text:
    STATE of Louisiana, Respondent-Appellee, v. Randy BURNS, Relator-Appellant.
    No. K83-805.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Michael I. Murphy, Kelly & Salim, Natch-itoches, for relator-appellant.
    Michael Bonnette, Asst. Dist. Atty., Natchitoches, for respondent-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

Defendant, Randy Burns, was charged with two counts of simple burglary. At trial the court granted the State’s motion to amend the charges to two counts of theft less than $100.00. Subsequently, the court granted the State’s motion to dismiss one of the charges and the defendant was tried on one count of theft less than $100.00. Following trial, the defendant was found guilty of one count of misdemeanor theft, a violation of LSA-R.S. 14:67. He was sentenced to a fine of $500.00 or 60 days in the parish jail in default of the payment thereof. We granted a writ to review defendant’s conviction.

Defendant’s application presents the following assignments of error:

1. The trial court erred in not granting the defendant’s motion for acquittal.
2. The trial court erred in not finding that the conviction was contrary to the law and evidence.
3. The trial court erred in finding that the evidence presented in this case was conclusive beyond a reasonable doubt so as to support a conviction of theft.

FACTS

On July 5, 1982, the defendant, Randy Burns and an acquaintance, Mark Latchney, were at a local swimming hole, Kisatchie Creek, Natchitoches Parish, Louisiana. A white Rambler, containing four persons, arrived at the creek. After parking, these four persons proceeded to a favorable spot out of sight of their vehicle. Upon noticing the defendant watching them, the driver of the Rambler became suspicious. One of his friends, Mike Gorley, was sent to check on the vehicle. Upon investigation, it was discovered that the driver’s tapes were missing. A couple of days later, while checking around with other patrons of the swimming area, the victim of the theft, Leslie Ingram, learned the names and addresses of the alleged perpetrators. He called the Natchi-toches Sheriff’s Department and filed charges against the defendant and Mark Latchney. Pursuant to an arrest warrant, the deputy arrested and searched the residence of Mark Latchney. The missing tapes were found and identified. Mark Latchney, upon arrest, made a written statement informing deputies that the defendant had taken the tapes from the hood of the vehicle. (This statement was, however, retracted by his testimony in open court). When arrested, the defendant denied any part in the theft, and no evidence was found in his possession.

ASSIGNMENTS OF ERROR NOS. 1,

2 AND 3

All assignments of error concern the issue of sufficiency of the evidence and will be treated together. The defendant argues that the conviction is based oh insufficient circumstantial evidence.

The defendant was tried on one count of theft of a thing or things with a value less than one hundred dollars ($100.00). The pertinent part of LSA-R.S. 14:67 provides:

“Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.”

The issue is whether the State has adequately proven that Randy Burns, the defendant, did participate in the misappropriation of the tapes belonging to Leslie Ingram, without his consent and with an intent to permanently deprive him of the tapes.

The due process clause of the Fourteenth Amendment requires this Court to review the evidence upon which a criminal conviction was based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (U.S.1979). Additionally, we are governed by the Louisiana Statutory rule as to circumstantial evidence:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438.

Incorporating this rule under the Jackson standard, we must determine that, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact would have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. State v. Honeycutt, 438 So.2d 1303 (La.App. 3rd Cir.1983). Citing State v. Morris, 414 So.2d 320 (La.1982); State v. Ennis, 414 So.2d 661 (La.1982).

The evidence linking the defendant with the theft is very tenuous. In essence, the only evidence tending to connect the defendant "with the theft is the fact that defendant was present at Kisatchie Creek on the day of the theft with a close acquaintance named Mark Latchney, at whose residence the missing items were found. The transcript makes reference to an eyewitness, Mike Gorley, who allegedly witnessed the defendant’s alleged activities around the car. However, the State never sought to subpoena the only witness that could substantiate the alleged guilt of the defendant. The statement by Mark Latch-ney, incriminating the defendant, was not given under oath and was claimed to have been given under duress of threats and promises by sheriff’s deputies. However, his repudiation of the statement was given under oath and was made against his interest. There was no incriminating tangible evidence found at defendant’s residence and defendant maintained his innocence from arrest to trial.

Circumstantial evidence consists of proof of collateral facts and circumstances from which elemental factors may be inferred according to reason, experience and common sense. State v. Bindom, 410 So.2d 749 (La.1982); State v. Jackson, 419 So.2d 837 (La.1982).

The facts set forth in the record might be sufficient to give rise to a reasonable inference that Randy Burns did participate in the theft, but they are not sufficient to exclude other reasonable hypotheses of innocence. The defendant’s version of his activities on the day in question is very plausible. Without the eye-witness, who was available to the state, but not used, the circumstantial evidence standard is not satisfied. Therefore, we determine that when viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have concluded beyond a reasonable doubt that every reasonable hypothesis of defendant’s innocence had been excluded.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution precludes a second trial once a reviewing court finds the evidence at the first trial to be legally insufficient to support a guilty verdict. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

For the above and foregoing reasons, the writ granted is made peremptory, defendant’s conviction and sentence are reversed, and a judgment of acquittal is entered.

REVERSED AND RENDERED


source: Caselaw Access Project

author: PATTERSON, Chief Justice, DAN M. LEE, Justice,

license: Public Domain

text:
    John Buford IRVING, III v. STATE of Mississippi.
    No. 54358.
    Supreme Court of Mississippi.
    Aug. 24, 1983.
    Rehearing Denied Dec. 14, 1983.

      Ford & Ford and James 0. Ford, Tupelo, for appellant.
    Bill Allain, Atty. Gen., by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   PATTERSON, Chief Justice,

for the Court:

John Buford Irving, III, was originally tried, convicted and sentenced to death in 1976 for the capital murder of store owner Gambrell Ray of Pontotoc County. Both conviction and sentence were affirmed by this Court in Irving v. State, 361 So.2d 1360 (Miss.1978), where the facts necessary to this opinion are stated. Subsequently the United States District Court for the Northern District of Mississippi vacated the death sentence because it was that court’s opinion Irving received ineffective assistance of counsel. Pursuant to the district court’s order, the state instituted resentencing proceedings, and Irving was again sentenced to death. He appeals, citing the following as error:

1. The trial court erred in granting State’s instruction S-l;

2. The trial court erred in refusing defendant’s instructions D-3, D-4 and D-ll;

3. The sentence of death was excessive or disproportionate to the penalty in similar cases;

4. The trial court erred in applying Miss. Code Ann. § 99-19-101 (effective from and after April 13, 1977).

Under his first assignment of error, Irving contends the granting of general sentencing instruction S-l was error for two reasons. We address each of these separately.

