text:
    Martha Jane NUNN (Stone) v. David STONE.
    Civ. 1340.
    Court of Civil Appeals of Alabama.
    March 29, 1978.

      David H. Bibb of Coleman & Bibb, Decatur, for appellant.
    James D. Whitmire of Lentz & Nelson, Decatur, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from the granting of a 60(b) motion to set aside a judgment after default. We affirm.

Plaintiff and defendant were divorced in 1974. In 1976 plaintiff filed a petition alleging failure of defendant to comply with certain provisions of the judgment of divorce. She sought an accounting, determination of sums due her and punishment of defendant for contempt. Defendant answered plaintiff’s petition by counsel. Plaintiff moved for the fixing of a time and place to take the deposition of defendant. The court ordered the deposition and production of documents, and a time and place was set. Defendant was served with subpoena. Defendant failed to appear after securing a continuance by agreement of counsel. Plaintiff moved for sanctions for failure to appear for the deposition. The motion was served upon counsel for defendant. We find no setting for hearing of the motion in the record.

Stating that it was in response to the motion for sanctions, judgment by default was entered on February 23, 1977 for the relief requested by plaintiff in the original petition filed several months earlier. Neither defendant nor his counsel was present. March 8 was set for hearing to determine the amounts due plaintiff and a reasonable attorney fee. A copy was directed served upon counsel for defendant.

At the hearing on March 8, counsel for defendant appeared, notified the court that he had been,unable to inform defendant of the default and hearing and with permission of the court withdrew as counsel for defendant. The court heard evidence on behalf of plaintiff and entered judgment finding an arrears of child support in the amount of $7,519.50 and a failure to pay plaintiff an amount of $1,676.00 due her under the divorce judgment. A further amount of $900 was awarded plaintiff as an attorney fee.

Defendant learned of the judgment of March 8 when execution and garnishment were levied against his property in June of 1977. On June 7, 1977, defendant moved for relief from the March 8 judgment under Rule 60(b) of the Alabama Rules of Civil Procedure.

After extensive hearing the court entered a lengthy judgment conditionally granting the 60(b) motion. The court found that the defendant had willfully failed to attend the deposition; that the default was properly entered against him, but the amount of arrears in support found to be due was greatly excessive because of misconstruction of the terms of the judgment for divorce. Therefore, the court found that the judgment entered after default was excessive and would be set aside upon the condition that defendant pay into court the amount found by the court to be properly due. If the condition were met, the judgment would be set aside and the correct judgment entered. Defendant met the conditions required.

Plaintiff’s motion for new trial was denied.

The initial issue presented is whether the granting of the 60(b) motion was erroneous.

We stated rather distinctly in Blackmon v. W. S. Badcock Corp., 342 So.2d 367 (Ala.Civ.App.1977) the view to be taken when we consider the ruling of a trial on a Rule 60(b)(6) motion, particularly when it is directed toward a judgment after default. We repeat that such decision is an exercise of the equity powers of the trial court and therefore largely discretionary. Though factual conditions may vary, in our review of a case, we will not disturb the decision of the trial court except where we determine that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust. This rule is to be more liberally applied when the decision is to grant the motion to set aside a default judgment and permit a trial upon the merits.

We have applied the principles of law applicable to a 60(b)(6) motion, for that is the ground that we believe was presented and considered by the court. Though the ruling does not specifically state that ground, it does say that it finds that the original judgment, entered only upon the evidence of the wife, was substantially excessive and that it exercises its discretionary power in ordering more than a 50% reduction. Though there may arguably be support for other grounds under Rule 60(b), we consider that the court acted on the ground of 60(b)(6) and we find no abuse of its discretion. Blackmon v. W. A. Badcock Corp., supra.

The second issue is whether the construction of the agreement of the parties incorporated in the divorce decree was erroneous. The pertinent portions of the agreement are as follows:

“4. The parties agree that David Stone shall pay to Martha Jane Stone in advance the sum of $400.00 per month for the support, maintenance and education of the minor children .... Provided, however, that upon the discharge of David Stone from the U. S. Army the total amount of child support to be paid by David Stone to Martha Jane Stone shall be reduced to $200.00 per month, and such support'shall continue as herein-above provided.
“5. It is hereby agreed between the parties hereto that upon the discharge of David Stone from the U. S. Army and upon his receipt of his separation pay and disability pay from the U. S. Army (by whatever name or term it is called) he shall pay to Martha Jane Stone an amount equal to 50% of such separation and disability money within thirty (30) days after such receipt by him. Suitable evidence will be provided to Martha Jane Stone by David Stone to enable her to ascertain the amounts of money so received by David Stone.”

