Henry v. State Court Opinion

    318 Ala.

of violence which occurred prior to the
issuance of the injunction alone is not
sufficient to support a claim of fear of vio-
lence as the basis for not crossing a picket
line after the issuance of the injunction.

t6] In the absence of proof to the con-
trary, we must indulge in the presumption
that a picket line is maintained and con-
ducted in an orderly manner and with no
intention to violate the law. Meyer v. In-
dustrial Commission of Missouri, 240 Mo.
App. 1022,223 S.W.2d 835, and cases there
cited.

In the instant case, both claimants did
not cross the picket line, except to vote,
when it was admittedly peaceful and their
jobs were open to them. They had made

their decision prior to the outbreak of vio-
lence. They did not return after the vio-
lence had subsided and a majority of their
own union members had returned to work.
They did not meet their burden of proof to
bring themselves within the "violence ex-
ception."

The trial court should have affirmed the

decision of the Board of Appeals of the

Department of Industrial Relations.

The Court of Appeals is no longer in

existence, and the personnel of that court
now constitutes,the Court of Criminal Ap
peals. The Court of Civil Appeals is now
the proper court to handle cases of this na-

ture. But the members of that court did
not participate in this case as it came trp

the appellate ladder.

Without establishing a precedent for or-
dinary cases, we are reversing the judg-

ment of the Court of Appeats and are re-

manding this cause to the Court of Civil
Appeals, with directions to that court to
direct the trial court to set aside its judg-

ments and to affirm the decisions of the

Board of Appeals of the Department of In-

---*dus-tflal Relations denying the claims of
each of the claimants.

239 SOUTEERN BEPORTEB, 2d SERIES

This case was originally assigned to 1.
other member of the court and was reccrt-
ly reassigned to the author of this opinion

Reversed and remanded with directionr.

the Justices concur.

Wllllc Jemcr HENRY

Y.

STATE.

I Dlv. 16.

Court of Criminal Appeals of Alabsma.

Sept. 15, 1070.

Defendant was convicted in the Cirorit
Court, Mobile County, William D. Bolliry,

J., of robbery, and he appealed. The Court

of Criminal Appeals, Almon, J., held tht
denial of continuance requested becaur
of absence of alibi witness woutd not bc

disturbed on appeal where motion did nof

disclose whether witness was availablc or

within jurisdiction and where witness'tcsti-
mony would have been cumulative, and thrt
lineup in which five participants were ol
same race and sex and were of approri'
mately same age, weight and height wu
not so suggestive in nature as to mah
resulting identification virtually inevitablc "-

and thus violative of due process.

Af firmed.

l. Grlmlna! Lew 6535, 1151

The matter of continuance in a criE'
inal case is addressed to sound discretion ol

trial jrrclge and exercise of that discretion

will not be.disturbed on appeal unless clearl,r

abtr sed.

l' Grlmlnlt Lrs G

t)cnial of c(

ro! lrrv trial bece

rrtn(1s rtotlld not

* hrrc ntotion di

r ttt:ers was al'aila

rn'l rthere s'itnes

:(art cttnlulative'

t. Crlmlnrl LrY C

\\'hcrc onlY it

rrrel uhich came

Prcttlal motion t(

---- - - -_' to-prducc-lfsmf- I
' xriver of right t

lrnrttJr stgrlcd b1'

,lc(rrt,l;tttl tcsti{ie
!llr \r.llvcr ;rtttl rr'

hr,l arrtJ,lc oPPort

l4 f iltc tt was intl
..',rtrt'\ rlcrrial of
t:.rl aff()tlCOtlS.

,\

a Crlmlnrl LeY C

lj::rrlrttg that
s,rrIilrN\ tlf fig
:.;lrl trr C()ttt)SCl p

.,{ t,,rttrs.'l :rt llt

"itcllrgt.rttly s'aiv
! r:e rrgr rvas ttot ct

3. Conrlltutlonel I

I.rnctrp in ll'l
.,f sanrt' race and
rrrat.lt' same agc
rr()t s() srtggcstive
rultrrrg rtlcntific;
rrrrl lhtrs !iolativt
('()nst. r\mend. l:

a. Crlmlnrl Law (

Wllnorrcr €2j
(lourt's refur

rcl to examine a
,n lhe stand to t
lutcr rcversihle e

l. tflt633s6s 5l
'-'-.-\\Jrr;rt st:rt,

u. tlr ! .:, r:. {. ,



an-

ent-
ion.

ons.

