text:
    Edward J.C. STEVENS v. STATE of Mississippi.
    No. 54435.
    Supreme Court of Mississippi.
    Oct. 17, 1984.
    Rehearing Denied Nov. 14, 1984.

      J. Kennedy Turner, III, Philadelphia, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The appellant, Edward J.C. Stevens, was charged with and convicted of murder of his wife, Louise Stevens in the Circuit Court of Neshoba County and sentenced to life imprisonment in the Mississippi Department of Corrections.

Stevens appeals, assigning as error:

(1)The admission of appellant’s confession where his mental, physical and intoxicated condition allegedly prevented a knowing, voluntary, and intelligent waiver of his privilege against self-incrimination and right to counsel;

(2) The admission of photographs depicting the inside of appellant’s home and the body of the deceased;

(3) The granting of the State’s “malice aforethought” instruction;

(4) The refusal of the appellant’s manslaughter instructions.

We affirm.

I.

On the morning of February 5, 1982, appellant Edward J.C. Stevens, his wife Louise, and Louise’s nephews, Tommy and Terry Wright, drank beer together. Around 11:00 a.m., Edward, Louise and Tommy drove to Phillip’s Grocery in Laud-erdale County to buy more beer. After purchasing two cases of beer, Edward, Louise and Tommy returned to the appellant’s home and continued drinking. Around 2:00 that afternoon, Terry picked Tommy up from the appellant’s house. Appellant Stevens and Louise remained at the house drinking beer.

Around 8:00 p.m. that evening, appellant carried his badly beaten wife to the Nesho-ba County Hospital. Louise had been dead for two or three hours. Her death was the result of massive blood loss resulting from multiple bruises and abrasions to her entire body and deep lacerations of her scalp and labia.

Appellant was placed in custody at the Union City Jail. A blood alcohol test performed on the appellant at 8:15 p.m. revealed a blood alcohol content of .16. While at the Union City Jail, appellant fell from his bed and hit his head on the bars of his cell and suffered a broken arm. Dr. Wm. Davis, who treated the appellant, testified that the appellant appeared malnourished, emaciated, smelled of alcohol and had slurred speech, but was not irrational or disoriented. Following treatment of his injuries, the appellant was transported to the Neshoba County Jail.

Around 11:30 p.m. that evening, Neshoba County Sheriff J.A. Phillips read appellant Stevens his rights. Stevens signed a statement waiving his right to counsel and privilege against self-incrimination. On this occasion, appellant’s speech was slurred, and his gait suggested that he was under the influence of alcohol. Appellant complained that his arm hurt and cried about his wife being dead, but otherwise made no statement and was returned to his cell.

The following morning, February 6, 1982, Sheriff Phillips was notified at 7:00 a.m. that the appellant wished to speak to him. Around 9:55 a.m. Sheriff Phillips, accompanied by Deputy Sheriff Dwight Griffin, and Investigator Larry Myers, spoke with appellant Stevens at the jail. Phillips again informed appellant of his rights, and appellant signed another waiver form. Stevens then told the sheriff that on the previous day, he, Louise and Tommy Wright went to Lauderdale County to buy beer, then returned to his home. Louise accused the appellant of “going with somebody”. The appellant accused Louise of “going with somebody”. Louise told the appellant that she “wanted to go with three men” and named them. The appellant became enraged and chased his wife throughout the house, beating her repeatedly with a firepoker. According to Deputy Sheriff Dwight Griffin, at the time of his statement, appellant’s speech and walk appeared normal.

Prior to trial, appellant moved to suppress the statement on the ground that it was obtained from the appellant without a voluntary, knowing and intelligent waiver of the right to counsel and the privilege against self-incrimination. This motion was overruled and Sheriff Phillips was permitted to testify to the contents of the statement at trial.

At the trial, appellant Stevens testified that, after Tommy and Terry Wright left their house, he and Louise continued to drink. Later that afternoon he left the house to buy more beer. When he returned, he found his severely beaten wife lying on the floor of the living room, but did not realize that she was dead. Stevens drove to Tommy Wright’s house and asked for his help but was told by Tommy that he didn’t want to get involved. Stevens then returned to his house, placed his wife in the car and drove to the Neshoba County Hospital.

Terry Wright testified that appellant came to his house at around 8:00 p.m. on February 5, 1982. According to Terry, appellant Stevens did not ask for any help getting Louise to the hospital, but offered Terry $20.00 to go to the house and see if Louise was dead.

Dr. Glen Anderson, psychiatrist at Whitfield, testified that appellant Stevens had an IQ of between 76 and 78, thus falling into the sub-average category with respect to intellectual function. Proof supported the fact that appellant was a chronic alcoholic with a third grade education and was approximately 54-58 years of age.

II.

The first issue is whether the confession given by the appellant on the morning of February 6th was obtained after a voluntary, knowing and intelligent waiver of his right to counsel and his privilege against self-incrimination. Appellant argues that a combination of factors — intoxication, severely deteriorated physical condition, and sub-standard I.Q. and educational level— prevented a voluntary, knowing and intelligent waiver of appellant’s rights.

With respect to the effect of intoxication on the voluntariness of a confession, this Court has held that where the defendant was in “an acute, rampant state of intoxication equivalent to mania,” any waiver of constitutional rights could not be voluntary and intentional and the defendant’s statement should be excluded. State v. Williams, 208 So.2d 172, 175 (Miss.1968).

In the case sub judice appellant Stevens’ blood alcohol content was .16 at the time of his arrest. The execution of the waiver of rights, however, took place the following morning, some thirteen hours later. Dr. Davis testified that as a chronic drinker the ability of the appellant's body to degrade alcohol in the blood would be increased. Deputy Sheriff Dwight Griffin testified that at the time appellant executed the second waiver his speech and gait were both normal.

With respect to sub-normal intelligence and educational level, this Court has held that mental weakness in and of itself will not invalidate a confession unless it is shown that the weak minded person has been over-reached. Williamson v. State, 330 So.2d 272, 276 (Miss.1976). In each case, the totality of the circumstances must be considered to determine whether the mentally deficient defendant has been exploited. Neal v. State, 451 So.2d 743 (Miss. 1984) (upholding admission of confession given by defendant with IQ of 60 even though scrutiny was heightened since case involved death penalty).

Significantly, in the case sub judice, it was the appellant who requested that the sheriff be summoned so that he could make a statement. The appellant, prior to making the statement, told Sheriff Phillips that he had something he had to get off his conscience. Sheriff Phillips testified that appellant read the waiver form and that he read the waiver form to the appellant. Investigator Meyers testified that the appellant stated that he understood the waiver. No evidence was presented by the defense to suggest that there was any threats, coercion or promises of leniency surrounding the execution of the waiver and the statement in this case.

No Mississippi case is found which invalidates a confession because of the deteriorated physical condition of the defendant. In the case sub judice, appellant’s physical disabilities consisted of a general malnourishment, a broken arm and a head injury. The only medication administered by Dr. Davis to the appellant was a local anesthetic to permit suturing of the scalp laceration, which required three stitches (R. 47).

This Court concludes that the trial court’s admission of the confession under these circumstances was proper. The proof failed to substantiate appellant’s claim that appellant’s prior intoxication, physical condition, or intelligence level, or the combination of these factors, operated to prevent a voluntary, knowing, and intelligent waiver of constitutional rights. The admission of the confession was proper.

III.

Whether the trial court erred in admitting (A.) photographs of the deceased and (B.) of the inside of the appellant’s house?

IIIA.

At trial eight photographs of the deceased were offered into evidence. The defense objected to the introduction of the photographs on the ground that any probative value would be outweighed by the prejudicial impact of the pictures upon the jury. The defense further offered to stipulate to “anything the District Attorney could reasonably hope to prove by the photographs ...” The court overruled the objection and admitted some of the photographs into evidence.

Admissibility of photographs rests within the sound discretion of the trial judge and will be upheld absent a showing of abuse of discretion. Edwards v. State, 413 So.2d 1007 (Miss.1982); Steed v. State, 396 So.2d 625 (Miss.1981); Irving v. State, 228 So.2d 266 (Miss.1969). The fact that a photograph of the deceased in a homicide case might arouse the emotions of jurors does not of itself render it incompetent evidence as long as its introduction serves some useful evidentiary purpose. Butler v. State, 320 So.2d 786, 789 (Miss. 1975); May v. State, 199 So.2d 635, 640 (Miss.1967). This Court has upheld, as serving legitimate evidentiary purposes, the admission of photographs depicting the location of wounds, Clingon v. State, 293 So.2d 823 (Miss.1974); corroborating the type of weapon used, Mallette v. State, 349 So.2d 546 (Miss.1977); establishing the identity of the victim, Steed v. State, 396 So.2d 625 (Miss.1981), tending to show the extent of force and violence used. Dase v. State, 356 So.2d 1179 (Miss.1978).

In the case sub judice, the trial court was of the opinion that photographs were probative on the issue of the manner of death. In addition, the photographs tended to corroborate the use of a firepoker as the murder weapon and established both the multiplicity of blows administered and the extent of force and violence used.

This Court concludes that the admission of the photographs of the deceased did not constitute an abuse of the trial judge’s discretion. But further, this Court observes definite probative value in their introduction.

IIIB.

Appellant further contends that the trial court erred in admitting a second group of photographs depicting the interior of the appellant’s home. The argument on appeal here is that the State failed to establish that the authorities entered the appellant’s home pursuant to a lawful search warrant or with the appellant's consent; therefore, it is argued, the photographs are inadmissible as the product of an illegal search.