First, Irving argues the instruction improperly omitted definitions of the terms “robbery” and “pecuniary gain.” The part of S-l pertinent to this argument appears below:

Consider only the following elements of aggravation in determining whether the death penalty should be imposed:
(1) Whether or not the capital murder was committed while the defendant, John Buford Irving, III, was engaged in the commission of the crime of robbery and was committed for pecuniary gain. (Emphasis ours.)

Irving submits that by failing to define the emphasized terms the trial court neglected to channel the jury’s discretion in arriving at sentence. We are of the opinion this argument fails in view of the posture of this case. In that the conviction by the first jury was not disturbed on appeal, the present sentencing jury was prohibited by the doctrine of res judicata from relitigat-ing the issue of guilty. Rather, the second jury’s function was to accept the first jury's finding that Irving was guilty of felony-murder involving robbery and then to determine sentence. Thus the definition of robbery and pecuniary gain would have been pointless and possibly confusing to the sentencing jury. We therefore conclude that the trial court s refusal to define these terms was not error.

Appellant also argues the trial court erred in combining pecuniary gain with robbery in the first circumstance. We have held these terms are not mutually exclusive. Smith v. State, 419 So.2d 563 (Miss.1982); Voyles v. State, 362 So.2d 1236 (Miss.1978). Tokman v. State, 435 So.2d 664 (Miss.1983), on facts similar to those in this case, upheld an instruction setting out robbery and pecuniary gain as separate aggravating circumstances. Thus while it would have been proper for the trial court to have separately listed these two aggravating circumstances, the court did not do so and the appellant now complains because of their being combined into one circumstance. We are of the opinion instruction S-l had the same content found permissible in previous cases and this argument is without merit. Moreover, the combining of the terms into one circumstance could possibly have benefitted Irving by presenting the jury with only one aggravating circumstance where two separate ones would have been justified.

Appellant’s next attack on instruction S-l involves the second aggravating circumstance, taken from Mississippi Code Annotated, § 99-19-101(5)(h) (1972), “that the murder was committed in an especially heinous, atrocious, or cruel manner.” He urges it was error for the court to omit definitions of these terms. This argument is meritless in view of Washington v. State, 361 So.2d 61, 66 (Miss.1978), wherein we stated:

It is our considered opinion that the average jury in its sound discretion and judgment understands the generally accepted meaning of the words “especially heinous, atrocious or cruel” and is able to apply these words to different factual situations without further definition of these words.
It is our opinion that these words are not unconstitutionally vague.

See also Coleman v. State, 378 So.2d 640 (Miss.1979), and Tokman v. State, 435 So.2d 664 (Miss.1983).

Irving also argues that the evidence did not suggest the murder was “conscienceless or pitiless” or “unnecessarily torturous to the victim.” Coleman v. State, 378 So.2d at 648, citing Spinkellink v. Wainwright, 578 F.2d 582, 611 (5th Cir.1978). Irving relies heavily on the fact that Ray died instantly. While the great majority of death penalty cases affirmed by this Court involve some type of physical and/or mental torture to the victim, we have never specifically held that a finding of § 99-19-101(5)(h) must be supported by evidence of prolonged suffering. In Edwards v. State, 413 So.2d 1007 (Miss.1982), involving a robbery murder victim who died within fewer than thirty minutes of a single shotgun wound to the chest, we held the death penalty was not excessive, stating “A more calloused and unjustifiable killing could hardly be imagined.” 413 So.2d at 1013.

The evidence in this case reveals the victim died instantly of a single shotgun wound to the neck. Doubtless Ray was in fear of his life from the time he saw the gun pointed at him until he was shot a few seconds later. We observe the other cases in characterizing Irving have focused on other elements besides torture or suffering, such as the fact that the killing was “totally senseless” and committed upon a hapless unarmed victim, Coleman v. State, 378 So.2d at 650. The record shows Irving had known Ray for many years, that Irving used this familiarity to gain admittance into the store after hours and then shot Ray for a small amount of money. Because of these facts and considering that the present case depicts a killing no less heinous than those in Edwards and Gilliard v. State, 428 So.2d 576 (Miss.1983), it was not error for the court to include § 99-19-101(5)(h) in instruction S-l.

Appellant next argues that the trial court erred in refusing to grant instructions D-3, D-4 and D-ll.

Instruction D-3 states, “I charge you that mitigating circumstances are those which do not constitute a justification or excuse for the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame.” We have held there is no reversible error where the instructions read as a whole fairly announce the law of the case and create no injustice. Norman v. State, 385 So.2d 1298, 1303 (Miss.1980). See also Barr v. State, 359 So.2d 334 (Miss.1978). Nor is a trial court required to grant cumulative or repetitious instructions. Ragan v. State, 318 So.2d 879 (Miss.1975).

The trial court granted instruction S-l which defined mitigating circumstances as “those which tend to warrant the less severe penalty.” Further, the enumeration within S-l of the particular circumstances which the jury was allowed to consider reinforced this definition:

(1) Whether the defendant has a significant history of prior criminal activity.
(2) The defendant’s age at the time of the capital murder.
(3) Whether the defendant was an accomplice to the capital murder committed by another person and the defendant’s participation was relatively minor.
(4) Any other matter, any other aspect of the defendant’s character or record, and any other circumstances of the offense brought before you during the trial of this cause which you, the Jury, deem to be mitigating on behalf of the defendant.

Thus we are of the opinion that S-l contained the substance repeated in D-3 and that it was therefore properly denied.

Instruction D-ll would have informed the jury that they might recommend mercy regardless of the weight of the aggravating and mitigating circumstances. Directly in point is Jordan v. State, 365 So.2d 1198 (Miss.1978), in which appellant relied on the following language from Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976), “The jury shall not be required to make a special finding of any mitigating circumstances in order to return a verdict that the accused should be sentenced to life in prison.” In Jordan we considered this language and stated:

We note the great difference in not requiring the jury to find any mitigating circumstances in order to return a verdict of life imprisonment as opposed to not requiring the jury to “make a special finding of any mitigating circumstance in order to return a verdict that the accused should be sentenced to life in prison.” 365 So.2d at 1205.

