author: LEE, Justice, for the Court:

text:
    Bruce Alexander RAMSEUR, Sr. v. STATE of Mississippi.
    No. 51123.
    Supreme Court of Mississippi.
    March 21, 1979.

      Louis Fondren, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice, for the Court:

Bruce Alexander Ramseur, Sr. was convicted of murder in the Circuit Court of Jackson County and was sentenced to life imprisonment in the state penitentiary. He appeals and assigns eight (8) errors in the trial below.

Appellant claimed that his wife, Natalie Ramseur, was unfaithful to him. On November 5, 1977, he went to the sheriff’s office in Jackson County, told Deputy Sheriff Stork that his wife was in a motel with a male companion, asked that something be done about it and stated that, if the sheriff’s department couldn’t help him, he would get a gun and kill her himself. On the following Monday morning, November 7, he went to the South Surplus Store at approximately 8:30 a. m. and bought a box of cartridges. That evening, appellant met his wife in Gautier. He persuaded her to get in his car for the purpose of talking, and he drove to an abandoned lot and house nearby. An argument ensued between them, and appellant shot Mrs. Ramseur three (3) times in the head, killing her. He pushed her body out of the car onto the ground, went back to his home and telephoned the sheriff’s office about 7:20 p. m. Deputy Sheriff Walker and two other officers drove to appellant’s home and were told by him that he had just shot his wife. Thereupon, Walker advised him of his constitutional rights. Appellant then led Walker and the other officers to the scene of the homicide. He was placed under arrest and subsequently gave a written confession about the homicide.

I.

Did the trial court err in permitting Officer Stork to testify?

Appellant contends that he was not informed before trial that Officer Stork would testify in the case, that an alternate juror was acquainted with Stork, and that he was prejudiced by that situation.

The record is undisputed that the entire file of the State’s investigation was made available to appellant and no list of witnesses was requested from the State. Officer Stork’s report was in that file and was available to the appellant. Appellant had access to the entire State file. Even so, there is no obligation on the part of the State to furnish the appellant with a list of its witnesses. Tapp v. State, 347 So.2d 974 (Miss.1977); Boyd v. State, 253 Miss. 98, 175 So.2d 132 (1965); McDaniel v. State, 191 Miss. 854, 4 So.2d 355 (1941).

Furthermore, the record indicates that there was no discussion between the alternate juror and the panel about the facts of the case, and there is no indication that the jury was tainted or that any prejudice resulted to the appellant because of the fact that Officer Stork and the alternate juror were acquainted. There is no merit in this assignment.

II.

Did the trial court err in admitting in evidence a waiver of rights form on which had been written “Refused to sign?”

After Officer Walker was taken to the scene of the homicide by appellant, they went to the sheriff’s office where appellant was again advised of his constitutional rights and was presented a waiver of rights form to sign. Appellant advised the officer that he knew his constitutional rights but that he did not want to sign the waiver of rights form, further, that he would answer any questions the officers cared to ask him. The State argues that it offered the form in evidence for the purpose of showing the questions that were asked appellant before he made the confession. The officer testified as to what he told appellant, which was the same information that appeared in the waiver of rights form. It is difficult to see how appellant could have been prejudiced by the introduction of the written waiver of rights form with the notation thereon that he had refused to sign it, particularly in view of the fact that the information was identical to that testified to by the officer and that the officer also testified that appellant refused to sign the form.

III. — VI.

Appellant complains III, IV, V and VI that four (4) instructions, either granted upon request of the State or refused upon his request, constituted prejudicial error.

The appellant cites no authority for his position that the instructions constituted error. Where assignments of error are unsupported by argument and authority, the court does not, as a general rule, consider them. Richardson v. Stokes, 254 Miss. 71, 180 So.2d 153 (1965); Poole v. State, 251 Miss. 345, 169 So.2d 828 (1964); Dozier v. State, 247 Miss. 850, 157 So.2d 798 (1963). However, we have carefully examined the instructions and are of the opinion that the court did not commit error in granting or refusing same and that reading all instructions together, the jury was properly instructed on the law of the case.

VII.

Did closing statements by the district attorney constitute reversible error?

Appellant complains of statements made by the district attorney in his closing argument to the effect that members of the jury were representatives of “the people of the State of Mississippi and this community,” and that the statements interfered with the jury’s duty and obligation to decide the case upon its merits. The trial judge sustained objection to the statements of the district attorney and, if they were improper, no prejudice resulted to the appellant in view of the trial court’s ruling. Holifield v. State, 275 So.2d 851 (Miss.1973); Herrin v. State, 201 Miss. 595, 29 So.2d 452 (1947); Jackson v. State, 94 Miss. 83, 47 So. 502 (1908).

VIII.

Did the trial court err in admitting appellant’s confessions into evidence?

Appellant last contends that his confessions should not have been admitted in evidence since he refused to sign the waiver of rights form. As hereinbefore stated, when Deputy Sheriff Walker arrived at appellant’s home, appellant told him he had shot his wife. Walker immediately advised appellant of his constitutional rights, and appellant led him to the scene of the homicide. Afterward, the officer took appellant to the sheriff’s office, where he again read him the Miranda warnings. It was at that point appellant declined to sign the waiver of rights form, although he told Walker he would answer any questions. Subsequently, he signed the written confession.

There is no indication in the record that appellant did not fully understand his constitutional rights. To the contrary, appellant voluntarily said that he understood his constitutional rights, and the record is clear that he did so. The confessions were free and voluntary and there is no merit in this assignment.

The judgment of the trial court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel POPE, et ux. v. W. H. “Shag” PYRON.
    No. 50847.
    Supreme Court of Mississippi.
    March 21, 1979.
    A. M. Murphy, Lucedale, for appellant.
    Ingram & Matthews, Carroll H. Ingram, Hattiesburg, for appellee.
   Appeal from Circuit Court, George County; Darwin M. Maples, Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.


text:
    Mrs. Myrtle H. GENTRY et al. v. Damie Prisock HAMM, etc.
    No. 51069.
    Supreme Court of Mississippi.
    March 21, 1979.
    Fair & Mayo, James C. Mayo, Frank M. Deramus, C. Taylor Tucker, Louisville, for appellants.
    Thomas A. Coleman, Ackerman, for ap-pellee.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Betty (Mae) THOMAS v. STATE of Mississippi.
    No. 50925.
    Supreme Court of Mississippi.
    March 21, 1979.
    Sidney J. Martin, Greenville, John C. Webb, Leland, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and COFER, JJ., concur.


text:
    Thomas Griffin WALTON and Hugo William Walton v. Ernestine WALTON and Pamela Walton Hooks.
    No. 51040.
    Supreme Court of Mississippi.
    March 21, 1979.
    J. Martin Mooney, Jr., Seminary, for appellant.
    Ingram & Matthews, Jolly W. Matthews, Hattiesburg, W. W. Dent, Collins, for appel-lee.
   Appeal from Chancery Court, Covington County; J. W. Walker, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Sarah WASHINGTON v. STATE of Mississippi.
    No. 51000.
    Supreme Court of Mississippi.
    March 21, 1979.
   Appeal from Circuit Court, Pontotoc County; Fred Wicker, Judge.

James 0. Ford, Tupelo, for appellant.

A. F. Summer, Atty. Gen., by Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and COFER, JJ., concurring.


text:
    Jerry ISAACKS v. STATE of Mississippi.
    No. 50970.
    Supreme Court of Mississippi.
    March 21, 1979.
    Fred M. Witty, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduceia, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Jerry S. LEFLORE v. STATE of Mississippi.
    No. 51090.
    Supreme Court of Mississippi.
    March 21, 1979.
    Beach, Beach, Luckett & Ross, Stephen L. Beach, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge, and Reuben Anderson, Judge, verdict only.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Randall W. YORK v. STATE of Mississippi.
    No. 51019.
    Supreme Court of Mississippi.
    March 21, 1979.
    Frank M. Deramus, C. Taylor Tucker, Louisville, for appellant.
    A. F. Summer, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Newton County; Marcus D. Gordon, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Odessa WARREN, Claudine Bolden, et al. v. C. B. STATES, Temporary Administrator of the Estate of Leola Bennett.
    No. 51030.
    Supreme Court of Mississippi.
    March 21, 1979.
    Alix H. Sanders, Greenwood, for appellant.
    W. S. Stuckey, Jr., Greenwood, Miss., for appellee.
   Appeal from Chancery Court, Leflore County; William H. Bizzell, Chancellor.

Before SMITH, P. J., and SUGG and COFER, JJ.

Reversed in part and decree here by appellants, and affirmed in part. Costs to be paid equally by appellants and appellee.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Edmond JEMISON v. Olon P. BELCHER.
    77-614.
    Supreme Court of Alabama.
    Feb. 23, 1979.
    Rehearing Denied March 23, 1979.
    Henry Sanders, of Chestnut, Sanders & Sanders, Selma, for appellant.
    J. Garrison Thompson, Selma, for appel-lee.
   BLOODWORTH, Justice.

Defendant appeals from a judgment for plaintiff in a boundary line dispute where plaintiff and defendant are coterminous landowners.

