text:
    George THOMAS, Jr. v. Samford Alonzo CULPEPPER.
    Civ. 1337.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      Larry P. Knopf, Birmingham, for appellant.
    R. Michael Booker, of Johnston & Shores, Birmingham, for appellee.
    William J. Baxley, Atty. Gen., Mary Lee Stapp and Jamie L. Pettigrew, Asst. Attys. Gen., for State Dept, of Pensions and Security, in support of the constitutionality of Title 27, Section 3, Code of Alabama, 1940.
   WRIGHT, Presiding Judge.

This is an adoption case. This matter began with the petition of the stepfather Culpepper in the probate court requesting adoption of Taunya Thomas, age four years. The petition alleged that consent of the father to adoption was unnecessary because he had abandoned the child.

After hearing the testimony, the probate court found that consent of the father was unnecessary because of abandonment and loss of guardianship. The circuit court reviewed the judgment of the probate court by certiorari and determined that the decision of the probate court should be affirmed because of abandonment.

The testimony showed the following: The child is the daughter of Sandranetta Cul-pepper and George Thomas, Jr. The parents were married in 1968 and divorced in 1972. At the time of the birth of the child in 1971, the father was in jail charged with a felony. He subsequently was remanded to the penitentiary. He was imprisoned at the time of the divorce. He did not contest the divorce and full custody was given to the mother. There was no mention of visitation rights of the father and the question of support was reserved.

Subsequent to the birth of the child and prior to the divorce, the mother twice carried her to visit the father at the penitentiary. Shortly after the divorce, the father was released. He and his parents visited the child at Christmas in 1972 for about ten minutes. He visited again in January 1973. In March 1973, while the child was hospitalized for surgery, the father was arrested and jailed for a narcotics violation. He was also charged with forgery of bonds and incarcerated in the federal penitentiary at Springfield, Missouri with a sentence of three years. While on leave from that institution, he visited his child in July 1973. At Christmas in 1973, the Salvation Army sent gifts at the request of the father. The paternal grandparents brought some gifts at Christmas in 1975. The father has made no contribution to the child since birth except for one medicinal prescription and one item of clothing. The mother stated he had not seen or inquired of the child since July 1973. The father stated he last visited at Christmas in 1974 and brought a purse he had made in prison.

The father is presently in the Jefferson County jail under a conviction for armed robbery. There was no testimony as to his sentence, but we take judicial knowledge that the minimum sentence for that offense is ten years. He also has a charge against him for violation of his federal parole.

Section 26-10-3, Code of Alabama (1975) as pertinent is as follows:

“No adoption of a minor child shall be permitted without the consent of his parents, but the consent of a parent who has abandoned the child, ... or who has lost guardianship of the child through divorce proceedings or by the order of a court having jurisdiction may be dispensed with . .”

The father has presented two is- . sues on appeal. The first is “Whether there is any basis in fact or law for a finding by the probate court that appellant’s consent to the adoption of Taunya Dione Thomas is not required by reason of (a) abandonment, or (b) loss of guardianship through divorce proceedings.” We find the circuit court correct in its holding that there was no loss of guardianship through the decree of divorce. The granting of custody to the mother and the failure to direct visitation privileges to the father in the uncontested divorce cannot be classified as a loss of guardianship. We consider that the intent of the statute is that the court must remove such right in positive terms. The determination by the Supreme Court that the language of the divorce decree in the case of Evans v. Rosser, 280 Ala. 163,190 So.2d 716 (1966) was sufficient to constitute a loss of guardianship appears to approach the limit of liberal construction. We cannot hold that failure of a decree to positively assert parental rights amounts to a permanent removal.

We do hold that the judgment of abandonment in this case when viewed with a presumption of correctness is sufficiently supported by the evidence to stand review on appeal.

Appellant correctly states that the appellate courts have tended to require that a charge of abandonment in adoption cases be supported by evidence of an intentional relinquishment of all parental rights and a disregard of or indifference to the parental obligations owed. We do not deem it necessary to discuss the factual situation in each of the recent cases which have held that the evidence failed to sufficiently meet the legal requirements of abandonment. We will say that the facts in each tend to show that the failure of the father to meet the parental obligations was largely due to matters beyond the control of the father or such failure was caused or contributed to in part by the other parent. In two instances, delinquent support had been caught up pri- or to the adoption proceeding. In none of the cases was there evidence of a positive disregard or lack of concern for the welfare or interest of the child. We believe that such evidence is present in this case and is sufficient, when considered with the other evidence, to support the finding of abandonment.

The evidence we refer to is the voluntary acts of the father resulting in his repeated and prolonged imprisonment. These acts, coupled with failure to offer any significant support to his family at any time during the marriage and his negligible contact with his child by visitation, mail or proxy clearly implies a conscious disregard and indifference to his parental obligations. That the divorce decree did not require payment of support is no excuse for failure to recognize the need. It is our opinion that continued intentional criminal misconduct with knowledge that the probable result will be separation from and inability to fulfill parental duties is material evidence to be considered in determining an intent and purpose to abandon. Hamby v. Hamby, 264 S.C. 614, 216 S.E.2 536 (1975). There is no indication in this case that the misconduct was in any way undertaken to benefit the child.

Appellant submits that the few instances of visitation and giving of gifts indicates that he did not intend to relinquish his parental rights. We do not disregard such rare occasions, but one cannot hold to parental rights and disregard concurrent parental obligations. The latter are of paramount importance.

We are not to be understood as indicating that incarceration per se constitutes abandonment. We hold only that it may be considered by the court along with other evidence as an element indicating abandonment of a child under the adoption statute.

The second issue presented is whether the particular statute is unconstitutional on its face because it is violative of due process of law. The crux of appellant’s argument on this issue is that the statute permits the termination of parental rights without the consent of a parent who has abandoned the child. Appellant contends that the statute permits adoption upon the mere allegation of abandonment without hearing and judicial determination. We do not agree that the statute is so limited. It provides that even though abandonment or loss of guardianship through previous court order has occurred, such further notice of the adoption proceeding as is just and practicable shall be given the known kindred. The cases we have heretofore cited clearly indicate that our courts have construed the statute to require reasonable notice to the parent. We know of no case in which such notice has been dispensed with. Lankford v. Hollingsworth, 283 Ala. 559, 219 So.2d 387 (1969); Claunch v. Entrekin, 272 Ala. 35, 128 So.2d 100 (1961).

It is unnecessary that a statute contain direction to fulfill every constitutional requirement of due process in order to pass constitutional muster if it has been given such construction and application by the courts. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); United States v. Maroney, 355 F.2d 302 (3d Cir. 1965). Notice sufficient for due process was given appellant at the beginning of this case. He responded with a complete hearing with counsel. This right has continued through all of the appellate process including granting of appeal in forma pauperis. Certainly he has not been denied any due process. The authorities cited by appellant are not applicable to this case. The contention that due process required that appellant be formally notified of the entry of every order or judgment along the way is untenable and cannot be supported by citation from the most liberal application of the principle of due process.

We affirm the judgment of the probate court that the consent of George Thomas, Jr. to the adoption of Taunya Dione Thomas by Samford Alonzo Culpepper was unnecessary because he had abandoned her.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Schwaiger v. Headrick, 281 Ala. 392, 203 So.2d 114 (1967); Straszewicz v. Gallman, 349 So.2d 593 (Ala.Civ.App.1977); Henderson v. Feary, 340 So.2d 808 (Ala.Civ.App.), cert. denied, 340 So.2d 811 (Ala.1976); Butler v. Giles, 47 Ala.App. 543, 258 So.2d 739 (1972).