The record reflects that defense counsel objected to the photographs of the defendant’s home on the basis of “all of the same objections that I have stated previously as to the other photographs”. One of the previous objections was that a proper predicate had not been laid for the introduction of the photographs. The State argues that this objection was not broad enough to encompass the Fourth Amendment claim now raised by the appellant.

The general rule is that a failure to object with specificity in the trial court below results in a waiver of review by this Court. Copeland v. State, 423 So.2d 1333 (Miss.1982). The rule applies to Fourth Amendment claims; where the defendant fails to object to the admission of illegally obtained evidence, the objection is waived. Henry v. State, 198 So.2d 213 (Miss.1967).

This Court applies this rule and holds that the objection to the admissibility of the photographs of defendant’s house was waived by the failure to state the additional basis for the objection in the trial court.

’ We find no reversible error in the admission of the photographs.

IV.

Appellant assigns as error the trial court’s granting of Instruction S-2 which reads as follows:

The Court instructs the Jury that “malice aforethought” as charged in the indictment in this case and as referred to in other instructions of the Court is a state of mind and does not have to exist in the mind of the slayer for any given length of time, and if the defendant at the very moment of the fatal blow did so with the deliberate design to take the life of the deceased, and not in necessary self-defense, real or apparent, then it was malice aforethought, and that was truly murder, as if the deliberate design had existed in the mind of the defendant for minutes, hours, days, or weeks, or even years.

Appellant’s contention is based solely on this Court’s decision in Pittman v. State, 297 So.2d 888 (Miss.1974). In Pittman the defendant admitted killing the deceased, but claimed that the shooting was justifiable by reason of self-defense. The following instruction with respect to malice aforethought was granted in Pittman, supra:

INSTRUCTION NO. 5
The court instructs the jury for the State of Mississippi that while malice aforethought is a necessary ingredient to the crime of murder, still “malice aforethought” means the same thing as killing a human being with the deliberate design to effect the death of the person killed; and that malice aforethought and deliberate design do not necessarily mean hatred or ill will, and need not exist in the mind of the defendant for any definite time, not for days or hours or even minutes, but if the deliberate design to kill exists but for an instant at the very time the fatal blow was struck, this is sufficient premeditation and deliberation to constitute the offense of murder.

297 So.2d at 892. On appeal this Court held that the instruction was erroneous because “[it] pared away rights of the defendant and required the jury to find him guilty of murder even though the killing might have been justifiable by reason of self-defense.” 297 So.2d at 893.

In the case sub judice, Stevens did not plead justification, but rather denied all responsibility for the killing of his wife. Instruction S-2, unlike the instruction condemned in Pittman, clearly informs the jury that a finding of “necessary self-defense, real or apparent” will negate the element of malice aforethought.

In any case, this Court in Pittman voiced its approval of the very instruction given in the case sub judice. 297 So.2d 888, n. 1. This instruction in one form or another, has been approved by this Court for many years. See Lambeth v. State, 23 Miss. 322, (Miss.1852); Mills v. State, 196 Miss. 287, 17 So.2d 215, (1944); Durrah v. State, 44 Miss. 789 (1871); Carter v. State, 198 Miss. 523, 21 So.2d 404 (1945); Hudson v. State, 185 Miss. 677, 188 So. 561 (1939).

No error was committed by the trial court in granting Instruction S2.

IV.

Appellant further argues that the trial court erred in refusing the appellant’s requested instructions on the lesser-included offense of manslaughter.

It is well settled in this state that before a lesser-included offense instruction is given it must be warranted by the evidence. Johnson v. State, 416 So.2d 383 (Miss.1982); Spencer v. State, 348 So.2d 1030 (Miss.1977); Murphy v. State, 226 So.2d 755 (Miss.1969). Where evidence is presented of a physical assault by the victim upon the accused, a manslaughter instruction is warranted. Dase v. State, 356 So.2d 1179 (Miss.1978) (testimony that deceased drew knife before defendant struck him with a cue stick); Wells v. State, 305 So.2d 333 (Miss.1975) (testimony that deceased reached across table and grabbed defendant by throat); Lee v. State, 130 Miss. 852, 94 So. 889 (1923) (testimony that deceased struck defendant, then drew a pistol on him).

In the case sub judice, no evidence was presented to suggest that the deceased physically assaulted the appellant. Indeed, the absence of any bruises or scratches on Stevens when taken into custody is countervailing evidence that the appellant was not assaulted. The evidence at best shows mutual accusations of adultery and an admission on the part of the deceased that she had entertained the thought. Mere words, however, no matter how provoking, grievous or reproachful, are not sufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter. Johnson v. State, 416 So.2d 383, 387 (Miss.1982); Gaddis v. State, 42 So.2d 724 (Miss.1949); Richardson v. State, 123 Miss. 232, 85 So. 186, 188 (1920).

We conclude that the evidence in the case sub judice did not warrant an instruction on manslaughter. Accordingly, the refusal of appellant’s requested manslaughter instructions was not error.

Finding no error in this record, the conviction is affirmed.

AFFIRMED.

WALKER AND ROY NOBLE LEE, P. JJ., and BOWLING, HAWKINS, ROBERTSON and SULLIVAN, JJ., concur.

DAN M. LEE, J., dissents.

PATTERSON, C.J., not participating.


source: Caselaw Access Project

author: PRATHER, Justice,

license: Public Domain

text:
    OLD SECURITY CASUALTY INSURANCE COMPANY, a/k/a American Continental Insurance Company v. Cora CLEMMER and Hubert Clemmer.
    No. 54272.
    Supreme Court of Mississippi.
    Oct. 31, 1984.
    Charles M. Merkel, Merkel & Cocke, Clarksdale, for appellant.
    Robert L. Williams, Hernando, for appel-lees.
   ON MOTION TO CORRECT JUDGMENT, TO RETAX COSTS AND FOR STATUTORY DAMAGES

PRATHER, Justice,

for the Court:

Cora and Hubert Clemmer were awarded a final total judgment of $80,000.00 for personal injury to the wife, property damage to the husband, and punitive damages to both parties against Ezekial Curry. The Clemmers then filed a suggestion for writ of garnishment against Curry’s automobile liability insurance carrier, Old Security Casualty Insurance Company (hereafter referred to as Insurance Company), as garnishee.

The insurance company tendered into the trial court $13,800, admitting liability for a $10,000 limit for Mrs. Clemmer’s personal injury and $3,800 on Mr. Clemmer’s property damage. The trial court in the garnishment suit awarded a total award of $25,-000, representing $10,000 personal injury to Mrs. Clemmer, $5,000 property damage to Mr. Clemmer, and $10,000 punitive damage to Mr. Clemmer. The Clemmers were paid the $13,800 tender.

The Insurance Company appealed the award of $10,000 punitive damage to Mr. Clemmer from the “per occurrence” coverage. This Court, 455 So.2d 781, reversed the $10,000 punitive damage award from the per occurrence provision of the policy as there was only one person injured, but affirmed the $5,000 property damage to Mr. Clemmer and $10,000 compensatory damage to Mrs. Clemmer, less any amount previously paid. Costs were taxed against the appellee by the court mandate which gave rise to this motion to retax the cost and award the statutory damages.

I.

An appellant before this Court shall prepay the costs of the transcript of the record and summons to the opposite party and all costs which accrue in the Supreme Court. Miss. Code Ann. § 11-3-45 (Supp.1983). At the conclusion of a case in this Court, this Court may assess appeal costs within its discretion. Porter v. Ainsworth, 288 So.2d 709 (Miss.1974); Humphreys, et. al. v. Thompson, et. al., 130 So. 152 (1930).

Since the appellant here was successful in reversing a portion of the trial court judgment, it is reasonable that the appellee be taxed with that proportionate share of the appeal costs which was reversed. This Court, therefore, assesses the appeal costs at forty percent against the appellee and sixty percent against the appellant.

The assessment of trial court costs against the appellant is not disturbed.

II.

As to the request of appellee for imposition of statutory damages on the judgment rendered here, the subject is controlled by Miss. Code Ann. § 11-3-23 which states that “[i]f the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum.” When the statutory requisites are met, the imposition of the statutory penalty for damages is mandatory. Peoples Bank & Trust v. L. & T. Developers, 437 So.2d 7, 11 (Miss.1983); Lowicki v. Lowicki, 429 So.2d 917, 919 (Miss.1983); Chrismond v. Chrismond, 213 Miss. 189, 193, 56 So.2d 482, 484 (1952).

The appellant here asserts that its appeal related only to the $10,000 punitive damage award which was reversed, and that, therefore, no assessment of statutory damage should be awarded. The appellant tendered $13,800 to the trial court and that sum was paid to the appellee pending appeal. Additionally, an offer through correspondence was made to the attorney to pay the additional $1,200, although not paid. Appellant concludes that no statutory damage should be assessed against it for any sum.

It is well-settled that section 11-3-23 applies only to unconditional affirm-ances. Walters v. Inexco Oil Co., 440 So.2d 268, 274 (Miss.1983); Peoples Bank & Trust v. L. & T. Developers, 437 So.2d 7, 11 (Miss.1983); Shipman v. Lovelace, 215 Miss. 141, 144-146, 60 So.2d 559, 560-561 (1952). While this Court affirmed the judgment below with reference to the $10,000 compensatory damage award to Mrs. Clem-mer and the $5,000 property damage award to Mr. Clemmer, this Court reversed the judgment of the trial court with respect to the $10,000 award of punitive damages. Since this Court’s affirmance was not unconditional, section 11-3-23 does not apply and the appellees are not entitled to the statutory penalty.