Plaintiff filed a suit against defendant to establish the true boundary line between their respective properties located in Perry County, Alabama. Plaintiff is the record title holder to the NW Vi of the SE Vi of Section 2, Township 20 North, Range 8 East. Defendant is the record title holder to the SW Vi of the same SE Vi. Defendant claims that he is the owner by adverse possession of a strip of property which lies between the quarter-section line and an old fence line that runs in a generally east and west direction north of the quarter-section line. In other words, the defendant claims, by adverse possession, a strip of land off the south side of the forty to which plaintiff has the record title.

There is some evidence that prior to 1956 the old fence line which defendant claims is the true boundary was recognized as the boundary line between the properties. However, in 1956 plaintiff’s predecessor in title, Olon Belcher Lumber Company, a corporation, had the line between the properties surveyed and marked the quarter-section line so established with yellow paint, the mark of Olon Belcher Lumber Company. This yellow line has been continuously maintained by the plaintiff and his predecessor in title since its establishment. Additionally, in 1956 Belcher Lumber Company cleared the land with a bulldozer, destroyed the fence, and planted pine trees up to the line established by the survey. Plaintiff now has a pine plantation on the property which extends to the survey line. These pine trees are the same trees planted in 1956. Plaintiff or his employees have walked over the land annually or semiannually in order to check the timber growth. The record shows that shortly after the fence was destroyed, the defendant rebuilt it and, from time to time, has used the strip to pasture cows. There is also evidence that defendant has cut some timber from the strip for posts and firewood.

The trial court found the true boundary line between plaintiff’s property and defendant’s property to be the quarter-section line.

The defendant contends that the trial court committed reversible error in not permitting the admission of evidence regarding his cutting of timber in support of his claim of adverse possession. Moreover, defendant contends that the trial court’s finding that plaintiff had exercised continuous possession over the disputed property under color of title for more than 20 years and therefore had title to the lands in dispute under the doctrine of repose is wrong, unjust and contrary to the great weight of the evidence.

We cannot agree that the trial court’s refusal to admit into evidence testimony regarding the cutting of timber was reversible error. The same evidence sought to be elicited from the defendant was established by the testimony of another witness who testified that defendant had cut trees within the disputed area. Thus, if its exclusion was error, it was harmless since such evidence was otherwise admitted during trial. Chambers v. Culver, 289 Ala. 724, 272 So.2d 236 (1973); McLemore v. Alabama Power Company, 289 Ala. 643, 270 So.2d 657 (1972).

The defendant’s sole claim to the property in dispute rests on adverse possession since he has no record title thereto. In adverse possession, the burden of proof rests on the claimant [McLester Building Co. v. Upchurch, 180 Ala. 23, 60 So. 173 (1912)] to prove his possession is actual, hostile, open, notorious, exclusive, and continuous for the statutory period. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Smith v. Claybrook, 349 So.2d 1087 (Ala.1977).

The trial court found that defendant had no color of title to the disputed tract and that the defendant had failed to establish adverse possession. Moreover, defendant had never assessed the land for taxes. From the record, the trial court determined that plaintiff and his predecessors in title have been in the continuous, actual possession of the lands. At best, the evidence shows, for defendant, that both he and the plaintiff were in possession. Where two parties are in possession of real estate, neither has the exclusive, hostile possession which is a necessary element of adverse possession. Eason v. Samson Lodge No. 624, A. F. & A. M., 270 Ala. 194, 117 So.2d 138 (1959); Beason v. Bowlin, 274 Ala. 450, 149 So.2d 283 (1962). Thus, defendant has not shown he was in exclusive possession and cannot establish title by adverse possession.

On appeal, a decree establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court is presumed to be correct and must only be supported by credible evidence. In such cases, the trial court’s conclusions will not be disturbed unless plainly erroneous or manifestly unjust. Smith v. Nelson, 355 So.2d 359 (Ala.1978). The record in the instant case clearly contains credible evidence which supports the finding of the trial court and the judgment of the lower court is affirmed.

AFFIRMED.

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


text:
    Robert P. ARRINGTON et al. v. WORKING WOMAN’S HOME et al.
    77-680.
    Supreme Court of Alabama.
    Feb. 23, 1979.
    Rehearing Denied March 23, 1979.

      J. Paul Lowery, Montgomery, for appellants.
    William I. Hill, II, Montgomery, for ap-pellee, Working Woman’s Home.
    Robert A. Huffaker, Montgomery, for ap-pellees, Miss Sylvia T. Bauer, Mary Ethel Williamson Gross, Mary Whetstone Williamson, William A. Williamson, Jr., and the Alabama National Bank.
    M. R. Nachman, Jr. and Walter R. Byars, for Steiner, Crum & Baker, Montgomery, for appellees, Ernest E. Armstrong and Montgomery Museum of Fine Arts.
   BLOODWORTH, Justice.

Contestants in a will contest appeal from summary judgments granted the proponents. We affirm.

The testator, William P. Arrington, executed the will in contest on July 14, 1966, and the codicil in contest on September 14, 1966. Testator was an only child, his parents predeceased him, and he had never married. He died on June 7, 1977, and the will and codicil were admitted to probate on July 19, 1977. This contest then followed.

Contestants are all of testator’s first cousins on his father’s side of the family (Arringtons), including two who are beneficiaries under the will. Proponents are his two first cousins on his mother’s side of the family (Pelzers); two children of one of these cousins; a Mrs. Bauer, who was testator’s 85-year-old nurse and housekeeper; Alabama National Bank (executor and co-trustee); testator’s butler-chauffeur; Ernest Armstrong, testator’s friend and financial advisor (beneficiary and co-trustee); and several charities. All of the proponents except Alabama National Bank are beneficiaries under the will.

The will provides for certain specific bequests and cash gifts. The remainder of the estate is then placed in trust, with Alabama National Bank and Ernest Armstrong as co-trustees, income to be distributed in equal parts to Mrs. Bauer and Mr. Armstrong during their lives, with the survivor receiving all of the income for the remainder of his or her life. At the death of the survivor, the trust is to terminate and the property is to be distributed as follows: certain stock to the two children of one of the Pelzer first cousins; $100,000 each to Archie and Alfred Goldthwaite, first cousins on the Arrington side of the family and contestants; $100,000 each to five charitable organizations; and the remainder to the two children of one of the Pelzer cousins.

The codicil devised some real estate to Armstrong and cancelled all debts owed to the testator, including $40,000 owed by Armstrong.

In their petition for contest, the Arring-ton cousins alleged as grounds (1) defective execution; (2) undue influence; (3) fraud; (4) duress and coercion; and (5) unsound mind. The contestants have abandoned grounds (1) and (5), stating that they have no facts to support these two grounds.

Proponents filed motions for summary judgment, supported by depositions of five of the contestants, pleadings and exhibits filed with the pleadings, interrogatories to the contestants and their attorney, and depositions of other persons. Contestants were given two extensions of time in which to respond to the motions, and submitted Armstrong’s divorce proceedings, Armstrong’s deposition, and several affidavits. The trial court granted summary judgments in favor of all proponents, upholding the will and codicil in their entirety.

The contestants argue on appeal that summary judgment was inappropriate because there is a scintilla of evidence which creates a question of fact regarding undue influence, fraud, and duress. Even judging the appropriateness of summary judgment by the standard of the scintilla rule, however, we must agree with the proponents that there are no genuine issues as to any material facts and that, therefore, the proponents are entitled to judgment as a matter of law.

In the petition for contest, the grounds of undue influence and fraud are specifically directed toward Armstrong. It is apparent from the depositions and other evidence that the charge of duress is also directed toward Armstrong and those portions of the will and codicil which benefit him. Therefore, we need go no further in order to affirm the summary judgments in favor of all those proponents except Armstrong, since only those portions of the will which are the result of undue influence, fraud, or duress will be set aside. Shelton v. Gordon, 252 Ala. 187, 40 So.2d 95 (1949).

Proponent Armstrong contends that his grant of summary judgment is also due to be affirmed. In order for him to prevail, he must show that there is no genuine issue of material fact and that the contestants have failed to present a scintilla of evidence to support their position. See Mims v. Louisville Title Insurance Co., 358 So.2d 1028 (Ala.1978).

The evidence in support of Armstrong’s motion for summary judgment discloses that he had no knowledge of the will or the codicil until after they were executed, that he did not participate in their preparation or execution, and that he made no threats or other attempts to coerce or defraud the testator. Unless the contestants’ evidence establishes some question of fact regarding these matters, Armstrong’s summary judgment should be affirmed.

We would unduly lengthen this opinion to give a detailed recitation of the testimony presented by contestants and proponents in their respective efforts to oppose and to uphold summary judgment. After carefully considering the same, we find that the testimony fails to present a scintilla of evidence to raise a presumption of undue influence.

In Burke v. Thomas, 282 Ala. 412, 211 So.2d 903 (1968), this Court held, viz:

“ . . . Our cases, starting with the Bancroft decision, have enunciated the doctrine that no manner or degree of confidential relationship, of and by itself, will suffice to cast on the beneficiary in a will the burden of proving that the testamentary act was not unduly influenced by him. The fact that one is a favored beneficiary, and in a confidential relationship with testator, does not alone raise a presumption that the will was procured by undue influence. Kahalley v. Kahalley, 248 Ala. 624, 28 So.2d 792; Lockridge v. Brown, 184 Ala. 106, 63 So. 524; 66 A.L.R., Anno., 228. There must be evidence, in addition to the fact of relationship, of active interference in procuring the execution of the will. Lockridge v. Brown, supra (5); Coghill v. Kennedy, 119 Ala. 641, 24 So. 459(5). The activity must be in procuring the execution of the will and more than an activity and interest referable solely to a compliance with or obedience to the voluntary and untrammeled directions of the testator. Kahalley v. Kahalley, supra (4), and cases cited.”

