text:
    CLARK LUMBER COMPANY, INC., a corporation v. Bennie THORNTON.
    Civ. 1445.
    Court of Civil Appeals of Alabama.
    July 12, 1978.

      Larry W. Harper of Dunn, Porterfield, Scholl & Clark, Birmingham, for appellant.
    William L. Utsey, Butler, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The trial court rendered a decree in favor of the employee and the employer appeals.

The employer in an excellent brief contends the trial court erred to reversal in allowing the testimony of an “expert” witness to be introduced into evidence. Additionally, the employer contends that the trial judge did not make a sufficient finding regarding the employee’s “loss of ability to earn.”

I

The employer first contends that the trial court erred in allowing Robert C. Bennett to testify as an expert witness. Mr. Bennett was allowed to testify as to the em-ployability of the employee.

Viewing the evidence with the attendant presumption of correctness we find the following:

Mr. Bennett is the owner-manager of an employment agency and has been for some time. He is a certified employment consultant. Mr. Bennett’s place of business was located in Pensacola, Florida. However, he testified his business covers employment in Alabama. Furthermore, he testified he was generally familiar with the local job market. In addition, he had in fact observed and interviewed the employee.

The employer’s main thrust in connection with this aspect on appeal is that Mr. Bennett was not specifically familiar with the employment prospects in and around Butler, Alabama, and therefore, should not have been allowed to testify in the instant case.

Suffice it to say, the question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court whose discretion will not be disturbed on appeal except for abuse. Johnson v. Battles, 255 Ala. 624, 52 So.2d 702 (1951).

In view of the qualifications of the witness as set out hereinabove, we find no such abuse of discretion as to require reversal. We would further note that the qualifications of the witness falls within the standard as indicated by Unexcelled Manufacturing Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (1974); and Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974), and the fact that he was not familiar with the specific employment prospects of Choctaw County does not prohibit his testimony. This factor would more properly go to the weight to be accorded his testimony rather than admissibility.

We further find that Mr. Bennett was qualified, based on his knowledge of the employment industry and his interview with the employee, to state that the employee was unemployable. See Ragland and Hagler, supra.

Despite the traditional restrictive rule that an expert witness cannot give his opinion upon an ultimate issue in a case, as alleged by employer, the modern trend is to the contrary. The rationale behind the decision forming this trend is that the expert should be allowed to give his opinion upon an ultimate issue if that will aid the trier of fact in its decision. The courts in Alabama have stated that even though a question propounded to an expert witness will elicit an opinion from him concerning a material issue in the case, such is not sufficient to render the question improper. See Life and Casualty Insurance Co. v. Bell, 235 Ala. 548, 180 So. 573 (1938); Gamble McElroy’s Alabama Evidence § 127.01(5) [3d ed.].

The above is further supported by the general rule that an expert opinion is not conclusive on the trier of fact even if the testimony was uncontroverted. Furthermore, the weight' and credibility to be attributed to an expert witness is for the trier of fact. See Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973); 9 Ala. Digest Evidence ©=>568(1), 570.

Additionally, we find no error in the hypothetical question propounded to the witness. The employer contends that the question in issue did not contain sufficient facts. This court, speaking through Presiding Judge Wright, held in Clutts v. Clutts, 54 Ala.App. 43, 45, 304 So.2d 599, 601 (1974) that:

“A hypothetical question is not objectionable merely because it does not contain all facts in evidence which might tend to affect the answer. If it contains sufficient facts from which an opinion may reasonably be formed it is sufficient as against objection. The sufficiency of a hypothetical is a matter largely within the discretion of the court. Facts not included in the hypothetical are available for cross-examination and attacking the credibility or reliability of the opinion stated. . . . ” [Citations omitted.]

A review of the record clearly reveals to this court that sufficient facts, either in evidence at that time or later admitted, were assumed in the hypothetical question to fairly justify the formation of an opinion. In any event, we cannot say in this instance, that the admission of the hypothetical question and the answer thereto was such an abuse of discretion by the trial judge so as to require reversal in that this situation falls within the purview of Hagler v. Gilliland, supra. See also Gamble, McElroy’s Alabama Evidence § 130.01 [3d ed.].

II

The employer next argues error in that the trial judge failed to make a specific finding of loss of ability to earn.

The trial judge’s decree reads in pertinent part as follows:

“The Court finds that the plaintiff has suffered 100% total disability to the body as a whole as a result of his injury and while he is not 100% physically impaired, he is without a doubt permanently totally disabled to engage in his occupation as an edger operator, sawmill worker or laborer.”

The scope of review of appellate courts in workmen’s compensation cases is limited to the determination of whether there is any legal evidence to sustain the conclusion of the trial court. See Colvin v. Lee Turzillo Contracting Co., 54 Ala.App. 401, 309 So.2d 112 (1975).

We find the above decree to be supported by the evidence. The decree reveals that the employee is 53 years old; has less than a first grade education and cannot read or write except to sign his name. The employee is an unskilled laborer and has been one most all his life. The decree, and the evidence supporting it, further reveals that the employee injured his back on the job and can no longer lift heavy objects. Due to this injury, the employee is under restrictive medical instructions in that he cannot stand for a prolonged period of time nor can he bend or squat.

As noted above, the employer argues that the finding of the court does not exclude the possibility that the employee could find gainful employment. Put another way, the trial court erred in failing to make a specific finding of a loss of ability to earn. We cannot agree.

This court, under similar if not identical circumstances as we have in this case, approved the above finding by the trial court. See Edwards v. City of Huntsville, 49 Ala.App. 498, 273 So.2d 475 (1973). We do so again in this instance.

The trial court is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Barbara C. BAGGETT v. Charles C. BAGGETT, Jr.
    Civ. 1447.
    Court of Civil Appeals of Alabama.
    July 12, 1978.

      Horace N. Lynn, Montgomery, for appellant.
    George H. Wakefield, Jr., Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce ease.

The wife appeals, contending that the trial court abused its discretion in the division of property.

It is clear to this court that the trial court entered its decree after an ore tenus hearing. It is equally as clear that there is no transcript of the evidence before this court. This court has no alternative but to affirm the decree of the trial court. See 2 Ala. Digest Appeal & Error @=>671(2), and 2A Ala. Digest Appeal & Error @=>1008.1(6).

We deem it appropriate to quote from Adams v. Adams, Ala.App., 385 So.2d 174, 177 (1976), where Judge Bradley, speaking for this court, stated:

“The argument urged on appeal is directed exclusively to the proposition that the trial judge’s decree, based on evidence heard ore tenus, was plainly and palpably erroneous. Reversal on such ground must be solidly based on the appellate court’s conclusion that the evidence virtually compels a result inconsistent with the trial judge’s findings, Sparkman v. Williams, 260 Ala. 472, 71 So.2d 274. It is impossible for an appellate court to make such a determination where none of the oral testimony is communicated to it.
“Under ARAP it is not necessary to submit the entire transcript; however, there is a minimum below which an appellant who bases his argument on the weight and sufficiency of the evidence may not fall and still present a reviewable issue. The complete absence of any transcript or 10(d) statement of oral testimony falls below such a minimum.”
The case is due to be affirmed.
AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Bruno W. PARDUCCI, Sr. v. Charles H. PAYNE, as Commissioner of Insurance, Department of Insurance, State of Alabama.
    Civ. 1450.
    Court of Civil Appeals of Alabama.
    July 12, 1978.

      Larry W. Morris, Alexander City, for appellant.
    Charles H. Barnes, Asst. Atty. Gen. and General Counsel State Dept, of Insurance; David E. Allred, Asst. Atty. Gen. and Asst. Counsel State Dept, of Insurance, for appel-lee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment affirming an order of the Commissioner of Insurance revoking the agent’s license of Bruno W. Parducci. We affirm.

Complaint was made to the Alabama Commissioner of Insurance against Mr. Par-ducci and his agency partner, Howell. Due notice of the complaint and of a hearing thereon was given to Parducci. The partner requested and received a continuance of the hearing upon the complaint against him. Parducci neither retained counsel nor requested continuance of the complaint against him. Upon the day of hearing he was summoned by telephone. He appeared and requested a continuance because he thought his case had been continued along with that of his partner. There were witnesses present against him who had come from considerable distance. The hearing commissioner denied a continuance, but gave him opportunity prior to the hearing to call an attorney and witnesses. He was given opportunity prior to presenting his defense to call witnesses, but did not do so. He testified at great length in his own behalf and questioned opposing witnesses.

The issues presented are stated in brief as three. In fact there is only one. That is, was procedural due process denied Parducci by the refusal of the examiner to grant a continuance?

One charged with an offense to be tried at an adjudicatory administrative hearing is entitled to procedural due process. Such due process includes adequate notice of the complaint against him and a reasonable opportunity to prepare a defense with assistance of counsel. Board of Educ. v. Kennedy, 256 Ala. 478, 55 So.2d 511 (1951). 33 A.L.R.3d 229.

Mr. Parduccci was served with a copy of the complaint against him on August 5. He was given notice that the complaint would be heard on August 25. He neither consulted counsel nor made any preparation for the hearing. A few days before August 25, he heard that the hearing of charges against his partner set for the same date and time as his own had been continued at the partner’s request. He assumed, without inquiry, that the continuance applied to his own hearing. When the hearing was convened on August 25, Mr. Parducci had already been extended the required constitutional due process. He had notice of the charge and day of hearing and ample opportunity to retain counsel and prepare a defense. The fact that he had not prepared a defense and obtained counsel was due to his own negligence and failure.

The denial of a continuance was a matter within the discretion of the hearing commissioner. State v. Alabama Pub. Serv. Comm’n, 293 Ala. 553, 307 So.2d 521 (1975). There is nothing in the record to support a claim of an abuse of that discretion. We must therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    HOUSING AUTHORITY OF PRATTVILLE, Alabama, et al. v. W. B. HEADLEY, d/b/a W. B. Headley and Sons.
    Civ. 1478.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    Theron 0. McDowell, Jr., and J. Myron Smith, Prattville, for appellants.
    George P. Walthall, Jr., Prattville, for appellee.
   BRADLEY, Judge.