We find no authority requiring the trial court to grant an instruction such as D-11. Moreover, Bullock v. State, 391 So.2d 601, 610 (Miss.1980), held that the “mercy instruction” was properly denied as conflicting with the court’s instruction to weigh the mitigating circumstances against the aggravating .circumstances. However, compare Tokman v. State, wherein we approved the granting of such instruction. It therefore appears that the “mercy instruction” is not mandated, but will be approved if granted by the trial court largely because it is not prejudicial to a defendant.

Instruction D-4 would have required the jury to specifically consider the eight mitigating circumstances enumerated as follows:

(a) The defendant has no record of criminal convictions for crimes involving force or violence to persons;

(b) The youth of the defendant at the time of the crime;

(c) The defendant’s prior family history ■ that would reasonably be expected to contribute to the defendant’s criminal conduct including:

(1) Fatherless up-bringing;

(2) Lack of parental guidance.

(d) Since the murder, the defendant has been spiritually converted and has committed his life to Christ;

(e) The defendant is a model prisoner;

(f) He is an ordained minister and ministers to his fellow inmates daily;

(g) He has been instrumental in reforming persons addicted to drugs;

(h) The defendant did not kill the victim. The court denied instruction D-4 because it contained elements not listed in Mississippi Code Annotated, § 99-19-101 (1972), but granted instruction S-l, which set out the following mitigating circumstances:

(1) Whether the defendant has a significant history of prior criminal activity.
(2) The defendant’s age at the time of the capital murder.
(3) Whether the defendant was an accomplice to the capital murder committed by another person and the defendant’s participation was relatively minor.
(4) Any other matter, any other aspect of the defendant’s character or record, and any other circumstances of the offense brought before you during the trial of this cause which you, the Jury, deem to be mitigating on behalf of the defendant.

Noting that opinions of federal circuit courts are normally persuasive, we distinguish Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), which held the trial court could not specifically prohibit the jury from considering mitigating circumstances in addition to those listed in the statute. No such prohibition is found in the present case; to the contrary, the trial court clearly instructed the jury that they could consider additional mitigating factors. The record contains scores of pages of testimony from seventeen witnesses relating to each factor in instruction D-4. This testimony went with the jury through instruction S-l in its deliberation. This authorized the jury to consider all the elements set out in instruction D-4, and therefore renders meritless appellant’s complaint about the refusal of D-4.

Under his third assignment of error, Irving argues the following language from Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), requires reversal in the present case:

Although the judgments of legislatures, juries and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one such as Enmund who aids and abets a felony in the course of which a' murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. We have concluded, along with most legislature and juries, that it does not.
458 U.S. at 796, 102 S.Ct. at 3376, 73 L.Ed.2d at 1151.

We are of the opinion this argument is predicated on the erroneous assumption that the jury was bound to accept the impeached and contradicted testimony of appellant’s cousin, Keith Givhan, that it was Givhan and not Irving who shot Gamb-rell Ray. Noting first that the jury was entitled to reject such testimony, we again state that the issue of guilt was res judica-ta. Therefore, we are of the opinion that appellant is in no position to raise Enmund.

Appellant last argues the trial court’s utilization of MCA, § 99-19-101 (effective from and after April 13, 1977) in his sentencing trial was improper according to MCA, § 99-19-1 (1972), and the ex post facto clause of the United States Constitution. MCA, § 99-19-1 reads as follows:

No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes.

Since appellant was originally tried and convicted in 1976 for this crime, he argues he should not have been sentenced according to the provisions of MCA, § 99-19-101, which did not come into effect until 1977. We conclude this argument fails on several grounds.

First, we are of the opinion appellant has misapplied § 99-19-1. By its terms, the statute comes to life only with respect to statutory changes “affecting the crime or its punishment.” The 1977 amendments did not affect the substance of capital law but merely made changes in the procedures by which such cases were to be tried. Therefore, we do not find § 99-19-1 requires reversal in this ease.

Next considering appellant’s ex post facto argument, we note a similar issue was addressed in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Between the time of the commission of Dob-bert’s offense and the time of trial, Florida’s death penalty statutes were changed to provide different procedures for determining sentence in capital cases. Dobbert argued the state violated the ex post facto clause by trying and sentencing him according to the new statutory procedures. The Supreme Court rejected this argument, stating, “It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” 432 U.S. at 294, 97 S.Ct. at 2299, 53 L.Ed.2d at 357. The Court noted that the new statute, “simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime.” 432 U.S. at 293-94, 97 S.Ct. at 2298-99, 53 L.Ed.2d at 356. Finding that the statutory changes made between the time of the crime and the time of the trial were “procedural, and on the whole ameliorative,” the Supreme Court upheld the sentence. 432 U.S. at 292, 97 S.Ct. at 2298, 53 L.Ed.2d at 355.

We are of the opinion the foregoing analysis applies to this case. In Gray v. State, 351 So.2d 1342, 1349 (Miss.1977), we considered the 1977 enactments and stated:

It will be observed that the statute requires a different form of verdict than the one set forth in Jackson v. State, supra. Miss.Gen.Laws Ch. 458 (1977) was enacted after our decision in Jackson, supra, and sets forth aggravating and mitigating circumstances to be considered by the jury at the punishment stage of a capital case. Juries shall be instructed in accordance with the statute in all trials after April 13,1977, the effective date of the statute.

Implicit in this pronouncement was that the new statutes provided increased protection for capital defendants and the intent that all such defendants on trial after April 1977, should merit this protection. We are of the opinion the ex post facto contention is without merit.

We have reviewed the record and conclude that Irving received a fair trial. We also conclude the death penalty for John Buford Irving, III, is not disproportionate, wanton or freakish when compared with our other decisions upholding the death penalty subsequent to Jackson v. State, 337 So.2d 1242 (Miss.1976). Having scrutinized the'record and found no reversible error, we affirm the judgment of the lower court and set Wednesday, September 28, 1983, as the date for execution of the sentence and infliction of the death penalty in the manner provided by law.

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.

HAWKINS and ROBERTSON, JJ., not participating.