      . We do not say such purpose for misconduct may be considered as mitigating.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    In re Alfred BELSER v. AMERICAN CAST IRON PIPE COMPANY, INC., a corporation. Ex parte Alfred Belser.
    Civ. 1276.
    Court of Civil Appeals of Alabama.
    March 15, 1978.

      Ralph E. Coleman, Birmingham, for appellant.
    Robert F. Childs, Jr., Birmingham, for appellee.
   BRADLEY, Judge.

This petition for writ of certiorari is the result of a judgment by the Circuit Court of Jefferson County holding that petitioner’s claim to workmen’s compensation benefits was barred by the statute of limitations.

Petitioner, Alfred Belser, was employed by respondent, American Cast Iron Pipe Company, Inc. (herein referred to as ACIP-CO), for thirty-five years. Belser worked as a pipe grinder and painter in the foundry and cleaning shed at ACIPCO. In October of 1975 Belser retired from ACIPCO. He was sixty years of age. For approximately nine months prior to his retirement, Belser did not work due to a pulmonary embolism which he suffered in early 1975. During this period he received “sick pay” from his employer.

Upon his retirement, Belser applied for social security benefits. As a result of the medical examination conducted by social security, Belser was found to be suffering from pneumoconiosis which is a condition characterized by the permanent deposition of substantial amounts of particulate matter in the lungs and by the reaction of bodily tissues to the presence of this matter. Apparently this was the first time Belser learned that he was inflicted with pneumo-coniosis.

In September of 1976 Belser commenced an action seeking to recover workmen’s compensation benefits from his former employer, ACIPCO. A trial was subsequently held and after the presentation of evidence by both parties the trial court found that Belser was disabled due to occupational pneumoconiosis and that as a result of this condition he was unemployable. The court made two additional rulings in its judgment which provide the issues on which this review is based. First, the trial court held that the “sick pay” which Belser had received from his employer during the final months of his employment was neither workmen’s compensation payments nor money in lieu of workmen’s compensation and therefore the statute of limitations was not tolled by the receipt of these “sick pay” benefits. Second, the court concluded that there was no legal fraud on the part of ACIPCO which would toll the statute of limitations. Consequently, the trial court determined that Belser’s claim for workmen’s compensation was filed nineteen months after the date Belser was last exposed to the hazard of occupational pneu-moconiosis and was thereby barred by the one year statute of limitations applicable to such claims. Title 26, section 313(10), Code of Alabama 1940 (Reeomp.1958) (currently found in Title 25, chapter 5, section 147, Code of Alabama 1975). From that judgment Belser seeks review by this court.

The first issue we will consider concerns the trial court’s finding that the “sick pay” which Belser received from ACIPCO was neither workmen’s compensation benefits nor payments in lieu of workmen’s compensation. As a result of this finding, the court held that the “sick pay” provided by ACIPCO did not toll the statute of limitations'.

Title 26, sections 296 and 313(10), Code of Alabama 1940 (Recomp.1958) (currently found in Title 25, chapter 5, sections 80 and 147, Code of Alabama 1975) permit the payment of compensation or the payment of money in lieu of compensation to toll the one year statute of limitations relevant to workmen’s compensation cases. However, in B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967), our supreme court stated that the test for determining whether payments of regular wages to an employee constituted “payments of compensation” was as follows: (1) whether the employer was aware, or should have been aware, that the payments it provided were compensation; (2) whether the payments in effect recognized the employee’s claim; and (3) whether the evidence indicates that the employer paid for more than he received. See Head v. Triangle Construction Co., 274 Ala. 519, 150 So.2d 389 (1963). We believe this test is applicable to the present case, particularly in view of the fact that “sick pay” is generally not recognized as compensation under the provisions of a workmen’s compensation act. Bell v. Gulf Insurance Co., 313 So.2d 277 (La.App.1975); Blanchard v. Liberty Mutual Insurance, 280 So.2d 592 (La.App.1973).

The record in this case reveals that after February of 1975 Belser did not actually work at ACIPCO. Indeed, from February of 1975 until his retirement in October of the same year Belser received “sick pay” equal to six and one-half hours per day times his normal hourly wages. The “sick pay” was provided pursuant to the fringe benefit section of the ACIPCO policy manual and statements found in the ACIPCO employee handbook. Belser went to the time office of American Cast Iron Pipe to get his “sick pay” checks and these checks had a “sick pay journal slip” attached to them. This slip was for the employee’s records and the slip itself contained several headings, including a specific heading which disclosed whether workmen’s compensation payments were being made to the employee. Any such payments were listed as deductions from the employee’s sick pay. And, according to copies of the “sick pay journal slips” retained by the ACIPCO time office, no workmen’s compensation benefits were paid to Belser from February of 1975 until his retirement in October of 1975. Moreover, evidence presented at trial revealed that workmen’s compensation checks were received at the personnel office of ACIPCO. An employee of ACIPCO who worked in the personnel department testified that personnel records did not indicate that ACIPCO had ever paid workmen’s compensation benefits to Belser.

Applying this evidence to the test established by B. F. Goodrich Co. v. Parker, supra, it is apparent that the employer was not aware that the “sick pay” which it provided Belser was a payment of compensation. Nor did the payments recognize Belser’s claim to workmen’s compensation since ACIPCO construed the payments as “sick pay” and thereby did not make any workmen’s compensation deductions from Belser’s “sick pay” check. Finally, the “sick pay” was paid to Belser as a fringe benefit to which Belser was entitled by virtue of his employment. Accordingly, ACIPCO did not pay for more than it received. Although Belser was receiving money even though he performed no labor, this money was “sick pay” which his employer was obligated to provide under the terms of company policy. Cf. Beatrice Foods Co. v. Clemons, 54 Ala. App. 150, 306 So.2d 18 (1975).

Likewise, there was no evidence that the “sick pay” which Belser received was paid in lieu of compensation in view of the fact that when this money was paid, Belser was not yet aware of the condition upon which he ultimately based his demand for workmen’s compensation. And there was insufficient evidence that ACIPCO was aware of the fact that Belser was suffering from pneumoconiosis and therefore sought to compensate him for this condition by means of “sick pay” benefits. Indeed, the evidence adduced at trial indicates that Belser received the sick leave pay in accordance with an established company policy which treated all employees alike in regard to its sick leave plan.

The trial court’s conclusion that the “sick pay” provided by ACIPCO did not constitute payments of compensation or payments in lieu of compensation for the purpose of tolling the statute of limitations was supported both in law and in fact. Therefore, we will not disturb the court’s judgment in regard to this aspect of its review.

The second issue presented for our review concerns Belser’s contention that the legal evidence adduced at trial failed to support the trial court’s determination that no legal fraud was perpetrated on Belser by ACIP-CO. Thus, Belser argues that the trial court’s finding that the statute of limitations was not tolled was incorrect.

At the invitation of this court, our supreme court recently held that legal fraud committed by an employer against an employee will toll the statute of limitations in a workmen’s compensation case. Dorsey v. United States Pipe & Foundry Co., Ala., 353 So.2d 800 (1977). Moreover, the holding in Dorsey encompassed the fraudulent concealment of facts upon which the liability of the employer depends. And significantly, the supreme court’s opinion in the Dorsey case also indicated that an employer may be estopped from asserting the statute of limitations as a defense to a claim for workmen’s compensation. However, the present case was decided prior to the supreme court’s decision in Dorsey and the issue presented to and decided by the trial court concerned legal fraud; there was no contention made in regard to the theory of estoppel. Consequently, we are limited in our review to the theory on which the ease was tried. The theory litigated in this instance was fraud and we cannot enlarge that theory on appeal to include estoppel.

