Rhodes v. McWilson

MAYFIELD, J. To hold that the arrest in this case is lawful and reasonable is to hold that any person may he lawfully seized, arrested, detained, and, unless he give bond, imprisoned, by any policeman of the city of Birmingham, on a mere verbal request of any other citizen, who says to the policeman that the person to be arrested has violated some criminal law of this state, or some ordinance of the city of Birmingham; that such arrests may be lawfully made, as-for any misdemeanor, or for the violation of any municipal ordinance of Birmingham, by any *69 policeman in the city of Birmingham, though the offense is not committed in the presence of the arresting officer, and though he have no probable cause to believe that that offense or any other, has been committed, and without the affidavit or oath of any person, and even when the officer and the person requesting the arrest know that the person to be arrested has committed no offense whatever, and that the arrest is for the purpose of allowing the person making the request to get possession of the property of the person arrested. That this statement is justified, see the opinion of this court on the former appeal, and that of the Court of Appeals on this appeal, as to what the undisputed evidence shows. 192 Ala. 675-682, 69 South. 69; Id., 16 Ala. App, 315, 77 South. 465. To hold an arrest lawful and reasonable, such as is shown in the opinions to which reference is made, is in legal effect to nullify several provisions of our Bill of Rights, as well as section 89 of the Constitution. Opinion. [1,2] When the people of this state, through their representatives, met in convention to form this state government, they reserved to themselves and their descendants and successors certain rights, liberties, privileges, and immunities, which they did not surrender or cede to the government to be created by the convention. They also exacted guaranties of the government so formed to protect each person in the state, and secure to him the enjoyment and exercise of these rights, liberties, privileges, and immunities, so reserved against encroachment or destruction thereof by other persons, whether majorities or minorities of the whole, or officers of any department of the government itself. Some, but not all, of these rights, liberties, privileges, and Immunities, are enumerated in the Bill of Rights, which comprises the first 86 sections of our Constitution. That all this is true is obvious from a reading of the last two sections of the Bill of Rights, as follows: “See. 35. That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression. “Sec. 36. That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this declaration of rights is excepted out of the general powers of government, and shall forever remain inviolate.” [3] The right, (liberty, privilege, or immunity which is encroached upon if not destroyed by this arrest is expressly enumerated or included by implication in several sections of the Bill of Rights. Section 5 in part declares: “That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches.” While section 7 of the Constitution in part declares: “That no person shall be accused or arrested, or detained, except In cases ascertained by. law, and according to the form which the same has prescribed.” [4] The' Constitution's, state and federal, in several provisions or clauses, not only declare but guarantee that no citizen shall be deprived of his life, liberty, or property, except by due process of law. Can it be said that this plaintiff in judgment is not within the protection of these guaranties, or that no right, liberty, privilege, or immunity of his has been encroached upon, or denied him, by this arrest? When the delegates to our first constitutional convention, who were the representatives of the people and not of the government to be created, were assembled in 1819, and were making our Constitution, there was then applicable in the Alabama territory a system •of laws called “The Law of the Land,” or “Due Process of Law.” This consisted mainly of a great body of American laws, the American common law, together with some written laws, the acts of the Alabama and Mississippi territorial Legislatures, the Constitution of the United States, and the acts of Congress. The various phrases and clauses used by the convention to describe the (reserved (rights, iliberties, immunities, and privileges then had well-known meanings; many of them are to be found in the Magna ’Charta and other charters of liberties then claimed by our ancestors as a part of the law of the land; and many of them were then imbedded in the Constitution of the United States and had been construed by the Supreme Court of our country to mean what they meant at common law. It would be unreasonable to suppose that our Constitution makers used these phrases or clauses otherwise than as then defined by the common law or the law of the land. The first clause in the fifth section of the Bill of