This Court, therefore, prorates the appeal costs as herein provided between the parties, denies the statutory penalty, affirms the trial court assessment of costs against appellant, and assesses interest on $1200 unpaid balance from and after June 21, 1982 to the date of payment at the legal rate.

MOTION TO CORRECT JUDGMENT, TO RETAX COSTS, AND FOR STATUTORY DAMAGES SUSTAINED IN PART AND DENIED IN PART.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, PJJ., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


author: ROY NOBLE LEE, Presiding Justice,

text:
    W.W. WALLEY v. STATE of Mississippi.
    No. 55-163.
    Supreme Court of Mississippi.
    Oct. 31, 1984.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    BEFORE ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

W.W. Walley was indicted, tried and convicted in the Circuit Court of Jones County for obtaining money under false pretenses in giving a bad check to one A.B. Graham, Jr. The lower court sentenced Walley to a term of two (2) years in custody of the Mississippi Department of Corrections and imposed a $1,000.00 fine upon him. He has appealed to this Court and assigns three (3) errors in the trial below. We are of the opinion that the court erred in refusing to grant Walley a peremptory instruction of not guilty at the conclusion of the evidence and that the judgment of the lower court should be reversed and Walley discharged.

A.B. Graham, Jr. is a woodyard operator in Jones County, Mississippi, and had known and done business with the appellant for a period in excess of one year. On October 16, 1981, appellant desired to purchase timber from a railroad company and haul the wood to Graham’s woodyard. Appellant discussed the matter with Graham and informed him that the railroad company would not take his personal check for the timber but required him to pay for the timber with a check from some reputable woodyard. Graham issued his own check in the amount of five hundred fifty dollars ($550.00), payable to Jerrell Abercrombie. The payee was designated by appellant. In return, appellant delivered to Graham his own personal check in the sum of $550.00.

On the date the check was drawn, October 16, 1981, appellant had six hundred dollars ($600.00) in his personal account, in the Lamar County Bank, upon which the check was drawn. However, two checks were paid from the account on that day, which reduced the balance below $550.00. Graham insisted that he held Walley’s check for two or three months before presenting it for cash, although a bookkeeper at the bank testified it was presented prior to that time.

Graham received appellant’s check at the time he wrote his own check to Abercrom-bie in the sum of $550.00, but he indicated that his custom of doing business was to hold checks from wood haulers and when they had hauled sufficient wood to pay the amount of the cheek, he gave their checks back to them. As to the deal between Graham and appellant, Graham testified as follows:

MR. ARRINGTON:
Q Was there an agreement that you were to hold that check until Wally delivered you this wood?
A No, sir.
Q Why in the world did you hold the check for three or four months?
A I was aiming to just give him his check back if he brought the wood.
Q What?
A I was aiming to give him his check back if he brought the wood.
Q So, then you were going to give him the check back if he hauled you the wood?
A Yes, sir.
Q Is that right?
A Yes, sir.
Q The truth of the matter, in the normal course of business, when he brought the wood in, you would have given him his check back, rather than to have to deposit it and write one on the company, isn’t that right? Isn’t that normally done?
A Yes, sir.

Walley failed to deliver the wood from the railroad company to Graham, pursuant to their agreement, and, since the cheek held by Graham was not paid, the indictment in this cause was returned by the Jones County Grand Jury.

It is an elementary principle of law that obtaining property under false pretenses requires that the person who parted with the property of value must have relied upon a present token, fact or representation which caused him to part with his property. A promise or contract to deliver something in the future or to perform service in the future will not sustain the charge of obtaining property under false pretenses. Miller v. State, 413 So.2d 1041 (Miss.1982); Hindman v. State, 378 So.2d 663 (Miss.1980).

In Miller, the Court said:

Before a conviction can be had on a charge of false pretenses by delivery of a bad check, it is incumbent on the State to prove that a seller parts with something of value on the belief that the check is good at that particular time. [Citations omitted]. [413 So.2d at 1042].

We have carefully examined the record in this case and are of the opinion that Graham did not rely upon the $550.00 check delivered to him by appellant and, therefore, did not part with his own check and money on the basis of the Walley check. Rather, we are convinced that the transaction was a business deal between appellant and Graham following their customary course of doing business and that, had Walley delivered the railroad timber to Graham, a service to be performed in the future, appellant’s check would have been returned to him. Therefore, the lower court erred in refusing to grant appellant a peremptory instruction of not guilty. The judgment of the lower court is reversed and the appellant is discharged.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

      . Testimony from the bank representative and Graham is confusing on this point.

      . Walley was indicted November 22, 1982, and was arraigned and entered a plea of not guilty on November 24, 1982. Subsequent to his arraignment, Walley’s sister paid to Graham the full amount of the check.


author: WALKER, Presiding Justice,

text:
    Joe JACKSON v. Samuel C. BRUMFIELD and Isabelle Watkins, a Minor by Her Next Friend Ragland Watkins.
    No. 54422.
    Supreme Court of Mississippi.
    Oct. 31, 1984.

      Alfred Lee Felder, McComb, for appellant.
    T. Michael Austin, Robert W. Brumfield, Brumfield & Austin, McComb, for appellee.
    Before WALKER and ROY NOBLE LEE, P.JJ., and PRATHER, J.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Pike County, Mississippi, wherein judgment of $20,078.64 entered in favor of appellant, Joe Jackson, is alleged to be inadequate compensation for injuries he sustained in an automobile-truck collision. There was no question of liability, the ap-pellee, Sammy Brumfield, admitted his failure to observe a stop sign at the intersection of Magee Road and the Robb Street Extension in Pike County resulting in the collision which caused Jackson’s injuries.

I.

THE COURT ERRED IN EXCLUDING DRUG BILLS OFFERED UNDER SECTION 41-9-119

Mississippi Code Annotated section 41-9-119 (1972) provides:

Proof that medical, hospital, and doctor bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.

When a party takes the witness stand and exhibits bills for examination by the court and testifies that said bills were incurred as a result of the injuries complained of, they become prima facie evidence that the bills so paid or incurred were necessary and reasonable. However, the opposing party may, if desired, rebut the necessity and reasonableness of the bills by proper evidence. The ultimate question is then for the jury to determine.

If the bills are for drugs and/or medication purchased, they should be itemized to show the name of the drug and/or medication, the date of the purchase and the prescription number where appropriate.

If the bills are for hospital care they should show a fair itemization of the services rendered and charges made.

If the bills are for physician care they should represent a fair itemization of services rendered and charges made.

As this matter requires reversal for trial on damages, the bills introduced on retrial should conform to the above requirements.

Modern-day jurors, by and large, are enlightened and well educated. They have a right to know what services and/or goods were provided for the charges made. This can serve as an aid in their deliberations with respect to the seriousness and extent of the injuries complained of.

II.

THE COURT ERRED IN GRANTING DEFENDANT INSTRUCTION D-3

Instruction D-3 reads:

The court instructs the jury that under the law the Defendants cannot introduce as a witness any doctor to testify to anything learned by him about the Plaintiffs physical condition while the relation of physician and patient existed between him and the Plaintiff, but the failure of the Plaintiff to call as a witness one of his physicians would justify you in inferring that his testimony would have been unfavorable to the Plaintiff.

In cases involving personal injuries where a plaintiff has, during pretrial discovery, expressly refused to waive the medical privilege as provided for under Mississippi Code Annotated section 13-1-21 (Supp.1983), it shall not be necessary for the defendant to subpoena such physician or physicians for trial in order to request an instruction stating that the treating physicians not called as witnesses by the plaintiff would justify an inference that their testimony would have been unfavorable. Where, however, the plaintiff expressly makes known to the defendant that the physician-patient privilege is being waived, the defendant may not claim the benefit of said instruction.

The record before us does not disclose that the privilege was waived prior to trial or during trial, as alleged by appellant, therefore the appellee was entitled to Instruction D-3.

It would be vain and unnecessarily burdensome, as noted by the trial judge, to require a party to subpoena physicians to court when the plaintiff has already invoked the physician-patient privilege.

The question of whether a physician will be permitted to testify should be decided in advance of trial so that the wasting of a physician’s time as well as additional expense will not be incurred.

III.

THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WAS SO INADEQUATE AS TO EVINCE BIAS, PASSION AND PREJUDICE ON THE PART OF THE JURY

As a result of the accident, the appellant received cuts and abrasions to his body, a pinched nerve on the side of his nose, the loss of six permanent lower front teeth, torn ligaments in his knee as well as a cut lip and chin.

Mr. Jackson has had plastic surgery on his bottom lip and chin. A vertical residual scar remains in the center of his lip and chin on the inside as well as on the outside. He has lost the sensation of feeling in both bottom lip and chin.

When eating Mr. Jackson has a tendency to slobber and someone will normally point out that food is running down his chin making it not only difficult to eat juicy type foods such as cereal and butter beans but is also embarrassing to him. The numbness in his chin and lip has affected his ability to kiss his wife. Because of the lack of feeling in this area of his face, he often bites his lip while eating.

Mr. Jackson has also undergone surgery on his knee. The medial collateral ligament, posterior cruciate ligament and the capsule behind one knee were torn. Mr. Jackson was in surgery for one and one-half hours at which time numerous drill holes were made in his knee with an electric air drill. The ligaments were attached to the bones by suturing and stapling. Mr. Jackson was placed on pain medication as well as muscle relaxants and medicine for inflammation.