The decision in Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229 (6th Cir. 1956) recognized that an employer’s failure to inform an employee of a disease or medical condition disclosed by a medical examination may constitute fraudulent concealment and thus operate to toll the applicable statute of limitations. However, before the failure of an employer to inform an employee of the results of a medical examination disclosing the employee’s condition can be held to constitute fraudulent concealment for purposes of tolling the relevant statute of limitations, the employee must prove: (1) that the employer knew, or should have known, through its medical examination staff that the employee was suffering from a disease or infirmed condition, Jines v. General Electric Co., 303 F.2d 76 (9th Cir. 1962); (2) that the employer knew, or should have known, that the employee did not know of his disease or condition, E. I. Du Pont De Nemours & Co. v. Brown, 102 F.2d 786 (3rd Cir. 1939); (3) that the employee did not have reason to understand either the nature and gravity of his condition or its relation to his employment, 3 Larson’s Workmen’s Compensation Law, Notice and Claim Periods, § 78.41; and (4) that the employer (or the medical staff provided by the employer) did in fact fail to disclose to the employee that which it had an obligation to disclose, i. e. the nature and extent of the employee’s disease or condition. Title 6, chapter 5, section 102, Code of Alabama 1975; Union Carbide & Carbon Corp. v. Stapleton, supra.

In light of the four elements1 mentioned above we are unable to say that the finding of the trial court that there was no fraudulent concealment on the part of ACIPCO was incorrect in either law or in fact.

In examining the elements which must be proven in cases of this nature, it is reasonable to conclude that ACIPCO should have known that Belser (who had only a sixth grade education) did not know that he had contracted pneumoconiosis. Likewise, it is difficult to imagine how Belser could be deemed to have knowledge of his condition or its relation to his employment in view of the fact that the medical doctor who treated Belser professed no knowledge of the latter’s condition.

On the other hand, the evidence presented at trial does not reveal that ACIPCO had actual, subjective knowledge of Belser’s condition or that ACIPCO, while in possession of such knowledge, failed to disclose it to him. Consequently, the critical question is whether, under the circumstances of this case and in the exercise of reasonable care, ACIPCO should have known that Belser was suffering from pneumoconiosis prior to the discovery of the existence of that condition by the physicians employed by social security. Title 6, chapter 2, section 3, Code of Alabama 1975; JiNEs v. General Electric Co., supra. The evidence in the record before us falls short of establishing that ACIPCO lacked the reasonable care necessary for the trial court to hold that it should have known of Belser’s Condition.

ACIPCO maintains a medical department which examines and treats the employees of American Cast Iron Pipe Company. Accordingly, ACIPCO is under a duty to disclose (or have its medical department disclose) a condition which its medical staff has determined to exist or which the staff in the exercise of reasonable care should have diagnosed.

In the present case the physician who treated Belser on behalf of ACIPCO testified that until the pulmonary embolism suffered by Belser in early 1975, Belser had never complained of symptoms (such as shortness of breath) which would be consistent with a diagnosis of pneumoconiosis. Moreover, this doctor stated that he had treated Belser throughout the latter’s employment at ACIPCO and that Belser had many medical problems during his employment with ACIPCO including gross obesity, arthritis, chronic skin problems, thrombo-phlebitis, a pulmonary embolism, and mild congestive heart failure. This physician, however, testified that he was never aware that Belser had occupational pneumoconio-sis and that he never diagnosed Belser as having that disease.

On the other hand, there was some evidence contained in the medical chart which ACIPCO maintained on Belser that indicates that the physician who treated Belser might possibly have discovered that Belser had incurred occupational pneumoconiosis. Specifically, chest x-rays of Belser taken in 1957 and 1971 were interpreted by two different radiologists as revealing “slight bilateral fibrosis” and “diffused, nodular, pulmonary fibrosis.” Nonetheless, Belser’s physician at ACIPCO stated that while the discovery of bilateral or pulmonary fibrosis could be consistent with a diagnosis of pneumoconiosis, such findings could also be consistent with a number of other medical problems. Furthermore, the physician testified that he concluded the x-rays taken in 1957 and 1971 were subject to varying interpretations and that in the absence of any complaints on the part of Belser which would have alerted him to the fact that Belser was suffering from pneumoconiosis, he (the physician) did not endeavor to make a complete and comprehensive review of Belser’s medical chart, including his x-rays. Finally, the physician stated that x-rays of Belser taken subsequent to 1971 were subject to interpretations which were inconsistent with a diagnosis of pneumoconiosis.

As the facts set out above reveal, there was a significant amount of evidence to the effect that Belser’s primary physician at ACIPCO did not know that Belser was suffering from pneumoconiosis. And where confidential relations exist, such as those between a physician and patient, knowledge of the facts concealed is a necessary element of fraudulent concealment. Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940).

The evidence is also sufficient to support the trial court’s conclusion that the physician employed by ACIPCO should not have known of Belser’s condition. It is incumbent upon the complaining party in cases of this nature to establish that subject to the standard of care with which he is charged, a prudent, skilled and trained physician should have known of or been able to diagnose the patient’s condition. But a physician is not required to disclose to a patient that which the physician surmises from conjecture or speculation. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). Moreover, because differences in professional “judgment” play a large role in the diagnosis of patients, testimony of other physicians that they would have done something different, standing alone, is not sufficient in a workmen’s compensation case to sustain a determination that an employer’s medical staff should have known of the employee’s condition and that their failure to know and disclose that condition constituted fraudulent concealment for purposes of tolling the applicable statute of limitations. See Jines v. General Electric Co., supra. Instead, the local community standard of practice must be shown and that standard is applicable to cases where an alleged faulty diagnosis (or inability to diagnose) results in the failure of an employer (or its medical staff) to disclose a disease or condition to an employee. See Jines v. General Electric Co., supra.

In the instant case the evidence does support the conclusion that the physician employed by ACIPCO did not know of Bel-ser’s condition; moreover, there is no evidence that his inability to diagnose the ailment which ultimately disabled Belser was at variance with the standard of care of a prudent, skilled and trained physician in that locality. Accordingly, it cannot be said that the physician possessed (or should have possessed) the knowledge of certain facts which he then fraudulently concealed from Belser. And if the physician lacked such knowledge, it is reasonable to conclude that in this instance the employer likewise did not know of its employee’s condition. Thus, we are not persuaded that legal fraud in the nature of the fraudulent concealment of a known fact was supported by the evidence.

For the above stated reasons, the judgment of the trial court is affirmed.

MOTION TO DISMISS APPEAL AS FRIVOLOUS OVERRULED.

MOTION TO STRIKE PETITIONER’S REPLY BRIEF GRANTED.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

      . In reviewing the trial court’s action in this case we must note that this is not an action for malpractice. Despite the brief and arguments of counsel for ACIPCO to the contrary, the issue here is not a principal’s liability for the negligent selection of a physician. In Parsons v. Yolande Coal & Coke Co., 206 Ala. 642, 91 So. 493 (1921), our supreme court held that an employer was not liable for the actions of a physician retained by the employer to provide medical treatment for its employees. However, Parsons involved a malpractice suit against the employer, and the widely adhered to rule in such situations is that the employer may be found liable only if it failed to exercise due care in the selection and retention of its medical personnel. See Jines v. General Electric Co., 303 F.2d 76 (9th Cir. 1962); Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229 (6th Cir. 1956).


text:
    Patsy HITCHCOCK v. Kenneth HITCHCOCK.
    Civ. 1315.
    Court of Civil Appeals of Alabama.
    March 22, 1978.

