone at that time in your presence or knowledge or hearing make any promises or offer to reward in order to induce the defendant to make a statement at the house at that time?
“A. No, sir.
“Q. Did you or anyone in your presence, knowledge or hearing tell the defendant it would be better or worse for her if she made a statement?
“A. No, sir.
******
“A.we proceeded from there to City Hall to my office.
ft * * * * *
“Q. And did the defendant make a statement in response to your questions at that time?
“A. Yes, sir.
“Q. Now, prior to this statement being made did you again advise the defendant of her constitutional rights?
“A. Yes, I did.”

Further, the record shows that neither Sergeant Gaut nor anyone in his presence or knowledge threatened, abused, or offered any promise or hope of reward in order to induce the appellant to make the statement.

From the record:

“Q. In your opinion, did the defendant understand her constitutional rights?
“A. Yes, she did.”

During questioning by the defense attorney at the voir dire hearing the following occurred:

“Q. And if I understand, you went in and told her that you had a prime suspect or a suspect, someone that you thought had killed her husband; is that correct?
“A. In essence, yes, sir.
“Q. Did you tell her the name?
“A. No, sir.
“Q.. Now, I believe you’ve indicated that prior to that day that you had realized that she was scared? I believe that was your term; is that correct?
“A. That’s correct, yes, sir.
“Q. On the prior occasions that you talked to her did she manifest being upset?
“A. Yes, sir.
“Q. On this occasion, June 13, did she appear to be upset?
“A. Yes, sir.
“Q. Nervous?
“A. Yes, sir.
“Q. She cried on occasions, didn’t she?
“A. On occasion, yes, sir.
“Q. And if I understand you, you told her that now was the time to tell you about what happened?
“A. Yes, sir.
“Q. At that time did you have any other suspect other than Israel?
“A. I would have to say, being an unsolved murder we hadn’t positively, you know, eliminated all suspects. I mean, there were a number of suspects, but Mr. Israel at that particular point was the suspect that our investigation had focused upon.
* * $ * * *
“Q. Was the tenor of the conversation that — with her that you knew that she was holding back and it would be best at this time to tell you about what happened; is that a fair description?
“A. I believe I told her, as I said, we knew that she was not telling us everything that she knew, or at least we thought she wasn’t.
“MR. WAITES: Excuse me just a second.
(Pause)
“THE COURT: Now do you mean that she wasn’t telling you everything — you thought she wasn’t telling you everything she knew about Israel?
“THE WITNESS: Yes, sir.
“THE COURT: Is that what you thought?
“THE WITNESS: Right. The purpose in not mentioning the name of Israel, I didn’t want to plant that particular name in her mind in the form that when she finally began to tell us about it we wanted her to be able to tell us all about Mr. Israel, rather than, you know, us telling her and simply having her verify or deny, you know, one thing or the other.
* # # * * *
“Q. Yes, sir. But did you not say any words that would indicate to her that she had no reason to fear?
“A. As I said, I don’t recall exactly. We indicated — Excuse me. I indicated to her that I knew that she was frightened, and I don’t recall whether I said anything about offering protection or not.
“Q. I understand that you didn’t say, ‘We will give you protective custody, or we will give you protection so that so and so won’t kill you.’ I understand that you didn’t make any specific remark like that. But was that not the gist of the conversation, that you felt like you knew who did it, and if she told you what she knew about it everything would be all right and she wouldn’t be hurt, in order to have her tell you what she knew?
“A. Yes, sir. I would say that that was the general gist of the conversation, yes, sir.”

From the foregoing testimony, it is not clear who or what was frightening the appellant. The gist of the testimony given was that she feared for her and her mother’s safety, but the source of the fear was unknown. Also, in the testimony we find that the appellant “felt like someone was trying to kill her husband, and she was afraid that she would be killed and her mother.”

During cross-examination of Sergeant Gaut at the voir dire hearing we find:

“Q. Now, on that afternoon if I understand you, I don’t believe you answered my question before and that is, when you told her in substance now is the time to tell you or talk to you, I’ll ask you if she then said y’all know about Windrell, me and Windrell, and then she stopped; is that what happened? Is that what you testified to earlier?
“A. Well, no. She didn’t — Not in that text. She said, ‘Y’all know about Wind-rell.’
“Q. O. K.
“A. And I replied something to the effect of what do you mean, Windrell? And she said ‘Windrell Floyd. Y’all have got his ID card from the car.’
“Q. O. K. And that was—
“A. And I said, ‘Yeah, we know about Windrell.’ And she said, ‘Well, y’all know about it then. It was me and Windrell.’ And as I say, at that point it became obvious, and to my best recollection I said something to the effect of just a minute, I don’t think you and I are talking about the same thing.
“Q. And that’s when you advised her of her rights?
“A. That’s when I stopped and advised her of her rights, yes, sir.”