APPENDIX “A”

DEATH CASES AFFIRMED BY THIS COURT:

Tokman v. State, 435 So.2d 664 (Miss.1983).
Leatherwood v. State, 435 So.2d 645 (Miss.1983).
Hill v. State, 432 So.2d 427 (Miss.1983).
Pruett v. State, 431 So.2d 1101 (Miss.1983).
Gilliard v. State, 428 So.2d 576 (Miss.1983).
Evans v. State, 422 So.2d 737 (Miss.1982).
King v. State, 421 So.2d 1009 (Miss.1982).
Wheat v. State, 420 So.2d 229 (Miss.1982).
Smith v. State, 419 So.2d 563 (Miss.1982).
Edwards v. State, 413 So.2d 1007 (Miss.1982).
Johnson v. State, 416 So.2d 383 (Miss.1982):
Bullock v. State, 391 So.2d 601 (Miss.1980).
Reddix v. State, 381 So.2d 999 (Miss.1980).
Jones v. State, 381 So.2d 983 (Miss.1980).
Culberson v. State, 379 So.2d 499 (Miss.1979).
Gray v. State, 375 So.2d 994 (Miss.1979).
Jordan v. State, 365 So.2d 1198 (Miss.1978).
Voyles v. State, 362 So.2d 1236 (Miss.1978).
Irving v. State, 361 So.2d 1360 (Miss.1978).
Washington v. State, 361 So.2d 61 (Miss.1978).
Bell v. State, 360 So.2d 1206 (Miss.1978).

DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RE-SENTENCING TO LIFE IMPRISONMENT.

Dycus v. State, 440 So.2d 246 (Miss.1983).
Edwards v. State, 441 So.2d 84 (Miss.1983).
Coleman v. State, 378 So.2d 640 (Miss.1979).

ON PETITION FOR REHEARING

EN BANC.

DAN M. LEE, Justice,

for the Court:

This matter is presented to us in the form of a petition for rehearing of an opinion rendered by this Court wherein we affirmed John Buford Irving’s sentence of death, for his role in the capital murder of store owner, Gambrell Ray. Following Irving’s first trial both his conviction and death sentence were affirmed by this Court in Irving v. State, 361 So.2d 1360 (Miss.1978). Subsequently Irving’s death penalty was vacated by the United States District Court for the Northern District of Mississippi because that court concluded that Irving had received ineffective assistance of counsel. The District Court’s opinion did not vacate the jury’s finding of guilt. Therefore, Irving was retried solely on the second phase of the bifurcated trial, the sentencing phase. A new jury was selected and Irving again received the death penalty. This Court affirmed that sentence of death in an opinion handed down August 24, 1983. It is from that affirmance that Irving now brings this petition for rehearing.

The first point raised by Irving in his petition is that our opinion was based on a false factual assumption because it stated that the facts pertinent to the decision could be found in the original Irving opinion which the District Court vacated as to the death sentence. Irving states that because he did not testify in the first trial and did in the second, reference to the facts as stated in the first opinion creates an incomplete factual situation. This point is not well taken as reference to our opinion reveals that we did consider Irving’s testimony in the second trial in which he denied firing the fatal shot and instead placed the blame for that shot on his accomplice, Keith Givhan. Our opinion plainly held:

We are of the opinion this argument is predicated on the erroneous assumption that the jury was bound to accept the impeached and contradicted testimony of appellant’s cousin, Keith Givhan, that it was Givhan and not Irving who shot Gambrell Ray. Noting first that the jury was entitled to reject such testimony, we again state that the issue of guilt was res judicata. Therefore, we are of the opinion that appellant is in no position to raise Enmund.

Therefore it cannot be said that our opinion ignored Irving’s testimony or was based on a false factual assumption.

Irving next argues that our opinion misconstrues the quantum of proof required to sustain a verdict of death. He again argues that the opinion failed to consider his testimony that he was not responsible for firing the fatal shot. He also argues that the opinion neglects the “fact” that the victim, Ray, was advancing towards him. As these were matters for the jury’s determination, and the jury’s decision was certainly not contrary to the overwhelming weight of the evidence, this Court will not disturb their finding as they were free to accept or reject in whole or in part any of the testimony presented. Because our opinion fully addressed the circumstances of the murder and found that the jury was warranted in imposing the death penalty, this matter is res judicata and may not now be relitigated.

Irving’s next argument is that the verdict of the jury was contrary to the law as to verdicts in capital cases. Here he argues that the jury’s failure to enumerate what mitigating factors were involved in the killing renders their decision void. This contention was not assigned as error or presented on direct appeal. The issue may not now be raised for the first time on a petition for rehearing and it is procedurally barred. Edwards v. Thigpen, 433 So.2d 906 (Miss.1983); Wheat v. Thigpen, 431 So.2d 486 (Miss.1983).

Irving next argues that he was denied due process because of actions of the trial court in (1) failing to quash the jury panel, (2) limiting the defense voir dire of the jury panel, (3) limiting voir dire specifically of venireman Patterson and Givhan, (4) limiting voir dire on the issue of the death penalty, (5) allowing the district attorney to seek a commitment from members of the jury venire and other improper communications, (6) sustaining of an objection to the defense’s voir dire, (7) refusal to grant change of venue, (8) allowing an anti-defendant sentiment to pervade the proceedings. None of these contentions were presented or argued to the court on direct appeal, therefore they may not be presented for the first time in this petition for rehearing and are thereby procedurally barred. Edwards, supra; Wheat, supra.

Irving’s next argument is that he received ineffective assistance of counsel in six different areas:

1. Failure to poll the jury
2. Failure to insure complete record
3. Failure to have Irving present at “critical” stages of trial
4. Failure to object to improper questions
5. Ineffective cross-examination
6. Failure to raise issues in the motion for a new trial and on appeal.

This Court recently pronounced the standard by which it would review claims of ineffective assistance of counsel. Callahan v. State, 426 So.2d 801 (Miss.1983). In Callahan it was recognized that the state historically applied several different tests to claims of ineffective assistance of counsel. Citing Stewart v. State, 229 So.2d 53 (Miss.1969), we attempted to end whatever confusion the multiplicity of standards may have caused. In Stewart, we adopted the test of

“Counsel reasonably likely to render and rendering reasonably effective assistance.” Callahan at 804.