Following surgery Mr. Jackson was in a long-leg cast for a period of six weeks. After the cast was removed and he began physical therapy sessions—thirty-five in all. He has a twenty percent partial permanent disability to the leg.

Mr. Jackson is a brick mason and due to the stiffness in his knee he has difficulty working. His knee no longer bends as far as it did in the past which has affected his ability to work on scaffolds. The top part of his knee is numb and he has difficulty knowing when he has scratched this portion of his leg or when he has knelt down on a nail. He can no longer do pave bricking, i.e., laying a brick porch floor. He tires easily and his knee continues to cause him pain.

Prior to the accident he played softball but is now unable to do so. His hunting has been affected as he can no longer climb and is unsure of his footing. He also has trouble when fishing as it is difficult for him to get in and out of a boat. He no longer is able to work in the garden or do yard work and his wife has taken over this duty.

In a case where a plaintiff undergoes extensive surgery, remains off work approximately six months and has total medical expenses of about $8,000 and lost wages of about $7,000 and who will not be able to perform in his profession or social life as he did prior to the injuries as outlined above, a jury verdict of $20,000, which includes only $5,000, approximately, for pain and suffering as well as mental anguish is so inadequate as to evince bias, passion and prejudice on the part of the jury.

We are of the opinion the verdict in this case represents a lack of responsiveness to the evidence by the jury, and therefore must be reversed and remanded for a trial on damages only.

We find appellant’s remaining contention to be without merit.

REVERSED AND REMANDED FOR TRIAL ON DAMAGES.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

DAN M. LEE, J., concurs in result only.

      . When waiver of the physician-patient relationship was not at issue during pretrial discovery nor invoked prior to trial, the defendant has a right to subpoena an attending physician and place him on the stand. If objection is then entered by plaintiff premised on the physician-patient privilege, the defendant is then entitled to an instruction as was granted in D-3. See Reid v. Middleton, 241 Miss. 324, 130 So.2d 554 (1961).

      . The court granted an additur of $78.64 to the jury verdict of $20,000.00.


text:
    Curtis GORDON and John Keith Henry v. STATE of Mississippi.
    No. 54475.
    Supreme Court of Mississippi.
    Oct. 31, 1984.
    James E. Smith, Jr., Smith & Smith, Carthage, Percy S. Stanfield, Merrida P. Cox-well, Stanfield, Carmody, Coxwell & Creel,

      David E. Holderfield, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and PRATHER and SULLIVAN, JJ.
   WALKER, Presiding Justice,

for the Court:

Curtis Gordon and John Keith Henry appeal their convictions of receiving money by false pretenses and judgment of the Circuit Court of Newton County, Mississippi. Gordon was convicted of seven counts of receiving money by false pretenses. Henry was indicted on seven counts but was only convicted of three. The court granted his motion for a directed verdict on the last four counts of the indictment at the conclusion of the State’s case. Both Gordon and Henry were fined $10,000 and sentenced to serve a term of three years confinement for each count, the terms to run concurrently.

This cause came about as a result of seven rebate checks issued by Massey Ferguson, Inc. on tractors which had been purchased from G & H Equipment. Gordon was the manager of G & H and Henry was an attorney who had an office in the same building as G & H.

Gordon and Henry were convicted pursuant of Mississippi Code Annotated section 97-19-39 which reads:

Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, upon conviction thereof, shall be punished by imprisonment in the penitentiary not exceeding three years, or in the county jail not exceeding one year, and by fine not exceeding three times the value of the money, property or thing obtained.

In order to sustain a conviction under section 97-19-39 there must be a showing that the pretenses were false, that the appellant knew them to be false and that the pretenses were the moving cause by which the money was obtained. Neece v. State, 210 So.2d 657 (Miss. 1968); Hughes (and Travis) v. State, 326 So.2d 469 (Miss. 1976).

In Carter v. State, 386 So.2d 1102, 1106 (Miss.1980), citing Bruce v. State, 217 Miss. 368, 374, 64 So.2d 332, 334 (1953), this Court said:

Without regard to whatever offense the defendant may have been guilty of, it is well-settled under our decisions and by the textwriters that in order for one to be guilty of obtaining money under false pretenses, he must obtain the property of another by the false pretenses and to the detriment or injury of the person from whom he obtains the samé. (Emphasis added).

The proof offered by the State in the present case failed to sustain the required element of the offense that Massey Ferguson sustained a detriment or injury. To the contrary, the testimony offered by the appellants showed that the rebate applications were prepared under the supervision of an employee of Massey Ferguson, George Hayes, who was district sales manager at the time the rebates were made. The State failed to present any witness from Massey Ferguson who testified that Massey Ferguson was injured or suffered any detriment as a result of the transactions.

The case should never have been presented to the jury. The motion for a peremptory instruction should have been sustained. Consequently, this cause must be reversed and the appellants discharged.

REVERSED AND APPELLANTS DISCHARGED.

PATTERSON, C.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

ROY NOBLE LEE, P.J., not participating.


text:
    Fred KETCHSON, Jr., a/k/a Freddie Ketchum v. STATE of Mississippi.
    No. 55298.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    Thad Henley, Yazoo City, for appellant.
    Edwin Lloyd Pittman, Atty. Gen., by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Yazoo County, Reuben V. Anderson, Judge.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.

WALKER and ROY NOBLE LEE, PJJ., and BOWLING, HAWKINS, PRATHER and SULLIVAN, JJ., concur.


text:
    Alvan DeGRAW v. STATE of Mississippi.
    No. 55228.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    James G. Tucker, III, Cook & Sharp, Bay St. Louis, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Hancock County, J. Ruble Griffin, Judge.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.


text:
    James ROLLINS v. STATE of Mississippi.
    No. 55165.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    Frank A. Russell, Fulton, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Itawamba County, Thomas J. Gardner, III, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


text:
    James SIMMONS v. STATE of Mississippi.
    No. 55223.
    Supreme Court of Mississippi.
    Nov. 14, 1984.
    Sidney J. Martin, Greenville, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Washington County, B.B. Wilkes, Judge.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.


author: TYSON, Judge.

text:
    James McCONICO, Jr. v. STATE.
    6 Div. 462.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.

      William E. Friel III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

James McConico, Jr. was charged with the murder of one Ricky Morton, by shooting him with a pistol, in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of murder” and following a sentencing hearing, the trial court fixed punishment at life imprisonment pursuant to the Alabama Habitual Felony Offender Act.

Sharon Mitchell testified that on May 23, 1983, at approximately 8:30 a.m., the appellant came to the residence of his estranged wife, Brenda McConico. She stated that Mrs. McConico was living in the home with her brother, Ricky Morton, and Mitchell. She said that, when the appellant entered the home, he and Brenda entered into an argument. She stated that Brenda ran into the kitchen of the home and that appellant followed her. She stated that the appellant was pulling on Brenda and arguing with her when Ricky Morton came out of his bedroom and went into the kitchen. She stated that Ricky told the appellant to take Brenda into her room and talk to her, and at this time the appellant released his wife and she ran out the front door. She further stated that Ricky and the appellant began a struggle which ended shortly thereafter.

Miss Mitchell testified that the appellant then took his son, Johnathon, outside and placed him in his car. She said she saw the appellant get a gun from near the driver’s seat of his automobile and come back to the house with a gun in his hand. She stated that the appellant re-entered the home and went into the dining room. She stated that he grabbed Ricky around the throat with his left hand, while holding the pistol in his right hand and then pushed Ricky up against the wall. She stated that the appellant told Ricky that he was tired of him messing in his business, and then shot Ricky. She further stated that at no time during this altercation between the appellant and Ricky Morton did she see Ricky in possession of a knife. She also stated that she called the police and an ambulance.

On cross-examination, Miss Mitchell was subjected to a vigorous interrogation about the fact that she had testified at a preliminary hearing that Ricky Morton had a knife in his hand during the altercation. She stated that Brenda, the wife of the appellant, had told her to say that Ricky had a knife during the fight, but the truth was that Ricky did not have a knife. She further stated that she felt threatened by the appellant, which was another reason she had changed her testimony during the preliminary hearing.

Brenda McConico also testified to the facts surrounding the incident on May 23, 1983. Her testimony was basically the same as Sharon Mitchell’s except for the fact that she did not witness the actual shooting. She did state that she never saw Ricky Morton with a knife during the altercation.

Howard Miller testified that he was employed by the Birmingham Police Department and, as a part of his duties as an officer, helped investigate the shooting of Ricky Morton. He testified that at no time during his investigation of the incident was it mentioned that Ricky Morton had a knife during the fight. He further stated that a knife was not recovered at the scene of the shooting.

Phillip Johnson testified that he was employed as a Birmingham Police Officer. He stated that he was one of the first officers to arrive at the scene and discover the body of Ricky Morton lying in the dining room on the floor. He stated that Ricky Morton had been shot in the mouth. He further stated that a knife was not found at the scene of the shooting.

Jerome Tift testified that he was the Associate Coroner Medical Examiner for Jefferson County. He stated that in his capacity as such a medical examiner he performed an autopsy on the victim, Ricky Morton. He stated that the cause of death was a gunshot wound to the head of Ricky Morton.

The defendant called a number of witnesses, and all of these witnesses testified that the victim had a bad reputation for violence in the community. These witnesses testified to past specific bad acts of the victim with regard to violence.