In a recent case, we set out elements necessary to raise a presumption of undue influence in a will contest: (1) confidential relationship, (2) dominance, and (3) undue activity in procuring execution. Pruitt v. Pruitt, 343 So.2d 495 (Ala.1976).

Assuming arguendo, that there is some evidence tending to show the first two elements, there is nothing to establish the third, undue activity. The contestants make much of the fact that Armstrong was living in the same house with testator during the time when the will and codicil were executed. While this may have presented an opportunity to exercise influence, there is no showing of any activity on the part of Armstrong nor of undue influence per se.

Aside from the creation of a presumption, the evidence is still insufficient to establish a question of material fact. When asked what facts they had to support the allegation of undue influence, the contestants stated in depositions that they had none. Throughout the contestants’ depositions, words such as “wonderment,” “conjecture,” “feeling,” “suspicion,” “instinct,” and “supposition” appear in response to questions asking for facts which would support the will contest.

In their reply brief, contestants state, viz:
“The briefs of the Appellees leaves many questions unanswered. What was the actual relationship between Armstrong and Arrington — why was Armstrong so anxious in his deposition not to discuss the details of his separation and divorce from his first wife — why was William Price, Arrington’s long time friend, not mentioned in his Will — why did Armstrong and Arrington have a joint safety deposit box at the Alabama National Bank — what was in Armstrong’s Will, which apparently he gave to Arring-ton at or about the same time, according to Armstrong, Arrington gave him a copy of his Last Will and Testament — was there fraud in the exchange of Wills— why. was it necessary for Armstrong to employ the services of an attorney even before Arrington passed away?”

Considered in the light most favorable to contestants, their speculations provide us with many questions but few, if any, answers.

The scintilla rule is not satisfied by speculation. Rota v. Combs, 267 Ala. 50, 99 So.2d 692 (1957). Moreover, evidence to support undue influence must provide at least a reasonable inference, rather than mere suspicion. Locke v. Sparks, 263 Ala. 137, 81 So.2d 670 (1955).

The evidence in the depositions relating to fraud, duress, and coercion is of like character. Further, some of the statements in the affidavits filed fail to meet the requirements of Rule 56(e), ARCP, that affidavits be made on personal knowledge, set forth facts which would be admissible in evidence, and show affirmatively that affi-ant is competent to testify to the facts. These requirements are mandatory. Oliver v. Brock, 342 So.2d 1 (Ala.1976).

Armstrong carried his burden by showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Contestants failed in their attempt to establish a scintilla of evidence of undue activity, fraud, or duress, and abandoned these allegations as to the other proponents. Therefore, this cause is due to be affirmed as to all of the proponents.

AFFIRMED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.


author: FAULKNER, Justice.

text:
    Bill MIMS v. Forest MIMS et al.
    77-803.
    Supreme Court of Alabama.
    Feb. 23, 1979.
    Rehearing Denied March 23, 1979.

      Joseph G. L. Marston, III, Prattville, for appellant.
    Francis W. Speaks of Speaks & Burnett, Clanton, for appellees.
   FAULKNER, Justice.

This is an appeal from a decree rendered under a cause of action instituted pursuant to § 8-9-12, Code of Alabama, 1975. We affirm.

On May 30, 1964, Bill Mims, a widower, conveyed about 25 acres of land in Chilton County to his son, Forest Mims, and his wife, Irene Mims. He reserved a life interest in the deed. The consideration cited in the deed was $5.00 and other valuable consideration. On August 26, 1970, Bill Mims filed suit to have the deed set aside, alleging in his complaint that all or a material part of the consideration was for the purpose of obtaining from the grantees support for him during his life. On November 9, 1970, Bill Mims died intestate. On March 15, 1971, the suit was revived by C. L. Mims, another son, as personal representative of the estate of Bill Mims. The answer of Forest Mims and Irene Mims alleged that the deed was given to them in consideration of love and affection, and past services of them to Bill Mims, plus the fact that he had instructed his attorney to dismiss his action prior to his death.

The statute under consideration provides that “any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option of the grantor, except as to bona fide purchasers for value, lienees and mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance.”

The trial judge found, and decreed that the evidence was insufficient to prove that a material part of the consideration was an agreement of the grantees to support the grantor during his life.

We have reviewed the entire evidence, the sole issue in this case, and conclude that the trial judge was correct. We find nothing in the evidence to support the allegations of the complaint. Where conflicting testimony is taken ore tenus before the trial court, the findings of the court on the facts have the effect of a jury verdict, and will not be disturbed on appeal unless plainly and palpably wrong, and contrary to the great weight of the evidence. See Pritchett v. Wade, et al., 261 Ala. 156, 73 So.2d 533 (1954); Lucas v. Lucas, 258 Ala. 515, 64 So.2d 70 (1953).

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    MARENGO HILLS, INC., a corporation v. James G. WATSON and Jane G. Watson.
    77-420.
    Supreme Court of Alabama.
    March 23, 1979.
    Samuel H. Welch, Jr., Hubbard H. Harvey, Demopolis, for appellant.
    W. W. Dinning of Lloyd, Dinning & Boggs, Demopolis, for appellees.
   ALMON, Justice.

This is an appeal from a judgment of the circuit court construing certain deeds containing restrictive covenants and denying injunctive relief. We affirm.

The appellant, Marengo Hills, Inc., developed a subdivision in Demopolis, Alabama, called Marengo Hills. The subdivision is limited to single family dwellings with accessory structures customarily incidental to residential occupancy. The subdivision was developed in stages.

In 1971, the appellees, Mr. and Mrs. Watson, purchased lot 3, Block M, in the Third Addition of Marengo Hills. Shortly thereafter they constructed their residence on this lot. The Watsons had for sometime expressed an interest in purchasing another lot which joined their property. The Wat-sons were given a verbal commitment by the appellant that they could purchase the second lot as soon as it was subdivided, platted and recorded.

In early 1975, the plat for the Fourth Addition of Marengo Hills subdivision was recorded and subsequently, the Watsons purchased lot 4, Block M in the Fourth Addition. This lot was behind the Watsons’ home and the two lots shared a common boundary. The Watsons constructed a 50' X 24' garage on lot 4 which the subject of this lawsuit. In May, 1976, the appellant, Marengo Hills, Inc., brought this action seeking an injunction ordering the defendants to remove the garage structure previously erected on lot 4, Block M, Fourth Addition of Marengo Hills subdivision. The complaint alleged that the garage violated certain restrictive covenants set out below.

(2) That all lots in the above described property shall be known and described as residential lots, and no structures shall be erected, altered, placed or permitted to remain on any residential building lot in said blocks other than one detached single-family dwelling, not to exceed two and one-half stories in height, and accessory structures customarily incidental to residential occupancy.
(3) No building shall be located on any residential building lot nearer to the front lot line than the minimum building set back line as shown on the recorded plat. No building, except a garage or other out-building located 75 feet or more from the front lot line shall be located nearer than 10 feet to any side lot line.
(4) Nothing herein contained shall prevent a purchaser from purchasing two or more adjoining lots for the purpose of constructing a dwelling on the composite area thereof, in which event the entire area shall be treated as one residential building lot for the purpose of these restrictive covenants; provided, however, that after construction of a dwelling on any such composite residential building lot, the owner thereof may not sell any one of the lots as originally laid out, separately from the others, unless the dwelling located on the remaining lot or lots complies in all respects with the provisions of Item 3 hereof.
(5) The lot lines of the lots covered by these covenants shall not be in any way altered or rearranged so as to effect a resubdivision of any lot or lots described herein, nor shall any fractional lot be sold, unless the same is sold in conjunction with a full lot, the entire area to be used as one residential dwelling lot. [Emphasis added.]

After a trial without a jury, the circuit court issued an order finding that: lot 3, Block M, Third Addition and lot 4, Block M, Fourth Addition, constituted one composite lot within the meaning of Covenant 4; that the garage structure erected on lot 4, Block M was an accessory structure customarily incidental to residential use and that the structure was not unsightly. Accordingly, the court refused the injunctive relief with respect to the removal of the garage.

Thus the issue, narrowly framed is whether under these particular circumstances the two adjoining lots, in different subdivisions, can be joined so as to constitute one composite lot and thereby conform to identical restrictive covenants applicable to each subdivision. So far as we are informed this precise question has never been decided in Alabama and our research has not revealed a case on this point elsewhere.

We recognize the general rule that where a subdivision is developed in sections and each section is platted and recorded at different times, restrictive covenants for each particular section apply only to lots within that section. Therefore, the owner of a lot in one section cannot enforce restrictive covenants applicable to a lot in another section of the same subdivision. Lillard v. Jet Homes, Inc., 129 So.2d 109 (La.Ct. of App. 1961).