This test requires answering two questions: (1) Was the counsel reasonably likely to render reasonably effective assistance; and (2) Whether the counsel in fact rendered reasonably effective assistance. As to the first part of the test, the petition for rehearing contains no information on the education, experience or expertise of the trial and appellate counsel. Neither does the petition contend that counsel was reasonably unlikely to render reasonably effective assistance because of inadequate education, experience or expertise in criminal cases. Therefore, we must conclude that Irving’s trial and appellate counsel was reasonably likely to render effective assistance. Callahan, supra.

As to the second part of the test we must inquire whether the counsel provided reasonably effective assistance. The petition alleges six specific areas in which the assistance of counsel was ineffective.

1. Failure to poll the jury. Because the jury foreman reported a unanimous verdict and it does not appear that the outcome of the proceedings have been altered but for the failure to poll the jury, this deficiency of counsel does not require reversal. Callahan, supra.

2. Failure to insure a complete record. Irving argues that during the voir dire certain bench conferences between the trial judge and counsel do not appear in the record and therefore this Court does not have the basis of the trial judge’s “constitutionally important decisions.” We note that frequently bench conferences do not appear in the transcripts and records which we review. Lack of the benefit of those conferences does not prevent this Court from ruling on the correctness of the outcome of those conferences. Therefore, it cannot be said that the appellant suffered any actual and substantial disadvantage resulting from failure to include those conferences in the record. Absent actual and substantial disadvantage we cannot hold that counsel’s assistance was so ineffective as to require reversal. Callahan, supra.

3. Failure to have Irving present at “critical stages of the trial”. Irving’s argument here is that his attorney failed to have him present during “critical stages” of the trial, but the brief mentions that Irving was not present only at certain bench conferences. Because it is certain beyond a reasonable doubt that the outcome of, the proceedings would not have been altered had Irving been present at these bench conferences we do not find that this ground gives rise to claim of ineffective assistance of counsel.

4. The failure to object to improper questions. Irving next argues that the record reflects several instances where the trial defense counsel did not object to improper questions posed by the prosecutors. Two of the points at which Irving contends objections should have been made occurred during the voir dire of the venire panel. The other times Irving contends objections should have been made resulted from certain leading questions.

Decisions as to when to object to counsel opposite’s questions are a matter of trial tactics. Every attorney with courtroom experience is aware that excessive objections may actually tend to hinder his client’s case. Regarding the alleged improper questions posed to the venire panel, we note from the record that it was defense counsel’s intention to ask further questions of the panel which he was not permitted to do by the trial judge. Therefore, counsel’s decision not to object was a matter of tactics and not simple neglect. Because we cannot say that an objection would have altered the outcome of the proceeding we do not hold that failure to object to these questions constituted ineffective assistance of counsel.

As to the leading questions, the same testimony could-have been elicited by simple rephrasing of the questions. Therefore it cannot be said that Irving suffered any actual or substantial disadvantage because of the failure to object.

5. Ineffective cross examination:

Irving next argues that his counsel was ineffective because he failed to conduct effective cross-examination. One of Irving’s key points here is that Mrs. Ray, the victim’s wife, was not asked why she heard and recognized Irving’s voice while he was still outside the building but did not hear any of the alleged conversation that took place inside the building. Even the most skilled trial attorneys recognize that cross-examination is a useful but potentially dangerous tool. Artful cross-examination does not allow an adverse witness to give further damaging testimony. There is a range of logical explanations for Mrs. Ray’s inability to hear Irving once he was in the building. Many of these would have allowed her to again emphasize that she was positive in her identification of Irving’s voice outside the building. The use of cross-examination as much as any part of the trial is a tactical matter. Having reviewed the record and the cross-examinations of the many witnesses conducted by defense counsel, we cannot say that Irving’s counsel was so deficient as to require reversal.

6. Failure to raise issues in the motion for a new trial and on direct appeal:

Irving’s last contention regarding ineffective assistance of counsel relates to the fail-' ure to raise issues in his motion for a new trial and on direct appeal. This is the contention which we view most seriously for as noted previously in this opinion there are points which may have been raised on appeal but were not and are now procedurally barred. That is not to say that had we considered those points beyond the recognition of the procedural bar we would have found any merit to them. Opinions of this court have previously recognized that death penalty litigation has become highly specialized and that few attorneys have “even a surface familiarity with seemingly innumerable refinements put on Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and progeny.” Evans v. State of Mississippi on application for leave to file petition for writ of error coram nobis, 441 So.2d 520 (Miss.1983) (Justice Robertson dissenting.) A criminal defendant is not entitled to a perfect trial, merely a fair one. The same is true of his appellate representation. On direct appeal Irving’s counsel raised a number of points which were well briefed and argued. We cannot say that the failure to raise every possible point on appeal rendered Irving’s counsel so ineffective as to require reversal. Based on all of the foregoing, we hold that Irving did not receive ineffective assistance of counsel.

The final point raised by Irving is a contention that because he did not receive the same jury after the Federal District Court remanded for a new sentencing trial he was subjected to double jeopardy. Because this point was not raised on direct appeal, it is procedurally barred.

Based on all of the foregoing, John Buford Irving, Ill’s petition for rehearing is hereby denied.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING and PRATHER, JJ., concur.

HAWKINS, and ROBERTSON, JJ., not participating.

      . See Appendix “A”.


author: BEATTY, Justice.

text:
    CITY OF MONTGOMERY and Emory Folmar v. Quinton ROBINSON, et al.
    81-1016.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    Rehearing Denied Nov. 23, 1983.
    Jack Crenshaw and George B. Azar of Azar, Campbell & Azar and H. Al Scott, for appellants.
    Howard A. Mandell of Mandell & Boyd, Montgomery, for appellees.
   BEATTY, Justice.

This is an appeal by the defendants, City of Montgomery and Emory Folmar, from a declaratory judgment in favor of the plaintiffs. We affirm.

Plaintiff Robinson suffered a heart attack on June 28, 1980, while on duty as a fireman employed by the City of Montgomery. Following hospitalization and treatment, Robinson’s physicians notified the City that Robinson was “100% permanently disabled as a firefighter.” Thereafter Robinson requested of the City benefits under Act No. 26, Acts of 1962, commonly referred to as the “Trinity Act,” and also under Act No. 565, Acts of 1975. Robinson’s request was denied by the City of Montgomery on the ground that the “Trinity Act” was repealed by Act No. 565. Robinson then initiated this action, asking the trial court to declare that he was entitled to benefits under both Acts, and for other relief.