Rights, “Thai, the people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches,” then had a well-known meaning, and the same phrase had been often defined by the courts, state and federal. It must be presumed that the makers of the Constitution adopted it under its then construction. If it was not intended to prevent the government then being formed from authorizing or legalizing arrests like this, then the part which applies to the seizure of the person is worthless. If the arrest under consideration was lawful, or can be made so without amending the Constitution, then this guaranty of the Bill of Rights has failed of its purpose, to secure the people from unreasonable arrests. Surely the phrase “unreasonable seizure” included an arrest like the one now under consideration. If not, it would be difficult to suppose a seizure or arrest of the person that would be unreason *70 able. Tbe same Is time as to tbe pbrase “due process of law.” Surely any seizure or arrest of a citizen is not reasonable, or any process is not “due process,” merely because a Legislature or a municipality bas attempted to authorize it. These phrases are limitations upon tbe power of tbe Legislature, as well as upon that of tbe other departments of government, or of their officers. It is an error to suppose, because tbe last clause of seétion 5 of tbe Bill of Rights does not prohibit an arrest without a warrant, but only prohibits tbe issuance of a warrant without an oath or affirmation, as bas been often reaffirmed and uniformly acted upon, that there is no constitutional limitation upon, or prohibition against, arrests, and that tbe Legislature is without limitations of its power to authorize arrests without warrant. There are other provisions in tbe Bill of Rights which do prohibit arrests like the one in question, one of them in tbe very section which prohibits tbe issuing of a warrant without oath or affirmation. The first clause of section 5 deals with arrests generally, and tbe latter clause deals with tbe warrant or written, authority for arrests. The' fact that tbe last clause does not condemn a given arrest, but only tbe issuing of tbe warrant, does not make it follow that other clauses of tbe Bill of Rights do not prohibit such arrests. [5, 6] Tbe general rules for the construction of statutes — that they are valid unless their prohibition, can be found on tbe written pages of tbe Constitution, state or federal, and that they must be held valid unless tbe court can say beyond a reasonable doubt that they are void — do not apply when tbe reserved rights, liberties, immunities, and privileges Of tbe citizen are involved. That is, when tbe inalienable rights of the citizen are involved. As section 86 of the Bill of Rights declares: “This enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this declaration of rights is excepted out of the general powers of government, and shall forever remain inviolate.” These were therefore expressly excepted out of the general powers of the whole government — the legislative branch, as well as the executive and judicial branches. This distinction was at an early date made by this court, in tbe famous case of Ex parte Dorsey, reported in 7 Port. 293-419. In that case, after quoting the above section of our Bill of Rights, Justice Ormond said: “By this it appears, not only that the rights asserted in this instrument are reserved out of the general powers of government, but also that this enumeration shall not disparage others not enumerated; and that any act of the Legislature which violates any of these asserted rights, or which trenches on any of these great principles of civil- liberty, or inherent rights of man, though not enumerated, shall be void. “It cannot, I think, be successfully maintained that this last and not least important clause of the Bill of Rights is void of meaning. Is it unreasonable to suppose that the framers of this declaration knew that the principles maintained by the immortal British judges, cited in this opinion, as well as by the jurists of our own country, had been frequently called in question; and that they intended to provide against every possible infraction of our free institutions?” Page 378. “In ascertaining the intention of the people, in the reservation of certain great rights and privileges, we should give them a broad and liberal construction, so as to effect the manifest intention of its framers. In this there is no danger. They have asserted that they have not delegated the power to invade either of the great natural rights just cited. Does it become this court or the Legislature to quibble on its terms?” Pages 380, 381. The same principles were again well stated by our great Chief Justice Stone, in the case of Sadler v. Langham, 34 Ala. 311. After discussing the measure of proof necessary to set aside statutes, Judge Stone said: “Constitutional provisions are intended as a protection to life, liberty, and property, against encroachment, intentional or otherwise, at the hands