      Sherman B. Powell, Jr., of Powell & Powell, Decatur, for appellant.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellee.
   BRADLEY, Judge.

This appeal is from a judgment denying a request for a modification of a prior divorce decree.

The parties to this proceeding were divorced by the Intermediate Court of Walker County, Alabama in March of 1976 for incompatibility. The custody of the two children was given to the father. In June 1977 the mother filed a petition in the Circuit Court of Walker County, Alabama seeking to have custody of the children placed in her. After an ore tenus hearing the court denied her petition. She appeals.

The parties to this proceeding were married for about ten years before their divorce, and two children resulted from the marriage. These children continued to reside with their mother approximately fifty percent of the time after the divorce even though their custody had been awarded to their father. There was no provision in the divorce decree prescribing any particular visitation periods.

Shortly after the divorce, i. e., sixty-two days, the defendant husband remarried. Both he and his new wife work. However, both testified that they loved the children and wanted them to remain in their custody.

The testimony showed that even during the time the children were staying with petitioner, the defendant was contributing to their support.

The petitioner is unmarried and drives a school bus. The evidence, although disputed, revealed that she had had an adulterous relationship with defendant’s nephew during the time she was married to defendant. The evidence also supports the conclusion that a sexual relationship with the nephew continued to exist for several months after the divorce. There was also testimony, again disputed, that petitioner has a new boyfriend who often stays overnight with petitioner in the latter’s house.

The defendant is an employee of South Central Bell and earns around $17,000 a year. He remarried shortly after his divorce from petitioner and has enjoyed a good relationship with his new wife.

There was testimony that defendant and his new wife had lived together in the same house for about a month prior to their marriage. Also there was testimony that prior to their marriage, the defendant and his new wife had taken the children to Florida for a short vacation and the defendant and his new wife slept in one room and the children slept in another room. Neither the defendant nor his new wife disputed this evidence.

Defendant’s wife testified that she loved the children and wanted them to live with her and the defendant full time. She also stated that the house was large enough for them and that the family’s income was sufficient for their needs.

The overall evidence contained in the record on appeal is supportive of the conclusion that the children have been loved and well cared for by each of the parties to this appeal and that the needs of the children are being satisfied.

Those who would have a court alter child custody arrangements have the burden of proving that there has been a material change in conditions or circumstances since the divorce decree. Ford v. Ford, 54 Ala.App. 510, 310 So.2d 230, corrected, writ den. 293 Ala. 743, 310 So.2d 234 (1975); Stephens v. Stephens, 47 Ala.App. 396, 255 So.2d 338 (1971). And, decisions in child custody cases are presumed to be correct and will not be changed on appeal unless it can be shown that such decisions are plainly and palpably erroneous. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974); Donald v. Donald, 50 Ala.App. 9, 276 So.2d 436 (1973).

The trial court obviously found that petitioner had failed to prove that there had been a material change in circumstances since the divorce, since it denied her petition to change the children’s custody from tbe father to her. Therefore, based on the evidence set out in the record — and we have carefully examined it — we can come to no other conclusion than that the trial court’s decree denying plaintiff’s petition for change in the custody of the children was not plainly and palpably erroneous.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    Billy THORNTON, Jr. v. STATE.
    5 Div. 413.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    James B. Sprayberry, of Gentry & Spray-berry, Auburn, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was convicted of escape and sentenced to ten years imprisonment in the penitentiary.

Omitting formal parts, the indictment charges that the defendant “ * * * did escape from the Lee County Jail, Lee County, Alabama, contrary to law and the provisions of Title 14, Section 153 of the Code of Alabama 1940, as recompiled.”

The Code section, supra, reads:

. “Any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary before the expiration of the term for which he was sentenced, shall, on conviction be imprisoned for an additional term of not less than one year.”

Notwithstanding the general rule that penal statutes must be strictly construed, our Supreme Court in Bradford v. State, 149 Ala. 1, 42 So. 990, held that § 4707, Code of Alabama, 1896 (now § 153, supra) applies to an escape from a county jail where the prisoner is awaiting transfer under a lawful judgment to the penitentiary. This holding was reaffirmed in Strickland v. State, 280 Ala. 31, 189 So.2d 771(5). See also, Hall v. State, Ala.Cr.App., 352 So.2d 8, cert. denied, Ala., 352 So.2d 11 (1977).

Mrs. Annette Hardy, Circuit Clerk of the Circuit Court in Lee County, Opelika, Alabama, testifying as a witness for the State, identified an official document which she read to the jury. The instrument she read was a judgment that convicted appellant on May 25, 1977, of receiving and concealing stolen property (value not shown). The judgment was imprisonment for a period of ten years.

The same witness, Mrs. Hardy, also testified on cross examination, as follows:

“Q. Do you know personally whether Billy Thornton’s lawyer, Kenny Wilkes, filed a motion for a new trial in your office?
A. Yes, sir.
Q. Do you know, personally, if that motion for new trial was granted?
A. Yes, sir.”

It is not clear from her testimony what date prior to the instant trial the judgment was vacated. For aught appearing in the record the judgment was in full force and effect when the escape occurred.

We note here that the escape occurred while the defendant was in the sheriff’s office; and from there with three other prisoners, he was to have been taken to a doctor’s office for treatment. He was then in custody of a deputy sheriff who momentarily had to go back to the jail to imprison a person in the custody of a United States officer. It was during the temporary absence of the deputy sheriff that defendant took flight, but later was recaptured near Auburn, Alabama, in Lee County.

Defendant was not actually, but constructively, in jail at the time of his flight. According to the pronouncements in Bradford, and Strickland, supra, he was a penitentiary prisoner and subject to § 153, supra.

We note that defendant did not move to exclude the evidence when the State rested, nor did he present a single written charge for the court’s consideration; neither did he file and present a motion for a new trial. For aught appearing, he did not file demurrer that challenged the validity of the indictment. In this respect there is no ruling of the trial court for appellate review.

We are mandated to follow Bradford and Strickland, supra. We are constrained to affirm the judgment. It is so ordered.

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.

AFFIRMED.

All the Judges concur.


author: BOWEN W. SIMMONS, Retired Circuit Judge. BOWEN W. SIMMONS, Retired Circuit Judge.

text:
    Claudia Mae WALKER v. STATE.
    6 Div. 168.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.

      George W. Nichols, Jr., of. Callahan & Nichols, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant appeals in forma pauperis from a judgment of conviction for possessing heroin contrary to law. A jury returned a verdict of guilty on a plea of not guilty; and assessed a fine of $1500.00. The trial court, in addition to the fine, imposed sentence of ten years and one day imprisonment in the penitentiary. This appeal is from the judgment imposing the fine and the imprisonment.

The offense of possessing heroin for which appellant was tried is a felony under the laws of Alabama. Act No. .1407, Acts 1971, p. 2378, T. 22, § 258(29)(c) as amended.

I

Appellant contends that the seizure of the package containing the heroin and the arrest of defendant was invalid and without authority of law. Assertion is made that the acts of the officers in executing a search were without probable cause. We do not agree. The officers did not have a search warrant.

It appears from the evidence, heard in camera on motion to suppress, that the officers’ action in making the arrest and seizing the package containing the heroin was based on information obtained from a reliable informer with whom the officers had no prior experience in obtaining information about narcotic violations.