This general rule appears to have developed in situations where a property owner in one subdivision attempted to enforce restrictive covenants against a property owner in another subdivision. Craven County v. First Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620 (1953); Rooney v. Peoples Bank of Arapahoe County, 32 Colo. App. 178, 513 P.2d 1077 (1973); Nelson v. Flache, 487 S.W.2d 843 (Tex.Civ.App.1972); Reid v. Standard Oil Co., 107 Ga.App. 497, 130 S.E.2d 777 (1963); Lillard, supra.

These cases refer to the enforceability of restrictive covenants and they are not appropriate authority for the determination of the effect of restrictive covenants. The appellant has urged this court to recognize that the principle espoused in the above cited cases, regarding the divisibility and distinctiveness of separate plats within the same subdivision is dispositive of the issue before the court. We cannot say that the fact that the Third Addition was subdivided and recorded four years before the Fourth Addition creates an absolute proscription against joining one Third Addition lot and one Fourth Addition lot to create one composite lot.

In Kennedy v. Henley, 293 Ala. 657, 309 So.2d 435 (1975), this court addressed the effect as opposed to the enforceability of restrictive covenants.

“Restrictive covenants are to be construed according to the intent of the parties in the light of the terms of the restriction and surrounding circumstances known to the parties. [Citations omitted.]
“Restrictions against the free use and enjoyment of property are not favored in law and such restrictions are to be strictly construed.” (Citations omitted.) Kennedy, supra, at 662, 309 So.2d at 439.

The circuit court determined that the garage structure was “an accessory structure customarily incidental to residential use.” This finding is supported by the evidence and is not questioned on appeal. The erection of such a structure is expressly sanctioned in Covenant (2), therefore the intent of the parties must be given effect through the construction of the covenants. The purchase of two adjoining lots and the treatment of the entire area as one residential lot is also expressly sanctioned in Covenant (4), therefore the intent of the parties should be given effect.

“The word ‘adjoining’ in a description means next to, or in contact with . . ” 6 Thompson on Real Property, § 3056 (1962 Replacement) at 646. Had the common grantor, Marengo Hills, Inc., wished to prohibit the purchase and joining of lots in different subdivisions, it could have expressed that limitation very clearly. Since they failed to do so, we will not extend the prohibitive and restrictive effect of Covenant (4) by implication. Cox v. Walter, 348 So.2d 454 (Ala.1977).

Both lot 3, Block M, Third Addition and lot 4, Block M, Fourth Addition, were subject to the same restrictive covenants. The grantor was the same, the grantees were the same and the action made the basis of this law suit was within the express intention of the parties per the restrictive covenants. There was evidence that the Watsons had made persistent inquiries as to the availability of the subsequently purchased lot for four years. There was evidence presented, which if believed, indicated that Mrs. Breen, Vice-President of Marengo Hills, Inc., not only knew that a garage structure was to be erected on the lot, but that she also observed the structure itself during its early stages of construction. Expert testimony supported the position of the Watsons, and 18 or 20 of their neighbors testified that they did not find the structure objectionable. Evidence was presented indicating that the structure was built in accordance with local planning and permit ordinances and that the structure cost some $4,000 to build.

We hold that under the circumstances here presented, Covenant (4) does not prohibit the joining of lots 3 and 4 to make one composite lot. The circuit court did not err in denying injunctive relief. The judgment is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    Cleveland Franklin TERRY et al. v. John Emerson BUTTRAM et al.
    77-477.
    Supreme Court of Alabama.
    March 23, 1979.
    J. G. Speake, Moulton, for appellants.
    W. H. Rogers, Moulton, for appellees.
   PER CURIAM.

The circuit court determined a boundary line dispute and enjoined the appellants-defendants from obstructing a driveway running through their property. We affirm.

The appellees, plaintiffs below, brought this action to enjoin the appellants from blocking a driveway and for a judicial determination of a disputed boundary line. The evidence at the trial showed that the appellants owned a piece of property, approximately three quarters of an acre at the intersection of two paved roads in Lawrence County. This triangular piece of property adjoined a 40 acre tract of land owned by the appellees and a driveway traversed the appellant’s property to a residence and some chicken houses situated on the appellees’ property. The appellants obstructed this driveway and that action precipitated this suit.

The court found that the driveway in question had “been used by the public for more than 20 years as a public road and there [was] no evidence that there has been a lawful discontinuance of this road.” The trial court established the boundary line, ordered judicial markers erected along the boundary line and enjoined the defendants from obstructing the driveway across their property. The court also ordered both parties to remove any encroachments from the property of the other party, per the newly-established line. The appellants attack these findings and orders, primarily on the grounds of insufficient evidence.

The appellants assert that if the driveway ever was a public road, it had been abandoned through non-user for the prescriptive period; the appellees did not suffer sufficient injury to warrant injunctive relief and the appellees had acquiesced in the establishment of the previously existing boundary line.

Where testimony is taken ore tenus, this Court will not reverse the findings of the trial court absent a showing of plain and palpable error or manifest injustice. Davis v. Linden, 340 So.2d 775 (Ala.1976). The ore tenus rule is especially justified in cases like the instant case where numerous exhibits are introduced and the record is replete with inclusive references to these exhibits, i. e. “(here),” “(indicating).” See Baptist Foundation v. Penn, 295 Ala. 122, 324 So.2d 766 (1975). The trial court is in a much better position than this Court to observe and frame these references with respect to the exhibits and to draw permissible inferences therefrom. Thus, the question we must determine is whether there is sufficient evidence in the record, disputed or otherwise, to support the findings of the trial court.

The appellees presented evidence tending to establish that the driveway in question had been part of a road which connected two other roads.

Testimony of Mr. Clifford Morris:
“Q. Are you familiar with the 40 acre tract of land that Mr. Buttram owns that adjoins the property where the Terrys have two house trailers?
A. Yes, sir.
Q. How long have you been familiar with that property, please, sir?
A. Ever since 1919.
Q. All right, sir. Back in your first recollection of this property was there a roadway that went from the Chalybeate Springs Road south?
A. Yes, sir.
Q. What do you know or recall about this roadway, Mr. Morris?
A. Well, all I know about it it runs right down in front of Mr. But-tram’s house, clean down across his 40 acres and across another 40 acres.
Q. Who owns the other 40 acres?
A. I believe Mr. Clark Buttram.
Q. And where did the road go to?
A. It went out down there straight on from that 80 acres plum on down to what we call the old Chalybeate Springs.
Q. Old Chalybeate Springs?
A. Yes, sir.
Q. All right, sir. Well, was the Chaly-beate Springs Road, that is, the one by where the Terrys now live, was it a public road back at that time? Did the public use it?
A. You mean the one that went through — down through Mr. But-tram’s fence?
Q. Yes, sir?
A. Yes, sir, that was the only road that was in it.
* * * * * *
“Q. All right, sir. You have traveled that road from the Chalybeate Springs Road, which is now paved, down to the old road?
A. That’s right.
Q. Was there a church located back in there?
A. There was an old Chalybeate Springs Methodist Church.
Q. I see. Well, did the public in general use this road?
A. Everybody used it that went anywhere. That was the only road there was, that I know.
Q. The only road that connected those two roads?
A. Yes, sir.
Q. When do you first recall that road being there?
A. The year of 1919 I went to school there at that old school building when I was 8 years old, and it was there then.
Q. Did you use that road to go to the old school building?
A. Well, there was some kind of a road that came up through there — yeah, it was the same road.
Q. The same road?
A. Yes, sir, we walked to school.
* * * * * *
Testimony of Mr. D. J. Filyaw:
“Q. Are you familiar with the roadway that goes through the Terry property on to this 40 acre tract that John Buttram owns?
A. Yes, sir.
Q. How long have you known of this roadway there, Mr. Filyaw?
A. Oh, I guess around 40 years—
Q. All right, sir.
A. —it connects up right there with the Chalybeate Springs paved road, that is, that is paved now.
Q. Yes, sir. When you first knew of that road right there at the Chaly-beate Springs paved road, was either one of them paved at that time?
A. No, sir.
Q. All right. And where did the road go that went through Mr. Terry’s property and on through what is now John Buttram’s 40 acre tract?
A. Well, it went through down by Mr. Clark’s house and then through on towards the old Chalybeate Spring.
Q. All right. Did it go to another roadway over there?
A. Yes, sir.
Q. And were both of these public highways or used by the public?
A. Yes, sir.
Q. And this road that went through the Buttram land, was it used by the public?
A. Yes, sir, there used to be a school house out there.
Q. Used to be a school house there?
A. Yes, sir.
Q. And they used it to get back and forth to the school house; is that correct?
A. Yes, sir.
******

. Testimony of Russell Wade:

“Q. All right, sir. Are you familiar with a roadway that goes through the Terry property and over into the 40 acre tract of land that John Buttram now owns?
A. Well, I helped haul lumber down that road, that driveway, when they built that house there.
Q. When they built it?
A. Yes, sir.
Q. All right, sir. And how long ago was that?
A. I don’t recollect. I imagine it was in 1924 or 1925. Now, Mrs. Hale can tell you when they built it, but I don’t recollect.
Q. All right, sir. That road, then, that goes through the Terrys onto John Buttram’s 40 acre tract of land, do you know where it went to and where it ended at that time?
A. Well, it went through there and it crossed another little road, down there where Ellis Hollis lives now. And then it crossed the Morris place and hit the main road down by the old Chalybeate Church, down there at the Spring, the old Chalybeate Church.
******
“Q. All right, sir. Let me ask you this: During the time that you owned the property and that road connected those two main roads, did the public use this road?
A. Well, the public used that road down through the field.
Q. All right, sir. Was that the same road that went through the Terrys’ property and through John But-tram’s property?
A. (Witness nodding as if to answer in the affirmative).”