The appellant, James McConico, Jr., testified in his own behalf and offered a slightly different version of the incident on May 23, 1983. He stated that he went to the residence of his wife on the morning in question to pick up his son and take him to school. He stated that when he arrived he entered the home and started arguing with his wife, Brenda, about her obtaining employment. He stated that she was very upset and that she was leaning against him in the kitchen and crying. He stated that at this time Ricky Morton came into the kitchen and grabbed him around the waist. He stated that they wrestled for a moment and at this time Brenda ran out of the house. He said he jumped up and ran outside after her, but he did not see her. He stated that he ran down the street to a neighbor’s house and asked the neighbor if she had seen Brenda, to which the neighbor replied that she had not. He said that he ran back to his wife’s residence and re-entered the home. He said that when he went back into the house, Ricky Morton was standing in the dining room and that Ricky was cursing at him, telling him to get out of the house. He said he walked towards Ricky and Ricky turned on him with a knife. He further stated that he grabbed Ricky’s arm, then reached into his own pocket and pulled out a gun. He said they started struggling. He stated, “I guess maybe I was a little stronger than he was, and I pushed him to the wall.... The gun went off, and we were locked like that.” (R. 123) He stated that he placed Ricky on the floor, picked up his two children, and took them outside and placed them in his car. He stated that he went back into the house and reported the incident to the telephone operator. He said that he then left.

I

The appellant contends that he was convicted on the perjured testimony of one of the State’s witnesses and, as a result, should obtain a new trial. Specifically, he argues that Sharon Mitchell, who witnessed the appellant’s shooting of Ricky Morton, committed perjury.

In order to obtain a new trial on the basis of the use of perjured testimony by the State, a defendant must allege and prove (1) that the testimony was perjured; (2) that it was on a matter of such importance that the truth would have prevented a conviction; (3) that the State had knowledge that the testimony was perjured; and (4) that the defendant was not negligent in discovering the falsehood and in raising the issue. Summers v. State, 366 So.2d 336 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346 (Ala.1979); Pennington v. State, 420 So.2d 845 (Ala.Crim.App.1982); Phelps v. State, 439 So.2d 727 (Ala.Crim.App.1983); Waldrop v. State, 448 So.2d 490 (Ala.Crim. App.1984). This is in addition to meeting the requirements for establishing the right to a new trial on the basis of newly discov- . ered evidence. Barnes v. State, 415 So.2d 1217 (Ala.Crim.App.1982).

In the present case, the appellant has failed to satisfy this burden of proof. The record reveals that Miss Mitchell told conflicting stories about the victim having a knife during the incident, during the preliminary hearing and at trial in this case. She stated on direct examination of the preliminary that he did not have a knife, then on cross-examination, she stated that he did. During trial of this case, she stated that he did not have a knife. The defense counsel effectively and vigorously impeached this testimony by use of her prior testimony at the preliminary hearing. The evidence was properly put before the jury, which had the “responsibility of assessing the credibility of each witness and weighing all the evidence, whether direct or circumstantial, as they viewed it.” Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.), cert. denied, 368 So.2d 877 (1978). The jury could have chosen to disregard Miss Mitchell’s testimony entirely. Moreover, we have carefully reviewed the evidence in this cause and have concluded that, while the appellant presented a defense which, if believed by the jury, might have justified his conduct, there was sufficient evidence to support the jury’s verdict.

II

The appellant contends that his constitutional right to compulsory process was violated when the trial court failed to continue his trial because a defense witness failed to appear.

In deciding whether the trial court should have granted a continuance in order to procure the attendance of an absent defense witness, it should be noted initially that defense counsel did not ask for such a continuance in any form. Further, a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed unless clearly abused. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Wilson v. State, 384 So.2d 1243 (Ala.Crim.App.1980); Bailey v. State, 398 So.2d 406 (Ala.Crim. App.1981); King v. State, 435 So.2d 769 (Ala.Crim.App.1983); Pritchett v. State, 445 So.2d 984 (Ala.Crim.App.1984). This rule clearly applies to cases where the continuance is sought due to an absent witness. Bailey v. State, supra; Weaver v. State, 401 So.2d 344 (Ala.Crim.App.1981); Pritchett v. State, supra.

The Court of Appeals has previously stated:

“Before it can be said that the accused has been denied this constitutional right, he must apply to the court for the issuance of an attachment and show to the court that the witness has been served with a subpoena a sufficient length of time before the trial to afford an opportunity to the witness to obey its mandate, that the witness is in the jurisdiction of the court, and that his attendance can be obtained within a reasonable time by compulsory process.... ”

Thomas v. State, 15 Ala.App. 408, 73 So. 558 (1916); King v. State, supra; Pritchett v. State, supra.

In this case, defense counsel called a number of witnesses. When he learned that one witness was not present, he continued with the trial and called other witnesses. After these witnesses testified he again called for this absent witness, and when he did not appear, counsel announced that the defense rested. Appellant did not ask for a continuance in order to secure the presence of the witness, nor did he invoke a ruling on the part of the trial court. We cannot hold that the trial court was in error for not continuing the case under these circumstances. See Thomas v. State, 231 Ala. 606, 165 So. 833 (1936); Dickerson v. State, 362 So.2d 1322 (Ala.Crim.App.1978).

hi

The appellant filed a pro se petition for writ of error coram nobis asserting, among other things, that his counsel had not adequately represented him by failing to file pre-trial motions, to locate and interview witnesses who would have supported his theory of defense, to subpoena a “material witness,” and to impeach Brenda McConico’s testimony.

Following a hearing on the merits of the appellant’s allegations, at which he was represented by counsel, the trial court denied the petition with reference each allegation. The able trial judge found that the appellant was thoroughly and competently represented at his trial. This finding is fully borne out by the record in this cause.

Not only has the appellant failed to establish that the conduct of his counsel had reduced the trial proceeding to a farce, sham or mockery, Robinson v. State, 361 So.2d 1172 (Ala.Crim.App.1978), but he has also fallen far short of establishing that he was denied “reasonably effective”, assistance of counsel as set forth in Harris v. Oliver, 645 F.2d 327 (5th Cir.1981). See also, Mitchum v. State, 414 So.2d 168 (Ala. Crim.App.1982); Trammell v. State, 420 So.2d 855 (Ala.Crim.App.1982); Phelps v. State, 439 So.2d 727 (Ala.Crim.App.1983). We, therefore, hold that this appellant has substantially failed to meet the burden of truth as required in attempting to sustain the allegations made at the coram nobis proceeding. Cannon v. State, 416 So.2d 1097 (Ala.Crim.App.1982).

IV

The appellant alleges that he was indicted and convicted by way of a void indictment. He argues that the witnesses which testified before the Grand Jury could not have given competent evidence sufficient for a return of a true bill.

The question of whether an indictment by the Grand Jury has been found on insufficient testimony must be raised by a proper motion to quash the indictment. Perkins v. State, 66 Ala. 456 (1880); Franklin v. State, 233 Ala. 203, 171 So. 245 (1937). Further, such motions should be timely filed at the trial level and can not be raised for the first time on appeal. Wright v. State, 421 So.2d 1324 (Ala.Crim. App.1982); Wesley v. State, 424 So.2d 648 (Ala. Crim.App.1982); Sanders v. State, 426 So.2d 497 (Ala.Crim.App.1982). Moreover, the testimony of a single witness before the grand jury is sufficient to comply with § 12-16-200, Code of Alabama 1975. Douglas v. State, 42 Ala.App. 314, 163 So.2d 477 (1963), cert. denied, 276 Ala. 703, 163 So.2d 496 (1964), reversed on other grounds, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). When it appears that witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged. Evans v. State, 338 So.2d 1033 (Ala.Crim. App.1976), cert. denied, 348 So.2d 784 (Ala. 1977); Wright v. State, supra.

A review of the record in this cause reveals that the appellant never filed a motion to quash the indictment, nor did he raise these grounds at the trial level. Therefore, pursuant to the authority above, this court has nothing before it to review.

V

The appellant contends that the trial court erred in denying his motion to inspect the minutes of the grand jury.

This court in Sullivan v. State, 43 Ala.App. 302, 189 So.2d 593 (1966), held that the trial court, in its discretion, may allow counsel to look at grand jury notes or minutes. Nowhere is it shown that the district attorney was examining any of the witnesses from the grand jury notes or grand jury testimony. See Hammond v. State, 354 So.2d 280 (Ala.Crim.App.), cert. quashed, 354 So.2d 294 (Ala.1977); Stroud v. State, 56 Ala.App. 692, 325 So.2d 200 (1975), cert. quashed, 295 Ala. 424, 325 So.2d 204 (1976); Allen v. State, 380 So.2d 313 (Ala.Crim.App.1979), cert. denied, 380 So.2d 341 (Ala.1980); Brager v. State, 380 So.2d 401 (Ala.Crim.App.1980). The appellant must show a justifiable need to have the grand jury minutes revealed to him and in this case he did not show such a need. Under these circumstances, it was proper to deny the appellant’s request to see the grand jury testimony. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972); State ex rel. Baxley v. Archer, 335 So.2d 240 (Ala.Crim. App.1976); Craig v. State, 380 So.2d 385 (Ala.Crim.App.1980); Millican v. State, 423 So.2d 268 (Ala.Crim.App. 1982); Dutton v. State, 434 So.2d 853 (Ala. Crim.App.1983).

VI

The appellant contends that the Alabama Habitual Felony Offender Act is unconstitutional as applied to him, and as such, the law constitutes cruel and unusual punishment.