Prior to the court ruling on whether the statement was voluntary and constitutionally permissible, counsel for the appellant moved to suppress the statement on the basis that “she was induced to tell him what happened because he convinced her that she had no reason to fear, that something would be done about the situation.” At the end of the voir dire hearing, the court concluded that, under the totality of the circumstances, the statement was voluntary and the motion to suppress would not be granted.

The testimony during the voir dire hearing seemed to indicate that Gaut believed the appellant was afraid of Israel, the person suspected of the homicide at that time. Also, the testimony indicates that Gaut had no idea that the appellant was afraid because of being involved in the homicide. Gaut was taken by surprise when the appellant confessed, “It was me and Windrell.” At the time of the confession Gaut was speaking to the appellant as a witness, not as an accused. Kelley v. State, Ala.Cr.App., 366 So.2d 1145.

Gaut made no promises to induce the appellant to confess. No trick or deception was used in this case.

Before the admission was made by the appellant, the investigation had not focused on either her or Windrell Floyd. Under these circumstances, Gaut was not obligated to advise the appellant of her constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See also C. Gamble, McElroy’s Alabama Evidence, § 201.02 (3rd ed. 1977).

When the appellant made the inculpatory statement, Gaut immediately stopped the conversation and advised her of her constitutional rights.

Under the facts in this case, the trial court correctly examined the totality of the circumstances surrounding the giving of this statement and determined that the admission was freely and voluntarily made. Deloach v. State, Ala.Cr.App., 356 So.2d 222; Holmes v. State, Ala.Cr.App., 342 So.2d 28; Fitzhugh v. State, 35 Ala.App. 18, 43 So.2d 831.

Ill

Next the appellant claims the trial court committed reversible error by refusing her written requested jury instructions on second degree manslaughter.

Generally, a defendant is entitled to a charge on the lesser degree of homicide, second degree manslaughter in this case, if there is any reasonable theory from the evidence to support the offense. Chavers v. State, Ala., 361 So.2d 1106. Further, the issue is not what is the court’s view of the evidence, “but simply whether such evidence was presented.” Hunter v. State, 295 Ala. 180, 325 So.2d 921; Giles v. State, Ala.Cr.App., 366 So.2d 351.

In Smith v. State, 56 Ala.App. 609, 324 So.2d 323, second degree manslaughter was defined as:

“ ‘[ T]he unlawful killing of another human being, without malice and without intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemean- or or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner.’ ”

In the present case, there is no evidence that Windrell Floyd accidentally killed the deceased. The evidence presented showed that Windrell Floyd and the appellant had discussed killing the deceased and had a plan to commit the homicide. In the appellant’s statement to the police, she said that Windrell Floyd had to shoot the deceased because the deceased had “jumped” him. The evidence does not indicate an unintentional or an accidental killing. The evidence showed that Floyd was waiting in the deceased’s home with a loaded gun in order to “talk” with him. Floyd was in the deceased’s home without the deceased’s knowledge, but with the knowledge and consent of the appellant. There is no dispute that Floyd shot the deceased four times in the head and one time in the chest.

The Supreme Court of Alabama in Williams v. State, 251 Ala. 397, 39 So.2d 37, stated:

“ ‘It has long been the settled law of the state that where the evidence shows that the blow which produced death was with a deadly weapon intentionally aimed at the person slain, the homicide, if not excusable on the ground of self-defense, is either murder or manslaughter in the first degree. The law in respect to manslaughter in the second degree is not applicable in such case.’ ”

In the case at bar, no evidence was presented to support an instruction to the jury on the offense of second degree manslaughter.

IV

The appellant asserts that the trial court erred by refusing to submit to the jury her written requested instructions on self-defense. According to the appellant, the evidence showing that Windrell Floyd had to kill the deceased after being “jumped” by him was evidence of self-defense as well as evidence of second degree manslaughter. The determination of this question, as we have stated before, is “simply whether such evidence was presented.” Hunter v. State, supra; Giles v. State, supra.

In Naugher v. State, 105 Ala. 26, 17 So. 24, the three elements of self-defense were noted by the Supreme Court. The defendant must show: “First, that at the time there was a necessity to take life, or that the circumstances were such as to create in the mind of the defendant a reasonable belief that it was necessary in order to save life or to prevent great bodily harm; second, that there was no reasonable mode of retreat or escape; and third, it must not appear that the defendant provoked or was at fault in bringing on the difficulty.”