2. Crlmlnal Law 6>1 151

Denial of continuance requested in
robbery trial because of absence of alibi
s'itness would not be disturbed on appeal

rvhere motion did not disclose whether
witness was available or within jurisdiction
and where witness' testimony would have
bcen cumulative.

3. Crlmlnal Law @627.6(l)

W}ere only item introduced at robbery
trial which came within scope of defense
pretrial motion to require the prosecution
to produce items for inspection ivas written
u'aiver of right to presence of counsel at
lineup signed by defendant, and rvhere
rlefendant testified at trial that he signed
thc s'aiver and where defendant's att()rney
lr:rrl anrple opportunity to examine uaiver
l,t.forc it was introduced in evidence, trial
t'orrrt's denial of motion to produce was
n()t CrrOneOUS.

4. Crlmlnal Law @541.414,

Iiinding that defendant who was given
rr;rrrrings of right to remain silent and
rrglrt to counsel prior to his signing waiver
,,f counscl at lineup had knowingly and
rrrtclligently waived his right to counsel at
lrrrerrJr was not erroneous.

5. Constltutlonal Law @266

l-ineup in which five participants were
,,f sanre race and sex and were of approxi-
ntately same age, weight and height was
lrot so suggestive in nature as to make re_
sulting identification virtually inevitable
art<l thus violative of due process. U.S.C.A.
('orrst. Amend. 14.

6. Crlmlnat Lrw €-l tTot/z()

made soon after robbery and which he had
reviewed prior to triat, and where witness
testified that he could remember the facts
independent of the report, court's refusal
to permit defense counsel to examine the
report was not error.

Oliver J. Latour, Jr., Mobile, for appel_
tant.

MacDonald Gallion, Atty. Gen., and
Herbert H. Henry, Asst. Attl€err,-ffire
State.

ALMON, Judge.

Willie James Henry appeals from a judg-
ment of conviction of robbery. His sen-
tence was fixed at ten years in the peniten-
tiary.

On December 27,1967, between 6:00 and
7:00 o'clock P.M., two men wearing stock-
ing masks entered Bailey's Superette No.
2 in Toulminville. Major Bailey, the owner
of Bailey's Superette, heard someone
scream, Iooked up, and saw a man with a
stocking over his face pointing a pistol
at him. Although the gunman said nothing,
Bailey assumed that he was going to shoot,
so he did not look at the gunman and could
not later identify him. Bailey turned his
head, threw his hands up and fell to the
floor. The gunman then pointed at some
object in Bailey's pocket. Bailey then put
what money he had on the floor. The men
took the money, approximately $135.00, and
left. Others were present during the rob-
bery, including Oara Miller who worked
for Bailey.

At the beginning of the triat, appellant's
counsel moved for a continuance hcause
a defense alibi witness, Jennie Henry, was
not pr€sent in court. He asserted that if
present she would testify in substance that
she u'as with appellant the afternoon and
cvening of the robbery. The missing'-
rvitness is appellant's sistcr. Both appellant
rrrrrl his attorr)ey had no idea u'here she w.as

EENRY v. STATE
Clte as 230 8o.2d 818

AIa. 319

'cuit

ling,

0urt

that

lusc

:bc
not

ror
!sti-
that

:of
oxi-
wa3

takc

rble

'i(
{{+
)*gl
ii'*'

:.)
i.:

*i:
,k

Court's refusal to permit defense .orr,l ,
rcl to examine a report used by a witness I

"tr lhe stand to refresh his memory consti-7
ttttcs reversibte error. 

t

tF
rof
tion

rrll'
7 wrGEi-r

\\'hcre state's witrress did not hav t

lrirrr in courtro()nr a rvrittcrr relro:t

I



920 Ata. 289 SOUTIIER,N R,EPOR,TER, 2d SEBIES

and could not assure the court that she was
in this State.

tl,2) The matter of continuance in a
criminal case is addressed to the sound
discretion of the trial judge and the exer-
cise of that discretion will not be disturbed
on appeal unless clearly abused. peaden
v. State, 2ZS Ala.72, ISZ So.Zd 136; Di_
vine v. State,2Z9 Ala. 291, lg4 So,2d 6g;
Segers v. State, 2g3 Ala. 694,220 So2d
882.