Defendants filed their answer, raising a number of defenses, including an attack upon the constitutionality of Act No. 26, and averring that Act No. 26 was repealed by the later passage of Act No. 565.

Following a hearing, the trial court found that the benefits granted by Act No. 565 were supplemental to those granted by Act No. 26, and that Robinson was entitled to receive benefits under both enactments. This appeal followed.

Defendants have raised three issues for our consideration, viz.:

1. Whether or not the trial court erred . in holding that the benefits afforded by Act No. 565 were supplemental to those benefits available under Act No. 26.

2. Whether or not Section 3 of Act No. 565 repealed by implication the exclusivity provisions of both Act No. 26 and those contained in Title 26, §§ 271 and 272, Alabama Code of 1940 (Recomp.1958).

3. Whether or not Act No. 565 violates Section 45 of the Constitution of 1901.

All of these issues necessitate a review of the provisions of the terms of the legislative acts in question.

Act No. 26, the “Trinity Act,” derives its origin from a fire which occurred at Montgomery in 1951. Three firemen lost their lives while fighting a fire at Trinity Presbyterian Church. At that time there were no laws under which a City of Montgomery employee could be compensated due to work-related injury. In response to this situation the Alabama Legislature enacted Act No. 233, Acts of 1951. This Act was a general act of local application with a population bracket of 57,000 to 127,000. It applied to cities within that population classification and provided that employees of such cities totally disabled in the performance of duty should receive a monthly benefit equal to one-half of their base monthly compensation at the time of the injury for the time such disability continued. It further provided that the city personnel board could order that such an employee be paid his regular compensation for a period not exceeding six months. Benefits were accorded the widow of a city employee who was killed or who died as a result of injury sustained in the line of duty, and benefits were also extended to minor children. This Act also contained an exclusivity clause:

“Persons receiving benefits under this Act shall not be entitled to or receive any other benefits from the city or any agency thereof on account of disability or the death of any person.”

In 1962 the legislature enacted Act No. 26 which, while containing the same coverage, benefits and exclusivity clause, amended the population classification of Act No. 233 by raising it to apply to city populations from 100,000 to 200,000.

Later, in 1975, the legislature enacted Act No. 565, a general act:

“Section 1. After the effective date of this act, the provisions of the Code of Alabama 1940, Title 26, Chapter 5, shall be applicable to the employees of all counties and all municipalities having populations greater than 2,000 according to the most recent federal decennial census, and the provisions of the Workmen’s Compensation Law shall govern in their employment. The employees of all counties and each municipality covered under the provisions of this act shall have available to them all the rights and remedies provided under Workmen’s Compensation Law. The governing body of all counties and of each municipality covered under the provisions of this act shall file all necessary employer reports and notices required at the times and in the manner prescribed in the Workmen’s Compensation Law.
“Section 2. The Code of Alabama 1940, Title 26, Section 263, as last amended, is hereby further amended to read as follows:
“ ‘Section 263. Article 1 and 2 of chapter not applicable to certain employments. Articles 1 and 2 of this chapter shall not be construed or held to apply to domestic servants, to farm laborers whose employers have not filed an election to become subject to this chapter, or to persons whose employment at the time of the injury is casual, and not in the usual course of the trade, business, profession or occupation of the employer, or to any employer, who regularly employs less than four employees in any one business or to any municipalities having populations of less than 2,000 according to the most recent federal decennial census or school district. Any employer who regularly employs less than four employees in any one business, any farmer, or any municipalities having populations of less than 2,000 according to the most recent federal decennial census or school district may accept the provisions of articles 1 and 2 of this chapter by filing written notice thereof with the department of industrial relations, a copy thereof to be posted at the place of business of said employer and provided further, that any employer who has so elected to accept the provisions of articles 1 and 2 of this chapter may at any time withdraw the acceptance by giving like notice of withdrawal.’
“Section 3. The provisions of this act are supplemental and shall not be construed to repeal any laws not directly inconsistent herewith.
“Section 4. The provisions of this act are severable. If any part of the act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
“Section 5. This act shall become effective 60 days after its passage and approval by the Governor or its otherwise becoming law.”

Thus, under the “Trinity Act,” a covered totally disabled municipal employee would receive a monthly payment equal to one-half of his monthly compensation for as long as that disability lasted. On the other hand, under Act No. 565 the employees would be entitled to “the actual cost of reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies,” Code of 1975, § 25-5-77, and a certain percentage of his average weekly earnings received at the time of the injury, over a period of time, subject to certain maximum and minimum amounts. Code of 1975, § 25-5-57. According to the testimony of plaintiff Robinson, then thirty-four years of age, should he have a normal life span, he would receive approximately $200,000.00 under the “Trinity Act.” Under Act No. 565, however, he would receive a maximum of approximately $40,000.00 regardless of his life span.

To summarize, by its terms the local act, No. 26, makes its benefits exclusive. The general act, No. 565, placed covered city employees under the Workmen’s Compensation Law, but made its provisions “supplemental” and mandated that Act No. 565 “shall not be construed to repeal any laws not directly inconsistent herewith.”

The defendants argue that Act No. 565 made the entire Workmen’s Compensation Act applicable to Montgomery’s employees, including the surrender of other rights and remedies. Title 26, §§ 271, 272, Alabama Code of 1940 (Recomp.1958); Code of 1975, §§ 25-5-52, -53. According to the defendants, this general enactment necessarily repealed Act No. 26 and made the remedy of workmen’s compensation the exclusive remedy for employees such as Robinson. Defendants cite in support the language of § 272, supra:

“The rights and remedies herein granted to an employee shall exclude all other rights and remedies of said employee ... at common law, by statute or otherwise on account of said injury....”

That provision of the workmen’s compensation Act, unfortunately, does not alleviate the problem of ascertaining the legislature's intent when that body included Section 3 in Act No. 565. In other words, if Act No. 26 was to be repealed, why did the legislature not use language therein making Act No. 565 the “exclusive remedy” instead of stating that employees “shall have available to them all the rights and remedies provided under Workmen’s Compensation Law”? Why did the legislature not add to that sentence “and shall be subject to the limitations of” or suitable limiting language? If such limiting language had been used, would there have been any purpose in stating that “[t]he provisions of this act are supplemental”?