This appeal is from a summary judgment rendered against the Housing Authority of Prattville, Alabama, et al. and in favor of W. B. Headley, d/b/a W. B. Headley and Sons.

These proceedings commenced when W. B. Headley, d/b/a W. B. Headley and Sons, appellee here, filed a negligence action against the Housing Authority of Prattville, Alabama, appellant here, for the Authority’s failure to require Robert G. Rhodes Roofing Company to post bonds in accordance with Title 50, section 16, Code of Alabama 1940 (Recomp.1958) (currently found in Title 39, chapter 1, section 1, Code of Alabama 1975).

The appellant had contracted with Robert G. Rhodes Roofing Company for the installation of new roofing and other roofing repairs to certain buildings under its control. Rhodes performed the work in accordance with the contract but failed to pay all of the money owed to appellee for the roofing materials purchased from it and installed by Rhodes on the buildings owned by appellant. Thereupon, Headley filed an action against the Housing Authority of Prattville for failure to require Rhodes to post with the Authority a bond in accordance with Title 50, section 16, Code of Alabama 1940 (Recomp.1958). The case was dismissed by the Circuit Court of Autauga County because Headley’s action was barred by the one year statute of limitation, i. e. Title 7, section 26, Code of Alabama 1940 (Recomp.1958) (currently found in Title 6, chapter 2, section 39, Code of Alabama 1975).

On appeal to this court the circuit court’s judgment was reversed and the case remanded because the running of the one year limitation period commenced when the injury occurred, i. e. when final payment was made to the roofing contractor, rather than when the work started, as found by the trial court.

On remand, the circuit court held a hearing on both parties’ requests for a summary judgment and granted appellee’s motion for such judgment but denied appellant’s motion therefor. This appeal results therefrom.

Appellant’s initial contention is that a housing authority, if subject to Title 50, section 16, acts in a governmental capacity (rather than in a proprietary capacity) when it makes available to the public low-rent housing and, as a consequence, it is immune from suit for allegedly negligent acts. In support of this argument, appellant relies on the case of Robbins v. City of Sheffield, 237 Ala. 674, 188 So. 874 (1939).

In Robbins the plaintiff, who had supplied a contractor with various materials, filed an action against the municipality for the latter’s negligent failure to require the contractor to post a bond pursuant to Act No. 39, Acts of 1935, the statutory predecessor to Title 50, section 16, Code of Alabama 1940 (Recomp.1958). The municipality’s demurrer to the action was sustained and the case was dismissed. The dismissal of plaintiff’s action was affirmed on appeal. Although dicta in the case indicated that the burden of posting bond was on the contractor rather than the city, the court did not actually decide whether Act 39 placed the burden on the city to see that the contractor posted the bond. Instead, the court’s decision was premised on the larger question of whether the city could be held liable for failing to require the bond to be posted if one assumed for argument’s sake that the city had the burden of requiring the bond to be filed with it.

The court affirmed that the character or nature of the improvement undertaken by the city had no relation to the duty imposed on the city by Act 39. The court said that Act 39 created a duty for, and in the interest of, the public in general rather than the municipality or its inhabitants. On this basis, the decision concluded that the plaintiff’s action was without foundation because:

“Being therefore an instrumentality of the State and exercising the authority given by the State, the city is no more liable for the acts or omissions of its officers or agents in this regard than would be the State. ... It was, of consequence, a governmental function, and a negligent failure to perform the duty imposed, creates no more liability upon the city than upon the sovereignty which it represents.”

As we understand its holding, the supreme court determined that a city was engaged in the exercise of a governmental function when it required (or failed to require) a contractor to comply with Act 39 by posting the statutory bond. Thus, the city was immune from suit for the negligent acts of its agents or servants under the. doctrine of governmental immunity. Such a conclusion was premised on the theory that cities were subdivisions of the state and could not be sued for torts because the constitution or statutes did not permit such suits.

Moreover, in the case of In re Opinions of the Justices, 235 Ala. 485, 179 So. 535 (1938), the supreme court said that a housing authority, brought into existence by a municipality, was an administrative agency of that city; consequently, the court reasoned that a housing authority would be exercising a governmental function when in pursuit of its duties. The opinion continued by indicating that the creation of a corporation such as a housing authority imbued the corporation with the police power of the city and that the mere fact that it was an administrative agency of the city did not deprive it of any immunities inhering to the government under which the corporation operated.

However, it is no answer to a housing authority’s potential liability for a tort to say that such authority is an administrative agency of a city exercising a governmental function and, therefore, is immune from suit. Such immunity does not exist where a statute specifically permits a suit against the agency. And the statute which authorizes the creation of housing authorities in this state expressly allows such authorities to sue and be sued. Title 25, section 12, Code of Alabama 1940 (Recomp.1958) (currently found in Title 24, chapter 1, section 27(22), Code of Alabama 1975). Moreover, in Housing Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 14 So.2d 527 (1943), it was held that in view of the fact that the enabling legislation by which housing authorities were created provided that housing authorities could sue and be sued, a tort action against such bodies was permissible. And the court in that case noted:

“The suggestion that sáid corporation is a governmental agency is no answer to its liability. The books are full of decisions holding that such governmental agencies may be sued where the statutes under which they exist so authorize. . . . ”

Although Housing Authority of Birmingham Dist. v. Morris dealt with tort liability for a violation of the housing authority enabling legislation itself, we believe that the phrase “sue or be sued” also permits a tort action against the authority in instances where the authority has failed to comply with statutory provisions which are not contained in the enabling legislation by which housing authorities were created. Our view is supported by Title 25, section 9, Code of Alabama 1940 (Recomp.1958) (currently found in Title 24, chapter 1, section 44, Code of Alabama 1975) which provides:

“The authority and its commissioners shall be under a statutory duty to comply or to cause compliance strictly with all provisions of this chapter and the laws of the state of Alabama . . ..”

State law requires the execution of a performance bond before a public work project is commenced. Title 50, section 16, Code of Alabama 1940 (Recomp.1958). The Housing Authority was under a statutory duty to require strict compliance with this law. The Authority failed in its duty by not taking appropriate action to see to it that Rhodes posted the necessary bond. Accordingly, appellee was entitled to maintain a suit against the Authority for its failure. Title 25, section 12, Code of Alabama 1940 (Recomp.1958).

Furthermore, we must reject appellant’s contention that the amount awarded in this instance exceeded the statutory re-quirement found in Title 50, section 16 which states that laborers and materialmen are protected by bond in an “amount not less than fifty percent of the contract price.” Appellant argues that the contract price involved here was $10,205 and that the judgment awarded ($7,599.08) was in excess of fifty percent of $10,205, or $5,102.50. First, we would point out that the statutory language “not less than” establishes the minimum amount of protection. It does not preclude protection in excess of fifty percent of the contract price. Nevertheless, the argument made by appellant with regard to damages is irrelevant to the present case. Appellee’s suit was not based on Title 50, section 16 itself, but rather, his action was brought against the Housing Authority for its negligent failure to require compliance with the statute. Thus, appellee’s suit was a tort action arising out of a breach of statutory duty and as such he was entitled to recover damages in the amount of his loss.

The judgment of the trial court is affirmed.

AFFIRMED.

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

      . The present case was initiated prior to our supreme court’s decision to abolish municipal immunity. Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975).


text:
    MOBILE FUELING SHIPPING, INC. v. Charles M. SCOTT.
    Civ. 1480.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    Lowell H. Becraft, Jr., Huntsville, for appellant.
    Charles M. Scott, pro se.
   HOLMES, Judge.

The Circuit Court of DeKalb County, in May of 1977, granted a summary judgment in favor of the plaintiff in the amount of $1,924. Numerous motions and other documents were thereafter filed. In November of Í977, the defendant filed a Rule 60, ARCP, motion. The essence of this motion was to seek relief from the original summary judgment granted in May of 1977.

On February 24, 1978, the circuit court entered an order setting aside the May, 1977, summary judgment and restoring the case to the docket. The defendant has appealed. In view of the trial court’s order of May, 1977, the appeal is due to be dismissed as being moot.

In order for this court to decide an appeal, a justiciable controversy must exist at the time the matter is under submission to this court. See Board of Adjustment, City of Montgomery v. Priester, Ala.Civ.App., 347 So.2d 530 (1977).

APPEAL DISMISSED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Gerald RHEA v. Sylvia RHEA.
    Civ. 1490.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    J. Donald Banks, Mobile, for appellant.
    Irvin Grodsky, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband appeals the order of the Circuit Court of Mobile County reinstating the amount of previously awarded child support payments.

At the outset, we would note that the record in this appeal consists solely of motions by the parties, decrees, and orders of the trial court. No testimony of any hearing was recorded. The following is, however, revealed by the record.

The parties were divorced in August, 1973. At that time, the husband was ordered to pay $400 as alimony and child support. In June, 1976, the court ordered that child support payments be reduced to $200 per month.

In response to the court’s 1976 order, the wife filed a motion to modify. This motion was heard in May, 1977. The order of the court reveals that the husband was not present at the hearing although he was represented by counsel. That order also entered a judgment in the amount of $5,006 against the husband representing all prior judgments and arrearages in child support up to that date.

This May, 1977, order further held that: “[T]his cause be, and hereby is continued to August 1st, 1977, at 9:30 A.M., to allow the Defendant to appear in Court and offer any objections to the said motion; and, in the event the Defendant fails to appear on said date and make objections to the granting of said motion, or fails to comply with the orders of this Court and make the support payments as previously ordered, then the Court will consider granting the Plaintiff’s motion at the time of the hearing hereinabove set.
“It is also further ORDERED, ADJUDGED and DECREED by the Court that pending said hearing .and further determination by the Court, the Defendant shall continue to make the monthly payments as ordered m the amount of $200.00, plus the commission due thereon, and that said payments shall be made through the office Of the Accounts Clerk of this Court.” [Emphasis supplied.]