This testimony is representative of the plaintiffs’ presentation; suffice it to say that the defendants controverted the testimony of the plaintiffs’ witnesses on cross-examination and in the presentation of their case. We are clear, however, that this testimony, if believed would provide support for the trial court’s findings that the driveway was part of a public road and that its use had not been discontinued.

Even though the evidence and exhibits indicated that the appellees had an alternate means of access to their property, it is not manifestly unjust to order the appellants to remove the gate from the driveway. Baptist Foundation, supra.

We find that there was sufficient evidence to support the trial judge’s order establishing the boundary line. We note that the boundary established conforms to a survey made in the course of this litigation.

Upon an examination of the entire record, we are convinced that there was sufficient evidence to support the findings of the trial court. McGilberry v. Belcher, 347 So.2d 370 (Ala.1977). The judgment is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    WALKER COUNTY PETROLEUM COUNCIL, INC., et al. v. WALKER COUNTY, etc.
    77-510.
    Supreme Court of Alabama.
    March 23, 1979.
    James L. Beech, Jr. of Tweedy, Jackson & Beech, Jasper, for appellants.
    Tom Nicholson and Herman W. Maddox of Maddox, MacLaurin, Nicholson & Thorn-ley, Jasper, for appellees.
   FAULKNER, Justice.

Plaintiffs sought to have a Walker County tax on diesel fuels declared invalid. The circuit court temporarily enjoined the County from collecting the tax. The County answered and counterclaimed for damages for lost revenue as a result of the injunction. Prior to the circuit court ordered the plaintiffs’ complaint and the counterclaim “severed,” indicating that it would later, if necessary, consider granting a motion for a jury trial on the question of damages. The court then took evidence ore tenus on the question of the validity of the tax and entered a judgment for the défendants upholding the tax. Plaintiffs appealed from this judgment. Defendants’ counterclaim is currently pending before the circuit court, where it is being handled as a part of the same action now on appeal.

From our review of the record it appears that the circuit court, while it stated that it was granting a “severance” as provided in Rule 21, ARCP, actually granted a motion for a separate trial under Rule 42(b), ARCP. Although it used the term “severance,” the circuit court’s handling of the case is more consistent with Rule 42(b). As we noted in Key v. Robert M. Duke Insurance Agency, 340 So.2d 781 (Ala.1976), “The substance of the court’s action, not its form, controls.”

When the trial court grants separate trials of single claims under Rule 42(b), a judgment entered as to fewer than all the claims or parties is not generally appealable absent a Rule 54(b) determination. Key, supra. Consequently, the appeal is dismissed for further proceedings.

DISMISSED.

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


text:
    Myrtle SOUTH v. Ruth YAGER et al.
    77-627.
    Supreme Court of Alabama.
    March 23, 1979.
    David L. Beuoy, Russellville, for appellant.
    H. Neil Taylor of Taylor & Taylor, Rus-sellville, for appellees, Ruth Yager, Robert South and Gracie Saint.
    Robert E. Cooper, of Fine, McDowell & Mansell, Russellville, for appellee, Lydia Davis.
   ALMON, Justice.

Myrtle South, the appellant, filed an action for a declaratory judgment to construe an alleged ambiguity in her late husband’s will. She was appointed executrix and did not contest the validity of the will or dissent from its provisions. The circuit court granted the appellees’ motion for summary judgment. We affirm.

The clause which the appellant alleges is ambiguous is set out below.

“I will bequeath to my beloved with, [sic] Myrtle South all my property, real, personal and mixed during her lifetime.”

The case was submitted to the trial judge on the pleadings, briefs and the deposition of the appellant, Myrtle South. The trial court found no ambiguity and granted the appellees’ motion for summary judgment. Notwithstanding the diligent efforts of counsel for appellant to cite ambiguities contained in this will, we agree with the trial court.

The appellant urges this Court to recognize that this will is ambiguous in several respects. It is the appellant’s position that if the bequest in issue creates only a life estate in Myrtle South, then there are ambiguities with respect to the following matters: the disposition of the remainder interest; provisions for the use and consumption of the estate; provisions for the disposition of property to pay for the testator’s debts and the lack of distinction between real and personal property.

Where a life estate is clearly intended, and where that intention is expressed, the absence of a limitation over does not vest the first taker with absolute title. Wilder v. Loehr, 211 Ala. 651, 101 So. 591 (1924). It is only where the testator’s intent is not clear that rules of construction aid in the interpretation of a will. Werneth v. Hanly, 262 Ala. 219, 78 So.2d 299 (1955). In this case, not only is the language in the will unambiguous, but the appellant also admitted in her deposition that the testator inserted the provision “during her lifetime” in the will at her request. The will limited the bequest and devise of the testator’s real, personal and mixed property to a life estate in Myrtle South in clear, unmistakable and unambiguous terms. The effect of this limitation cannot be altered by this Court under the guise of construction. Frye v. Community Chest, 241 Ala. 591, 4 So.2d 140 (1941).

The trial court was correct in granting summary judgment for the defendants and the judgment is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Peggy A. BAUMLER v. Dale R. BAUMLER.
    Civ. 1657.
    Court of Civil Appeals of Alabama.
    March 21, 1979.

      Benjamin E. Pool, Montgomery, for appellant.
    John T. Kirk, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. We affirm.

The first issue is whether a separation agreement in contemplation of divorce is binding upon the court in entering its judgment in an action for divorce between the parties thereto.

The answer to the issue is “No.” The matter of alimony allowance in favor of the wife is a matter addressed to the discretion of the court. Pope v. Pope, 268 Ala. 513, 109 So.2d 521 (1958). The court is not bound by an agreement of the parties, but may adopt or reject such parts of it as it may deem proper from the situation of the parties as shown by the evidence. Williams v. Williams, 261 Ala. 328, 74 So.2d 582 (1954).

There was an agreement as to a division of property and payment of alimony to the wife by the husband in the event of a divorce. The trial court after hearing the evidence determined that the agreement was not binding upon the court and rejected the agreement as to payment of alimony. The court further held the agreement void because it found a clause therein contrary to public policy. The finding that the agreement was not binding was a proper exercise of discretion. The second finding that the agreement was void was unnecessary and was mere surplusage.

The court granted the divorce upon the ground of incompatibility. The husband had brought the action on the grounds of incompatibility and adultery. The wife complains of error because there was evidence of condonation. We find no basis for the charged error. Whether the evidence supported a plea of condonation of adultery is of no concern and the matter became moot when the court granted a divorce upon the ground of incompatibility and not upon adultery. The evidence supported a divorce upon that ground. Whether there was evidence or lack of evidence to support the ground of adultery is of no concern in this instance. Gamble v. Gamble, 53 Ala. App. 168, 298 So.2d 254 (1974); cert. denied, 292 Ala. 721, 298 So.2d 260 (1974).

The third issue is that the trial court abused its discretion in the benefits awarded the wife. She charges they are inadequate and contrary to the weight of the evidence. Neither the ground of inadequacy nor that of contrariness to the weight of the evidence are sufficient to require reversal. We have already said that whether an award is made and the amount thereof are matters for the exercise of judicial discretion. It is our duty to presume that discretion was properly exercised when brought to us on appeal. To overcome that presumption, mere inadequacy and weight of the evidence are not sufficient. The judgment must be so without support in the evidence as to constitute a clear, palpable and arbitrary abuse of discretion. Mullins v. Mullins, 344 So.2d 511 (Ala.Civ.App.1977), cert. denied, 344 So.2d 515 (Ala.1977). When considered in light of a marriage of only one and one-half years, with no children, between a wife of age twenty-three and a husband of age forty-five, we are unable to find such abuse.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Jessie E. PENNINGTON v. STATE.
    6 Div. 602.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    On Return to Remand Jan. 16, 1979.
    No brief for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofamman, Asst. Atty. Gen. for the State, for appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant was indicted, tried and convicted of transporting five gallons or more of prohibited liquors in Winston County — a dry county. The offense was a felony. The Court sentenced him to five years imprisonment. Judgment followed and this appeal therefrom sans attorney for him at this level. No indigency was involved.

We have searched the record for error consonant with our statutory duty. Title 15, § 389, Recompiled Code 1958. We find an error which necessitates remand. We pretermit discussing other rulings.

It appears in the record that the trial court let the jury disperse and separate for the remainder of the day and for the night, with instructions to be back at 9:00 A.M. The record fails to show any consent by appellant or his attorney. There was no objection by appellant to such separation. Neither was consent asked.

At the time of separation the jury had been selected, impaneled and sworn. At this stage of the proceeding such separation, under the circumstances, was not permissible. Once sworn the jury should have been kept together. Turner v. State, 54 Ala.App. 467, 309 So.2d 503, and pertinent cases cited therein. It was not necessary to object at that time. To have objected could have placed the defendant in an awkward position before the jury.