The record discloses that the appellant was given due notice of the State’s intention to proceed under the Act, and that a full hearing was conducted by the trial court, following trial, before sentence was imposed in this cause.

The State properly presented the appellant’s prior felony convictions, which were: (1) Grand larceny, and; (2) Burglary and grand larceny.

This court has upheld the constitutionality of the Alabama Habitual Felony Offender Act in a plethora of cases, and continues to do so on this appeal. Watson v. State, 392 So.2d 1274 (Ala.Crim.App.), cert. denied, 392 So.2d 1280 (Ala.1980); Seritt v. State, 401 So.2d 248 (Ala.Crim.App.), cert. denied, 401 So.2d 251 (Ala.1981); Smith v. State, 401 So.2d 251 (Ala.Crim.App.), cert. denied, 401 So.2d 257 (Ala.1981); Ingram v. State, 437 So.2d 128 (Ala.Crim.App. 1982); Weaver v. State, 437 So.2d 626 (Ala. Crim.App.1983); Jackson v. State, 440 So.2d 1181 (Ala.Crim.App.1983); Campbell v. State, 444 So.2d 913 (Ala.Crim.App. 1984); Pickens v. State, 447 So.2d 867 (Ala. Crim.App.1984). Furthermore, this court has held that sentencing under this Act does not constitute cruel and unusual punishment, and we find no merit to appellant’s contention in this cause that such sentencing, as applied to him, constitutes such cruelness as to render it unconstitutional. Watson v. State, supra; Seritt v. State, supra; Smith v. State, supra; Butler v. State, 439 So.2d 210 (Ala.Crim.App. 1983); Willis v. State, 441 So.2d 1030 (Ala. Crim.App.1983); Pickens v. State, supra. See also, Rummell v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Seritt v. Alabama, 731 F.2d 728 (11th Cir. 1984).

As required by Solem, Warden v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), we have considered the proportionality of the punishment herein expressed, both in light of the appellant’s prior record and the length of the sentence for the offense for which the appellant has been .convicted.' We find the sentence imposed to be in keeping with the statute, and Solem furnishes no authority for disturbing such sentencing in this cause. Weaver v. State, supra; Minor v. State, 437 So.2d 651 (Ala.Crim.App.1983); Jackson v. State, supra; Pickens v. State, supra; Seritt v. Alabama, supra.

We have carefully reviewed the record in this cause and find no errors injurious to the appellant therein. The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Robert Lacey PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 63700
    Supreme Court of Florida.
    Sept. 6, 1984.
    Rehearing Denied Dec. 3, 1984.

      Robert J. Link of Goodstein & Link, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

Appellant was tried on three counts of first-degree murder. A jury found him guilty of first-degree murder on two counts and of third-degree murder on the other and recommended a sentence of life on each of the first-degree murder convictions. The trial judge overrode the jury recommendation on one of the convictions and imposed the death penalty. We have jurisdiction to review the convictions and the imposition of the death penalty pursuant to article V, section 3(b)(1), Florida Constitution. We affirm'both the convictions and the sentence.

Parker was charged with first-degree murder in the deaths of Richard Padgett, Jody Dalton and Nancy Sheppard. The state introduced evidence at trial that Parker was a drug dealer and Tommy Groover sold drugs for him. Groover had allegedly fronted some drugs to Padgett. When Groover was unable to pay Parker, Parker allegedly threatened to hang Groover unless the debt was satisfied. Testimony indicated Parker was of a violent temperament, had possession of firearms and was irritated over the drug debt. Uncontro-verted evidence showed that Padgett was located at a bar, taken to Parker’s junkyard and beaten by Groover and driven into the woods and shot by Groover. Later that same evening, Groover beat and shot Jody Dalton and Parker helped weight her body and sink it in a lake. Finally, Nancy Sheppard, Padgett’s seventeen-year-old girlfriend, was lured from her home and taken to the ditch where Padgett’s body had been left. She was killed by Billy Long, who testified that he was ordered to kill her by Parker, who threatened to kill him in her place unless Long complied. Parker then took Sheppard’s necklace and ring from her body.

Parker did not deny being present during these events, but he testified in his own behalf that he had been an unwilling accomplice, forced into cooperation by Gro-over’s threats against Parker’s family. He further claimed to have had no indication that Groover planned to kill Padgett or Dalton and that these murders were not part of any common scheme or in furtherance of any common goal. On the contrary, Parker claimed friendship with Pad-gett and disclaimed more than the slightest acquaintance with either of the women.

The jury convicted Parker of third-degree murder in the death of Jody Dalton and first-degree murder in the Padgett and Sheppard homicides. The jury recommended life imprisonment on both first-degree convictions. The trial judge sentenced Parker to life in the Padgett killing, but he imposed the death penalty for the Sheppard murder.

Appellant raises twenty issues as assignments of error in the guilt phase. All have been considered in depth and found insufficient to require reversal. We find it necessary to discuss only three at any length.

First, Parker contends that the Padgett murder was an independent act of Tommy Groover’s, and the trial court erred in denying Parker’s request for a jury instruction on the independent act of a co-felon, citing Bryant v. State, 412 So.2d 347 (Fla.1982). It is true that an act in which a defendant does not participate and which is “outside of and foreign to, the common design” of the original felonious collaboration may not be used to implicate the nonparticipant in the act. 412 So.2d at 349. Where any evidence which would support the theory of independent act has been presented, the defendant is entitled to the jury instruction. We do not find any evidence on the record which would require the instruction.

In Bryant, the defendant had agreed to help burgle a supposedly empty apartment. Upon entering the apartment, the defendant discovered the victim to be present— bound hand and foot, naked on the floor. The defendant admitted to retying the victim and moving him to the bed, but he testified that when he left the apartment fifteen minutes later the victim was alive and had not been sexually assaulted. The victim’s dead body was later discovered; he had been violently assaulted anally and strangled with a necktie.

Bryant is clearly distinguishable from the present case even when all the evidence presented is viewed in the light most favorable to Parker. In Bryant the defendant did not participate in creating the circumstances which directly led to the victim’s death. Parker, on the other hand, created the initial situation by threatening to kill Groover if he did not reimburse Parker for drugs he had fronted to Pad-gett. In Bryant, the defendant claimed to have withdrawn entirely from the scene and to have fulfilled his role in the criminal enterprise before the rape and murder began. Parker was on the scene and was still demanding repayment when Padgett was murdered. Finally, the acts of rape and murder are not inspired by the same criminal motivation which induced Bryant’s participation in a burglary for pecuniary gain. Parker, however, was, at the very least, aware that Padgett was being driven to the woods against his will as part of the ongoing terrorization for failure to pay his drug debt and to keep him from seeking reinforcements from his relatives and mounting a retributive attack on Groover and Parker. The murder was a natural and foreseeable culmination of the motivations for the original kidnapping. As a principal to the kidnapping, Parker is a perpetrator of the underlying felony and thus a principal in the homicide. Goodwin v. State, 405 So.2d 170 (Fla.1981). We find no error in the failure to give the requested instruction.

Of more concern is the state’s advising the jury that Elaine Parker, appellant’s ex-wife and a participant in the sequence of events giving rise to the murders, had pleaded guilty to one count of second-degree murder pursuant to a plea bargain. Appellant cites Thomas v. State, 202 So.2d 883 (Fla. 3d DCA 1967), and Moore v. State, 186 So.2d 56 (Fla. 3d DCA 1966), as holding that revealing a co-felon’s conviction or entry of a guilty plea was impermis-sibly prejudicial to the fairness of the trial. We agree in principle with Judge Pearson’s analysis in Thomas:

As a general rule, it is improper for a prosecuting attorney to disclose during trial that another defendant had been convicted or has pleaded guilty. This is because competent and satisfactory evidence against one person charged with an offense is not necessarily so against another person charged with the same offense. Each person charged with the commission of an offense must be tried upon evidence legally tending to show his guilt or innocence.

202 So.2d at 884.

Nonetheless, while we find the revelation of Elaine’s plea to be error, on the unique facts of this case we must find that error to be harmless. First, it cannot be fairly argued that placing Elaine’s plea before the jury foreclosed any viable option Robert had of denying involvement. The state had assembled too many eyewitnesses to Parker’s presence during and participation in the sequence of events in which the murders occurred for him to offer a defense of non-participation. Rather, he admitted his presence during and participation in all but the physical act of murder, but he defended his actions on a theory of an independent act of a co-felon in the Padgett murder and a theory of duress in the Dalton and Shepard killings. Both theories of defense rely on Parker’s own subjective perceptions of the events and on his personal formulation of intent. Elaine’s plea of guilty could not be construed as rebutting any portion of Robert’s defense inasmuch as her perceptions and formulation of intent could not be imputed to him, nor his to her. Thus, Robert’s defense was not fundamentally prejudiced because the jury knew Elaine had entered a guilty plea to a charge of second degree murder. Additionally, the trial judge included in the jury instructions a curative admonition that a co-felon’s plea should not be considered as relevant to the issue of defendant’s guilt.