Subsequent to the divorce, the husband was removed from active duty by the army and placed on temporary disability retirement on November 15, 1974. He received no lump sum separation or disability pay, but was paid $750 per month. After being placed on permanent retirement in March 1977, he was paid $667 per month. This amount was in contrast to the some $1,500 per month he received while on active duty. Upon retirement, he reduced his support payments from $400 to $200 per month. The petition for determination of amount due and unpaid and for citation for contempt was filed by the wife in January 1977.

The wife contends that as the husband was never “discharged” from the army, but was “retired from active duty,” the condition provided in the agreement for the reduction of support from $400 per month to $200 per month has not occurred. She further contends that if it is considered that defendant was “discharged” and child support was reduced to $200 per month, defendant is due to pay to her the additional sum of 50% of his disability retirement pay. The wife’s contentions arise from her interpretation of the agreement.

The trial court heard the testimony as to the circumstances surrounding the agreement and its subsequent inclusion in the judgment of divorce. It construed the agreement to intend that the $400 per month run until the husband was released from active military service by whatever type of release was deemed appropriate by the army. This was the event which would cause a substantial reduction in the income of the husband. Therefore, the obligation of the husband to pay child support was reduced from $400 to $200 per month upon his retirement on November 15, 1974.

The court further construed paragraph 5 of the agreement which referred to the receipt of separation pay and disability pay upon discharge to mean lump sum payments anticipated to be received upon or shortly after his discharge. The testimony disclosed that such anticipated lump sums were not forthcoming due to his retirement on disability rather than being severed by a full discharge. To have construed the agreement otherwise would have required the husband to pay the wife from his retirement compensation the sum of $200 per month as child support and the further sum of 50% of such retirement or $333.50 per month. Thus the husband would retain $133.50 per month from his compensation payment. If the contention of the wife that the child support payments of $400 per month were not reduced by retirement were sustained, the husband would have to pay her all of his disability compensation with a deficit of $66.50 per month.

We consider that the construction of the agreement by the trial court is reasonable and is sufficiently supported by the evidence.

Plaintiff next presented as an issue the ruling of the trial court in sustaining objection to a question by her counsel asking her what she understood paragraph 4 of the agreement to mean at the time she signed it. We do not consider the ruling of the court to be error for two reasons. First, though parol evidence as to the surrounding circumstances and positions of the parties may be presented to assist the court in construing an agreement whose terms are unclear and ambiguous, a party’s own subjective understanding of the agreement is not an evidentiary matter. Second, our examination of the record indicates previous testimony of the witness to be the same as that sought to be elicited by the question. Rule 61, ARCP applies.

Plaintiff contends her motion for new trial was due to be granted on the ground of newly discovered evidence. The evidence referred to as newly discovered was testimony of the attorney who prepared the separation agreement.

We do not consider that such testimony qualifies as “newly discovered.” The witness was available for consultation prior to trial and as a witness during trial. The trial judge did not err in denying a new trial on that ground. Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App.1977).

The last issue presented is that the court erred in failing to award arrearages due as child support during the period of February 7, 1974 through December 31, 1974.

There was a plethora of conflicting evidence concerning the amount of money paid or not paid by defendant in 1974. It related to child support, sale of horses, income tax refunds, medical bills, etc. The court heard that evidence and rendered a decision. That decision has the standing of a jury verdict. Hardwick v. Hardwick, 55 Ala.App. 156, 314 So.2d 76 (1975). We will not reverse on appeal as we consider there is legal evidence to support the finding of the court. ' Finding no reversible error, the judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Due to inability of counsel to locate him, defendant had not been notified of the granting of a default as a sanction for failing to appear for the deposition. Neither had he received notice of the hearing on March 8.