It does appear that on October 9, 1975, this informer told narcotics agent, Mike Turner, that Jimmy Lavender of Eleven Hightown, Northport, expected a package of heroin at the Greyhound bus station, addressed to him. This officer testified that Lavender had a reputation for dealing in heroin and that he knew of such reputation. This informer said he had been to the Lavender residence on the 9th and there learned about the shipment.

Agent Turner associated two other narcotic agents, L. N. Bradford and Earl Walden, in setting-up a surveillance of the bus station on October 10, 1975. One of them made inquiry of the bus station manager and found that the package had not arrived. The manager agreed to cooperate. Agent Walden occupied a convenient place to observe, and later learned from a young lady employee that a package addressed to Jimmy Lavender, Eleven Hightown, North-port, had arrived. Defendant soon thereafter called for the package, received it, and left from the inside delivering point. Officer Walden, observing her departure with the package, used his “walkie-talkie” to notify Agents Turner and Bradford, stationed on the outside, about the delivery and departure. Walden followed behind her. All three closed in as defendant got in a waiting automobile. They arrested defendant and seized the package. A female driver was also arrested and later released. Both were taken to the police station. The package was there opened and the contents later turned over to a state toxicologist who testified that it was heroin and cocaine. It also appears from the evidence that Jimmy Lavender and defendant had a reputation for living at the same address, namely, Number Eleven Hightown in Northport. This reputation was known to the officers.

While it is true that the officers had no prior experience with the informer that tended to sustain his reliability and credibility in supplying the information, we think such prior experience was not essential to justify the arrest and search. There were other circumstances here prevailing that tended to support the informer’s reliability. The package, addressed to Lavender, arrived on the Greyhound bus just like the informer said it would. He had been to Lavender’s residence and obtained the information of such arrival. The officers had independent knowledge of the reputation of defendant and Lavender for living at the same place. She showed up at the bus station and received delivery of the package. Lavender had the reputation of being a narcotics dealer. This was known to the officers. All these factors tended to establish probable cause that the package contained narcotics and that the defendant was committing a felony. Thus, the officers had a right to make the arrest without a warrant pursuant to T. 15, § 154, Code 1940, compiled in 1958. We quote:

“An officer may also arrest any person, without warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened in his presence; or when a felony has been committed, though not in his presence, by the person arrested, or when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it; or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or on a charge made, upon reasonable cause, that the person arrested has committed a felony.”

The seizure and search was a lawful incident of the arrest. Hart v. State, Ala.Cr. App., 337 So.2d 111; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 and Tadlock v. State, 45 Ala.App. 246, 228 So.2d 859.

We note that the establishment of an informer’s reliability must have a beginning point. Here, the circumstances prior to the arrest of defendant and the search tended to support such reliability.

We cannot agree that the arrest of defendant and the search and seizure were without authority of law: Clenney v. State, 281 Ala. 9, 198 So.2d 293 (pp. 4, 5).

II

A second contention of error is that the trial court erred in overruling defendant’s timely objections and in permitting the state toxicologist (who was qualified) to testify as to the mental and physical dependence of one who has become a heroin addict. We note that the witness also testified without objection that physicians no longer prescribe heroin in the treatment of disease.

Be that as it may, we think the evidence of the witness tended to establish the gravity of the offense, namely, the possession of heroin, with which defendant was charged. It was relevant to show that the offense was more serious than the possession of a non-addictive prohibited drug. The court and the jury, if for no other reason, were entitled to know the effect of heroin and its addiction on the human mind and body to the end that they might consider these factors in the fixation of proper and adequate punishment for the possession of such a destructive drug. We see no error in the admission of the evidence.

Ill

Appellant contends that the following colloquy between the District Attorney, Mr. Harris, and the Court was prejudicial to her. We quote:

“THE COURT: Gentlemen, let’s get into something else please. I don’t think the witness has a right to ask the District Attorney questions so I will overrule. Gentlemen, I am getting a little concerned about the time factor. Let’s move on.
“MR. HARRIS: I appreciate that Judge. But, of course, I feel like I have to represent the State.
“THE COURT: I know you do. I am not questioning that. You are doing a good job.
“MR. CALLAHAN: We object to that statement and move to exclude it.”

We cannot agree that the colloquy was prejudicial to defendant. The trial court was merely trying to direct progress in the trial of the case, as he had a right to do, and merely complimented the District Attorney in his efforts to present the State’s case. These efforts of the District Attorney were quite obvious to the jury. The comments of the Court on' such presentation were just words of encouragement to the District Attorney and an apology to him. We fail to see that the Court’s remarks could have had any adverse effect on the guilt or innocence of the defendant which was an issue before the jury. Neither were the remarks a comment on the evidence. We do not consider the remarks to have been of serious import and grounds to reverse.

We find no error in the record. There was sufficient evidence to sustain the jury’s verdict of guilt. We affirm.

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 Section 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.

ON REHEARING

BOWEN W. SIMMONS, Retired Circuit Judge.

The indictment charged the defendant with unlawfully possessing a controlled substance, to-wit: Heroin.

The drug is a controlled substance. Acts of Alabama 1971, Act No. 1407, Volume III, p. 2378, § 204 (Schedule I)(c)(10) at p. 2384. Article IV, § 401(a) makes possession of heroin a felony with an appropriate penalty.

The legislature made possession of the substance a criminal offense without regard to intent or knowledge of the person in possession of the substance. The statute was passed in aid of the police power of the state, and it is significant that the law, supra, does not use the word “knowingly,” or other apt words to indicate that knowledge is an essential element of the crime charged. Allen v. State, 33 Ala.App. 70, 30 So.2d 479(4); Smith v. State, 223 Ala. 346, 136 So. 270, 271(4).

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


author: ALMON, Justice. BLOODWORTH, Justice

text:
    In re Claudia Mae WALKER v. STATE of Alabama. Ex parte Claudia Mae Walker.
    SC 2381.
    Supreme Court of Alabama.
    Sept. 23, 1977.
    Rehearing Denied Nov. 4, 1977.
    Sam L. Webb, Jr., of Callahan, Nichols & Webb, Tuscaloosa, for petitioner.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State, opposed.
   ALMON, Justice.

Petitioner Claudia Mae Walker was convicted of unlawful possession of heroin in the Circuit Court of Tuscaloosa County. The Court of Criminal Appeals affirmed the conviction. Because this case involves an issue of first impression in this state, this court granted certiorari. We reverse.

Appellant was indicted by the grand jury on October 31, 1975, and convicted on January 16, 1976, of violating the Alabama Controlled Substances Act. Acts 1971, No. 1407, p. 2378; Code of Alabama 1940, Recompiled 1958, Tit. 22, § 258 (25 et seq.) (1973 Supp.). She was fined $1,500 and sentenced to 10 years and a day in prison.

The sole issue before this court is whether knowledge is an essential element of the offense of illegal possession of a controlled substance under the Alabama Controlled Substances Act. The pertinent section of the Act provides:

“Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains, or attempts to obtain by fraud, deceit, misrepresentation, or subterfuge, or by the forgery or alteration of a prescription or written order, or by the concealment of material fact, or by use of false name or giving a false address, controlled substances enumerated in schedules I, II, III, IV, [and] V is guilty of a felony . . . .” Ala. Code, Tit. 22, § 258(47)(1973).