Finally, we must address the state’s use of a police investigator to testify to a witness’s reputation in the community for truth and veracity. The defense attorney argued strenuously at trial against the admission of this testimony, citing Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978), for the proposition that a police investigator may not be used as a witness to reputation in the community. The state countered with the argument, accepted by the trial judge, that the subject had no fixed community of residence but that he had been extensively involved with the criminal justice system and had spent the previous year in Duval County Jail. Thus, the state reasoned, the subject’s “community” was the criminal justice system and the police officer, as part of that system, was a member of the community for purposes of testifying about the subject’s reputation for truth and veracity. We find this construction of the rules of evidence novel but unacceptable. It has long been accepted that in the absence of sufficient contact with a community of residence to establish a reputation for truth and veracity, evidence of that reputation in another social context will be admissible. Hamilton v. State, 129 Fla. 219, 176 So. 89 (1937). However, we do not agree that the criminal justice system is either neutral enough or generalized enough to be classed as a community or that an officer in that system is equipped to provide an unbiased and reliable evaluation of an inmate’s general reputation for truth-telling. Nonetheless, the witness whose testimony was attacked was only material to the defense case insofar as he accused Long of lying about Parker’s active involvement in the Sheppard murder and his credibility was subject to impeachment on his record. In light of the totality of the evidence presented both by Long and by Parker himself, we find this error to be harmless.

In addition to considering all other issues raised on appeal, we have conducted an independent review of the record on trial and find no reason to award a new trial. Accordingly, the convictions are affirmed.

In sentencing Parker to death for the Sheppard murder in spite of the jury's recommendation of life, the trial judge found that Parker had been previously convicted of another violent felony, the murder was committed during a robbery, the murder was committed to avoid lawful arrest, the murder was committed for pecuniary gain, the murder was especially heinous, atrocious and cruel, the murder was cold, calculated and premeditated. We cannot accept the findings that the murder was committed during a robbery or that it was especially heinous, atrocious or cruel. Although Parker admitted taking the victim’s necklace and ring from her body after her death, the evidence fails to show beyond a reasonable doubt that the murder was motivated by any desire for these objects. The motive expressed at the time of the killing was to keep the victim from implicating the murderers in the death of Richard Padgett. Nancy Sheppard had offered the jewelry to Parker the evening before she was killed as payment for Padgett’s debt. Parker refused it at that time and there is no indication that taking it after her death was more than an afterthought, rather than a motive for murder. This evidence does not satisfy the standard of proof beyond a reasonable doubt on which the finding of an aggravating factor must be based. Williams v. State, 386 So.2d 538 (Fla.1980).

We note in passing that the finding that the murder was for pecuniary gain was not based on the taking of the jewelry. Rather, the trial court stated that the entire sequence of events in which the murders occurred was touched off by Parker’s desire to establish a remunerative drug-dealing network and his need to establish a reputation as a collector of debts. The evidence amply supports this finding and we accept it.

We find the same lack of proof in the determination that the murder was especially heinous, atrocious and cruel. Evidence showed that Sheppard left her home willingly, expecting to meet her boyfriend, Padgett, in the woods. Her first indication that something was amiss came when she saw his body in the ditch. She fell to her knees, covered her face with her hands and cried out. Almost immediately she was shot and killed, execution style. There was nothing unusual in the manner or method of effecting the crime. We do not gainsay the pathos surrounding the murder of this young girl. However, this aggravating factor cannot properly be considered.

The trial court found no mitigating circumstances to balance against the aggravating factors, of which four were properly applied. In light of these findings the facts suggesting the sentence of death are so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So.2d 908 (Fla.1975). The jury override was proper and the facts of this case clearly place it within the class of homicides for which the death penalty has been found appropriate. Spaziano v. Flor ida, — U.S. -, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984).

Accordingly, the sentence of death is affirmed.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs in the convictions, but concurs in the result only of the sentence.

McDONALD, J., concurs in the convictions, but dissents from the sentence.


text:
    William EUTZY, Appellant, v. STATE of Florida, Appellee.
    No. 64212.
    Supreme Court of Florida.
    Sept. 20, 1984.
    Rehearing Denied Dec. 3, 1984.

      Michael E. Allen, Public Defender and Steven L. Bolotin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This appeal from a conviction of first-degree murder and sentence of death is before the Court pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the conviction and the sentence. ■

William Eutzy and his sister-in-law, Laura Eutzy, were stopped in the Pensacola airport by a security guard. Appellant identified himself as Raymond Sanders, but Laura Eutzy gave her correct name. The couple was later seen getting into a taxicab driven by the victim, Herman Hughley.

A dispatcher for the cab company for which Hughley drove testified that Hugh-ley reported picking up a fare at the airport with a destination in Pensacola Beach. Forty-five minutes later, Hughley reported that the destination had been changed to Fort Walton; ten or twenty minutes later he notified the dispatcher that they were going to Panama City. Three-and-a-half hours after the last report, Hughley notified the dispatcher of his return. When the dispatcher asked him to repeat his message she got no response. Repeated attempts to reach Hughley were unsuccessful.

Hughley’s body was discovered in the front seat of his cab by a driver for the same cab company, Mary Beasley. She had seen Hughley with the Eutzy couple at the airport the evening before. Her curiosity was aroused when she drove past Hughley’s cab, apparently deserted, on the edge of the Pensacola Junior College campus. Other witnesses were able to testify it had been there since approximately the time of Hughley’s last contact with his dispatcher.

William and Laura Eutzy were picked up while trying to hitchhike out of town the day after Hughley’s body was discovered. They had been spotted by Jackie Humel who was at that time on her way to the police department to make a statement in the Hughley case. She had seen Hughley and appellant at the spot where Hughley was later discovered dead at about the time Hughley radioed in his last report.

Laura Eutzy had a pistol, later proven to be the murder weapon, in her purse at the time of her arrest. She testified before the grand jury and at Eutzy’s trial that she had ridden in the back seat of the cab, sleeping off and on. Eutzy had sat in the front with Hughley. To the best of her knowledge, Eutzy had had only five dollars when they hired the cab; she had had no money. She did not know how they were going to pay the cab fare. Appellant said he would take care of it. When they returned to Pensacola, Eutzy had the cab driver drop Laura off at a Holiday Inn. He then rode off with Hughley. When appellant returned, Laura asked him if he had taken care of the fare. He answered in the negative and he told Laura he had hit the driver on the head with the gun but had not hurt him. Laura testified that she had not been aware that he had taken the gun until he returned it to her at that time. On the morning they were arrested, Laura read a story about Hughley’s murder in the local newspaper and realized for the first time what had happened, according to her testimony.

Eutzy was tried for first-degree murder. The jury found him guilty of first-degree premeditated murder, using a special verdict form. At the guilt phase, evidence was presented that Eutzy had a prior conviction for robbery. Eutzy presented no evidence of mitigating circumstances. The jury recommended a life sentence but the judge declined to follow that recommendation. Finding three aggravating factors— conviction of a prior violent felony, murder committed during a robbery, murder was cold, calculated and premeditated — and no mitigating circumstances, the trial judge sentenced Eutzy to death.

Appellant raises no allegation of error concerning the guilt phase of the trial. We have reviewed the record independently and find no reason to disturb the jury’s verdict.

Appellant raises five issues challenging the imposition of the death penalty. Three of these merit little discussion. Appellant argues that the statutory authority granted a trial judge to override a jury’s recommendation of life is unconstitutional as applied. This issue was not timely raised before the trial court and thus was not preserved for appeal.

Appellant contends that the jury instructions given in the penalty phase were constitutionally inadequate. Without reaching the merits of the instructions themselves, we note that appellant received a jury recommendation of life imprisonment, the more lenient of the two options before the jury. Appellant is unable to demonstrate any harm arising from the allegedly erroneous instructions.

Appellant disputes the finding that the murder was committed in a cold, calculated and premeditated manner. However, the evidence is clear that Eutzy procured the gun in advance, that the victim was shot once in the head, execution style, and that there was no sign of struggle. It is axiomatic that every aggravating factor must be proved beyond a reasonable doubt. Williams v. State, 386 So.2d 538 (Fla.1980). This does not, however, proscribe the use of circumstantial evidence to meet this burden of proof, so long as that circumstantial evidence is inconsistent with any reasonable hypothesis which negates the aggravating factor. Compare, McArthur v. State, 351 So.2d 972 (Fla.1977). The jury convicted Eutzy of first-degree premeditated murder, and Eutzy raises no objection to the sufficiency of the evidence, albeit circumstantial, to support that verdict. Accepting the evidence of premeditation, we can find no reasonable hypothesis inconsistent with the heightened premeditation required for this factor. See, e.g., Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982).

Appellant challenges the finding that the murder occurred during the commission of a robbery. We agree that this finding cannot be supported by the record. The state failed to present any evidence that the victim had anything of value with him before the murder or that no cash or valuables were on the victim’s body when he was found. The prosecutor argued to the jury that cab fare was “due and owing” the victim and that a finding of robbery could be based on that circumstance alone. We do not find this to satisfy the elements of the robbery statute. Section 812.13(1), Florida Statutes provides: “‘Robbery’ means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault or putting in fear.” The force, violence, assault or putting in fear must be contemporaneous or precedent to the taking. McCloud v. State, 335 So.2d 257 (Fla.1976); Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922).

Assuming, for the moment, that no payment was made, there is nothing in the record to show that the cab ride was “taken” by precedent or contemporaneous force, violence, assault or putting in fear. The murder occurred, in the prosecutor’s own words, when the payment was “due and owing” to the victim — after the cab ride had been taken.