At the August, 1977, hearing, the husband was again absent but was represented by counsel. Testimony was presented by the wife at that hearing. The court decreed that the wife’s motion to modify was to be continued generally and to be reset for review during February, 1978, and every six months thereafter until a final determination of the cause was made.

In addition, the court ordered the father to pay “on a temporary basis the sum of $250 per month, with $100 to be applied on child support and $150 to apply on the judgment” of child support arrearage. Furthermore, the court decreed that if the defendant was not up to date on his monthly payments and failed to appear in court to explain such failure, the court would reconsider the matter.

At the February, 1978, hearing, the defendant was again absent but was represented by counsel. The court ordered the child support payments to be reinstated at $200 per month. The court further reaffirmed the previously rendered judgment representing the husband’s arrearage in child support payments.

The husband appeals, contending there is no legal or evidentiary basis to support the order of the court modifying child support. We disagree and affirm.

It is clear to this court that the nature of the court’s order of February, 1978, was more of a reinstatement of a prior decree than a modification. When the wife filed her motion to modify, the husband was paying $200 per month for child support. This was later raised on a temporary basis to $250 in August, 1977. The court’s order of February, 1978, the subject of this appeal, reinstated the support payments in the amount of $200. This was the same amount the court had previously ordered the husband to pay prior to the wife’s motion to modify and the instigation of the above proceedings. The court, in this instance, was merely exercising its continuing power over the parties, basing its order on evidence previously taken.

We further find no merit in the husband’s contention that the trial court’s order is based on the absence of any evidence or fact. The August, 1977, order of the court clearly reveals that testimony was given by the wife during that hearing. Based upon that evidence, the hearing was continued and a final order entered in February, 1978.

As noted above, no testimony was recorded during these hearings. It is settled in Alabama that in the absence of any record showing what occurred or what was presented to the trial court, we must assume that the action of the trial court was supported by the proof. See Thompson v. Thompson, 50 Ala.App. 564, 281 So.2d 277 (1973).

In view of the above, we find no reversible error and affirm. The wife has requested an award of an attorney’s fee for this appeal. An award of $350 is hereby made.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Joan Kennington DAY v. Ben William DAY.
    Civ. 1491.
    Court of Civil Appeals of Alabama.
    July 12, 1978.

      D. C. Martinson of Martinson & Beason, Huntsville, for appellant.
    H. Evins Hamm, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

Plaintiff and defendant were married originally in 1953. They were divorced in March, 1975. They remarried in November 1975. They separated again in August 1977. The husband filed for divorce in September 1977. The wife answered and counterclaimed seeking a divorce, alimony and attorney fees. After hearing the evidence, the court entered judgment for divorce in February 1978.

The first issue presented is whether the failure to award the wife alimony in gross was an abuse of discretion.

The evidence showed as follows: At the time of the divorce in 1975, the parties entered into an agreement. The court incorporated the agreement into the judgment for divorce. The agreement was for a property settlement of all the real and personal property of the marriage. It was completed by transfer of jointly held title, one to the other and the fulfillment of all mutual obligations. There was no nullification of that agreement when the parties remarried. Neither party had acquired any additional real or personal assets of any material value since the agreement and during the new marriage. The only change had been that the business of the husband had improved in volume if not in profit. He continues to draw the same wages. The income of the wife has increased from $6,900 to $10,000 per year. There are no minor children. The savings account given to the wife in 1975 has slightly increased and is now over $5,000. The wife is age 44 and the husband is age 45. There is no evidence but that she is in good health. The husband has a heart ailment.

We have carefully examined all the evidence. We are unable to find any substantial difference in the situation of the parties at the end of the brief second marriage than when they began it. Each could be said to be slightly better off financially at the end than at the beginning. There is no contention by either party that the rights and titles derived from the first divorce were in any manner affected or nullified by the second marriage. We do not believe the facts and the law would support such contention. Williams v. Williams, 261 Ala. 328, 74 So.2d 582 (1954). It is the considered opinion of this court that the trial court did not abuse its discretion in failing to award to the wife alimony in any form. Plaskett v. Plaskett, 348 So.2d 784 (Ala.Civ.App.1977).

The second issue presented is whether the court erred in failing to award attorney fees to the wife. The award of attorney fees is controlled by the same principle of law as is the award of alimony. It is a matter for the exercise of the judicial discretion of the trial court. Novak v. Novak, 339 So.2d 77 (Ala.Civ.App.1976). As in the matter of alimony, we find no abuse of discretion under the facts of this case.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Billy Joe STEWART v. Amyrillis Stewart GRACE.
    Civ. 1421.
    Court of Civil Appeals of Alabama.
    July 19, 1978.
    Richard F. Calhoun, of Brantley & Calhoun, Troy, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This appeal is a result of an order by the Circuit Court of Pike County modifying its original decree pertaining to the custody of the parties’ three minor children.

Appellant (Billy Stewart) and appellee (Amyrillis “Amy” Stewart Grace) were divorced in May of 1975. The wife was awarded custody of the couple’s three children: twin daughters named Ann and Nan, and their younger sister Betty Jo. Amy Grace and Billy Stewart subsequently agreed that the children would reside with their mother six months of the year, and would remain in their father’s custody the other six months of the year. The original divorce decree was modified to reflect this agreement.

In August of 1977 Amy Grace filed a petition in the Circuit Court of Pike County alleging that her former husband refused to restore custody of the children to her. Thereafter, the trial court directed Billy Stewart to place the children in the custody of their mother. Upon learning of the trial court’s order, Stewart filed a petition to modify the custody provisions of the original judgment divorcing the parties. In his petition he requested that the court terminate his ex-wife’s right to custody and that it grant him complete and permanent custody of the children.

Following the procedural stages of the matter, a trial was held at which the court heard the evidence ore tenus. After having considered the evidence presented at trial, the court modified its original decree by awarding custody of the twins to the father, Billy Stewart, and custody of the youngest child to the mother, Amy Grace. From that judgment Billy Stewart filed this appeal.

On appeal Stewart urges that the trial court plainly and palpably abused its discretion by failing to award him custody of his youngest daughter. Amy Grace has submitted no brief in response to her former husband’s assertions.

The record reveals that the wife had difficulty supporting the children during the time they were in her custody. At various times when she had custody of the children she worked as a waitress, a barmaid and as a laborer in a shirt factory. At trial, however, Amy Grace testified that she could not support all three children but that-she was willing and able to provide for the youngest, Betty Jo.

Furthermore, evidence was adduced that the wife frequently left the children with either their maternal or paternal grandmother without informing the latter individuals as to where she was going. On two occasions she also left the children in the care of a babysitter overnight although it is unclear where she went or what she did during these intervals.

The wife admitted that she had had sexual relations with another man during the parties’ marriage. However, her affair with this man occurred after she and Billy Stewart were separated and while the children were in his custody. One of the twin daughters also testified that her mother slept with a man in her presence. The second twin, Nan, stated that her mother had occasionally left them with other persons and that they (the children) did not know where she had gone. The child also said she had seen her mother smoking “pot” (marijuana) as well as selling it. The latter charge was denied by Amy Grace. Mrs. Grace did, however, admit to smoking marijuana on occasion and also to having taken some amphetamines “to stay awake” while running an all-night cocktail lounge. She said that she did not smoke the marijuana in her children’s presence and that she did not take amphetamines while they were in her care.

Both daughters testified that they loved their parents very much. Nan stated that she would prefer to live with her father while Ann said she would be happy living with either her mother or her father.

The husband presented a number of character witnesses who testified to his “good” reputation while stating that his ex-wife’s reputation was “bad.” These persons also gave testimony that the wife left the children unsupervised and playing near a highway while she worked as a waitress at a nearby cafe. In addition, two social workers were called on the husband’s behalf, and they testified that the husband ha,d provided a good home for the children while they were in his care. On the other hand, one of the workers stated that the wife’s care of the children had not been good and that she (the wife) had resisted the worker’s efforts to counsel her. Amy Grace, however, indicated that her hostility toward the worker was the result of the fact that when the latter contacted her, she (the worker) told Mrs. Grace that there had been charges made that Mrs. Grace was a prostitute.

Billy Stewart also called the coordinator of the drug abuse program for the East Central Mental Health Center in Troy, Alabama as a witness in support of his petition for modification. This woman testified that she had counseled Mrs. Grace on one occasion about drug abuse and -had scheduled additional appointments for her. She continued by stating that Mrs. Grace did not return to keep these appointments. The necessity for counseling the wife in regard to drug abuse arose from the fact that she was admitted to a hospital because of a drug overdose. Mrs. Grace testified that she had taken an overdose of valium in an effort to commit suicide. She stated that when she took the valium she was depressed over marital difficulties with Jimmy Grace, who was her husband at the time of the trial.

The evidence presented at trial demonstrated that Jimmy Grace was a fugitive from the law and that Amy Grace no longer planned to live with him or remain his wife.

Although numerous, the aforementioned allegations and events do not exhaust the charges and disparaging evidence which was presented against the wife at the trial. However, we feel no useful purpose would be served by examining other such evidence in this opinion.

In her defense the wife testified that she had never intentionally mistreated her children or deprived them of the things necessary for their care and sustenance. She said that she loved her children and said that since the twins would be happier with their father, she was willing for the court to grant him custody of the two older daughters. She requested only that she be allowed to keep the youngest daughter, Betty Jo. Mrs. Grace said that Billy Stewart had not seen Betty Jo in a number of months and that the little girl hardly knew him as a father. Amy Grace concluded her testimony by stating that Betty Jo was very important to her and that she (Mrs. Grace) would care for her and provide for her happiness and comfort.