      . We point out here that we are treating this case as an appeal from a final judgment on the merits after the setting aside of the judgment entered after default. Such treatment is necessary in order that we may consider the granting of the 60(b) motion as an issue on appeal. The granting of a 60(b) motion is an interlocutory order and standing alone will not support an appeal. Sullivan v. Speedway Oil Co., 352 So.2d 1383 (Ala.Civ.App.1977). In this case, the motion was, by agreement, presented to the court along with testimony as to the merits of the original petition. The result was in fact not a setting aside, but merely entry of an order giving partial relief from the judgment through a reduction in the amount. This is very similar to what occurred in the case of Blackmon v. W. S. Badcock Corp., 342 So.2d 367 (Ala.Civ.App.1977); however, in that case the court set aside the damages and ordered a new trial merely as to the damages. That case was presented to this court by petition for mandamus. There can be no reasonable basis for requiring technical designation of presentation in this case.

      . Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975).

      . Chastain & Blass Real Estate & Ins., Inc. v. Davis, 280 Ala. 489, 195 So.2d 782 (1967); 32A C.J.S. Evidence § 960g.


source: Caselaw Access Project

license: Public Domain

text:
    Charles Everett KING, alias v. STATE.
    3 Div. 665.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.
    Rehearing Denied June 28, 1977.

      Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of the robbery of Mike Toles and sentenced to imprisonment for fifteen years, which judgment of sentence provided that ten years of the sentence was to run concurrently with a twenty-five-year sentence defendant had received in another case. The judgment of conviction and sentence in the other case was affirmed in King v. State, Ala.Cr.App., 347 So.2d 1005 (1977).

The case cited involved the alleged robbery of C. G. Shavers, the operator of Shavers Grocery at Grady, Montgomery County, Alabama, on April 1, 1976. The evidence shows that Mike Toles entered the store while the robbery of Mr. Shavers was taking place and that while in the store Toles also was robbed by the two men who had robbed Mr. Shavers.

Except for the fact that appellant testified on the trial of the first case and did not testify on the trial of this case, the evidence in both cases is substantially the same.

A major insistence of appellant, that there was not sufficient evidence to corroborate the testimony of Donald C. King, a participant in the robbery, to present a jury issue as to the guilt of defendant, was decided adversely to appellant in King, supra. There is no reasonable alternative to our adherence to that decision. No improve-' ment can be made in the opinion in that case as expressed by Presiding Judge Tyson.

Appellant also argues that the court was in error in refusing some of defendant’s requested written charges. The court gave a comprehensive oral charge and several written charges requested by defendant. Some of the refused written charges were covered substantially in the court's oral charge or in the given written charges, or both. Error cannot be predicated upon their refusal. Code of Alabama 1940, Tit. 7, § 273.

Our further consideration of the written charges refused to defendant is limited to the charges that may not have been substantially covered otherwise, particularly to those which appellant contends were not so covered.

In reliance upon Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396, appellant says that it was error to refuse charge designated by appellant as Charge 11, as follows:

“I charge you that if you are reasonably satisfied from the evidence that Charles King was at some other place and was not at Mr. Shavers’ store at the time of the robbery, then, under the law, it will be your duty to find Charles King not guilty.”

The Court in Smitherman noted that defendant’s “defense was an alibi, and he introduced much evidence in support thereof.” Furthermore, it stated:

“The disallowance of similar charges has been approved by our appellate courts,'but in each case where we have found this to be true account was taken of the doctrine of conspiracy, and it was there declared that the actual presence of the defendant at the scene of the crime was not required. This, of course, was based on the evidence then under review. Saulsberry v. State, 178 Ala. 16, 59 So. 476; Rigsby v. State, 152 Ala. 9, 44 So. 608.”

Although the State’s contention was that appellant was outside the store in his automobile while the actual robbery was taking place in the store, his actual presence outside of the store while the robbery was taking place was not absolutely essential to his conviction as an aider or abettor. The situation presented can be more nearly likened to the situations in cases in which similar charges have been properly refused than to situations in cases in which similar charges have been held to have been erroneously refused. We see no injury to defendant as a result of the refusal of the charge, which tended to mislead the jury into confusion rather than to lead them to the truth on the issues presented. Its refusal was not error.

Defendant’s charge, designated by appellant as Charge 12, which the court refused, is as follows:

“I charge you that if you do not believe the testimony of Donald King and you further find that there is no other evidence in the case connecting Charles King with the robbery, then Charles King cannot be convicted.”