Moreover, the present motion did not dis_
close whether the witness was available

--.-. . €r within the jurisdiction. Williams v.
State, ZZ4 AIa. 6, l3g So. 291.

Also the witness's testimony would have
been cumulative since appellant,s mother
testified that appellant was with her during
the time the robbery was committed. Di_
aiae, supra.

t3] The trial court denied appelant,s
pre-trial motion to require the prosecution
to produce for appellant's inspection the
following:

was a written waiver signed by appel
which waived his right to p..r;;;;
counsel at a lineup conducted by
officers. Later in the trial, appellant
freely testified that he signed the wai'
Before the waiver was introduced in
dence, appellant,s attorney had ample
portunity to examine it.

_ 
Consequently, we are of the opiniai

that the triat court,s denial of ,f,. iotiii
to produce was not prejudicial to appellrl
and no error resutted. See Smith ,.'St g82 Ala. zff., ZtO So.2d g26; lrlcCanri
State, 282 Ala, 392, Zl_l So.Zd gZ7;;
Sanders v. State, 2Zg A1a.453, 179 So,
35, where our Supreme Court has held il
denial of similar motions free from errorl

Two lineups were conducted in an effoil
to identify the robbers. Appettant *"r rO
present at the first lineup and witnel
Clara Miller pointed to one of the men u
resembling appellant but made no identifi.
cation. At the second lineup, she identi.
fied appellant as the robber carrying thcpistol. She had seen the app.Iani Ji, or
seven times before the robbery when shc
was working in Bailey,s Superette.

Before any in-court identification wrr
admitted, the court held a rather lengtrtry
hearing 

.out of the presence of tn. lury.At that hearing the prosecution introductd
the following waiver:

prclcnt as a

untlcrstand al

olhcr Pcrson!
pur;tost's of ic

"l have b

rr5ht to refrrs

u1,, brrt do h

Attornc.v abo

durrng the lir
thc ftrnds to
lrtl ap;rcint a

thrs lineuP.

rrght to cons'

rll()rrlcY eith
.Xrcc to Pro(

"t)..\TIi A

,\\.I'I'NI.:SSI

"l:tl.g{J
" \\'lltrr Pic

.\ l,lrcllant co
the r,rlrlrt'ry aft,
:rl(\ ln cottform
r{-t t'.s. .t36,
(t) | 'I'he .l/ir
t,, appcllant Pri
,r( corrnsel at t

t 1l \\'e cor
rrr th:rt it was :

Io f111d that a
tcllrgently wair
thc lrneup. Ul
t'rr.. .ll{ l.'.2d i
.\la. }), 214 !
Sretes, 5 Cir.,4

l5l It is f
though appcllar
the lineup was
lo be violative
of thc Fourtee:
('orrstitution.

-[.rcrr 
though

,.i,rt.rrt to tlrt

"1. Any document allegedly signed
by Defendant.

"2. Any statement allegedly made by
D_efendant during his interrogation by the
Mobile Police.

i'3. Any, alleged waiver of any con-
stitutional rights allegedly executed by
Defendant.

"4. Any articles taken from Defend_
ant's person after his arrest.

'5. Any articles taken from Defend-
ant after he was brought to the Mobile
City Jail on the charge which is the
basis of this case.

"6. Any statement allegedly made by
Lincoln Hurd.

"7. Any statement allegedly made by
any co-defendant of Defendant herein.i,

The only item introrluccd at tdal"which
came within the scopc of thc alrove motiol

..WAIVER OF RIGHT TO HIRED OR
APPOINTED COUNSEL PRESENT
AT LINEUP

"My name is Willie James Henry, I
am in the Mobile police Station. I hrw
been introduced to Walter pickett, Hu.
bert Bell, Edwin pennington, who havc
identified themselves as police offictn
of the City of Mobile, Alabama.