We held in Stewart v. Stewart, Ala.Civ.App., 354 So.2d 816 (1977) that upon presentation of a petition for modification, the burden is on the moving party to convince the trial court that the circumstances on which the original decree was based have changed to such a degree that a modification of the award of custody is required. We have also said that where the trial court sees and hears the parties and witnesses testify, the presumption is that the trial court’s judgment is correct. Moreover, on appeal to this court, we will not revise the trial court’s judgment unless we determine from the evidence that it is plainly and palpably erroneous. Morrow v. Morrow, Ala.Civ.App., 351 So.2d 923 (1977).

After a careful reading of the record on appeal, a portion of which was set out above, we are convinced that the overwhelming weight of the evidence supports the conclusion that the appellant, Billy Stewart, is a fit parent to have custody of all three of his children and that the welfare and best interests of these children would be properly served by placing them in his custody. The trial transcript contains very little evidence which could be deemed to call into question Stewart’s fitness as a parent. Indeed, there was nothing derogatory presented against him at trial except his former wife’s statements that he drank too much and had not seen his youngest daughter for some period of time. Both of these charges were denied by Stewart, and other witnesses offered testimony in support of his denials. On the other hand, there was substantial — even overwhelming — evidence that appellee, Amy Grace, was not a fit and proper person to have custody of any of her children. Consequently, we hold that the trial court’s decree awarding custody of the minor child, Betty Jo, to appellee is plainly and palpably erroneous.

The judgment of the trial court is reversed and the cause remanded for entry of a judgment awarding the custody of Betty Jo to the appellant.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


text:
    Charles C. HILL, Sr. v. J. P. STEVENS AND COMPANY, INC., a corporation.
    Civ. 1483.
    Court of Civil Appeals of Alabama.
    July 19, 1978.
    James R. Bowles, Tallahassee, for appellant.

      N. T. Braswell, III, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This petition for writ of certiorari involves an award of workmen’s compensation benefits to petitioner, Charles C. Hill, Sr. Hill argues in his petition that the determination by the Circuit Court of Montgomery County that Hill suffered a twenty-five percent permanent partial disability to his body as a whole was unsupported by the evidence presented at the trial in this matter. Hill submits that the evidence supported a finding that his disability was substantially greater than twenty-five percent.

It is well settled in workmen’s compensation cases that the decision of the trial court will be upheld upon review by writ of certiorari if there is any legal evidence to support the trial court’s findings of fact. Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215, cert. den. 294 Ala. 769, 316 So.2d 221 (1975). And this rule prevails where some testimony at trial indicates that the-percentage of disability may be greater than the percentage ultimately determined by the court while other testimony indicates that it may be less. See Cochrum v. Kinro Industries, Inc., Ala.Civ.App., 352 So.2d 456 (1977); Glover v. Howell Plywood Co., 50 Ala.App. 22, 276 So.2d 608 (1973).

In the present case the testimony at trial was in conflict. Hill testified that he was unable to climb, bend, stoop or crawl. He also said he could not lift anything. A vocational expert from Auburn University stated that Hill was one hundred percent disabled with respect to the type of employment, i. e. manual labor, which the latter normally performed. However, the neurosurgeon who treated Hill testified that Hill had suffered a seventeen percent partial impairment to his body as a whole as a result of the injury incurred while working for respondent, J. P. Stevens and Company, Inc. Thus, it was for the trial court as trier of fact to weigh the testimony and evidence presented and on that basis reach a conclu-regarding the extent of the physical impairment suffered by Hill. The court found that Hill “sustained a twenty-five percent permanent partial disability to his body as a whole.” Our examination of the record does not demonstrate that the court’s finding of a twenty-five percent disability was incorrect or that it was unsupported by the evidence.

Although we hold that the court did not err in determining the percentage of disability, we must nevertheless reverse the trial court’s judgment in this matter.

The trial court in the instant case failed to include in its finding of facts or conclusions of law that Hill had suffered a loss of ability to earn. Without such a determination there was no basis for the amount of compensation awarded. Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279 (1973); B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971). Consequently, this case must be remanded to the trial court for that court to ascertain whether Hill has suffered a loss of his ability to earn. Lingo v. Dixie Veneer Co., Ala.Civ.App., 349 So.2d 591 (1977).

Although counsel for the employee did not present to this court as an issue to be decided the absence of a finding of loss of ability to earn, nevertheless,-he did in his argument point out that the basis for an award in this type case is the loss of ability to earn rather than a disability to the body as a whole. Consequently, we conclude that the decisive issue of this appeal was presented to this court for decision through the employee’s brief. See Rule 1, ARAP and committee comments thereto.

REVERSED AND REMANDED.

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


text:
    The FIRST INDEPENDENT BAPTIST CHURCH OF ARAB and Dwight Bailey v. Fred SOUTHERLAND.
    Civ. 1512.
    Court of Civil Appeals of Alabama.
    July 19, 1978.
    William D. Jetton, of Jetton & Ogden, Guntersville, for appellants.
    Clyde D. Baker, Guntersville, for appel-lee.
   HOLMES, Judge.

The plaintiff sued the defendants for work and labor performed and on an account. The jury returned a verdict for $6,000 in favor of the plaintiff and against the defendants. A judgment was entered thereon and the defendants appeal.

The dispositive issue on appeal is whether the jury rendered a compromise verdict so as to require reversal. We find no error requiring reversal and affirm.

The record reveals that the plaintiff’s testimony as to the amount of money owed was to the effect that the defendant-church owed the plaintiff the sum of either $7,000 plus or $8,000 plus. The defendants did not contradict these amounts. The defendant-church’s sole defense to the lawsuit was the work and materials furnished by the plaintiff to the defendant-church were gifts and/or donations.

On appeal, as indicated above, the defendant-church contends through able counsel that since the amount of the jury verdict does not correspond to the testimony, such verdict is therefore a compromise verdict requiring reversal.

Suffice it to say that our review of the record reveals some conflict as to exactly what services or materials were performed or furnished for remuneration and what services or materials performed or furnished were in fact a donation to the church. This evidence is not a paragon of clarity nor is it overwhelming, but it does exist. Therefore, the exact amount due is not specifically known. Put another way, the jury could have found that $7,000 to $8,000 worth of work or material was furnished, but some of those items were donations or gifts.

Additionally, we find the following in the trial court’s charge to the jury:

“Of course, it’s entirely possible that the plaintiff might establish a case as to some of the services or some of the property and not as to others. That would be for you to decide. . . . It’d be possible to decide that the plaintiff was entitled to recover for certain things and not for certain other things.”

There was no objection to this portion of the trial court’s charge.

With the above in mind, we cannot say that á compromise verdict was reached by the jury so as to require reversal. See Williams v. Williamson Truck Lines, Inc., Ala.Civ.App., 353 So.2d 1172 (1978); Vester J. Thompson, Jr., Inc. v. Shelton, 277 Ala. 148, 167 So.2d 715 (1964); 2A Ala.Digest Appeal & Error &wkey;999(1).

In view of the above, the trial court is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BOOKOUT, Judge.

text:
    Bertha Mae HUFFMAN v. STATE.
    3 Div. 681.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Nov. 15, 1977.

      Robert T. Meadows, III, and David B. Byrne, Jr., Montgomery, for appellant.
    William J, Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree manslaughter; sentence: five years imprisonment.

Mrs. Lela Mae Barnes, sister of both the deceased, Mrs. Ella Mae Green, and the appellant, testified that she and the deceased were drinking at her home in Sprague, Alabama, on the evening of March 27, 1976. The appellant’s husband called Mrs. Barnes to see if the deceased was visiting her, and about thirty minutes later, the appellant, her husband and her son arrived at Mrs. Barnes’ home. Mrs. Barnes testified that the deceased became involved in an argument with the appellant over the death of the appellant’s daughter. The appellant then drew a gun and shot the deceased at point blank range. The deceased threw a beer bottle at the appellant, and they scuffled on the floor. The appellant and her family then departed, leaving the deceased lying on the floor.

Jimmy Huffman, Jr., the appellant’s son, testified that the deceased had argued with his mother that evening. He stated that the deceased asked the appellant to step outside to “cut it out or shoot it out,” and his mother refused to do so. He testified that the deceased threw a beer bottle at the appellant as the appellant was leaving and that the deceased knocked the appellant down. Mrs. Barnes and the deceased then jumped on the appellant and began beating her. He stated that it was at that point that the appellant fired the shot which killed the deceased.

The appellant testified that she was attacked by the deceased and Mrs. Barnes as she was about to leave and that she did not fire the gun until the deceased began choking her. She stated that she fired two warning shots and was then forced to shoot the deceased to prevent the deceased from choking her further.

I

The appellant’s 'first contention is that the trial judge erred by “threatening” the witnesses at midtrial with contempt of court for giving false testimony. The judge’s warning to the witnesses, given outside the presence of the jury, was prompted by obvious contradictions among the several witnesses’ testimony as to (1) who was present during the fight, and (2) what actually occurred when the fatal shooting took place. The appellant argues that such a warning improperly injected the trial judge into the prosecution of the case, invaded the province of the jury and substantially prejudiced the rights of the appellant.