In solving this dilemma, we are directed by the defendants to Conner v. State, 275 Ala. 230, 153 So.2d 787 (1963), which concerned the question of repeal by implication. There this Court stated:

“It is an established principle, adhered to in this jurisdiction, that a general law will not repeal by implication a local law — a law affecting a limited territory— although in form a general law, unless there is a manifestation of a different intent to be found in the statute.... And, for purposes of construction, an Act based on a population classification, applicable at the time of passage to a limited area, is to be considered a local law, although in form a general law.... ” (Citations omitted.) 275 Ala. at 233, 153 So.2d 787.

Although Act No. 565 applied only to municipalities having populations greater than 2,000, it also applied to employees of all counties and, therefore, was not solely based upon a population classification. For the purpose of applying the stated principle to this case, therefore, Act No. 565 is to be viewed as a general act. The question then presented is whether Act No. 565 repealed Act No. 26. Sutherland, Statutes and Statutory Construction (Sands 4th ed.) § 23.15 at 245 furnishes guidance in resolving that question:

“The enactment of a general law broad enough in its scope and application to cover the field of operation of a special or local statute will generally not repeal a statute which limits its operation to a particular phase of the subject covered by the general law.... An implied repeal of prior statutes will be restricted to statutes of the same general nature, since the legislature is presumed to have known of the existence of prior special or particular legislation, and to have contemplated only a general treatment of the subject matter by the general enactment. Therefore, where the later general statute does not present an irreconcilable conflict the prior special statute will be construed as remaining in effect as a qualification of or exception to the general law.
“However, since there is no rule of law to prevent the repeal of a special by a later general statute, prior special or local statutes may be repealed by implication from the enactment of a later general statute where the legislative intent to effectuate a repeal is unequivocally expressed. A repeal will also result by implication when a comprehensive revision of a particular subject is promulgated, or upon the predication of a statewide system of administration to replace previous regulation by localities.” (Footnotes omitted.)

These principles find support in our decisions. See, e.g., Hawkins v. City of Birmingham, 239 Ala. 185, 194 So. 533 (1940); Ex parte Jones, 212 Ala. 259, 102 So. 234 (1924); Conner v. State, supra; Heck v. Hall, 238 Ala., 274, 190 So. 280 (1939).

The question, of course, ultimately is one of ascertaining the legislative intent from the language used. Champion v. McLean, 266 Ala. 103, 95 So.2d 82 (1957).

Applying the cited decisions to the statutes in question, we conclude that the legislature, as it possessed the power to do, did make Act No. 565 supplement the benefits conferred by Act No. 26, and thus did not repeal the latter act so as to make the benefits of workmen’s compensation exclusive. Indeed, the benefits of Act No. 26 could have been enlarged or supplemented by any device available to the legislature, such as amendment, or by a supplement provided by another enactment. The particular phrase on monthly benefits covered by Act No. 26 is only one part of and one form of benefit contained in the broader scope of Act No. 565, and we thus presume that the legislature considered and contemplated the general treatment of those benefits rather than to have specifically directed its attention to the subject matter of Act No. 26. Accordingly, Act No. 26 remains in effect as a qualification, i.e., a supplement, to the general scope of Act No. 565. Moreover, the benefits of Act No. 26 were not repealed by the later enactment of Act No. 565 because the legislative intent to do so was not unequivocally expressed. Quite the contrary, the legislature clearly made the benefits conferred by Act No. 565 “supplemental,” and enjoined that the act’s provisions “shall not be construed to repeal any laws not directly inconsistent herewith.” The only laws directly inconsistent with the provisions of Act No. 565 are the provisions of exclusivity contained in Act No. 26 and §§ 271 and 272 of the Workmen’s Compensation Law. Those later provisions do conflict irreconcilably with the terms of Act No. 565 and, therefore, must be considered as impliedly repealed. Although we have recognized that repeal by implication is not favored, “[w]hen the provisions of two statutes are directly repugnant and cannot be reconciled, it must be presumed that the legislature intended an implied repeal, and the later statute prevails as the last expression of the legislative will.” Fletcher v. Tuscaloosa Federal Savings & Loan Association, 294 Ala. 173,177, 314 So.2d 51 (1975). We hold that the trial court did not err in deciding that the benefits of Act No. 565 supplemented those available under Act No. 26; nor did it err in finding that Section 3 of Act No. 565 repealed by implication the exclusivity provisions of Act No. 26 and §§ 271 and 272 of the Workmen’s Compensation Act as they relate to those persons covered by Act No. 565.

Defendant’s final issue concerns the compliance of the title of Act No. 565 with the requirements of Section 45 of the Constitution of 1901 which mandates that “[e]aeh law shall contain but one subject, which shall be clearly expressed in its title.” Specifically, defendants argue that the title to Act No. 565 did not give notice of Section 3 thereof, which effected a repeal by implication as we have discussed. Plaintiffs, on the other hand, maintain that this constitutional attack upon Act No. 565 was not made during trial and hence is foreclosed on appeal for not having been properly raised.

Of course, it is well established that where a constitutional question was not raised on trial it will not be considered an appeal. Cooper v. Green, 359 So.2d 377 (Ala.1978); 2 Ala.Dig. Key 170(2). We respectfully observe, in addition, that the express mandate of § 45 has no effect upon a repeal by implication because of the very nature of an implied repeal. That issue was properly addressed by the Supreme Court of Illinois in Geisen v. Heiderich, 104 Ill. 537 (1882), when that court considered a similar attack upon a statute under the Illinois constitutional provision almost identical to our own. That court resolved the question in this manner:

“It is urged that to allow a repeal by implication, in a case like this, would be to defeat, by indirection, section 13 of article 4 of the constitution, which provides, 'that no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title, and no law shall be revised and amended by reference to its title only, but the law revised or section amended shall be inserted at length in the new act.’ While it is conceded this position is decidedly ingenious, and not without force, we can not believe the framers of the constitution intended by it to limit or control the doctrine of repeals by implication. To give the provision such a construction, it is believed, would lead to much confusion and inconvenience, and deprive the courts of one of the most efficient means of harmonizing and giving effect to hasty and conflicting legislation.”

We have carefully considered the issues raised and the excellent briefs and arguments of counsel. The order of the trial court is due to be, and is, affirmed.

AFFIRMED.