On rehearing, the Court of Criminal Appeals made the following statement:

“The legislature made possession of the substance a criminal offense without regard to intent or knowledge of the person in possession of the substance. The statute was passed in aid of the police power of the state, and it is significant that the law, supra, does not use the word ‘knowingly,’ or other apt words to indicate that knowledge is an essential element of the crime charged. Allen v. State, 33 Ala. App. 70, 30 So.2d 479(4); Smith v. State, 223 Ala. 346, 136 So. 270, 271(4).”

Smith v. State, supra, upheld a misdemeanor conviction for giving false weight and measures in the sale of gasoline. Allen v. State, supra, upheld a misdemeanor conviction for selling adulterated milk. In both cases, the court held that under the police powers of the State, such a punishment could be imposed regardless of intent or knowledge.

It is undisputed that the State may enact laws for the public health and safety imposing strict liabilities without any element of scienter. Smith v. State, supra; Allen v. State, supra; e. g., United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 60 L.Ed. 604 (1922); United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). However, the legislative power to impose criminal sanctions to any conduct is restrained by the constitutional command that no person can be “deprived of life, liberty, or property, except by due process of law”. Article I, § 6, Alabama Constitution of 1901; see Smith v. People, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1960).

It has become common to impose strict criminal liability in connection with a variety of regulatory statutes for violation of what are commonly called “public welfare offenses.” Perkins, Criminal Law, 2d Ed., Ch. 7, Strict Liability (1969); Hall, General Principles of Criminal Law, 2d Ed., Ch. 10, Strict Liability (1960). The regulatory statutes encompass such fields as:

“. . . (1) illegal sales of liquor; (2) sales of impure food or drugs; (3) sales of misbranded articles; (4) criminal nuisance; (5) traffic regulations; (6) motor vehicle laws, and (7) violations of general regulations, passed for the safety, health or wellbeing of the community.” Perkins, supra, at 802.

Although it may be difficult to ascertain common features- in the public welfare offenses, one author has made the following generalizations:

“. . . First, many of the enactments apply not to the general public but only to certain traders, particularly to suppliers of food or drugs and vendors of alcoholic beverages. Others, having more general application as to potential offenders, are restricted to very few activities-— the operation of automobiles, safety of highways, hunting, fishing, and various health measures. Next, many of these regulations and the conditions of conforming to them presuppose a continuous activity, such as carrying on a business. . Third, the public welfare enactments are relatively new. They represent relatively reeent adaptations to an intricate economy, including an impersonal market. . . . [FJourth, the modern regulations are not strongly supported by the mores. Their occurrence does not arouse the resentment directed as the perpetrators of traditional crimes. . The above common attributes of large segments of the minor offenses which are subjected to strict liability indicate that this law was constructed to meet new, important social problems ..” Hall, General Principles of Criminal Law, 2d Ed., supra, at 330-331.

The above demonstrates that the Alabama Controlled Substances Act is not the type of regulatory statute designed to impose criminal sanctions for the unknowing possession of forbidden substances. The penalty imposed for possession is severe— two to fifteen years imprisonment and a fine not to exceed $25,000. Tit. 22, § 258(47).

In addition, Alabama cases dealing with the predecessor to the Controlled Substances Act proceeded on the assumption that knowledge is an essential prerequisite to conviction for possession. Radke v. State, 292 Ala. 290, 293 So.2d 314 (1974); Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973); Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971). Likewise, in the analogous area of laws concerning the possession of illegal alcoholic beverages, the courts have invariably considered knowledge to be an essential element of the offense. Davis v. State, 40 Ala.App. 609, 119 So.2d 236 (1960); Grimes v. State, 38 Ala.App. 94, 76 So.2d 684 (1954). Like the predecessor to the present Controlled Substances Act, the alcoholic beverage control laws contain no mention of knowing or willful possession. Tit. 29, § 98, Code of Alabama 1940, Recompiled 1958.

In such a case as this, the desirability of efficient enforcement of regulatory statutes must give way to the traditional requirement that criminal sanction be imposed only for blameworthy conduct in order to comply with the requirements of due process of law. Article 1, § 6, Alabama Constitution of 1901. We hold that knowledge is an essential element of the offense of illegal possession of a controlled substance under the Alabama Controlled Substances Act.

The judgment in this cause is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and SHORES and EM-BRY, JJ., concur.

BLOODWORTH, J., with whom MADDOX and BEATTY, JJ., concur, concurs specially.

BLOODWORTH, Justice

(concurring specially).

I concur in Mr. Justice Almon’s opinion for the majority, in both the rationale and in the holding, “that knowledge is an essential element of the offense of illegal possession of a controlled substance under the Alabama Controlled Substances Act.” Thus, because of that part of the Court of Criminal Appeals’ opinion on rehearing which is in conflict with our holding, I concur that the cause must be reversed and remanded to that court. However, I would add that I fully concur with that part of the Court of Criminal Appeals’ opinion which holds that there was “probable cause” for the arrest, and sufficient evidence to go to the jury on the issue of possession and guilty scienter. Were it not for the erroneous holding on rehearing with respect to “knowledge,” I would vote to affirm.

MADDOX and BEATTY, JJ., concur.

      . The facts of this case are reported in Claudia Mae Walker v. State, 356 So.2d 668, 1977, Ala.Crim.App. Ms.


author: BOWEN, Judge.

text:
    Claudia Mae WALKER v. STATE.
    6 Div. 168.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    After Remandment from Supreme Court of Alabama. Rehearing Denied Jan. 24, 1978.

      George W. Nichols, Jr., and Sam L. Webb, Jr., of Callahan & Nichols, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

In an opinion written by the Honorable Bowen W. Simmons, a retired circuit judge, this court affirmed the conviction of the appellant for the illegal possession of heroin. (Ms. January 4, 1977). The Supreme Court of Alabama, in an opinion issued September 23, 1977, reversed this court and remanded the cause to us on that portion of the opinion which held that knowledge is not an essential element of the offense of possession. (See the extended opinion on rehearing issued February 1, 1977). In reversing, the Supreme Court specifically held that knowledge is an essential element of the offense of illegal possession of a controlled substance under the Alabama Controlled Substance Act. Ex parte Walker, Ala., 356 So.2d 672.

From our review of the evidence and the instructions given by the trial judge, this case is still due to be affirmed. Our extended opinion exerted no influence upon the findings of fact by the jury or upon the application of the proper law by the trial judge.

While in a prosecution for the possession of illegal drugs there must be evidence from which the jury may conclude beyond a reasonable doubt that the accused knew of the presence of the drugs, such guilty knowledge may be established by circumstantial evidence. Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971); Knox v. State, 50 Ala.App. 494, 280 So.2d 200 (1973); Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973); Fields v. State, Ala.Cr.App., 333 So.2d 861 (1976); New v. State, Ala.Cr.App., 337 So.2d 1355 (1976).

The evidence clearly shows that the appellant was in actual possession of a package containing heroin. The only disputed fact is whether or not she knew that the sealed package did contain heroin.

The fact that the accused is named as the addressee of a parcel containing a controlled substance is insufficient to show that his possession and control was accomplished by knowledge on his part that the parcel contained narcotics. Rutskin v. State, Fla.App., 260 So.2d 525 (1972); People v. Ackerman, 2 Ill.App.3d 903, 274 N.E.2d 125 (1971).

“The fact that he happened to be the addressee of the parcel obviously does not supply the evidence that he knew that the parcel contained marijuana or any other contraband. If this were not so, any innocent person could be convicted of possession of marijuana just because he happens to be the recipient of a package containing marijuana.” Rutskin, at 260 So.2d 526.