A thorough reading of the record reveals that it was obvious to the trial judge at the time he gave the warning that certain witnesses were undoubtedly and actively lying on the witness stand. The record further reveals that all comments made by the trial judge concerning perjured testimony were made outside the presence of the jury and without objection by the appellant’s counsel at the time. Considering the fact that only one witness altered his testimony after the warning, any statements from the bench not relevant to that witness are irrelevant here because they were not prejudicial to the appellant. Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1956). However, because Eddie Barnes did in fact alter his testimony after the judge’s admonition, a review of the trial judge’s remarks is necessary. The record reveals the following:

“(Whereupon, the following was held out of the presence of the jury as follows:) “THE COURT: Ask the witnesses to come in and line up right along there. “I want every one of you to listen to what I’ve got to say. We are going to get to the bottom of what happened out there. The jury is going to make the final decision as to what happened, but I’m going to end up making a decision as to who is in contempt of Court when they take the stand under oath and tell this Court that they don’t know something that they do know — that they are standing there listening to an argument and don’t know what it was about or that either somebody was there or either that they weren’t there. There are questions that are being asked that people are saying I don’t know to, that you couldn’t help but know one way or the other what the answer is . . . . I’m talking to some folks that have already testified right now. Now, you’ve got the opportunity if you’ve already testified to purge yourself of that. By that I mean come on and tell me what you do know about this. Do you understand? There are people who are testifying to the question: What was the argument about, and they were standing in the room, they were there when the argument was taking place, they listened to the argument and somebody got killed over that argument and they are trying to say they have no idea to what the argument was about. Are you listening to me?
“A WITNESS: Yes, sir.
“THE COURT: Are you listening?
“A WITNESS: Yes, sir.
“THE COURT: Now, I’m going to make a decision as to who’s going to be in contempt of Court and who’s going to jail and who’s not going to jail based upon whether or not they are answering the question. If you don’t know, that’s fine. Answer I don’t know. But, if you’re in a fact and circumstance where, in this Court’s opinion, you’ve either got to know and you’re trying to tell me you don’t know, I’m going to take it as refusing to answer the question and when you do that in this Court you will be in contempt of Court and I’m going to send you up there in jail and we are going to jog your memory. . . . Now, I want both of you who have already testified to let me know right now if there is anything you want to change or anything that you have remembered since you testified concerning what that argument was about or who was there? Do you want to change anything?
“A WITNESS: No, sir.
“THE COURT: You still tell me you don’t know what the argument was about?
“A WITNESS: Yes, sir, I don’t know what the argument was about.
“THE COURT: I will deal with you when this case is over unless you change your mind between now and then . . .”

Although the trial judge did not specifically name Barnes in the above admonition, Barnes retook the stand and testified outside the presence of the jury as follows:

“THE COURT: Eddie Barnes, you have already been sworn in and you are still under oath. Have a seat. Turn around and look at me and tell me what you know.
“THE WITNESS: As far as I know, the argument was about the child.
“THE COURT: What child?
“THE WITNESS: Aunt Bertha Mae’s child.
“THE COURT: Why didn’t you tell me that before?
“THE WITNESS: I haven’t thought of it.
“THE COURT: What do you mean you hadn’t thought of it? You mean I just jogged your memory just then, is that right?
“THE WITNESS: No, sir, it wasn’t that, I just didn’t want to go to jail.
“THE COURT: So you decided to tell the truth?
“THE WITNESS: Yes, sir.
* * * * * *
“THE COURT: What was the reason for you not telling me that before?
“THE WITNESS: I just didn’t remember.
“THE COURT: Well, that’s not a good enough answer just like it wasn't good enough before, so you got yourself into it again. I want to know who talked to you, if anybody — Did you talk to anybody between the time you left here just a minute ago and went out there?
“THE WITNESS: No, sir.
“THE COURT: You just went back there and all of a sudden you remembered that?
“THE WITNESS: I went back there and I talked to Sheriff White. He said that he would come out here and tell you what I told you—
* * * * * *
“THE COURT: All right. I’m not satisfied yet. If you remember something else you tell Mr. White and I’ll talk to you again as soon as you remember something else . . . .”

This court in Brantley v. State, Ala.Cr.App., 335 So.2d 189 (1976) intimated that if there was evidence of remarks constituting “browbeating, threats or intimidation,” by the court that such would go “beyond the bounds of judicial authority.” This court in that case found no such drastic statements were made. The court found no reversible error, pointing out that it was clear that false testimony had been given; that the court did not suggest a desired answer; and that the appellant made no objection to anything said or done outside the presence of the jury. The same elements in Brantley are present in the immediate case, although considerably stronger language was used by the trial judge in this case. However, the problem is compounded here by the fact that not only did Eddie Barnes change his testimony, but he did so outside the presence of the jury. The jury was never exposed to Barnes’ altered testimony. Accordingly, the jury had no opportunity as the trier of fact to weigh the two statements in reaching its determination as to the true occurrence of events in this case.

If Barnes’ altered testimony had been beneficial to the appellant’s case, then leaving the uncorrected perjured testimony before the jury might have been reversible error. However, because the altered testimony was detrimental to the appellant, indicating a motive for murder, no harm was done to the appellant by not bringing the altered testimony before the jury. See: Bryson, supra. Since the testimony harmful to the appellant was not heard, it resulted in no prejudice to her and thus no reversible error.

II

A second point of error urged by the appellant concerned the action of the trial judge in sending for the door from Mrs. Barnes’ home. This action was prompted by testimony by the state toxicologist and others as to the angle from which the shots were fired by the appellant. The toxicologist’s theory of the angle of the trajectory contradicted the appellant’s version of the shooting. The trial judge’s action here, far from being an attempt to prosecute the case for the State as urged by the appellant, was merely an effort to bring crucial evidence before the jury to aid them in finding the truth. Allowing the jury to view the door would enable the jury to more clearly comprehend evidence already received by aid of a visual object. The jury was thus able to view the angle of the bullet entry into the door and did not have to rely on abstract testimony to draw a “word picture” in the mind of each juror. We find no abuse of discretion by the trial judge in this instance. McIntyre v. State, 26 Ala.App. 499, 163 So. 660 (1935), cert. denied, 231 Ala. 141, 163 So. 662.

Ill

The appellant further contends that the trial court erred in allowing prejudicial and improper comments by the prosecutor in closing argument. The record fails to fully reveal the substance of several remarks of the prosecutor which were complained of by the appellant. In only one instance, the appellant’s objection, “We’re going to object to the theory of the defense being inconceivable . . . comes close to revealing the substance of the prosecutor’s remarks. However, we consider it too fragmentary to fully present the remark for review. The appellant, in brief, sets out each of the comments which he claims to be prejudicial, however, they do not appear in the record of the trial. Allegations in appellant’s brief which recited matters not disclosed in the record cannot be considered on appeal. Smith v. State, Ala.Cr.App., 346 So.2d 465 (1976); Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971).

Where the prosecutor’s argument passed beyond the bounds of legal propriety, it is the appellant’s duty to specifically object and to preserve for the record substantially the language deemed improper. Flowers v. State, 269 Ala. 395, 113 So.2d 344 (1959). The record must disclose with reasonable certainty what was said by the prosecutor in order for this court to attempt an informed review of the challenged comments. Only when this is done, can this court know with reasonable certainty what was said in the court below which influenced the trial judge to rule as he did. Otherwise the great presumption in favor of the correctness of the ruling of the trial judge will prevail. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973). The fragmentary objections contained in the instant record fail to meet the above criteria and hence no error was preserved for review by this court.

IV

The appellant next contends that the trial court erred in allowing testimony concerning other acts of misconduct not charged in the indictment. Appellant asserts that the prejudicial effect of such testimony outweighed its probative value.

Lela Barnes, on redirect examination, testified as follows:

“Q. Is Arthur James Lee here today? “A. No, he’s not here today.
“Q. And Bertha Mae Huffman shot Arthur James Lee, didn’t she?
“A. Yes, she did.
“Q. And that’s the reason he ain’t here today, isn’t it?
“A. He_Well, he—
“Q. And she threatened him—
“MR. BYRNE: We’re going to object and move for a mistrial. That is highly prejudicial—
“THE COURT: Just a moment. Ladies and gentlemen, go back into the jury room, please.”

After having heard arguments from both counsel, the trial judge immediately instructed the jury to disregard all statements related to other prior shootings. The above-quoted testimony may have been objectionable as not falling within one of the exceptions to the rule against introducing prior offenses in a criminal prosecution. However, any possible prejudice to the appellant was eradicated by the trial court’s immediate, thorough, and emphatically phrased instruction to the jury directing them to disregard that testimony and to confine their consideration to the offense charged in the indictment. Reaves v. State, 33 Ala.App. 296, 33 So.2d 376 (1947).

Much later in the trial, the following occurred during the direct examination of the appellant by her attorney:

“Q. How long have you owned that pistol?
“A. About eight or nine or ten years. “Q. Do you carry it?
“A. Yes, sir.
“Q. Have you ever had to use that pistol?
“[PROSECUTOR]: Judge, I object to whether she’s had to use it. That’s an improper question. If he can specify for what, where, when — the time.
“THE COURT: Sustain.
“Q. Bertha Mae, was this the first time you had ever used that pistol?
“A. Yes, sir.
“Q. Have you ever used it since?
“A. No, sir.”

In an effort by the prosecution to impeach the appellant on cross-examination, the following exchange took place:

“Q. Now, you told your lawyer just now that you never used this gun before?
“A. No, sir.
“Q. Okay. As a matter of fact, you shot your husband, didn’t you?
“A. My husband?
“Q. Yes, your husband.
“A. That was after — I was trying to clean it, if that’s what you mean.
“Q. But you shot it, didn’t you?
“A. It was an accident. I was trying to get it open to clean it.
“Q. Okay. How about—
“A. That’s what you mean.
“Q. Okay. How about this Arthur James Lee that testified this morning? You shot him, too, didn’t you?
“A. No sir.
“Q. You never shot him?
“A. I never shot him, no, sir.
“Q. Have you shot any others?
“A. No, sir.”