In the present case, the fact that the deceased owned a .25 caliber automatic pistol did not give support to the appellant’s plea of self-defense. No evidence was shown that the pistol had been fired. There was no evidence that deceased had possession of the weapon at the time he was shot or that he had attempted to use it to shoot Floyd. We can reasonably conclude that, based on the evidence presented, Windrell Floyd provoked this incident. Under this fact alone, the claim of self-defense would have been properly denied by the court. See C. Gamble, McElroy’s Alabama Evidence, § 457.02(5)(a), (3rd ed. 1977).

V

The evidence presented in the case at bar raised questions of fact for the jury. This evidence, if believed by the jury, was sufficient to sustain the appellant’s conviction. Therefore, the denial of the motion to exclude the State’s evidence was not error. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have examined the record and have found no error prejudicial to the appellant; therefore, it is our opinion that the judgment of conviction by the Jefferson Circuit Court should be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Brenda Sue HEAD. (Re: Brenda Sue Head v. State of Alabama).
    80-106.
    Supreme Court of Alabama.
    Jan. 29, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: BOOKOUT, Judge.

text:
    R. B. COTTONREEDER v. STATE.
    8 Div. 351.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Nov. 25, 1980.

      Ronald Edward Jackson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

The appellant was convicted and sentenced to six months’ hard labor for Morgan County for violating § 13-6-226, Code of Ala.1975, which is as follows:

“Every person who enters into a combination with another to resist the execution of any legal process or other mandate of a court of competent jurisdiction, under circumstances not amounting to a riot, shall be guilty of a misdemeanor.”

Following a series of demonstrations around the Morgan County Courthouse, Circuit Judge R. L. Hundley, during the jury term of the circuit court, signed and issued an order, which in pertinent part states:

“It appears to the Court that certain persons and loiterers have congregated in the vicinity of the Court. These persons constitute a source of interference, and disturbance to the Courts, to the jurors, witnesses and parties, as well as the general public. The following shall be done to insure order.
“FIAT
“Persons who fail to show the officers securing the building that they have specific business with the circuit courts or offices located in the building shall not be allowed in. The press shall have free access to the courtrooms and all public areas to the courthouse and its curtilage without restraint of any kind. No cameras shall be allowed in any part of the courthouse or its curtilage.
“The Sheriff shall strictly enforce all the provisions of this order.
“The restrictions shall not apply beyond the present jury term of court.
“This the 26th day of June, 1978.”

Deputy Sheriff Bradley C. Cook testified that on June 26 he received a copy of the above order from Judge Hundley, and copies of the order were posted on all outside doors leading into the courthouse. On that same date the appellant came to the courthouse, and Deputy Cook served a copy on him. The appellant returned to the courthouse the next day and was asked by deputies to state his business. He stated that he needed to go to the registrar’s office and also to talk with the sheriff. The deputies then admitted him to the building.

On June 28 the appellant again returned to the courthouse, and the incident in question arose. Around 1:00 p. m. on that date, Deputy Cook observed a small white foreign car with four passengers drive up to the front of the courthouse. June Ford, Larry Kirk, and the appellant got out of the car. The two men emptied their pockets and gave their personal effects to the driver. Ford, Kirk, and the appellant then approached deputies guarding the courthouse doors. Deputy Cook asked the group to state their business in the courthouse, and they refused. The appellant stated that he was a citizen of the United States and a temporary resident of Morgan County and had personal business in the courthouse. He said he did not have to state a specific reason and the constitution did not require it. Appellant continued to refuse to state his business in the courthouse and refused to leave saying that “he wasn’t backing off” and if he was violating any law for Deputy Cook to arrest him. Cook complied and placed him under arrest.

I

Appellant contends the instant statute was applied to him in an unconstitutional manner, denying him his first amendment rights. We disagree.

The evidence clearly shows that the appellant and his two companions came to the courthouse for the purpose of disobeying the order of the circuit court. Appellant had received a copy of the court order on June 26. He had obtained admission to the courthouse on June 27 by merely stating the nature of his business there in compliance with the order. However, it is obvious from the evidence that the appellant and his companions, acting in concert, came to the courthouse on June 28 with the intention and expectation of being arrested.

A reasonable inference from the evidence is that appellant and his male companion would not have emptied their pockets and given their personal effects to the driver of the car had they not expected to be processed into the county jail shortly thereafter. The evidence indicates that appellant and his companions did not come to the courthouse to exercise their freedom of speech or of assembly, but rather to seek a confrontation and to challenge the court order by a flagrant defiance of it rather than by petitioning the court for a modification or dissolution of the order.

In Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), the Jefferson Circuit Court had issued an injunction restraining the petitioners from participating in or encouraging mass street parades without obtaining a city parade permit. The Supreme Court held that, although questions could be raised as to the generality of the parade ordinance and the vagueness of the injunction, the petitioners were nevertheless properly convicted of contempt because they did not attempt to have the injunction dissolved or modified, but instead deliberately violated it with the expectation of going to jail. The Court stated, at page 317, 87 S.Ct. at page 1830:

“The breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question. But the way to raise that question was to apply to the Alabama courts to have the injunction modified or dissolved. The injunction in all events clearly prohibited mass parading without a permit, and the evidence shows that the petitioners fully understood that prohibition when they violated it.”

In the case of Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), a group of demonstrators were arrested for refusal to leave the grounds of Leon County Jail after being ordered to do so by the jailer. The Supreme Court in that case affirmed their conviction under Florida’s trespass with malicious intent statute. The Court stated, at page 47, 87 S.Ct. at page 247:

“Nothing in the Constitution of the United States prevents Florida from evenhanded enforcement of its general trespass statute against those refusing to obey the sheriff’s order to remove themselves from what amounted to the curti-lage of the jailhouse. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners’ argument that they had a constitutional right to stay on the property, over the jail custodian’s objections, because this ‘area chosen for the peaceful civil rights demonstration was not only “reasonable” but also particularly appropriate * * *.’ Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on.... We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose.” (Citations omitted.)

Even the dissenting opinion of Mr. Justice Douglas, in which Chief Justice Warren and Justices Brennan and Fortas concurred, stated:

“There may be some public places which are so clearly committed to other purposes that their use for the airing of grievances is anomalous. There may be some instances in which assemblies and petitions for redress of grievances are not consistent with other necessary purposes of public property. A noisy meeting may be out of keeping with the serenity of the statehouse or the quiet of the courthouse .... ”

In Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the Supreme Court stated:

“There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create. Since we are committed to a government of laws and not of men, it is of utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy. See Wood v. Georgia, 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 L.Ed.2d 569. ... A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence. A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State’s interest in assuring justice under law.”

The Court stated further in Cox, at page 574, 85 S.Ct. at page 486:

“We also reaffirm the repeated decisions of this Court that there is no place for violence in a democratic society dedicated to liberty under law, and that the right of peaceful protest does not mean that everyone with opinions or beliefs to express may do so at any time and at any place. There is a proper time and place for even the most peaceful protest and a plain duty and responsibility on the part of all citizens to obey all valid laws and regulations ... . ”

In the case of Thomas v. City of Eufaula, 44 Ala.App. 643, 218 So.2d 813 (1968), cert. denied, 283 Ala. 719, 218 So.2d 817 (1969), the defendant and others held a demonstration or protest on the steps of the county courthouse which disrupted business within the courthouse. After repeated warnings and requests by the mayor to disperse, and on refusal to do so, the group was arrested. They were charged with willfully remaining at an unlawful assembly after being warned to disperse by a magistrate pursuant to Title 14, § 412, Code of Ala.1940.

This court affirmed the convictions and held the proceedings under Title 14, § 412, supra, did not deprive the defendants of the constitutional rights of free speech, assembly, petition for redress of grievances or due process of law. The code section there was held not to be vague and overbroad on its face and was, therefore, a valid criminal statute. The holding in that case rested primarily upon Adderley and Cox, supra.

We likewise find in the instant case that § 13-6-226, Code of Ala.1975, is not vague or overbroad on its face. In clear terms it prohibits a combination to resist execution of any legal process or the execution of any legal mandate of a court of competent jurisdiction. Circuit courts have the power to abate obstructions, hindrances, or interruptions to the administration of justice. Such authority extends even to the closing of streets in the vicinity of a courthouse to traffic which disturbs or disrupts the trial of cases. Ex parte Mayor and Aldermen of Birmingham, 134 Ala. 609, 33 So. 13 (1902).

Likewise, § 12-1-7, Code of Ala.1975, provides:

“Every court shall have power:
“(1) To preserve and enforce order in its immediate presence and as near thereto as is necessary to prevent interruption, disturbance or hindrance to its proceedings; ...”

The authority of the circuit court to issue the instant mandate or order is therefore well established by common law and by statute.

II

The appellant contends that no “solicitor’s complaint” appears in the record and, therefore, no jurisdiction was conferred upon the circuit court to try the instant case de novo on appeal from the district court.