of the government. Had not the framers of our system of government supposed it possible that legislative bodies might fall into error, they would not, in their sovereign capacity, have adopted a written Constitution, superior alike over themselves and the Legislature. We cannot believe that construction a sound one, which indulges every reasonable presumption against the citizen, when the Legislature deals with his rights, and gives him the benefit of every reasonable doubt, when his life and liberty are in jeopardy before the courts of the country.” Page 321. Further on in that notable opinion, treating of the provision of the Bill of Rights to the effect that the citizen shall not be deprived of Ms property by the government except by due process of law, even under the right of eminent domain, Justice Stone said: “This clause in our Bill of Rights was incorporated into the fundamental law, because it was feared that all the departments of the government might fail or be unable to protect the citizens in the rightful enjoyment of their property. It implied no distrust of one department more than another, but a jealous watchfulness of individual rights, and a prudent apprehension, baáed on the melancholy examples furnished by the experience of mankind, that unbridled power is too apt to merge individual right in national strength and greatness. The oppressions, then fresh in their recollection, which had forced our ancestors to sever all political connection with the mother country, had taught them that the surest and best mode of installing and preserving a noble government was to enfranchise and ennoble the people, whose virtue and happiness should be the first object of all rational government.” Page 327. Surely a man’s property is not more precious or sacred than Ms person. If tbe Legislature cannot deprive tbe citizen of bis land, even wben exercising tbe power of eminent domain, except by due process of law, surely it cannot deprive bim of bis liberty by authorizing bis arrest upon tbe mere verbal request of a person wbo is claiming-bis land. Our Constitution — especially tbe Bill of *71 Rights — is largely constituted of declarations of the common-law rights which the citizens or people then possessed, together with guaranties that these rights, privileges, and immunities shall remain inviolate, and that the government shall not usurp, destroy, or encroach thereupon. It would have been of little use, practically, to enumerate some of them, and reserve all, if the power was granted to the Legislature — one department of the government — to destroy them. In very recent cases, these particular bills of rights, as found in our Constitution and other state Constitutions, have been uniformly construed as preserving to the citizen his common-lajvv rights and privileges against unreasonable seizure. In one of these (Gulsby v. L. & N. R. R. Co., 167 Ala. 122, 128, 52 South. 392, 394), this court, dealing with section 5 of our Bill of Rights, said: “In a leading and well-considered case in this country (Carey v. Sheets, 67 Ind. 375), it is said that the quoted declaration [section 5], in substance, is an affirmation of the common-law right of the citizen not to be searched or seized without probable cause.” In the Indiana case cited and approved (67 Ind. 375), it is said: “Section 11 of the Bill of Rights * * * is but an affirmation of the common-law right of every citizen not to be searched or seized without probable cause. . It affords no new right of action because of an unlawful search or seizure of the property or the person of the citizen. ^ In its practical effect, it operates as a guaranty of the continued existence of the right which it recognizes, and as an inhibition of its abridgment by legislative authority.” The constitutional provision applies to the person, as well as to the property of the citizen; it applies to seizures, as well as to searches of either the person or property. Ail arrest of the person is unquestionably a seizure of the person. The citizen’s person is as sacred, and needs as much protection, as his property. It is dangerous to construe these reserved powers in Bills of Rights so as to encroach upon the liberties of the citizen, or to enlarge the powers of the government in regard thereto. This danger is well pointed out by that great judge and writer Justice Bradley, in the well-considered case of Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, dealing with the construction of two statutes, where it is said: “Can we doubt that, when the fourth and fifth amendments to the Constitution of the United States were penned and adopted, the language of Lord Camden was relied on as expressing the true doctrine on the subject of searches and seizures, and as furnishing the true criteria of the reasonable and ‘unreasonable’ character of such seizures? Could the men who proposed those amendments, in the lighfr of Lord Camden’s opinion, have put their hands to a law like those of March 3, 1863, and March 2, 1867, before recited? If they could not, would they have approved the fifth section of the act of June 2-2, 1874, which was adopted as a substitute for the previous laws? It seems to us that the question cannot admit of a doubt. They never would have approved of them. The struggles against arbitrary power in which they had been engaged for more than 20 years would have been too deeply engraved in their memories to have allowed them to approve of such insidious disguises of the old grievance which they had so deeply abhorred.” 