It should be noted that the latter excerpt from the record, supra, shows no objection to the introduction of any of the testimony relating to the two other shooting incidents. Ordinarily, absent an objection and ruling thereon, there would be nothing presented for review by this court. Felton v. State, 47 Ala.App. 182, 252 So.2d 108 (1971). However, immediately prior to the cross-examination of the appellant, defense counsel objected to the introduction of any evidence of the appellant shooting other persons on prior occasions. That objection, and arguments thereon, were conducted outside the presence of the jury. The trial judge stated that defense counsel had opened the issue of whether or not the appellant had ever used the gun before and that the appellant had emphatically denied ever firing it prior to the shooting charged in the indictment. The trial judge overruled defense counsel’s objection, the jury returned to the courtroom, and the State began its cross-examination of the appellant. It was unnecessary for defense counsel to repeat the objection in the presence of the jury where he had just previously made a specific objection to the same evidence, and the trial judge, being fully aware of the ground of that objection, had overruled it. Anderson v. State, Ala.Cr.App., 354 So.2d 1156 [1977]. Also see: Taylor v. State, Ala.Cr.App., 337 So.2d 773 (1976) cert. quashed, Ala., 337 So.2d 776.

Appellant strongly asserts the defense of self-defense in this case. Apparently in an attempt to strengthen the appellant’s claim of self-defense, her counsel on direct examination elicited the fact that she had owned the pistol for about eight to ten years, that she carried it, but that she had never used it before. From such testimony, the jury might deduce that the appellant carried a pistol for self-defense, but during all those years had only used it on the one occasion when she was on the floor being choked to death and then only for the purpose of saving her own life. We find nothing improper in allowing the State, on cross-examination of the appellant, to elicit from her that her prior testimony was incorrect and that she had in fact shot her husband. She was allowed to explain that such shooting was by accident as she was trying to clean the gun. She denied having shot Arthur James Lee.

We do not deem this to be an improper interrogation of the witness on cross-examination. The State was not attempting to show prior acts of misconduct through another witness for the purpose of impeaching the appellant. The State was merely cross-examining her on a statement she had made on direct examination. We, therefore, find no error on the part of the trial judge in this regard.

V

The appellant’s final contention is that the trial court erred in instructing the jury to disregard testimony concerning prior specific wrongful acts of the deceased. Testimony by Lela Mae Barnes, elicited by defense counsel on cross-examination, revealed that the deceased had previously shot one Robert E. Lee. The trial court first allowed the answer, but later excluded that evidence, instructing the jury to disregard it. The appellant contends that this erroneously denied her a basis for a self-defense plea.

In a prosecution for homicide, if the evidence tends to show that the accused was justified under the right of self-defense, he may prove the victim’s bad general reputation for peace and quietude, for violence or a like trait, as tending to show that the victim was the aggressor. Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973).

It appears that no evidence indicating that the appellant acted in self-defense had been presented by the appellant at the time these specific acts were elicited by defense counsel. There is authority for holding that any question dealing with the deceased’s character will be premature and improper at that time. Lambert v. State, 208 Ala. 42, 93 So. 708 (1922); Russell v. State, 46 Ala.App. 230, 239 So.2d 902 (1970). However, we do not base our decision upon the reasoning in Lambert alone. We are not saying that a defendant cannot elicit evidence of self-defense by cross-examining the State’s eyewitnesses to the killing. In many instances, this may be the only avenue open to the defendant to prove self-defense. Our decision on this issue only relates to eliciting evidence as to the character and reputation of the victim. Our decision is additionally based upon the rule that the turbulent or bloodthirsty character of the deceased cannot be established by particular acts of violence. Hence, the trial court did not err in excluding from the jury the evidence of the deceased’s specific act of violence, i. e. shooting Robert E. Lee. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955).

The appellant cites the confusingly worded ease of Lambert supra, for the proposition that such specific acts may be brought out by the defense on cross-examination. We have a different construction of the import of Lambert. That case merely points out that once the accused introduces evidence of the victim’s reputation for being a violent person, the State may test the soundness of the witness’ opinion on cross-examination by eliciting the data upon which it is founded, such as cross-examining as to particular facts affecting character. Lambert does not alter the long-standing rule restricting the inquiry of the defense into the reputation of the deceased by disallowing evidence of specific acts.

Counsel for appellant have provided this court with excellent briefs and outstanding oral argument on behalf of their client. All the grounds relied upon by counsel for reversal have been considered in light of the record, briefs and such argument, but after careful deliberation we find no reversible error has been shown. The rulings of the trial court challenged by appellant in our opinion did not constitute harmful error.

AFFIRMED.'

All the Judges concur.


author: PER CURIAM.

text:
    In re Bertha Mae HUFFMAN v. STATE. Ex Parte Bertha Mae Huffman.
    77-182.
    Supreme Court of Alabama.
    July 14, 1978.
    Robert T. Meadows, III and David B. Byrne, Jr., Montgomery, for petitioner.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State, respondent.
   PER CURIAM.

The Court of Criminal Appeals, 360 So.2d 1038, on original déliverance, properly pre-termitted review of the defendant’s contention that remarks of the prosecutor in closing argument require reversal, because argument of counsel was not included in the record on appeal.

The record has now been supplemented under ARAP 10(f) and we have thoroughly reviewed it after hearing oral argument by the petitioner. We find no reversible error and, therefore, affirm the decision of the Court of Criminal Appeals.

AFFIRMED.

All the Justices concur.


author: TYSON, Judge.

text:
    Kenneth Wesley DICKERSON v. STATE.
    6 Div. 441.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.
    William H. Mills, for Rogers, Howard, Redden & Mills, Birmingham, for appellant.

      William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Kenneth Wesley Dickerson was charged by indictment with the first degree murder of one James Cleo Bishop. The jury found the appellant “guilty as charged,” and fixed punishment at life imprisonment in the penitentiary. The trial court entered judgment in accordance with this verdict.

William L. Allen, Jr., Acting Coroner of Jefferson County, testified that he investigated a death at 8702 Third Avenue North in Birmingham, Alabama, on February 17, 1976. Allen stated that an autopsy was performed on one James Cleo Bishop at the East End Hospital by Jay M. Glass. Allen indicated that he was present during the. autopsy and that Bishop died as a result of a gunshot wound to the chest. Allen testified that the gunshot wound was not a contact wound [i. e., the muzzle of the gun was not in contact with deceased’s body at the time the fatal shot was fired].

Jay M. Glass testified that he was employed by Cooper Green Hospital in the Department of Pathology. Glass stated that he performed an autopsy on one James Cleo Bishop on February 18, 1976. The cause of death was due to internal bleeding as the result of a gunshot wound in the chest.

James Jerome Hartley testified that James Cleo Bishop was his wife’s uncle. Hartley related that on February 17, 1976, he was at Bishop’s residence. Hartley indicated that he arrived at Bishop’s residence around 5:40 p. m. According to Hartley, someone called Bishop on the telephone, and then ten to fifteen minutes later the appellant drove up in front of Bishop’s house near the driveway. Hartley testified that Bishop’s children came inside the house and talked with Bishop. Hartley indicated that he went outside and observed the appellant in the front seat of an automobile on the passenger side near the driveway. According to Hartley, appellant’s ex-wife was behind the steering wheel.

Hartley stated that the barrel of a gun was sticking up out of the front window on the passenger side of the car near the area where the appellant was seated. Hartley testified that the car doors were closed but the window on the right front side was down. According to Hartley, he shook hands with the appellant, who then told Hartley that Bishop had called his wife a “spick” over the telephone and that he was going to kill him (R. p. 47). Hartley related that about that time Bishop suddenly walked up from behind on his left hand side. Hartley testified that the shotgun was in appellant’s lap and that the appellant had his hand over the trigger with the barrel sticking out of the window. According to Hartley, Bishop “bumped him” from behind as he walked up to the car, so Hart-ley quickly pushed him back from the car to keep the two of them separated. Words were being exchanged. Hartley stated that as he pushed Bishop away from the car his own back was turned to the appellant. At this time, according to Hartley, the shot was fired, which struck Bishop. Hartley testified that he turned back around toward the appellant and saw the gun sticking out the window of the car. Hartley then grabbed the gun and threw it down on the ground very hard. Hartley, Dickerson, and appellant’s ex-wife then went into the house and called the police. Hartley testified that he then went back outside with the appellant who attempted to give mouth to mouth resuscitation to Bishop. Hartley indicated that Bishop did not have a weapon and that Bishop never touched the shotgun.

Donna Marlene Lacey testified that she lived at 8700 Third Avenue North on February 17,1976. Mrs. Lacey stated that James Cleo Bishop lived next door. According to Mrs. Lacey, she was on her front porch grilling a steak around 5:45 p. m. that evening. Mrs. Lacey testified that an automobile drove up near Bishop’s driveway about that time this same evening. Mrs. Lacey stated that the driver was a woman and that there was another person on the passenger side in the front seat. According to Mrs. Lacey, there was a child on the front porch of Bishop’s home. Mrs. Lacey testified that she was twelve feet from appellant’s automobile. Lacey stated that she heard a male voice call to the child to “go inside and get his God-damned mother and father.”

According to Mrs. Lacey, Hartley then came outside a few minutes later and went to appellant’s car. Hartley and the appellant, Kenneth Dickerson, talked about someone calling someone’s wife a name. Mrs. Lacey testified that she could not see Hartley or the passenger in the car due to a column obstructing her vision. Mrs. Lacey stated that Bishop came out a short time later. After that there was a gunshot.

Darrell Robert Bishop testified that on the afternoon in question he was out in the yard playing with his sister and his cousin (Hartley’s child). Bishop stated that he was the son of James Cleo Bishop, the deceased. Bishop indicated that the appellant and a woman drove up near his driveway that afternoon and that the appellant told the children to go inside and get their “chicken s_daddy” (R. p. 155). Bishop testified that all of the children, including himself, went inside and talked to his father and Hartley. Bishop then went to the storm door and looked outside through the window. He stated that he saw Hartley talking with the appellant and that the tip of a gun was sticking out of the car window on the passenger side of the front seat. Young Bishop testified that his father, about five minutes later, walked up behind Hartley and sort of pushed him from behind. According to Bishop, Hartley pushed his father back away from the car at which point a shot was fired. Bishop stated that he never saw his father put his hands on the gun. •

Deborah Bishop, daughter of the deceased, testified that around 5:30 p. m. on February 17, 1976, the appellant drove up near the driveway of their home. According to Miss Bishop, the appellant told her and her brother to get their “chicken s_ daddy” (R. p. 175). Miss Bishop related that she and her brother then went inside and talked with Hartley and her father. Miss Bishop testified that Hartley went outside and four to five minutes later her father walked outside near the car.