The instant record contains a copy of the original complaint upon which charges were initiated in the district court. That complaint was sworn to by Deputy Sheriff Bradley C. Cook before a magistrate of the district court. Section 12-22-113, Code of Ala.1975, requires the filing of a complaint by the district attorney (formerly solicitor’s complaint) on such appeals to the circuit court. No district attorney’s complaint is in the record.

The requirement of filing a district attorney’s complaint pursuant to § 12-22-113, supra, has been held to be mandatory. The absence of such a complaint signed by the district attorney or deputy district attorney mandates a reversal of the circuit court’s judgment unless there has been a waiver on the part of the appellant. Campbell v. State, 42 Ala.App. 33, 151 So.2d 407 (1963); Bonds v. State, 28 Ala.App. 194, 180 So. 735 (1938).

In Taylor v. City of Decatur, 40 Ala.App. 571, 117 So.2d 786 (1959), the defendant was deemed to have waived the filing of the solicitor’s complaint where he did not demand one and where he filed a demurrer in circuit court to the original complaint sent up from the inferior court. Likewise, in the instant case, we find no demand by appellant that the circuit court proceed on a district attorney’s complaint and likewise we find that appellant filed a demurrer in circuit court to the original complaint sent up from the district court.

The issue of the failure of the district attorney to comply with Code § 12-22-113 was raised for the first time in appellant’s brief which was untimely filed with this court on appeal. No error results.

AFFIRMED.

All the Judges concur.


text:
    Ex Parte R. B. COTTONREEDER. (Re R. B. Cottonreeder v. State of Alabama).
    80-165.
    Supreme Court of Alabama.
    Jan. 29, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: PER CURIAM. McDONALD, Justice,

text:
    Dante A. BATTILLA and Gail A. Battilla, his wife, Appellants, v. ALLIS CHALMERS MANUFACTURING COMPANY and Travelers Insurance Company, Appellees.
    No. 55908.
    Supreme Court of Florida.
    Dec. 11, 1980.
    Rehearing Denied Feb. 12, 1981.
    Walter G. Campbell, Jr. of Krupnick & Campbell, and Nancy Little Hoffmann, Fort Lauderdale, for appellants.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellees.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County. The judgment passed upon the validity of a state law. The notice of appeal was filed January 12, 1979. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. (1972).

The circuit court held that this product liability action was barred by the statute of limitations, section 95.031, Florida Statutes (1975). We reverse on the authority of Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979), and hold that, as applied to this case, section 95.031 denies access to courts under article I,, section 21, Florida Constitution. See also Purk v. Federal Press Co., 387 So.2d 354 (Fla.1980); Bauld v. J. A. Jones Construction Co., 357 So.2d 401 (Fla.1978).

It is so ordered.

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

McDONALD, J., dissents with an opinion, with which OVERTON and ALDERMAN, JJ., concur.

McDONALD, Justice,

dissenting.

I disagree that there is anything unconstitutional about section 95.031(2). Although I recognize that the language in Overland is such that it could be authority to extend its application to this section, I would limit that holding to section 95.-ll(3)(c). I do this not for any reason expressed or exceptions made in Overland but because a twelve-year limitation may be reasonable for liability for manufactured products and not for liability for improvements to real property.

Until the decision of Matthews v. Lawnlite Co., 88 So.2d 299 (Fla.1956), Florida recognized the early common law rule which inhibited recovery where there was no privity of contract. Since then the law of products liability has evolved to the point that we now recognize liability of a manufacturer which sells a product in a defective condition unreasonably dangerous to the user or consumer.

This developing liability of a manufacturer creates a policy dispute. It could be logically argued that once a product is manufactured and sold a manufacturer should be subject to liability for an injury whenever caused by that product. It could also be argued that such liability would place an onerous burden on industry and that, therefore, liability should be restricted to a time commensurate with the normal useful life of manufactured products.

The legislature, in enacting section 95.-031(2), has determined that perpetual liability places an undue burden on manufacturers. It has determined that twelve years from the date of sale is a reasonable time for exposure to liability for manufacturers of products. I perceive a rational and legitimate basis for the legislature to take this action, particularly in view of the relatively recent developments in expanding the liability of manufacturers. Because the normal useful life of buildings is obviously greater than most manufactured products there is a distinction in the categories of liability exposure between those sought to be limited by section 95.11(3)(c), struck down in Overland, and those listed in section 95.031(2).

I would sustain the trial judge’s actions in upholding section 95.031(2), Florida Statutes, which statute restricts actions against a manufacturer to twelve years from the date of the sale of the product.

OVERTON and ALDERMAN, JJ., concur.

      . Overland Construction Co., Inc. v. Sirmons, 369 So.2d 572 (Fla.1979).

      . West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976).