"I understand that severat witnessct
are to come to the police station to ob
serve me and determine whether I am
responsible or not for the crime of Rob.
bery. I understand that I have a right
to consult with an attornev afld have or;c



EENRY v. STATE
Clte ag 239 8o.2d 318

Ara. g}l
appellant
sence of
ry police
ant quite
) rraiver.
I in evi-
nple op

'l
rt

oplnron r[
) motion i ;
rppellant d i
v. Statc '.5 

:

lants v. ",1

present as a witness at the lineup. I States v. Wade, 3gg U.S. Zlg, gZ S.Ct. 1926,trnderstand at the lineup I will be with tg^LEd.2d l16,;;ielbert v. Catifornia,other persons and wilr be observed for 3gs u.s. z6i, gz'si;.rssr, rs L.Ed,d ,,.,g,prrrposes of identification. the U.S. Supreme Court f,.fa in Foster v.,,I have been totd that I have no ,C{":,1i",-394 U.S. +10,89 S.Ct. UZZ, Zz
right to refuse to participate i" ii.li".I L'Ed'zd 402, as follows :

'7; and 1iL ,(

9 So2d .${
held th ;E 1

up, but do have a right to consult an
r\ttorney about it and have him present
during the lineup. That if I do not have
the funds to hire an attorney, a Judge
r,r'ill appoint a free one to represent me at
this lineup.

"Understanding all of this, I waive my
right to consult with irlrave present an
attorney either payed for or free, and
aFrce to proceed with the lineup.

,,Willie 
James Henry

"I)ATE AND TIME: Jan. 4, 1968

..\\,TTNESSES: 6:45 P'M'

"l:rlu,in A. pennington

-

"\\';rlter pickett',.-
.\lrlrcllant confessed his participation intlrc rolrlrcrl. after being giren proper warn_

illl. 1,1 
conformity with Miranda r. A.iron",.lr'l ['..s. 436, g6 S.Ct. 1602, 16 L.i;:;;(r',1. 1-he ltiranda

r,, :rrrpcuant prior to #l'r,ilfirT:t-:ffi
uf corrrrscl at the lineup.

t{J We conclude on the record beforetrs that it was not error for the trial courttu.. f irr<l that appellant knowingly and in_tcllrgcntly waived his right to counsel attnt' ltllcuP. United States v. McKenzie, 3

Ll'-, 
r:: ri2d 808; Chandler ,. st"t., ia3

..t-,". 
sl, 214 So.2d fi6; Frye v. Unitedsrates, 5 Cir., 4l I F.Zd 562.

,r.1.1J, 
,, is further asserted that, even

,i],,5f ilP"ttant waives his right to counsel,
:.:.,,,,,.:rl was so suggestive in nature as"' r)e vrolative of the due process clauseot lhe Fourteenth Amendment of the U.S.( oilslttution.

.-.1.'.f.,, 
though the instant lineup was sub_r'rltlc,rr to the effective date of Unitecl

., r,i so u d_zr

" * * r But in declaring the rule of
Wade and, Gilbert to be applicabte onty
to lineups conducted after those cases
were decided, we recognized that, judged
by the 'totality of the circumstances,, Ihe
conduct of identification procedures may
be 'so unnecessarily suggestive and con-
ducive to irreparabternisfakeir-iileiitifi:
cation' as to be a denial of due process
of law. 388 U.S., at 302, g7 S.Ct., at
1972. See Simmons v. United States,

190 U.S. 372, 39,88 S.Ct. 96Z, gZO, tg
I:.Ed.zd t247 (t9e); cf. p. Walt, Eye-
Witness Identification in Criminal Cases;
J. Frank & B. Frank, Not Guilty; 3 J.
Wigmore, Evidence g 7g6a (3d ed. l9a0i;
4 id., $ 1130.

"Judged by that standard, this case
presents a compelling example of un_
fair lineup procedures. In the first line_
up arranged by the police, petitioner stood
out from the other two men by the con_
trast of his height and by the fact that
he was wearing a leather jacket similar
to that worn by the robber. See United
States v. Wade, supra, 3gg U.S. at 233,
87 S.Ct. at 1935. When this did not lead
to positive identification, the police per_
mitted a one-to-one confrontation be_
tween petitioner and the witness. This
Court pointed out in Stoaall [v. Denno]
that '[t]he practice of showing suspects
singly to persons for the purpose of
identification, and not as part of a line-
up, has been widety condemned., 3gg
U.S. [293] at 302, 8Z S.Ct. [1962] at
1972 Ll9 L.Ed.2d ll99l. Even after this
the witness' identification of petitioner
was tentative. So some days later anoth-
er lineup was arranged. petitioner was
the only person in this lineup who had
also participated in rhe first lineup, See
\\iall, supra, at 61. This finally pro-
duced a <lefirritc irierrtification.