William J. Thomas, a police officer with the City of Birmingham, testified that on February 17, 1976, he went to 8702 Third Avenue North at around 5:55 p. m. Thomas stated that by the time he had arrived the ambulance had left with the body of the deceased. Thomas indicated that he took the appellant into custody and searched him. Thomas testified that he found two .410 gauge shotgun shells in appellant’s pocket which he turned over to Officer Crocker, an evidence technician. Thomas stated that he turned the appellant over to Detective Sergeant Gaut.

William T. Gaut, Detective Sergeant with the Birmingham Police Department, testified that he went to 8702 Third Avenue North on February 17, 1976. Gaut indicated that he arrived at this address around 6:00 p. m. He observed the appellant in the back seat of Officer Thomas’ patrol car. Gaut testified that he did not threaten, intimidate, coerce, or abuse the appellant in any way, nor did he offer any remuneration or hope of reward in order to obtain a statement. He informed the appellant of his “Miranda rights.” Then, Gaut indicated that the appellant stated that he understood his rights, but still wished to make a statement. Gaut testified that he and the appellant were the only persons in the patrol car.

Richard Keith Crocker, an evidence technician with the Birmingham Police Department, testified that he went to 8702 Third Avenue North on February 17, 1976, at around 6:23 p. m. Crocker stated that he found a shotgun at the scene between the sidewalk and the street in front of Bishop’s home. According to Crocker, the shotgun was in the same condition at trial as it was when he found it at the scene. Crocker stated that he checked the shotgun in with the front desk (i. e., property control room) and that the weapon remained there until the day before trial when he checked it out. Also, Crocker testified that he found a spent Revelation brand, five shot, .410 gauge, hull inside the shotgun which had been fired.

The appellant’s motion to exclude the evidence was overruled.

Mrs. Kenneth Dickerson, the appellant’s ex-wife, testified that she and the appellant had a conversation on the afternoon of February 17, 1976, concerning a telephone conversation between the appellant and another person. Mrs. Dickerson stated that she and the appellant got in the car and that she drove, but did not know where they were headed. After driving for a while, the appellant told her that Bishop had called her a name and that they were going to his home to get an apology. When they arrived at Bishop’s residence; she parked the car near the driveway, and the appellant told a young child in the front yard to “go inside and get his mother and father.” Mrs. Dickerson stated that when she and her ex-husband got in their car at their home she did not notice a shotgun, but she did notice this while they were driving toward the Bishop’s home. Mrs. Dickerson related that Hartley came out of Bishop’s home about five minutes after the young child went inside. Mrs. Dickerson stated that her husband shook hands with Hartley and then told Hartley that Bishop had called his ex-wife a name and that he wanted an apology. Mrs. Dickerson testified that her husband gripped Hartley’s hand with his right hand and pointed to her with his left hand. She stated that Bishop suddenly walked up to the passenger side of the car, reached in, and slapped the appellant. After Bishop had reached inside the car, according to Mrs. Dickerson, the shotgun fired. Mrs. Dickerson stated that she heard her husband say, “You gripped the gun” [R. p. 256]. Then somebody grabbed it and threw it on the ground.

On cross, Mrs. Dickerson admitted that she and her ex-husband were divorced and that he had been drinking on the date in question. She also testified that while she saw Bishop strike her husband and shake him she did not see Bishop take hold of the shotgun. Mrs. Dickerson then stated that after the shotgun fired, Hartley grabbed it and threw it on the ground,

Kenneth Wesley Dickerson, the appellant, testified that on February 17, 1976, Bishop called him on the telephone. During the telephone conversation appellant stated that Bishop called his ex-wife a “spick” and said that he would “blow both his and his ex-wife’s heads off.” Dickerson indicated that they went over to Bishop’s home to ask for an apology. The appellant testified that he took his shotgun because of “numerous threats” he had received from Bishop in the “past three years.” The appellant indicated that he had had one or two drinks of whiskey and three or four beers that evening before leaving. After arriving at Bishop’s home, Dickerson stated, he told a young child “to go inside and get his mother and father.” Dickerson testified that the stock of the shotgun was on the floorboard of the car between his right leg and the door. According to the appellant, Hartley came outside and walked up to the passenger side of the car where he and the appellant shook hands and exchanged greetings, after which the appellant introduced Hart-ley to his ex-wife. It was while the appellant was shaking hands with Hartley that Bishop suddenly appeared, reached in, and slapped him. Dickerson testified that Bishop grabbed the barrel of the shotgun, shook his hand, and the gun then fired. At this point Hartley then grabbed the shotgun and threw it to the ground. On cross, the appellant admitted having had an affair with Bishop’s wife over the past several years and had sexual relations, though he had never mentioned this to anyone.

The State was allowed over objection by the defense to have the appellant demonstrate how the safety mechanism on the shotgun operated. Such demonstration showed that when the shotgun was in an upward position one would have to hold the safety in the “off” position and simultaneously pull the trigger in order to discharge the gun. The appellant stated that such defect in the safety mechanism did not exist before February 17, 1976. On cross-examination the appellant admitted having had a telephone conversation with Mildred Weems, the mother of deceased’s wife, on May 9, 1976. When asked if, during this conversation, he told Mrs. Weems that he wished she had been in the line of fire so that he could have gotten her when he got Bishop, the appellant responded that he did not. On re-direct the appellant stated that on the times he had fired the shotgun before February 17, 1976, the safety mechanism was not defective.

Mildred Weems, the mother of Anita Bishop (wife of deceased), was called in rebuttal and testified that she received a phone call from the appellant on May 9, 1976, at 8702 Third Avenue North. Mrs. Weems stated that during the telephone conversation the appellant told her that “he wished she had been in the line of fire so he could have gotten her when he got Bishop” [R. p. 317].”

William T. Gaut, Sergeant with the Birmingham Police Department, testified that he found the shotgun in Bishop’s front yard. in an area consisting of dirt and grass. Also, there were no traces of grass, rock, or any other foreign substance on the shotgun.

David L. Higgins of the Birmingham Police Department’s Bureau of Scientific Investigation gave his qualifications as an expert on firearms. Higgins stated that he had examined the .410 Revelation Manufacturer, bolt action, single shot shotgun owned by the appellant. Higgins testified that the safety mechanism on the shotgun was defective in that when the gun is in an upright position the safety has to be held forward in order to fire the weapon.

The defense then recalled the appellant. He admitted that he did have a conversation with Mildred Weems on May 9, 1976. According to the appellant, Anita Bishop placed the call to his residence and when he answered the phone Mrs. Weems got on the line. Dickerson testified that Mrs. Weems called him harsh names. He denied making any statement to Mrs. Weems to the effect that he wished she had been in the line of fire so he could have gotten her also.

I

The appellant contends that since he was charged with a “capital offense,” under Ex parte Bynum v. State, 294 Ala. 78, 312 So.2d 52, he was entitled to strike from a venire of thirty-six jurors.

This Court in Fisher v. State, 57 Ala.App. 310, 328 So.2d 311, cert. denied 295 Ala. 401, 328 So.2d 321, specifically rejected this argument. Judge Bookout, speaking for this Court, in Fisher stated:

“Contrary to the broad language employed by the Supreme Court in Bynum, we are of the opinion that the Court was addressing itself solely to the question of bail. The purpose for a special venire in ‘capital cases’ was to give a defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Act No. 532, supra, and Title 30, § 63, Code of Alabama 1940, were enacted, the only distinction between ‘capital’ and ‘non-capital’ cases was the possible imposition of the death penalty. Since the imposition of the death penalty has been suspended, there is no rational justification for a special venire in a case formerly classified as ‘capital’ where the maximum punishment is now the same as in a ‘non-capital’ case.”

See also Killough v. State, Ala.Cr.App., 332 So.2d 736, cert. denied, Ala., 332 So.2d 739; Spears v. State, 57 Ala.App. 525, 329 So.2d 579, cert. denied, 295 Ala. 420, 329 So.2d 582.

II

The appellant contends that the trial court committed reversible error by not allowing the appellant to show prior difficulties which occurred during the past three years between himself and the deceased, Bishop, not only to negate the existence of malice and to shed light on his intention of arming himself, but also as bearing on the question of self-defense.

The appellant relies upon this Court’s opinion in Sashington v. State, 56 Ala.App. 698, 325 So.2d 205, cert. denied, 295 Ala. 416, 325 So.2d 211, and the authorities therein cited, in support of his position.

The State counters by citing this Court to the case of Cole v. State, Ala.Cr.App., 337 So.2d 40, cert. denied, Ala., 337 So.2d 47.

Judge Harris in Cole, supra, noted that there was not the slightest evidence of self-defense. Cole invaded the home of his victims while they were eating supper and shot down two defenseless women. He then kidnapped his child and fled to another county.

The facts in the case at bar are much more closely related to the cause in Sash-ington, supra.