Likewise the fact that the accused picked up a parcel for the addressee is insufficient to show that the accused had knowledge of the illegal contents of the package. See Schaufele v. State, Fla.App., 269 So.2d 400 (1972), where the evidence showed that the accused claimed to be the addressee but when asked to produce identification stated that the addressee had lived with him. He then produced his correct identification and signed the receipt with his proper name. It was held that this was insufficient to show his knowledge that the package contained a narcotic drug.

Because the element of knowledge is seldom susceptible to direct proof, it may be proved by evidence of acts or conduct of the accused from which it may fairly be inferred that he knew of the existence of the narcotics at the place where they were found. See authorities cited at 28 C.J.S. Supp. Drugs & Narcotics § 204, p. 300, fn. 87.

“The requisite knowledge may also be proved by the physical appearance of the accused, and his declarations, or admissions, and contradictory statements, and explanations made by him.”
28 C.J.S.Supp. § 204.

Although the mere fact that the accused received a package addressed to him, or another, in the course of normal mail or parcel delivery does not, standing alone, suffice to show knowledge of any contraband contained in the package, the fact of receipt when coupled with additional facts and factors may produce circumstances from which it may be fairly inferred that the requisite knowledge was present. The inference may arise where there is an attempt by the addressee to secrete the package after accepting delivery, State v. Doerge, 11 Or.App. 602, 504 P.2d 766 (1972), or that a note to the addressee found inside the package indicated that code words should be used in future conversations and in the billfold of the addressee was found a card bearing the name and address of the sender, State v. Collins, 186 Neb. 50, 180 N.W.2d 687 (1970).

Puckett v. State, Ind.App., 322 N.E.2d 716 (1975), involved a prosecution for the possession of marijuana wherein the defendant contended that he had been asked by a friend to accept a trunk for a man named Bruce Street who would be in the area soon and claim the trunk. The reviewing court found that the defendant’s knowledge of the contents of the trunk, in which marijuana was found, was warranted by the defendant’s misrepresentation that his name was Bruce Street, his signing such name not his own on the receipt for the trunk, and his possession of the combination to open the trunk.

From the facts and circumstances of this case it is our conclusion that there was evidence from which the jury could have reasonably inferred that the appellant knew that the parcel contained a narcotic. The appellant and Lavender, the addressee, were living together at the residence of the appellant, the appellant’s telephone number was on the package; in picking up the package from the bus station the appellant identified herself as the wife of Lavender and signed the receipt as “Claudia Lavender”. When questioned by the police following her arrest the appellant stated that she had picked up the package for a friend named “Willie” but did not know where he lived or how to get in touch with him. According to the evidence presented by the state, the appellant told the police that she had not seen Lavender for some time, that she had not talked to him and that he had not been to her house. The appellant never told the police that Lavender sent her for the package and stated that she did not know anything else about it. This was all of the relevant evidence, viewed in a light most favorable to the state, presented at the time the motion to exclude was made. Therefore it is all we can review in considering whether the trial court correctly denied the motion to exclude the state’s evidence. Packer v. State, 55 Ala.App. 30, 312 So.2d 601 (1975); Williams v. State, Ala.Cr.App., 340 So.2d 1144, cert. denied, Ex parte Attorney General, Ala., 340 So.2d 1149 (1976).

From these facts the jury could reasonably infer that the appellant was aware of the presence of heroin within the package. This was a question of fact for the jury and one which we cannot overturn. Davis v. State, Ala.Cr.App., 331 So.2d 813 (1976); Godfrey v. State, Ala.Cr.App., 333 So.2d 182 (1976); Radke v. State, 292 Ala. 290, 293 So.2d 314 (1973). Whether there is any evidence on a given proposition is a question for the court to determine, and the weight or probative force thereof is for the jury. Shaddix v. State, 23 Ala.App. 262, 123 So. 277 (1929). The appellant’s own testimony contradicted much of the evidence presented by the state. Contradictory explanations may be sufficient to show knowledgeable possession. 28 C.J.S.Supp. Drugs & Narcotics § 210, pp. 310-311. The trial judge fully and carefully instructed the jury that they must be convinced beyond a reasonable doubt and to a moral certainty that the appellant not only had heroin in her possession but that she also knew what the substance was. Under these circumstances, the denial of the motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of the motion for a new trial was not error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Curry v. State, Ala.Cr.App., 341 So.2d 972, cert. denied, Ala., 341 So.2d 974 (1976).

This cause is affirmed.

AFFIRMED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex parte Claudia Mae WALKER.
    77-318.
    Supreme Court of Alabama.
    March 31, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Maurice LAMAR v. STATE.
    2 Div. 195.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged the appellant, Maurice Lamar, with possession of heroin. The jury found the appellant guilty as charged and fixed punishment at ten years imprisonment.

Lieutenant William Zachry of the Selma Police Department testified that in November of 1975, an informer named Mark E. Smith was working under his supervision. Smith was employed by Radio Shack in Selma, Alabama, and had worked as an informer for Lieutenant Zachry on several occasions. Smith testified that on November 11, 1975, the appellant and one Ronald Hampton purchased a C.B. radio and a police scanner at Radio Shack. After the purchase the appellant and Hampton had Smith install the equipment in a green Buick. Before installing this equipment, Smith told the appellant that “It was good to have those kids out of there [the garage] and that when I went home I was going to relax and smoke some marijuana” (R. p. 123). The appellant, according to Smith, said he could sell Smith some heroin and that Smith could make a profit reselling the heroin (R. p. 124). Smith testified that the appellant then set up a transaction between himself and Smith. The agreement was that the appellant would trade some heroin to Smith for some marijuana to make sure Smith was “cool” (R. p. 126). Smith and Lieutenant Zachry met that same day and Zachry gave Smith the marijuana for the exchange. The next day the proposed exchange took place at Radio Shack between Hampton and Smith. The appellant was not present. Smith testified that he turned the heroin over to Zachry that afternoon.

On November 15, 1975, according to Smith, Hampton and the appellant came to Radio Shack and showed Smith a matchbox which contained “silver packets” (R. p. 132). Smith testified that the appellant told him he could buy the heroin for $100.00 per spoon. A sale was arranged for 7:00 p. m., later that evening, at the Selma Mall. Smith testified that he met with Zachry shortly before 7:00 p. m. near the Selma Mall. Zachry testified that he searched Smith at this time to make sure he was not carrying any drugs. Zachry then gave Smith $35.00 to buy the heroin because, according to Zachry, more funds could not be obtained in so short a time (R. p. 65). Smith testified that he crossed the street to walk over to the Selma Mall, but saw Hampton under the overhang at Hardy’s. Smith walked over to Hampton and the two of them went to the back of Hardy’s where they joined the appellant in a green Buick. Smith got in the back seat of the car and the three of them drove to the back parking lot of the Mall. Smith testified that after the appellant stopped the car, Hampton handed him two foil packets. Smith stepped outside the car to examine the contents of the packets under the parking lot lights. Smith then lit his cigarette with a butane lighter, which was to signal Zachry that the heroin had been exchanged. Lieutenant Zachry drove up to the appellant’s car in an unmarked vehicle. After coming to a stop, according to Zachry, the appellant drove away at a high rate of speed. Zachry radioed the back-up unit and both- police vehicles pursued the appellant. The backup unit was in front of Zachry’s vehicle during the chase and radioed back to Za-chry that a brown bag had been thrown out of appellant’s car. The bag was never found.

The appellant’s car was found abandoned a few minutes later by another police vehicle in the rear of the Coleman Apartments. Zachry had a check made on the car’s registration and found that it was registered to one Ralph Hill, the appellant’s stepfather. Several foil packets, according to Zachry, could be seen on the rear floorboard of the car.