:., :n error. (/,
ii

o effort il: ;

was not " iras not - Iwrtne$ I
men", 'f

I

I
I
t
i

a'

i't

!, il
,"s'
.,.q:

'.Yr

-J',

ffi

DOR
SENT

dentifi- ';,.

identi. :.,

srx ot
ren shc

)n wag

engthy

: jury.
oductd

nU, I
I hrvc

, H{'
hrvc

ficen

te$.l
oob
Iro
Rotr
right

I onc



322 Ala. 239 SOUTEEBN R,EPOR,TER, 2d SER,IES

-. 
"The suggestive elements in this identi_

fication procedure made it all but inevi-
table that David would identify petitioner
rvhether or not he was in f".i ih. ."n.,In effect, the police repeatedly said tothe witness, ,This is the man., See

Itg.Ir v. Tennessee, 390 U.S. 404, 4O;,
88 S.Ct. 9Zg, W, tg L.Ed_Zd tZ6Z'(dis:
senting opinion). This procedure so un_

9:t-jL.d the reliability of the eyewitness
tqentrlrcation as to violate due process.,,

. "Q. Did you make a written reporl
that night ?

..Possibly that night or the nen l

I'm not sttre, but_

Do you have that with you ? l
I have it in the back.

"Q. You've reviewed it, haven,t you?

"Q.

"A.

rcsti fied ir
bcr thc fa

\\'c are
ro irrclude
memorand
court to r
\\'e are of
ord rvould
r f rve wel
tlr scussed

J17.

Sir ?

.:'h:l:-tu". testimony by police officers "Q. You've reviewed it, haven,t you?that there were five-p"ru.lp""ir"ffi; .:A. yes, sir. -.__ -^-luding the aipettant- ,if,.'r"r_
ticipants were as foriows : ( l ) ;;r", 'Q. Has it refreshed your recolection iBullard, born March 12,.t946,-cotor.;;;; any? 'L!v,srtl,n 

;weight 135 pounds, height five f..t ;;; .A. I remember about what I wrote :six inches; (2) John L. Brown, Uorn n.- in the report at the time. Icember 5, 1944, colored _"1., *rr.igii iS7

iii:,i,'1,['ill.l,;*T a*:;:.*ii . 
],* ,o,o,*, il, o,L,,i.n, or. I

ff:":;:t::::jroll.:"P'* -"i..*.isi'-ii; ricer, was *h;;;'o,.^n'o, U;"*ff I
pounds, height five feet and n'r. 

", ,., that.report you did, in fact, *r...n i"riinchesr; (4) Lincotn Heard, b"r, F.;;r;;; recollection and it did, in fact, aid you9, 1916, cotored male, weight ,;0 ;;;;J, in testifying here today? 
----r -'J

*'ll.'$:'"1;:'r:ff;:l'l;-,i'; "A. No,",;, r wou,d say not
colored male, weight 159 poundi 'r,.tr,,i . "e. you wourd say and te, the courtfive feet and nine inches. that you woutd be abre to testify about

. fudging the present case by the standards :::,,t;:::r"T;:::T,:ffi""j, ; ,,
in Stovall v. Denno, 3gS U.S. m:;; i1967, tB t.riia-il99, and arrrr" .rt;lj; "A. I betieve r wourd, yes, sir.,,
we conclude ihat the fin.up o, pr.;";:
frontation ,.u"r-f". rrom 

'uei,f 
or.d ,il- o.*:3.t""','s 

motion to see the report was
gestive or so arranged as Io make theresurting identification virtuary inerii"tr.. t6] we understand the raw to be t

Detective Buelr craven or the *"::1. :y,:'l;;::r':' " permit a.r*.. .# 
f, ;"",1'.T "','fiIl'rT,;:"t'j ::"*j_,*,' ;;*;;'";T.T:T.T iJ::,n,:'*.

' / rea that he il 
":o on rurther n,..r""i[ ,;r,ri#r]:.r[,.a 

". a,*, ss"i;;ilr 
[,

tt was revealed tt il t._qg_g9rir*.a_16_r report prior to t"*;fyirf@rot.;.;, tzl Here the witness did not have t*
l. 