The colloquy wherein the appellant maintained reversible error is as follows (R. pp. 269-273):

“Q. Let me just direct your attention to the date of February 17, 1976, and ask you if prior to that date there had been any difficulties between you and Mr. Bishop?
“A. Yes, there had.
“Q. And, over how long a period of time had there been difficulties between you and Mr. Bishop?
“MR. BLACK: Your Honor, I am going to object to this line of questioning at this time, unless the proper predicate for it has been laid.
“THE COURT: Well, you speak of difficulties, I don’t, don’t know what you are talking about, I am going to sustain objection to that at this time. But let me say this, Mr. Mills, of course, I am aware, I’ll withdraw that, just go ahead.
“MR. MILLS: If the Court, please, I would like to make an offer about that.
“THE COURT: All right, ladies and gentlemen, y’all can go back into the jury room, let me find out what the purpose of this is.
“(WHEREUPON, the jury was excused to the jury room at 10:55 a. m., and in open court, out of their presence and hearing, the following proceedings were had and done:)
“MR. MILLS: If the Court, please, the defendant offers to prove, and intends to prove, a series of difficulties between the deceased and the defendant over about a three year period, including threats on the defendant’s life by the deceased including actual overt attempts at violence including firearms on the defendant’s life. Offering it for several purposes, I think it would be .
“THE COURT: That’s what I would be interested in knowing, what your purposes, because, of course, it doesn’t so far construe any evidence here which would be tended to prove self-defense, so, go ahead and .
“MR. MILLS: I think it would illuminate the circumstances. There have been a lot of attempts by the State to show bad feelings between the deceased and the defendant and I think it helps to illuminate those circumstances, and secondly, I think it is pertinent on the issue of why the defendant was armed on the occasion complained of. I think the law would take into consideration the fact that threats had been made and that overt attempt had been made including the use of firearms against this defendant as having a bearing on why he armed himself on this occasion. I think there are cases that would support that.
“THE COURT: Generally it would be the ruling of the Court that there is not, of course, any evidence here from the standpoint at this stage, sufficient at the standpoint of self-defense to permit this to go in as to the question of who was the aggressor and making it proper to act more quickly and that sort of thing under the circumstances, and where you have set of facts where this defendant, into evidence up to this point, went to the home of the deceased with a gun and called him out, the Court is of the opinion that this does not raise any of the particular privileges to go into this type of testimony or rights that is raised by the defense, so I do sustain objection to this type of evidence and rule that it is not permissible to go into it at this point, any question of bad feeling between them or prior difficulties between them, between the deceased and the defendant.
“MR. MILLS: If the Court, please, so I make my position advisedly, I offered not only on the question of self-defense, but also on the issue of the right of a person to apprehend danger to himself from past occurrences.
“THE COURT: I understood your objection and I thought I was ruling on all things in your objection, and I merely mentioned the self-defense even though you didn't raise it because I wanted it understood that that was my construction of that, and dispose of it, but then I did after that — and I do rule against you on the other reasons that you assigned for it.
“MR. MILLS: Well, I offer and I cite the court’s case of Sessington against State, 325 So. 2nd.
“THE COURT: What, what were the ■factual circumstances and what does that hold?
“MR. MILLS: Well, it holds that a defendant not claiming self-defense is entitled to prove that a person present at the place where a shooting occurred had shot at him on a previous occasion to explain why he had a gun on that occasion, and to negative the existence of intent or malice.
“THE COURT: Was this a circumstance " where the defendant had armed himself and gone to the deceased’s home to have it out with him on some sort, there was some sort of disagreement or misunderstanding?
“MR. MILLS: It was an occasion, as I recall, of a party where both were present.
“THE COURT: I see, I still, in short, my ruling is the same. Notwithstanding the case that you cite.
“Is there anything else on this, now, before I bring the jury back in?
“MR. MILLS: No, sir, we except to the Court’s ruling.
“THE COURT: All right.
“Put the jury in the box.”

This same error, it is asserted, also occurred during the direct examination of the appellant, as follows (R. pp. 276-278):

“Q. Were you familiar with that shotgun before that date?
“A. Not familiar, I was only .
“Q. How long had you had it?
“A. Ummm, no more than six months, if that long.
“Q. Had you ever shot it?
“A. One time.
“Q. When was that?
“A. That was the day after I purchased it.
“Q. All right, it was not a new gun when you purchased it?
“A. No, sir, it wasn’t.
“Q. All right, what was your intention or you purpose in putting the shotgun in the car?
“A. Well, I had been threatened by him on numerous occasions.
“MR. BLACK: Your Honor, I object to that.
“THE COURT: Let me say this. Of course, we get into the question of motive where you have different types of motive for doing things and for not doing things and the cases that are ruling on the point of motive are numerous.
“I’ll overrule objection, I’ll let him.
“MR. BLACK: Your Honor, I object to the witness’ response to the question as being unresponsive and going back into something which Your Honor has already ruled on.
“THE COURT: I know what it, I understand what it was he was about to say, but coming up now rather than as it came up before, I did overrule objection that you just made. I am not going to argue with you anymore about it, John. Go ahead.
“MR. MILLS: All right, you may answer the question. Do you need the question repeated?
“A. If you would.
“THE COURT: Let the court reporter read it.
“COURT REPORTER: What was the purpose or intention of having the shotgun in the car?
“A. Because of numerous threats.
“Q. By whom?
“A. From Mr. Bishop.
“Q. Toward whom?
“A. To me.
“Q. Over how long a period of time had you received such threats from Mr. Bishop?
“MR. BLACK: Your Honor, I object to this line of questioning, again. We have gone past what his purpose was for doing something and we are getting back into something which, I believe, Your Honor has ruled on.
“THE COURT: What was the question?
“MR. MILLS: The question was, what period of time these threats had been made.
“THE COURT: I sustain objection.
“MR. MILLS: If the Court, please, without repeating we make the same offer of proof we previously made if we may just do that without going back?
“THE COURT: Yes, sir, you may and I’ll overrule your, I mean I sus-, do you object to it?
“MR. BLACK: Yes, Your Honor.
“THE COURT: I sustain objection to the offer that you made.
“MR. MILLS: (Continuing) All right. Mr. Dickerson, I believe there has been some testimony about you, the smell of alcohol on your breath. Had you had anything to drink that afternoon?
“A. Yes, sir, I had.
“Q. Were you intoxicated?
“A. No, sir.
“Q. What had you had to drink?
“A. Oh, I would, I had about one or two drinks of whiskey and three or four beers.
“Q. Over a course of what period of time?
“A. Umm, hours.
“Q. Hours? Were you working that day?
“A. No, sir.
“Q. That was your day off?
“A. I was off that day.”

In our careful examination of this record, it is clear that a telephone conversation took place on the afternoon of February 17, 1976, between the appellant, Dickerson, and the deceased, Bishop. In this conversation harsh words were exchanged. The appellant and his former wife each testified that she was of Spanish origin, and the deceased had called her a “spick,” a term very derogatory of persons of such blood. They then drove to the front of the deceased’s home, and directed his children to go inside and ask the deceased and his wife to come outside. A few minutes thereafter Hartley, a relative of Mrs. Bishop, came outside and began a conversation with Dickerson, the appellant. At this point the evidence is in conflict. Hartley maintained that he had ceased shaking hands with the appellant and had turned to push Bishop, who suddenly appeared, when the shotgun went off. The next door neighbor, Mrs. Lacey, could not see this occurrence because her view was obstructed by a porch column. The ex-wife, Mrs. Dickerson, and the appellant each related that, while Hartley and Dickerson were still shaking hands and Dickerson was pointing to his ex-wife, explaining the telephone conversation, Bishop suddenly appeared. According to Dickerson the gun was not in his lap, but the stock was on the floorboard of the car, and Bishop reached in and slapped him. Dickerson also related that Bishop shook. his hand or arm as he reached down and the gun suddenly went off.

All parties concede at this point that Hartley turned back toward the automobile, seized the shotgun by the barrel and threw it to the ground roughly.

Dickerson also contended that in the telephone call, Bishop, the deceased, threatened him.

In reviewing a number of authorities in Sashington, supra, Judge Leigh Clark states the applicable law in this manner:

“The rule to the effect that ordinarily evidence of a previous difficulty between defendant and deceased, or between defendant and a third party related to deceased, or connected with the fatal incident, in any homicide case, or a case of assault with intent to murder, is not admissible if there is no evidence of self-defense, or if the evidence shows conclusively that defendant was the aggressor thereby negating self-defense as a matter of law, is not controlling in a case, of this kind, wherein defendant’s defense is not based upon a claim of self-defense. Even if defendant had claimed that the shooting was in self-defense, this would not preclude him from showing that the offense was committed under circumstances reducing it to manslaughter. Reeves v. State, 186 Ala. 14, 65 So. 160 (1914); Byrd v. State, 257 Ala. 100, 57 So.2d 388 (1952). It necessarily follows that in a case in which he does not even claim self-defense he should not be precluded from showing the absence of any one or more of the elements constituting each degree of homicide charged in the indictment, including particularly intention and malice. The question of the admissibility of evidence as to a previous difficulty with deceased or others in homicide cases usually arises in connection with claims of self-defense and is usually determinable by considerations relative to such a claim. But this is not always true. In Byrd v. State, supra, the court concluded that there was not sufficient evidence of self-defense to justify proof by defendant of prior difficulties. Even so, the court went on to state:
“ ‘So far we have been dealing with the relevancy of proof offered by the defendant of prior difficulties and of the wounds suffered by him with respect to self-defense, but this evidence must now be considered from a different viewpoint.’ “And thereafter the court held that the defendant should have been allowed to show physical and emotional injuries received by him in the prior difficulties on the issue of whether defendant was acting under the heat of passion at the time of the shooting by reason of continuing pain from injuries suffered by him.”

If the appellant could present evidence' that he had been threatened, or shot at by Bishop, he should have been allowed to do. so. Such evidence may not have been sufficient to generate a reasonable doubt in the minds of the jurors of the existence of intent or malice on the part of Dickerson, but it was of such a nature as to have had an important bearing on such issues. Instead of arming himself to “take the life of his victim,” such prior threat might well have established Dickerson’s reason as being to negate the existence of malice or a specific intent to kill on his part. In all ■events, we are clear to the conclusion that under the facts of this case such evidence should have been admitted by the trial court.

For the error shown in the refusal of this evidence, we must reverse and remand this cause.

REVERSED AND REMANDED.

DeCARLO, BOOKOUT and BOWEN, JJ., concur.

HARRIS, P. J., concurs in the result only.