116 U. S, 630, 6 Sup. Ct. 532, 29 L. Ed. 746. “Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it,, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.” 116 U. S. 635, 6 Sup. Ct. 535, 29 L. Ed. 746. In the case of Pinkerton v. Verberg, 78 Mich. 573, 44 N. W. 579, 7 L. R. A. 507, 18 Am. St. Rep. 473, a woman was arrested by a policeman under the charge or claim that she was a prostitute or streetwalker, and the arrest was held to be unlawful and an unreasonable seizure of the woman; the court saying: “The Constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in Ms presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees. These are rights which existed long before our Constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land. Whatever the charter and ordinances of the city of Kalamazoo may provide, no police officer or other conservator of the peace can constitutionally be clothed with such power as was attempted to be exercised here. No disorderly conduct; no breach of the peace, committed in the presence of the officer; no suspicion of felony, etc.” In Sarah Way’s Case, 41 Mich. 304, 1 N. W. 1023, Mr. Justice Campbell, speaking upon the subject of arrest without warrant, says: “It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases where the public security requires it; and this has only been recognized in felony, and in breaches of the peace committed in the presence of the officer. Quinn v. Heisel, 40 Mich. 576, and Drennan v. People, 10 Mich. 169.” In the case of In re Kellam, 55 Kan. 700, 41 Pac. 960, the court thus states the facts: “On August 3, 1895, Joseph Í3. Kellam was arrested by John M. Wilkerson, chief of police of the city of Topeka, upon a charge of selling intoxicating liquors in Topeka contrary to the city ordinances and to the laws of the state. No written complaint was ever filed, nor was there any warrant issued authorizing the arrest ; but persons whom the chief of police, deemed to be reliable had informed himt that Kel *72 lam was engaged in the unlawful sale of liquors. The chief of police had no personal knowledge that an offense had been committed; but, upon information so received, he alleged that he had reasonable suspicion that an offense had been committed, and therefore he arrested Kellam and committed him to jail.” As to the lawfulness and reasonableness of the arrest, and the validity of the statute attempting to authorize the arrest, the court said: “The statute quoted certairily purports to give police officers power to make arrests, without warrants or other process, upon the mere suspicion that misdemeanors have been committed. But can such authority be constitutionally given? We think not. * ** In section 15 of the Bill of Rights, it is ordained that ‘the light of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate,’ etc. This provision guarantees protection against unreasonable arrests, and when it was placed in the Constitution, and in fact ever since that time, an arrest for a minor offense without a warrant, and not in the view of the officer, was deemed to be unreasonable and unlawful. Under the common law, arrests without warrants were not permitted, except for offenses committed in the view of the officer; and in cases of felony actually committed the officer might also arrest without process upon a reasonable suspicion. The liberty of the citizen was so highly regarded, however, that the officer arresting the supposed felon without warrant must have acted in good faith, and upon grounds of probable suspicion that the person arrested was the actual felon.” 55 Kan. 701, 702, 41 Pac. 961. That court, iu referring to a statute of the state which attempted to authorize an arrest by a policeman on the mere verbal request or complaint of another, said: “It [the Kansas statute] is, in effect, a revival of’ the odious general warrants, which placed the liberty of every man in the hands of every petty officer, and which long ago received judicial condemnation. To prevent their use and the exercise of such arbitrary power at the. discretion of an officer, ‘it has not been deemed unwise to repeat in the state Constitutions, as well as in the Constitution of the United States, the principles already settled in the common law upon this vital point in the civil liberty.’ Cooley, Const. Lim. 364, and notes. “We readily conclude that the statute in question, which undertakes to authorize an officer to make an arrest in cases of misdemeanor without a warrant, except upon view of the offense, is unconstitutional, and for that reason the arrest of the petitioner must be held to be illegal.” To construe the charter powers of the city of Birmingham and the ordinance in question to authorize an arrest like the one in question is to render them absolutely void. They are susceptible of a construction which renders both perfectly valid, but not so as to authorize the arrest in this case. This court has expressly, and by necessary implication, construed the charter and this ordinance, or others which then stood in the place of the ones now in question, but never to authorize an arrest like that under consideration. The trial court in this case has twice construed this identical ordinance, and the Court of Appeals, once or twice, as not authorizing such arrests. In the case of Gambill v. Schmuck, 131 Ala. 321, 31 South. 604, McClellan, C. J., writing, it was said: “Under a general law an officer without a warrant has no authority to arrest for an offense of the grade involved here — a quasi misdemeanor — unless it is committed in his presence. Code, § 5211. And conceding for the purposes in hand, without deciding, that it was competent for the Legislature to delegate to the municipality of Birmingham the power to provide by ordinance for the arrest of misdemeanants without warrant when the offense is not committed in the presence of the arresting officer or citizen, we do not find that the Legislature has attempted «o do this. What it has done is to confer upon the legislative body- of the city power ‘to pass all laws necessary and proper for the arrest with or without warrants of any person against whom there is a charge made by any citizen for violating any city or state law.’ Having only this authority to provide for the arrest without warrant of persons against whom charges have been made by citizens, the ordinance put in evidence, which undertook to authorize such arrests m all cases regardless of charges having or not having been made, was beyond corporate capacity and void.” 131 Ala. 331, 332, 31 South. 607. In the case of Gambill v. Cargo, 151 Ala. 421, 43 South. 866, where the charter power and an ordinance thereunder were involved, (but whether the ordinance was the same aa this, we are not informed), it was said per Anderson, X, now Chief Justice: “The evidence without conflict showed that th,e defendant instructed Boggan ‘to enforce the collection of licenses to arrest them.’ See Boggan’s testimony on cross-examination. Gambill also testified that Boggan had been arresting people for violating ordinances for several years, ‘and that was with my knowledge, by my direction.’ This evidence clearly shows that defendant had given Boggan authority to make arrests, and, if ho did so wrongfully, he was nevertheless acting within the scope of his authority, and the defendant was responsible for said arrests. Whether the ordinance was valid or not we need not decide, as it was not being violated in the presence of Boggan. and he therefore had no right to arrest the defendant without a warrant. The trial court did not err in giving the general charge for the plaintiff.” Another case is that of Sanders v. Davis, 153 Ala. 375, 44 South. 979, here twice on appeal, involving the validity of an arrest by the police authorities of the city of Birmingham and, of necessity, involving the same charter provision, and some ordinance thereunder. On the last appeal, after referring to the former appeal and following that decision, it was said: “Upon the second trial, a third count was added by amendment, which still leaves out any averment of process and arrest thereunder, but, in lieu thereof, alleges that the defendant caused ‘the plaintiff to be arrested under a charge made verbally to a policeman of the city of Birmingham, Ala., on the charge of larceny.’ ” 153 Ala. 379, 44 South. 981. “This extraordinary power given to officers, being in derogation of the common law, must be strictly construed. It results that the third count, which was added to the complaint i» this case, was still a count for false imprisonment, and not for malicious prosecution. If the offense had been below the grade of felony, there would have been no authority under the statute to arrest without a warrant. Mitchell v. Gambill, 140 Ala. 545, 554, 37 South. 402; Gambill v. Schmuck, 131 Ala. 321, 331, 31 South. 604. So, whether the charge in this *73 ease was grand or petit larceny, the result as to the legality or illegality of the arrest would be the same. “The ordinances of the city, which were introduced, have no bearing on this case, as the complaint does not aver an arrest under the circumstances therein provided for.” 153 Ala. 382, 383, 44 South. 982. [7] It was never intended by this charter or by this ordinance to authorize arrests on the mere verbal request of a citizen. If it was so intended, the charter and the ordinance would have said so, as did the Bessemer charter and ordinance construed in the Childers Case, 156 Ala. 96, 47 South. 