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


text:
    William H. POE, as Administrator of the Estate of Jamel Antoine Poe, deceased v. GROVE HILL MEMORIAL HOSPITAL BOARD, et al. William H. POE, as Administrator of the Estate of Nettie Lee Davis Poe, deceased v. GROVE HILL MEMORIAL HOSPITAL BOARD.
    82-145, 82-146.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    Rehearing Denied Nov. 23, 1983.

      James Ward of Stuart & Ward and Bax-ley, Beck & Dillard, Birmingham, for appellants.
    A. Neil Hudgens and Michael S. McGlo-thren, of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
   BEATTY, Justice.

The plaintiff appeals from grants of summary judgment for the defendant hospital board. We affirm.

On August 30,1979, Nettie Lee Davis Poe entered Grove Hill Memorial Hospital for the purpose of childbirth. Dr. R.D. Neal performed an emergency Caeserean-section. The newborn child, Jamel Antoine Poe, died on September 9, 1979, and Mrs. Poe died September 18, 1979. William H. Poe, as administrator of the estates of Nettie and Jamel, filed wrongful death actions on January 9, 1981, against both the hospital board and Dr. Neal, alleging negligent treatment, diagnosis and care.

The motions to dismiss filed by defendant Grove Hill Memorial Hospital Board were denied on February 17,1981. Subsequently the hospital board filed motions for summary judgment in both cases based on the plaintiff’s failure to comply with the municipal non-claim statutes. These motions were supported by Town of Grove Hill Hospital Ordinance No. 1, as adopted by the Town Council of Grove Hill, and the deposition of Merwin York, administrator and chief executive officer of the hospital board. The trial court granted the hospital board’s motions for summary judgment and entered final judgments under Rule 54(b), A.R.Civ.P. Plaintiff appeals from those judgments.

The sole issue presented for review is whether the Grove Hill Memorial Hospital Board is a part of the Town of Grove Hill and subject to the six-month notice requirement for tort actions against the town. The relevant notice statutes, Code of 1975, §§ 11-47-23 and 11-47-192, are reproduced below.

“§ 11-47-23
“All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.” (Emphasis added.)
“§ 11-47-192
“No recovery shall be had against any city or town on a claim for personal injury received, unless a sworn statement be filed with the clerk by the party injured or his personal representative in case of his death stating substantially the manner in which the injury was received, the day and time and the place where the accident occurred and the damages claimed.” (Emphasis added.)

These statutes are to be construed as being in pari materia. Harris v. City of Montgomery, 435 So.2d 1207 (Ala.1983). Therefore, to satisfy the statutory requirement, a plaintiff in a tort action against a municipality must file a sworn statement with the clerk within six months from the accrual of the claim.

The non-claim statutes do not define the terms “municipality,” “city,” or “town.”

The hospital board contends that, because it was duly created by the Town of Grove Hill in conformity with applicable Alabama law, it is a part of the town. If that contention is correct, any tort claims against the hospital would be subject to the six-month notice requirement. The plaintiff’s case against the hospital would then fail for lack of notice, and the summary judgments in favor of the hospital board would be proper.

Plaintiff Poe, on the other hand, argues that the hospital board is not a part of the town. He says that the Town Council of Grove Hill gave complete control of the hospital to the hospital board, creating a separate entity under Cole v. Sylacauga Hospital Board, 269 Ala. 405, 113 So.2d 200 (1959).

Cole concerned a dispute between the Sy-lacauga Hospital Board and the Sylaeauga Civil Service Board. The civil service board attempted to require an examination for the office of administrator of the Sylaeauga hospital. The hospital board sought an injunction to prevent the administrator from having to sit for the examination. The trial court granted the injunction, and this Court affirmed the decision on the basis that the municipal civil service board lacked jurisdiction over the hospital board. This Court recognized in Cole that a municipality may voluntarily elect to turn the operation of a municipal hospital over to a separate entity.

The Sylaeauga Hospital Board was established as a corporation under Tit. 22, § 190(1), Ala.Code of 1940 (Recomp. 1958), which allows the incorporation of municipal hospital boards. Section 190(1) (current version at Code of 1975, § 22-21-5), incorporates by reference Tit. 22, § 204(25) (current version at Code of 1975, § 22-21-78), which is set out below in pertinent part:

“(e) All debts created and securities issued by the corporation [hospital board] shall be solely and exclusively an obligation of the corporation and shall not create an obligation or debt of the state of Alabama or of any county or municipality. The faith and credit of the State of Alabama, or of any county or municipality therein, shall never be pledged for the payment of any debt incurred or securities issued by the corporation.... ”

A municipality which chooses to incorporate its hospital board under § 190(1), therefore, limits its liability and creates a separate entity.

This case is legally and factually distinguishable from Cole, however. Unlike the Sylaeauga Hospital Board in Cole, the Grove Hill Memorial Hospital Board was not incorporated under § 190(1), supra. It was established under Tit. 22, § 189, Ala. Code of 1940 (Recomp.1958) (current version at Code of 1975, § 22-21-1), which allows municipalities to create unincorporated hospital boards.

We take note of an Attorney General’s opinion pertaining to this subject. Although opinions of the Attorney General are not binding on this Court, this opinion concerning a hospital board created under § 189 is persuasive:

“1. Hospitals established by joint action of a county and a city or town, pursuant to Code 1940, Tit. 22 § 189, may not be leased to a private corporation or association for operation. Such hospitals must be operated continuously and exclusively through a board or commission selected jointly by the county and city, or town.
“2. The costs and expenses of such operation are liabilities on the part of the county and city, or town, for which they are jointly and severally liable, for the payment of which, or of any deficit caused by such operation, the county and city, or town, may appropriate their funds.” 39 Ala. Att’y Gen.Q.Rep. 17 (1945).

We agree that this is the proper construction. Under § 189 the Town of Grove Hill could not limit its liability nor could it abandon or relinquish control and management of the hospital as it could under § 190(1). The town council elected not to create a separate entity by choosing not to incorporate the hospital board. In fact, the operating budget of the hospital is subject to the final approval of the town council, not the hospital board. Therefore, the Grove Hill Memorial Hospital Board was organized and is operated as a part of the Town of Grove Hill and the six-month notice requirement of § 11-47-23 applies in this case. Accordingly, the trial court’s grants of summary judgment for the hospital board are due to be, and they are hereby, affirmed.

AFFIRMED.

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