However, appellant did invoke a ruling of the Court in his motion for a new trial. Ground IV reads:

“The Court erred in allowing the Jury to separate in this case contrary to law and in violation of Defendant’s basic Con-, stitutional rights.”

This Motion was denied on August 4, 1977.

It does not appear that the State offered any evidence to refute error. If the jury separates, such fact is a prima facie presumption of error. The State has the onus of establishing that the separated jurors were not subject to influence or contacts which might have swayed them in reaching the verdict. Lee v. State, 47 Ala. App. 548, 258 So.2d 743.

We note the Court’s instructions to the jury after some evidence had been taken. We quote:

“THE COURT: (To jury) We will take our noon recess at this time. During the lunch break don’t discuss the case among yourselves and don’t let anyone talk to you about it. Please be back in your seats in the jury box in one our (sic) and ten minutes.
“11:50, A.M. Court recesses for lunch.”

There is no indication that the jury was in charge of a bailiff or other Court officers during the lunch hour, or that they were being kept together. We think the instructions indicate that the jurors were again allowed to separate.

However, we will not reverse at this time, but we remand for an evidentiary hearing on Ground IV of the Motion for a new trial. At such hearing the State may summon each petit juror sitting in judgment on the case to determine his or her contacts, if any, with outsiders during such periods of separation.

The trial court will report its findings in writing to this Court forthwith, together with a certified transcript of the evidence adduced at such hearing. The hearing shall be held without undue delay.

It is to be noted that all the jurors should be examined as to their contacts, if any, with outsiders relative to the case, and if any juror is not available such absence should be noted in the transcript of the supplemental record to be sent to this Court.

The Court is directed to cause timely written notice to issue to appellant-defendant or his attorney of the place, date and hour of the hearing, to the end that defendant may be present with his witnesses if he so desires. Attendance process shall issue to the jurors and witnesses and served in the manner provided by law. Likewise, notice of the hearing shall be served on defendant or his attorney.

The cause is remanded for compliance with the directions, supra.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REMANDED WITH DIRECTIONS.

All the Judges concur.

On Return to Remand

In accordance with the request of this court to determine whether or not the jurors, while separated contrary to law, had any contacts with persons that influenced their verdict, the trial court made a return.

We have reviewed the evidence of each of the twelve jurors who found the defendant guilty.

We find that the return shows that no such contacts were made and that the juror’s verdict was based exclusively on the evidence.

The judgment of guilt is affirmed.

The foregoing was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Samuel YARBER v. STATE.
    6 Div. 298.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Frederick A. Erben of Beddow, Fullan & Vowell, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Kidnapping; sentence: ten years imprisonment.

This case is another in a series of cases arising out of the bizarre and gruesome kidnapping and double murder of Mrs. Clarice Knabe and Ronald Harvey White. The immediate case is on appeal from a conviction for the kidnapping of Mrs. Knabe which occurred prior to her murder. The facts of this entire tragedy are set out at length in Yarber v. State, Ala.Cr.App. [Ms. April 19, 1977, 6 Div. 195], and need not be restated here. Also see: Miles v. State, Ala.Cr.App., 343 So.2d 801 (1977), cert. denied, Ala., 343 So.2d 806.

I

Appellant’s first contention on appeal is that he was erroneously convicted on the uncorroborated testimony of an accomplice, Danny Ray Miles, alias Mylar. Miles, who has also been tried and convicted for the dual murders, testified at this trial that he had been present during all the occurrences, but disclaimed any connection with planning or carrying out the crimes. Appellant presented no evidence at trial to the contrary. For aught appearing from the testimony before the jury, the fact that appellant acted alone in conceiving and perpetrating the crime remained substantially uncontradicted.

Whether or not Miles was an accomplice in this crime was at most a disputed fact. Yarber’s trial for this crime must be reviewed here as if the alleged accomplice Miles had never been tried and convicted. The fact that Miles’ murder conviction arose from the identical deeds under consideration here had no bearing on the trial below, nor here on appeal, on the question of his complicity vel non with appellant in this cause. Ex parte State of Alabama ex rel. Attorney General (Re: Samuel Yarber v. State of Alabama) [Ms. July 14, 1978, S.C. 2622] (1978).

We point out first that the mere presence of a witness at the scene of a homicide, without more, is insufficient to show the witness’s complicity in the crime. Taylor v. State, 49 Ala.App. 433, 272 So.2d 905 (1973). Miles’ testimony was that he was merely an unwilling witness to the entire episode. Thus, the evidence presented by the State through Miles’ testimony did not undisputedly establish his complicity. Therefore, a question of fact was presented for the jury as to whether or not Miles was an accomplice, and the judge so charged the jury. “Where the issue of whether the state’s witness was an accomplice is for the jury, the denial of the accused’s motion to exclude the state’s evidence for insufficient corroboration is not error.” Jacks v. State, Ala.Cr.App., 364 So.2d 397 (1978). Miles’ complicity vel non having been a disputed issue at trial, we find no error in the trial court’s refusal to grant appellant’s motion to exclude.

Further, even assuming arguendo Miles’ complicity in the crime, the other evidence presented in the case was sufficient in its corroboration of Miles’ testimony to sustain appellant’s conviction of this crime. Ex rel. Attorney General, supra.

II

Appellant argues the prosecution against him should have been dismissed or the indictment quashed because of a breach of promise of immunity made by law enforcement officers to appellant. We do not agree. As this court firmly stated in Yar-ber, supra, law enforcement officers are without question totally lacking in power to authorize or grant immunity from arrest or prosecution to one criminally culpable under the laws of this state. Any right of an accused not to be prosecuted because of such a promise of immunity is equitable only. Breach of such a promise cannot be pled in bar of an indictment, as grounds for dismissal of the prosecution, or as grounds for reversal on appeal. Long v. State, 86 Ala. 36, 45 So. 443 (1889); Yarber, supra.

Ill

Appellant contends that the trial court’s five month delay in ruling on his motion for speedy trial was a denial of his rights under the Sixth Amendment of the United States Constitution. Appellant’s argument is again without merit. Appellant was arraigned on January 15, 1976, and orally moved for a speedy trial. The record reflects, however, no attempt by appellant whatsoever to pursue a hearing or ruling on his motion. Further, the record reveals that when the motion was heard by the trial court at the opening of the case on June 14, 1976, the case had then twice been continued — once because of a death in the family of appellant’s counsel, and once because of a death in the trial judge’s family. Additionally, the record shows that a companion trial of appellant’s alleged accomplice upon the same facts and requiring the same witnesses as the instant cause was held in the interim period of time.

In Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265 (1975), this court enunciated the requirements necessary to raise the issue of speedy trial in light of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Suffice it to say, length of time is only one factor to be considered in reaching a determination in this area. The reason for delay as well as any actual prejudice to the defendant’s rights must be weighed in the balance also. Radford v. State, Ala.Cr.App., 348 So.2d 880 (1977). The five month delay urged here as fatal to the State’s cause is insufficient in and of itself to show a denial of appellant’s constitutional rights. Kircheis v. State, 56 Ala. App. 526, 323 So.2d 412, cert. denied, 295 Ala. 409, 323 So.2d 421 (1975). Thus, the burden was on appellant to prove that this slight delay resulted in actual prejudice to his cause. Moss v. State, 50 Ala.App. 643, 282 So.2d 82 (1973). The only prejudice urged by appellant before the trial court was loss of the “freshness of the investigation.” He argues now on appeal that a potential witness who may have been available earlier was not available at the actual trial date. The record, however, does not show that the witness was earlier available, nor that he was in fact subpoenaed by appellant in this trial. Appellant did not meet his burden of showing that actual prejudice resulted from the delay in the trial.

Considering appellant’s failure to pursue a hearing or earlier ruling on his motion, the several reasons for the trial’s delay, and appellant’s failure to show that actual prejudice resulted from the delay, we find no violation of appellant’s constitutional rights. Radford, supra.

IV

Appellant argues the indictment against him was due to be quashed because evidence against him at the grand jury proceedings consisted in large part of a recounting of his own statement to police by a police officer. He argues this amounted to his being made a witness before the grand jury and as such, under § 28-4-318, Code of Ala.1975, was entitled to immunity from prosecution.

We point out first that § 28-4-318 is addressed and limited to proceedings involving crimes of intemperance in dry counties by virtue of § 28-4-316, and hence is in no way applicable to the case at bar. Additionally, the appellant was not a witness at the grand jury proceedings by which he was indicted. The fact that a police officer referred during his testimony before the grand jury to facts contained in a statement made at an earlier time by appellant did in no way work to render appellant a witness at the proceedings. And finally, the officer who testified at trial below stated his testimony before the grand jury was comprised of evidence found both before and after appellant made his statement. It is important to note also that the United States Supreme Court in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), has expressly stated that exclusionary rules for illegally obtained evidence applicable at trials are not always binding on grand jury proceedings because of the grave potential of interference with the effective and expeditious discharge of grand jury proceedings. Hence, though appellant’s statement was not admissible at trial, its contents were properly admitted before the grand jury for the purpose of indicting and not trying appellant in this cause. Calandra, supra.

We have reviewed the grounds for reversal relied upon by appellant in light of the record, the briefs, and the arguments, and find no prejudicial error to the substantial rights of appellant which would mandate a retrial of this cause.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Samuel YARBER.
    78-67.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    William T. CUMBO v. STATE.
    7 Div. 584.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      John S. Casey, Heflin, James Allen Main, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Eddie Hardaway, Jr., Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for the first degree murder of Lawrence William Hicks, Jr. A jury found him guilty of murder in the second degree and punishment was set at thirty years’ imprisonment.