Zachry had the vehicle impounded and towed to police headquarters. At headquarters Zachry made a cursory search of the vehicle in which he found several small foil packets on the rear floorboard. The packets contained a substance which was identified as heroin by Mary Alice Rhodes, State Toxicologist. The appellant turned himself in several days later.

I

Appellant contends that the trial court erred in refusing to grant his motion to suppress the evidence. According to appellant, the search of his automobile was unlawful in the absence of a search warrant. The validity of the search must be viewed in light of the facts presented. The record discloses essentially a combination of four factors: (1) the prearranged transaction between the appellant and Smith with police supervision; (2) the signal by Smith that the transaction had taken place and the heroin was present; (3) the flight of appellant and the hot pursuit by the officers; and (4) the abandonment of the automobile by the appellant.

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, the United States Supreme Court recognized “a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” It is clear that the officers in this case had probable cause to believe that the abandoned vehicle contained heroin from what the record discloses. The facts and circumstances within the officers’ knowledge and “of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief” that heroin was in the automobile. Carroll, supra. Therefore, probable cause, coupled with the mobility of the vehicle, brings this case within the recognized exceptions to the warrant requirement. Daniels v. State, 290 Ala. 316, 276 So.2d 441.

Appellant contends that even if a search warrant was not required at the spot where the automobile was abandoned, one was required at the police station where the search was conducted. In Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), the United States Supreme Court held that the probable cause factor that exists at the scene exists at the station house. Therefore, the search of appellant’s automobile at the police station was proper.

II

Appellant contends that the trial court erred when counsel for both parties were asked, in the presence of the jury, if there was any objection to the stipulation that the jury could separate. The record shows that prior to trial it had been agreed that the jury could separate and this agreement was reached outside the jury’s presence (R. p. 65). Then, during the course of the trial the following occurred (R. p. 102):

“THE COURT: I think we will break for lunch now. Do you have any objection to the stipulation about the jury separating continuing through the course of the trial?
“MR. GREENE: None from the State.
“MR. SMITH: No, sir.”

On the reconvening of court, the defense moved for a mistrial on the grounds that the court had brought up separation in the presence of the jury. The record shows that the question of separation was agreed to by all outside the jury’s presence. Appellant contends that Title 30, Section 97(1), Code of Alabama 1940 (Recompiled 1958), prohibits the court from asking counsel for either party whether or not they will consent to jury separation in the presence of the jury. Although Title 30, Section 97(1) does not apply to Dallas County where this case was tried, an analogous common law rule is applicable. The purpose of Title 30, Section 97(1) was outlined by the Alabama Supreme Court in Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973), as follows:

. . (1) to prevent the defendant from being prejudiced by the jury’s knowledge that he has refused to consent to their separation; and (2) to prevent the jury from showing undue favoritism to a defendant by reason of knowledge that he has consented to their separation.

The first reason listed above is obviously moot in this case since counsel for appellant had agreed to jury separation and no prejudice could result from the jury being aware of his consent. As to the second reason, how could something which might lead the jury to show “undue favoritism” to the appellant be grounds for reversing a conviction? Such thus becomes grounds for rank speculation. Therefore, clearly, if this be error, it was harmless (Alabama Rules of Appellate Procedure, Rule 45).

Ill

Appellant contends that the trial court erred in refusing to give appellant’s jury charge No. 10, stating that, “The State must prove its charge and prove it beyond a reasonable doubt by the evidence. The assertions of counsel are not evidence.”

A careful examination of the record shows that the part of the requested charge stating, “The assertions of counsel are not evidence,” was not covered by the trial court’s oral charge to the jury. This charge should have been given, and its refusal is error. Lane v. State, 85 Ala. 11, 4 So. 730; Morse v. State, 49 Ala.App. 203, 269 So.2d 916.

Because of this error, it follows that the judgment below is due to be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Maurice LAMAR v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2769.
    Supreme Court of Alabama.
    Dec. 9, 1977.

      William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State, petitioner.
    No brief for respondent.
   SHORES, Justice.

Citing Morse v. State, 49 Ala.App. 203, 269 So.2d 916 (1972), and Lane v. State, 85 Ala. 11, 4 So. 730 (1887), the Court of Criminal Appeals, 356 So.2d 677 reversed the defendant’s conviction because the trial court refused the following charge requested by the defendant:

“. . . ‘The State must prove its charge and prove it beyond a reasonable doubt by the evidence. The assertions of counsel are not evidence.’ ”

We granted the state’s petition for writ of certiorari.

This court has frequently held that the refusal to give a requested charge is not error where the trial court, in its oral charge, substantially and fairly explains to the jury the principle sought to be covered. Kirksey v. State, 291 Ala. 102, 278 So.2d 363 (1973); Kemp v. State, 278 Ala. 637, 179 So.2d 762 (1965); Hurston v. State, 235 Ala. 213, 178 So. 223 (1938). In the instant case, the trial court charged the jury as follows:

“Now, you, of course, are the sole trier of the fact. That means that it is up to you to make a determination as to the facts in this ease.
“The facts of the case consist of evidence that you have heard from this witness stand .
“. . . the burden of proof is upon the State to convince each member of the jury beyond a reasonable doubt as to the truth of the material averments contained in the indictment.”

This charge limits the jury’s consideration to evidence which it heard from the witness stand. It also informs the jury that the state has the burden of proof beyond a reasonable doubt. It, therefore, covers the subject matter of the refused charge, except for the reference to assertions of counsel.

The Court of Criminal Appeals reversed the conviction because “. . . that the part of the requested charge stating, ‘The assertions of counsel are not evidence,’ was not covered by the trial court’s oral charge to the jury. [Citing Lane v. State, supra]”

In Lane, the prosecuting attorney, in his opening argument to the jury, said:

“. . . ‘This poor old man, toiling and hauling iron ore for his bread, is not even permitted to look at the scales when his ore is weighed. When it comes to this, gentlemen of the jury, that a poor laboring man, hauling ore to a rich corporation, or to anybody else so far as that is concerned, can not look at the beam, that he may know he gets just weights, and must be knocked down with an iron weight when he does do it, then farewell to liberty and rights.’ . . . ”

The defendant’s counsel objected to this statement and moved to exclude it. The trial court overruled the objection. Under those circumstances, this court held that it was error to refuse a charge similar to the one refused here. However, in the instant case, the record does not contain any remarks by counsel for either side. There is nothing to indicate that improper argument was made by the prosecuting attorney. Clearly, assertions made by counsel are not evidence, but it is not necessary in every criminal prosecution that a charge to that effect be given to the jury. If the trial court adequately charges the jury as to what evidence it may properly consider in its deliberations, and adequately charges that the state has the burden to prove its charge beyond a reasonable doubt, it is not necessary that the charge expressly exclude assertions of counsel from the jury. Lane v. State, supra, does not compel a reversal in all instances where the trial court refuses the charges requested by the defendant in this case.

The judgment of the Court of Criminal Appeals is reversed and remanded.

REVERSED AND REMANDED.

All the Justices concur.


text:
    Maurice LAMAR v. STATE.
    2 Div. 195.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
   After remandment, AFFIRMED on authority of the Supreme Court of Alabama, S.C. 2769, dated December 9, 1977, 356 So.2d 680. No opinion.


author: EMBRY, Justice.

text:
    Ex parte Maurice LAMAR.
    77-359.
    Supreme Court of Alabama.
    March 31, 1978.
   EMBRY, Justice.

WRIT DENIED.

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