-,l.lrt, rr,lrort slron.orl rrIlx,llant._- height tob. sir fi.er anrt cishi 
'ir,.i 

,,_ , 
';;i,:::; purr(r t)). appellan_t nt trirl. rroreovcr,

lltt'l'r'.rr;ts lostir,',rrv th:rt this \\.:ls il t\.r)(,- 
tll(' lli ll jrrdge harl ,nrpt,, oi,t,u.tl;;;i 

',,,

grrt1,l,i,.,rl.rror. .i'f,1, i,,,.il"*,,"'",,,r,'t,i,']- ttlts.r't, :tlrnollnrt,lrrrirrg tlx,i.i;;i.''

:rppcalcd fr
hcrclry

.'\ f f irmer

( 'r,ll rt of

l)efend
cuit Court,
granrl larcer
of Crimina
where courl
mony of abs
catlse attorr
ness, and r

poenaed, it
to grant d
srrch time a
arr,l sirrce u
,,1,. r,tt. den
\! iloes\rii lul
' rof r.ottti



rcPort

r€ next

)u?

r't you ?

r't you?_

lllection

I wrote

'l

on, Of-
:viewing
:sh your

aid you

re Court
fy about

your in'

sir."

port w3!

be thrt
se coulr
used b,
ris mcm'

or. Mc'

,219 *
Ala*APg

have thc

morc, ht

r({ll l'r.
ritr l '

. STOVAIIII v. STATE
Clte ar 230 SoJd 323

testified in substance that he coutd remem- Grlmlna! Lsw €603(7)
ber the facts independent of the report. tvltncrtc! €2(3)

We are urged to extend the above rule
to include the production of reports or
memoranda, etc., reviewed before coming to
court to refresh the witness's recollection.
We are of the opinion that the present rec-
ord would not support such a holding even
if we were so inclined. This subject is
discussed in 7 A.LR.3d at pages 244 and
247.

For the foregoing reasons, the judgment
appealed from is due to be and the same is
hereby

Af firmed.

Jack D. STOVALL

Y.

STATE.

5 Dlv. 25.

(jourt of Criminal Appeals ol Alabama.

Sept. 15, 1920.

Defendant was convicted by the Cir-
cuit Court, Lee County, L. J. Tyner, J., of
grand larceny, and he appealed. The Court
of Criminal Appeals, Cates, J., held that
rvhere court ruled that showing as to testi-
mony of absent witness was insufficient be- ,,AFFIDAVIT
cause attorney had not talked to such wit-
tress, and where witness had been sub-
lxren:red, it was then incumbent upon court
lr) grant defendant a continuance until
rrrr'lt time as witness could be brought in,
'' l .inr'c rrsc of shou.ing is only way to

.::,t,. rlt.rri;rl of compulsorl, process for
" . \ \i'\ rrrrlr.r crrrrstitntiortal provision, de-

,'l',,1,!itrrr;11t,.,. \\ its (,rror_

Ala. 323

Where court ruled that showing as to
testimony of absent witness was insuffi-
cient because attorn€y had not talked to
such witness, and where witness had been
subpoenaed, it was then incumbent upon
court to grant defendant a continuance un-
til such time as witness could be brought
in, and since use of showing is only way
to obviate denial of compulsory process for
witnesses under constitutional provision,
denial of continuance was error. Const,
1901, $ 6.

+

Charles M. Ingrum, Opelika, for appel-
lant.

MacDonald Gallion, Atty. Gen., and
Uoyd G. Hart, Asst. Atty. Gen., for the
State.

CATES, Judge.

Grand larceny (of an automobile) ; sen-
tence five years.

Mrs. Parcelles parked the car at 12:45
P.M. and returned at 4:45 to find it missing.
The defendant claimed alibi, i. e. that he
was not in Auburn but in Anniston some
100 miles array on the day on which Mrs.
Parcelles's car disappeared.

To support a motion for a continuance
because of the absence of a material wit-
ness, Stovall filed the following affidavit
for a showing:

"TO THE HONORABLE JUDGE OF
THE CIRCUIT COURT OF LEE
COUNTY, ALABAMA:

"Comes now the Defendant, Jack D.
Stovall and files thc following affidavit.

"The Defendarrt of fers to prove by

Teresa Slarrght, if present, rvho u'as drrll'
sulrpoenacd lr_v the i-)cfcrrrlant as a rvit-
lrcss irr this causc arrd dr.rl1'scrveri, that

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