As important, however, is the utter void in the record that payment was not made or that anyroobbery occurred. As noted above, no evidence was submitted that the victim was in custody of cash or other property before he picked up the Eutzy couple. Neither was evidence presented that no cash or property was found on or near the victim’s body. Any inference that taking occurred could only be based on Laura’s testimony that, to the best of her knowledge, appellant had only five dollars in his possession during these events. This evidence is counterbalanced by testimony from cab company employees that it was standard practice to demand payment in advance for any trip beyond the city limits. In the absence of any material evidence in the record which would unequivocally support a finding that a robbery occurred, we must disallow this aggravating factor. We note in passing, however, that the evidence in the record was sufficient to support a finding that the murder was committed for pecuniary gain. Because the trial court failed to find this aggravating factor, we must ignore it in our review of the propriety of the jury override.

Finally, appellant argues that the jury override violates the Tedder standard. This Court has consistently held that a jury’s recommendation of life is entitled to great weight and should be followed unless the facts justifying a death sentence are so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So.2d 908 (Fla.1975). As well as contesting two of the aggravating factors, as discussed above, appellant posits three reasons which he claims show the impropriety of the jury override.

First, appellant notes that in the vast majority of all cases in which this Court has affirmed the imposition of the death sentence in spite of a jury recommendation of life, there has been a finding that the murder was especially heinous, atrocious and cruel. While appellant’s statistical compilation and case analysis is interesting and informative, we cannot agree that it is binding precedent for the proposition that a jury recommendation of life coupled with the absence of that particular aggravating factor destroys the trial judge’s statutory authority to independently weigh the evidence in aggravation and mitigation and to impose sentence. Though always entitled to great weight, the jury’s recommendation is only advisory. Under no combination of circumstances can that recommendation usurp the judge’s role by limiting his discretion.

Appellant further argues that the jury could have found a mitigating circumstance in Eutzy’s age. He was forty-three at the time of his conviction and, if sentenced to life imprisonment, would be sixty-eight before he became eligible for parole. Appellant argues that it was reasonable for the jury to consider in mitigation the probability that the defendant would no longer be a threat to society when he reentered it. In passing, we question the reasonableness of the conclusion that a previously violent sixty-eight-year-old who has spent twenty-five years in prison is, by virtue of age alone, rendered harmless to society. However, the crucial flaw in appellant’s argument is that he mistakes the nature of mitigation. Mitigating circumstances must, in some way, ameliorate the enormity of the defendant’s guilt. For this reason, age is a mitigating circumstance when it is relevant to the defendant’s mental and emotional maturity and his ability to take responsibility for his own acts and to appreciate the consequences flowing from them. See, Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978). One who has attained an age of responsibility cannot reasonably raise as a shield against the death penalty the fact that, twenty-five years hence, he will no longer be young.

Of more consequence is the contention that the jury may have been swayed by the state’s treatment of Laura. Originally charged with first-degree murder as a co-defendant, Laura testified at trial that she was facing, at worst, five years’ imprisonment for possession of a concealed weapon. At best, she would serve five years’ probation.

This Court has upheld the reasonableness of jury recommendations of life which could have been based, to some degree, on the treatment accorded one equally culpable of the murder. McCampbell v. State, 421 So.2d 1072 (Fla.1982). In such cases, we have reversed the judge’s decision to override the recommendation when the accomplice was a principal in the first degree; Herzog v. State, 439 So.2d 1372 (Fla.1983); McCampbell v. State; when the accomplice was the actual triggerman; Barfield v. State, 402 So.2d 377 (Fla.1981); Slater v. State, 316 So.2d 539 (Fla.1975); when the evidence was equivocal as to whether defendant or the accomplice committed the actual murder; Smith v. State, 403 So.2d 933 (Fla.1981); Malloy v. State, 382 So.2d 1190 (Fla.1979); Halliwell v. State, 323 So.2d 557 (Fla.1975); or when the accomplice was the controlling force instigating the murder; Stokes v. State, 403 So.2d 377 (Fla.1981); Neary v. State, 384 So.2d 881 (Fla.1980). In every case, the jury has had before it, in either the guilt or the sentencing phase, direct evidence of the accomplice’s equal culpability for the murder itself. That is not the case before us.

Had it disbelieved Laura’s testimony entirely, the jury could have inferred from the facts before it that Laura knew the defendant had taken the gun from her purse. This does not suffice to make her a principal in the first degree, equally as culpable of the homicide as the defendant. She was not at the scene of the crime; there was testimony in evidence that she was seen at the Holiday Inn at the approximate time the murder occurred and that she was not at the scene of the crime when Jackie Humel saw Eutzy and the victim there. Nor is there anything in the record which would support a reasonable inference that she was constructively present. There is no evidence which would show that she aided, abetted, counseled, hired or otherwise procured the offense. For a jury recommendation of life to be reasonable, based on lenient treatment accorded an accomplice, the jury must have been presented with evidence tending to prove the accomplice’s equal culpability. Otherwise, the state, which often must rely on testimony of a defendant’s unsavory companions in presenting evidence of a crime, would bear the burden of rehabilitating those witnesses and defending the legal propriety of treatment the jury might perceive as too lenient. The jury may reasonably compare the treatment of those equally guilty of a crime; it may not compare treatment of those guilty of a different, lesser crime in weighing the propriety of the death penalty. Because the record is devoid of any evidence which would show that Laura was a principal in the first degree in the murder, we must reject the argument that the jury’s recommendation of life could reasonably have been based on the disparate treatment of Laura and William.

No evidence of mitigating circumstances was presented for the jury to consider. We have rejected as unreasonable those considerations which may have influenced the jury’s recommendation of life. Faced with two validly applied aggravating factors and no valid mitigating circumstances, either statutory or non-statutory, we find no reason to disturb the sentence imposed by the trial court. We find from a comparison of past first-degree murder cases that the sentence is consistent with that imposed for similar homicides. The conviction and sentence are accordingly affirmed.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.

McDONALD, J., concurs in the conviction, but dissents from the sentence.

      . "Property which is subject to larceny" includes “services” according to sections 812.012(3)(c) and 812.014(l)(a), Florida Statutes. A cab ride, however pointless, is a service.

      . Laura filed a traverse to the indictment, which the state failed to answer. The state dropped the murder charge and filed an information on the concealed weapon charge. As discussed later, the record shows no facts upon which Laura could have been tried for murder, unless William testified against her.


author: EHRLICH, Justice.

text:
    Eugene HALL, Petitioner, v. BILLY JACK’S, INC., Respondent.
    No. 63147.
    Supreme Court of Florida.
    Oct. 11, 1984.
    Rehearing Denied Dec. 10, 1984.

      D. Russell Stahl, Tampa, for petitioner.
    Kathleen V. McCarthy, Hialeah, for respondent.
   EHRLICH, Justice.

Petitioner seeks review of the decision of the Second District Court of Appeal, Spillers v. Hall, 428 So.2d 268 (1982) on the grounds of direct and express interdistrict conflict. Babrab, Inc. v. Allen, 408 So.2d 610 (Fla. 4th DCA 1981); we have since quashed Babrab, 438 So.2d 356 (Fla.1983). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We quash the decision of the district court and remand the case to that court for reconsideration.

' As Eugene Hall watched a pool game in Billy Jack’s Lounge on November 9, 1978, he was assaulted by another lounge patron. The fight moved outside. When it was over Hall rose to his feet and turned to face Wayne Spillers, a lounge patron, and George McGuire, the lounge manager. Spillers hit Hall over the head with a pool cue he had taken from the lounge in violation of posted rules. Hall testified that the blow was without provocation; Spillers testified that it was in self-defense. Hall sought damages against Billy Jack’s for the November 9 assault on a negligence theory. The jury found in favor of Hall and against Billy Jack’s on all issues and awarded Hall $240,000 against Spillers and Billy Jack’s jointly. The district court affirmed as to Spillers but reversed as to Billy Jack’s. The court held that Billy Jack’s was not shown to have breached its duty to Hall in that no evidence supported a finding that Billy Jack’s knew or should have known that Spillers would attack Hall without provocation.

Although some of the facts are disputed, the parties agree on all material points. Hall was a business visitor in Billy Jack’s Lounge; the lounge owes business visitors a duty of reasonable care for their safety. A tavern owner is not required to protect the patron from every conceivable risk; he owes only a duty to protect against those risks which are reasonably foreseeable. Stevens v. Jefferson, 436 So.2d 33 (Fla.1983). Forseeability may be established by proving that a proprietor had actual or constructive knowledge of a particular assailant’s inclination toward violence or by proving that the proprietor had actual or constructive knowledge of a dangerous condition on his premises that was likely to cause harm to a patron. Fernan dez v. Miami Jai Alai, Inc., 386 So.2d 4 (Fla.3d DCA 1980). A dangerous condition may be indicated if, according to past experience (i.e., reputation of the tavern), there is a likelihood of disorderly conduct by third persons in general which might endanger the safety of patrons or if security staffing is inadequate. These indicia are not exhaustive. If the lounge management knew or should have known of a general or specific risk to Hall and failed to take reasonable steps to guard against that risk and if, because of that failure, Hall was injured, Billy Jack’s may be shown to have breached its duty and may be held financially responsible for Hall’s injuries. The question of foreseeability is for the trier of fact. Gibson v. Avis Rent-A-Car System, 386 So.2d 520 (Fla.1980).

We note that the case against Billy Jack’s, Inc. was tried on a theory of liability more narrow than that which we enunciated in Babrab and Stevens. The district court, before Babrab had issued from this Court, overturned the plaintiffs verdict against the tavern in reliance on the Fourth District’s decision in Babrab which we quashed. In relying on a rule it considered to be dispositive, the district court below did not reach other issues which may affect the appellate disposition of this case.

We therefore remand this case to the district court for reconsideration in light of this Court’s decisions in Babrab and Stevens.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.