The major issue presented on appeal is the sufficiency of the evidence to support the conviction. There was no eyewitness to the murder; all the evidence is circumstantial.

The State’s key witness and the only witness, other than the appellant, to relate any of the facts leading up to the murder was Edward Eaton, who had also been charged with the murder of Hicks. Eaton testified that he, the appellant, Chester Mercer, and Hicks had been together drinking and driving around in the appellant’s ear all day on Saturday, April 16, 1977. They left Birmingham, Alabama, that morning headed to Atlanta, Georgia, to find work. The appellant was driving and Hicks was seated on the front passenger’s side.

Throughout the day the appellant and Hicks had been arguing and having “a big ruckus or fight”. The appellant had “backhanded” Hicks and they had been fighting in the car. During the day the four men had been drinking substantial amounts of beer, wine and whiskey. They shoplifted food items from different stores and “tapped the till” at another.

The appellant and Hicks were arguing because Hicks wanted to break off his homosexual relationship with the appellant and leave; he felt like the appellant was “living off him”. Hicks wanted “them to separate”. “They had been living together for about three or four months.” The appellant “was tired because Hicks hadn’t slept with him”. “Hicks was real upset about . . . (the appellant) cursing him.”

Sometime after 9:00 P.M. on that Saturday the appellant, who was driving, started to weave off the road. Eaton took over driving and managed to back into another car and then “broadsided” (wrecked) the appellant’s car in going around a curve. After this second accident, the appellant resumed driving. Hicks was again sitting in the front passenger’s seat. Mercer and Eaton were seated in the back seat.

Around 10:00 P.M. Mercer was “too drunk” and had passed out. “Hicks was hysterical, and started arguing, and then Cumbo (the appellant) took a slap at him.” Eaton had been drinking and had passed out or gone to sleep. Eaton testified that the next thing he recalled after seeing the appellant slap Hicks was the appellant waking him and saying, “Open the door”. The car was stopped but Eaton did not know their location. The passenger’s door was partly open and Raton “just reached up, grabbed the outside door and the door swung open”. He heard the appellant and knew that Mercer was in the car but did not recall seeing Hicks. Raton just unlatched the door and it swung open and then he went back to sleep. He did not hear, see, or remember anyone getting out.

The next thing Eaton remembered was the appellant again waking him and saying, “Come on out and help push the car” which was stuck in someone’s yard. Eaton tried to back the car up and the next thing he knew a policeman was there. Hicks was not present.

The appellant’s car was parked on the yard of Joe Conners who lived off Highway 78 East in Heflin, Alabama. Shortly after midnight on the morning of April 18, the Heflin Police arrested the appellant, Mercer, and Eaton for public intoxication. Hicks was not present. No weapon or knife was found.

After placing the appellant under arrest, the officers noticed an extreme amount of blood on his shirt. At some point after the arrest an officer examined the appellant’s nose to determine if it had been bleeding but found no clotted blood. The car had a stolen tag on it and blood was found on the center of the front seat and on the right front door. Hicks’ wallet was on the dashboard. A wallet belonging to the appellant contained Hicks’ identification card.

Upon arrest Eaton told the officers his name was William H. Allen. Blood was found under the fingernails of his left hand.

After finding the blood in the appellant’s automobile, the police began questioning the tnree men the next morning. They “found out the story . . . (they) were given at the time just didn’t add up”. “They had identifications they shouldn’t have had.”

Hicks’ body was discovered Monday, April 18, 1977, between 11:00 A.M. and 1:00 P.M. It was found twenty to twenty-five feet down an embankment off the side of Highway 46, two and one-half to three miles from the Cleburne County Courthouse. The body appeared to have been lying there for some time. The face was covered with blood. The cause of death was asphyxia resulting from manual strangulation. There were an equal distribution of abrasions on the sides of the face and head. There were no stab wounds or cuts on the body.

In his defense, the appellant testified that Hicks was a homosexual but that they had never had relations though he saw Hicks and Eaton having a relationship on the Saturday they left Birmingham. He denied ever hitting or slapping Hicks but testified that Eaton did. He stated that he got the blood on his shirt when Hicks leaned up against him in the car after Eaton had hit him.

The appellant testified that he left Birmingham for Atlanta by himself and picked up Eaton and Mercer when he saw them hitchhiking. He let Eaton drive so he could sleep and when he awoke Hicks was in the car. Eaton and Hicks were arguing and Eaton hit him and grabbed his hair. Eaton told the appellant to stop the car and helped Hicks out. They were gone a few minutes and then Eaton alone got back in the car. The appellant knew that Eaton had a knife and the testimony is not clear as to whether Eaton had the knife in his hand when he returned to the automobile. This was the last time the appellant saw Hicks.

The appellant admitted that it was Hicks’ blood on his shirt although on arrest he told the officers that the blood was from a nosebleed he had had and did not mention Hicks. On direct examination the appellant specifically denied ever having seen Hicks before approximately the second week in April (the day after Easter Sunday) when the appellant was in Birmingham. However, on cross examination, the appellant admitted having known Hicks even before he came to Birmingham, when they were together in Tennessee.

I

In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).

“(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967): “Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thorn-berry’s words,
‘ * * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.’ Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied)
“The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is so examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged.” McGlamory, 441 F.2d at 135 and 136.

See also Blair v. State, 18 Ala.App. 615, 93 So. 45 (1922). Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court. Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919); see also Evans v. State, 39 Ala.App. 404, 408, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958).

Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer that the crime has been committed, the question must be submitted to the jury. Hopson v. State, 352 So.2d 500, 502 (Ala.Cr.App.), affirmed, 352 So.2d 506 (Ala.1976). However circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence.

“The humane provisions of the law are, that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires.” Ex parte Acree, 63 Ala. 234 (1879).

Guilt is not established by circumstantial evidence unless the facts relied on are such that it is the only conclusion fairly to be drawn from them. Fuquay v. State, 22 Ala.App. 243, 114 So. 892 (1927). If all the material circumstances in evidence point to guilt and exclude any reasonable hypothesis except that of guilt a conviction is warranted. Pruett v. State, 33 Ala.App. 491, 495, 35 So.2d 115 (1948).

However “it is not every hypothesis, but every reasonable hypothesis but that of guilt, that the circumstantial evidence must exclude”. 23 C.J.S. Criminal Law § 907 (1961).

“(T)he true test of the sufficiency of circumstantial evidence to justify a conviction is whether the circumstances as proved produce a moral conviction to the exclusion of every reasonable doubt. It is not necessary for the circumstances to be ‘such as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the accused’. Bland v. State, 75 Ala. 574; Banks v. State, 72 Ala. 522; Matthews v. State, 55 Ala. 65.” Mitchell v. State, 114 Ala. 1, 6, 22 So. 71, 72 (1897).

See also Parmer v. State, 20 Ala.App. 233, 235, 101 So. 482 (1924).

In reviewing the facts of this case we think that there was sufficient evidence, though just barely, from which the jury might have excluded every reasonable hypothesis except that of guilty beyond a reasonable doubt. While not alone sufficient to justify a conviction, motive may strengthen circumstantial evidence. The fact that the deceased was' last seen in the presence of the accused is also a circumstance to consider. Kozlowski v. State, 248 Ala. 304, 27 So.2d 818 (1946). The appellant and Hicks were the only two of the four men in the automobile who were not intoxicated to the point of unconsciousness. Threats and expressions of ill will may constitute circumstances connecting the accused with the murder. Here the appellant and Hicks had been arguing all day. Shortly before Hicks was noticed missing by Eaton, the appellant struck Hicks in the face while they were riding in the automobile. The appellant had a “real excessive”, “real noticeable” and “extreme amount” of blood on his shirt. It did not appear that his nose had been bleeding. When Hicks was found his face was bloody. Blood was also found in the appellant’s automobile on the center of the front seat and on the door on the front passenger’s side. Braggs v. State, 283 Ala. 570, 219 So.2d 396 (1969); Brown v. State, 331 So.2d 820 (Ala.Cr.App.1976). Hicks’ wallet was found on the dashboard and in the appellant’s wallet was found Hicks’ identification card. No explanation was offered as to how this card got in the appellant’s wallet. When the appellant requested Eaton to open the door, Eaton did not recall seeing Hicks in the automobile. When arrested the appellant did not mention Hicks but explained the blood on his shirt by attributing it to his nosebleed. A false explanation given by the accused of any suspicious fact or circumstance tending to connect him with the offense is admissible in evidence against him. Franklin v. State, 145 Ala. 669, 39 So. 979 (1906). Also during his testimony the appellant denied having ever seen Hicks until shortly before his death but on cross examination admitted having known him in Tennessee before he came to Alabama. The jury may properly consider conflicting statements as indicating a consciousness of guilt. If the jury believed Eaton they could have reasonably and legally concluded that the appellant killed Hicks. The credibility of witnesses is solely for their consideration and cannot be examined by this court. The evidence was sufficient to sustain the verdict. Kozlowski v. State, 248 Ala. 304, 27 So.2d 818 (1946); Ratliff v. State, 212 Ala. 410, 102 So. 621 (1925); Pendleton v. State, 57 Ala.App. 454, 329 So.2d 145 (1976); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied, 295 Ala. 426, 324 So.2d 333 (1975).