70, which is in conflict with the decision in this case, and is hereby expressly overruled. The word “charge,” as used in the charter and in the ordinance, was used and intended to mean what it means when it is used in the Criminal Code, as to the mode of one citizen’s preferring a charge of criminal offense against another; and the charge must be preferred under the municipal law in mode and form similar to that employed to prefer a charge in'the justice court, a county court, or other court having jurisdiction of the offense. Section 6703 of the Code used similar language where it says: “A party aggrieved, or desiring to bring a charge of misdemeanor before the county court, may apply to the judge thereof, or to some justice of the peace of the county, for a warrant-of arrest, and, upon making aflidavit in writing that he has probable cause for believing, and does believe, that an offense (designating the misdemeanor by name, or by some other phrase which in common parlance designates it), has been committed in said county by C. D. (naming the offender) on the person (or property, as the case may be), etc.” Bringing or preferring a criminal charge, as used in the charter and in the ordinance, had a well-known, meaning, and- did not include a mere verbal request for an arrest or criminal prosecution. To so construe the statute and the ordinance is to uphold them; to construe them otherwise is to render them void because violative of the Constitution. If the expression, “preferring a charge,” is given the effect in the charter and the ordinance which is accorded it in the general statutes and in the Constitution, the charter and ordinance are perfectly valid — not inconsistent with the general laws — and do not deny to the citizen any right or privilege reserved by the Bill of Rights or secured to him by the common law. If they are susceptible of this construction, it should be accorded to them, rather than a construction which renders them uiiconstitutional and void. If the charge is made as the trial court held it should be made, and as the general law says it may be made, then the plaintiff would be “accused or arrested or detained in a case ascertained by law,” that is, by the law as it was when sections 5 and 7 of the Constitution were ordained; and then the arrest or seizure would not he unreasonable, the charter power and the ordinance would both be valid; but, if one or both attempt to authorize an arrest on a mere verbal request, they are invalid. If the charge is made as the Constitution and the general laws provide, then the seizure or arrest might be valid, though the warrant issued -would be void. This distinction has been well drawn by this court in several cases. In Smotherman’s Case, 140 Ala. 168, 170, 171, 37 South. 376, 377, it was well pointed out as follows: “The warrant upon which appellant was arrested was issued by a justice of the peace of Shelby county. It was addressed: ‘To Any Lawful Officer -of Said [Shelby] County.’ The arrest was made in Jefferson county by a policeman of the city of Birmingham, and the prisoner was delivered to the warden of the city jail, by whom his body was produced before the judge of the criminal court at the hearing. This warrant of the Shelby justice was not indorsed by any magistrate of Jefferson county as required'-by section 5219. of the Code to give it efficacy in that county. In the absence of such indorsement, it may be conceded that as a mandate of arrest (as in and of itself conferring any authority to arrest the person named therein) this warrant was wholly inéfficacipus (‘wholly worthless’) in the county of Jefferson. Code, § 5219; Ledbetter v. State, 23 Tex. App. 247, 257 [5 S. W. 226]; Peter v. State, 23 Tex. App. 684, 687 [5 S. W. 228]; People v. Shaver, 4 Park. Crim. 45; State v. Dooley, 121 Mo. 591, 603 [26 S. W. 558]. But it by no means follows that the police officer was without authority to arrest Smotherman. To the contrary, this warrant itself, though without force as a warrant in Jefferson county, showed the existence of a fact upon which the officer was authorized by the statute to make the arrest without a warrant, namely, the fact that a charge had been made upon reasonable cause that Smotherman had committed a felony. Code, § 5211; Floyd v. State, 82 Ala. 16, 23 [2 South. 683].” Certainly, the sections of the Bill of Rights which prohibited unreasonable seizures and arrests, and which prohibited accusations, arrests, or detentions except in cases ascertained by law, meant the law of the land as then ordained, and not any municipal law that might thereafter be ordained. It follows that the majority of the Court of Appears ruled correctly in holding the arrest in question unlawful and unreasonable, and that no municipal ordinance could authorize it or make it reasonable, and that the demurrers to the defendant’s special pleas were properly sustained. Application for certiorari denied. MAYFIELD, SAYRE, SOMERVILLE, and' THOMAS, JJ., concur.