II

Venue may be proved by circumstantial evidence. Harrison v. City of Anniston, 156 Ala. 620, 46 So. 980 (1908); Wall v. State, 49 Ala.App. 285, 270 So.2d 831 (1972); Pounds v. State, 15 Ala.App. 223, 73 So. 127 (1916). Hicks’ body was found two and one-half to three miles from the Cleburne County Courthouse down an embankment off the side of the road. Under these circumstances we think there was sufficient proof of venue. Connell v. State, 39 Ala.App. 531, 105 So.2d 695 (1958). Where it can be gathered from the testimony that the offense was committed within a few miles from the county courthouse that is sufficient proof of venue. Snoddy v. State, 20 Ala.App. 168, 101 So. 303 (1924); Rector v. State, 11 Ala.App. 333, 66 So. 857 (1914); Marberry v. State, 7 Ala.App. 58, 60 So. 949 (1913).

III

Since the appellant contends that Eaton was an accomplice he has the burden to prove that fact. Snowden v. State, 27 Ala.App. 14, 165 So. 410 (1936); Sharpe v. State, 51 Ala.App. 534, 287 So.2d 245 (1973). The fact that a witness has been jointly indicted with the defendant does not per se raise the presumption that the witness was an accomplice. Daniels v. State, 50 Ala.App. 88, 277 So.2d 364 (1973); Sweeney v. State, 25 Ala.App. 220, 143 So. 586, cert. denied, 225 Ala. 381, 143 So. 588 (1932). Where there is no conflict in the testimony, the question of whether a witness is an accomplice is a question of law for determination by the trial court. Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972); Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966). But where there is doubt or dispute whether a witness is in fact an accomplice, the question is for the jury and not the trial court. Skumro v. State, 234 Ala. 4, 170 So. 776 (1936); Sweeney v. State, 25 Ala.App. 220, 143 So. 586 (1932); Horn v. State, 15 Ala.App. 213, 72 So. 768 (1916); White v. State, 352 So.2d 29 (Ala.Cr.App.1977). Where the issue of whether the state’s witness was an accomplice is for the jury, the denial of the accused’s motion to exclude the state’s evidence for lack of corroboration is not error. Perry v. State, 340 So.2d 895 (Ala.Cr.App.), cert. denied, 340 So.2d 896 (Ala.1976); Welch v. State, 35 Ala.App. 643, 51 So.2d 905 (1951). The evidence in this case is not conclusive to the point that Katon was an accomplice. The appellant contends that Katon is solely responsible for Hicks’ murder. Katon blames it all on the appellant. Under these facts the issue was for the jury.

We have carefully reviewed the record on appeal, searching for error and considering the sufficiency of the evidence. While the evidence is weak we deem it sufficient, though minimally, to allow the jury to properly conclude that the evidence excludes every reasonable hypothesis but that of guilt. This case is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte William T. CUMBO.
    78-263.
    Supreme Court of Alabama.
    April 6, 1979.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    James E. SKELTON v. CITY OF BIRMINGHAM.
    6 Div. 878.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.

      Winston B. McCall, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., City of Birmingham, Birmingham, for appellee.
   BOOKOUT, Judge.

Criminal trespass after warning; sentence: $300 fine plus costs.

On November 8, 1977, appellant was in the downtown office of Birmingham Trust National Bank (hereinafter BTNB) for the purpose of negotiating government checks. While in BTNB (in the presence of BTNB customers and employees), appellant yelled out: “I don’t like for a Goddamned nigger to be staring at me.” The comment was directed to Mr. Reaf Blue, a black BTNB security guard. Appellant repeated the statement two more times after being warned to watch his language by two BTNB security guards, Mr. Leonard Stanley and Mr. Joseph Davis. After the second warning, appellant was allowed to complete his banking business and was then escorted from the bank by BTNB security guards to await the arrival of a Birmingham police officer.

Rufus Allen, a senior vice president of BTNB, stated to appellant in the presence of Officer Jan Snider of the Birmingham Police Department:

“ . . . I did not appreciate the abusive language that he had used in the presence of my employees and my customers and that I was closing his account so he would not have any reason for ever coming back in the bank and I didn’t want him to come back in the bank.”

Officer Snider then asked appellant if he understood the warning and repeated it to appellant. Officer Snider told appellant that he could go free but not to go back into the bank; that if he did go back into the bank, he would be arrested for trespass after warning. Appellant stated that he would “have to call your bluff,” went back into the bank, and was arrested for trespass after warning. Appellant was tried without a jury.

I

Appellant contends that the Birmingham ordinance under which he was prosecuted is unconstitutionally overbroad and vague on its face in violation of the First and Fourteenth Amendments to the United States Constitution. The pertinent provisions of § 54-1, Birmingham City Code 1964, as amended, are as follows:

“(a) It shall be unlawful for any person to go upon or remain upon the lands, buildings, or premises of another or any part, portion or area thereof after having been forbidden to do so or warned not to do so, either orally or in writing, by the owner, lessee, custodian or other person in possession thereof, his agent or representative. . . . ”

A

Overbreadth

Appellant contends that the Birmingham ordinance is so overbroad and all embracing as to place first amendment freedoms in jeopardy. Appellant was arrested for trespass after warning as a direct result of an alleged disturbance caused by means of speech. He argues that the exercise of free speech on public property is a constitutionally protected right.

First, BTNB is private property and not public property. This court takes judicial note that national banks are corporations organized and existing under the laws of the United States. Adler v. First National Bank of Birmingham, 233 Ala. 325, 171 So. 904 (1937). Property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Gorp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1872). See also: Curtis v. Rosso & Mastracco, Inc., D.C.Va., 413 F.Supp. 804 (1976). Secondly, as stated in Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971):

“ . . . [T]he First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses. . . ”

BTNB, through its agent, vice president Allen, had a legitimate right to order anyone from its premises in order to avoid a disturbance. Johnson v. State, 277 Ala. 655, 173 So.2d 824 (1964). “If one is granted the liberty to invade another’s private property over the objection of the owner for any period of time, that same liberty would continue for all time, and the result is destruction of property without due process in direct violation of the Constitution.” Clark v. State, 219 Ga. 680, 135 S.E.2d 270, 272 (1964). We hold that the Birmingham ordinance is not so broad that its sanctions apply to conduct protected by the Constitution.

B

Vagueness

Appellant’s contention that the Birmingham trespass ordinance is unconstitutionally vague and in violation of the Fourteenth Amendment to the United States Constitution has no merit. This question was answered in Clemons v. City of Birmingham, 277 Ala. 447, 171 So.2d 456 (1965) and Thomas v. City of Birmingham, 42 Ala. App. 542, 171 So.2d 84, cert. denied, 277 Ala. 702, 171 So.2d 85 (1964). The language of the ordinance is clear and precise. It states exactly what conduct is unlawful and provides for a warning to be given. A person of common intelligence would not have to guess at the meaning of the ordinance. Kahalley v. State, 254 Ala. 482, 48 So.2d 794 (1950).

II

Appellant’s next contention is that the City failed to prove that the premises upon which he entered were in possession of BTNB as alleged in the complaint.

[4] “Possession is a collective fact to which a witness may testify.” Lawson v. Garrett, 286 Ala. 125, 237 So.2d 648 (1970). Mr. Leonard Stanley testified that he was employed by BTNB as a guard supervisor, his salary was paid by BTNB, and he had worked at the downtown office for seventeen years. Mr. Reaf Blue testified that he was a security guard for BTNB and had worked at the downtown office for six and one-half years. Mr. R. C. Allen testified that he was a senior vice president of BTNB and had worked at the downtown office for forty years. Mr. Allen testified that BTNB had occupied the downtown location since October 26, 1923. Mr. Joseph Davis testified that he had been employed by BTNB as a security guard at the downtown office for twenty-six years. Officer Snider of the Birmingham Police Department testified that he arrested appellant inside the downtown office of BTNB. The testimony was more than adequate to establish that BTNB had possession of the property upon which appellant entered.

III

The appellant’s next contention is that he was not tried by an impartial tribunal and, therefore, was denied due process of law under the Fourteenth Amendment to the United States Constitution. This issue has been raised for the first time on appeal. “An issue which is raised for the first time on appeal is raised too late for review.” Law v. State, Ala.Cr.App., 342 So.2d 412, cert. denied, Ala., 342 So.2d 413, cert. denied, 434 U.S. 919, 98 S.Ct. 392, 54 L.Ed.2d 276 (1977).

IV

Appellant’s last contention is that the evidence was insufficient to support the conviction. The appellant made a motion to exclude the evidence at the conclusion of the City’s case. No grounds were stated. A motion to exclude without stating grounds is properly overruled. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960). In addition the appellant did not request the affirmative charge nor did he request a motion for new trial. Youngblood v. State, Ala.Cr.App., 338 So.2d 526 (1976).

AFFIRMED.

All the Judges concur.


text:
    Ex parte James E. SKELTON.
    78-341.
    Supreme Court of Alabama.
    April 6, 1979.
   BEATTY, Justice.

WRIT DENIED.

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