For a reversal, appellant relies upon what was held after remandment in Slayton v. State, 27 Ala.App. 422, 173 So. 632, but an understanding of what was finally held is not complete without consideration of what the Supreme Court said in reversing the Court of Appeals on certiorari:

“. . . Whether or not such evidence [evidence corroborating an accomplice] has been adduced by the state is a question for the court. The credibility and weight of such evidence is a question for the jury. If the jury does not believe the evidence beyond a reasonable doubt, the defendant is entitled to an acquittal; but in weighing and considering the evidence the jury is not required to segregate such evidence and set same apart from the other evidence in the case and make a preliminary finding in respect thereto; but it is their duty to consider the corroborating evidence in connection with all the other evidence in the case, and when so considered, if they believe the corroborating evidence beyond a reasonable doubt, and from the whole evidence they are satisfied of the defendant’s guilt in that degree, it is their duty to convict.” Slayton v. State, 234 Ala. 1, 173 So. 642.

Furthermore, in Slayton, “Without the testimony of the witness [the accomplice] there was no testimony in the case which would have authorized a conviction . In the case before us, the State’s case was not absolutely dependent upon the testimony of Donald King, even though his testimony was of great benefit to the State.

As to designated Charge 12, appellant counts heavily also upon Newsum v. State, 10 Ala.App. 124, 65 So. 87, in which the trial court gave a similar charge at the request of defendant. However, in Newsum, there was involved the factual question whether a co-defendant, testifying for the State, was an accomplice. In this case, there was no question of fact as to Donald King’s participation in the robbery. The trial court stated as a matter of law to the jury that he was an accomplice and that his testimony had to be corroborated so as to implicate the defendant in order for the defendant to be validly convicted. In the circumstances of this case, there was “other evidence in the case connecting Charles King with the robbery.” Such was not a matter for the jury to decide, but it was within the province of the jury to decide what credence and what weight should be given to such testimony. The court properly refused Charge 12.

Charge 23 is, as stated by appellant, the same as Charge 8 in Burk v. State, 22 Ala.App. 107, 114 So. 71, cert. denied, 216 Ala. 655, 114 So. 72, but the charge was not “held good” therein. Appellant is evidently misled by the views of Chief Justice Anderson on certiorari, but the majority of the court thought and held otherwise.

A large number of charges requested by defendant and refused by the court are to the effect that a reasonable doubt arising from any part of the evidence would be sufficient to authorize an acquittal or preclude a conviction. One charge designated by appellant as Charge 20 is as follows:

“The Court charges the jury, if the jury upon considering all of the evidence, has a reasonable doubt about the defendant’s guilt, arising out of any part of the evidence, they should find the defendant not guilty.”

The quoted charge, as well as some other refused charges, is substantially in the language of Charge 2 in Rakestraw v. State, 211 Ala. 535, 537, 101 So. 181, 183 (1924), which was held to have been erroneously refused “even though it were conceded that the general affirmative charge with hypothesis was properly given against [defendant].” Thirty years after Rakestraw, Judge Carr exhaustively considered some inconsistencies in previous opinions as to the same charge, or other substantially similar charges, and concluded:

“It is evincingly clear that the authorities from the Supreme Court are not in accord as to the propriety of the refusal of the charge in question. Certainly a majority of them do not disapprove it.
“As we view our task, we must look to the last word of the Supreme Court, title 13, § 95, Code 1940. This is found in the Rakestraw case, supra.” Sanford v. State, 37 Ala.App. 603, 75 So.2d 109, cert. denied 261 Ala. 699, 75 So.2d 85.

Eighteen years after Sanford, supra, Judge Cates in Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied, 288 Ala. 735, 265 So.2d 202, cert. denied, 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512, discussed the mentioned inconsistency and noted that in Gautney v. State, 284 Ala. 82, 222 So.2d 175, the Rakestraw holding is given approval by way of obiter dictum. In Buckelew, a reversal was saved by reason of the giving of another charge which it could not be said did not substantially and fairly cover the charge refused.

Appellee does not take issue with the holding in Rakestraw, but relies upon the principle that the refusal of a good charge does not constitute prejudicial error if it is otherwise substantially and fairly covered by the court’s instruction. It refers to the court’s excellent instructions generally on the subject of probable cause, but does not cite any reference therein to a “part of the evidence,” or the like.

Our review of the court’s oral charge in the case sub judice fails to find any statement therein to the effect that a reasonable doubt can arise from a “part of the evidence.” The same is true as to the written charges given.

Notwithstanding our reluctance to refute the view expressed in Cagle v. State, 211 Ala. 346, 100 So. 318, that a charge such as appellant’s designated Charge 20 has a misleading tendency, which justifies its refusal, we must follow the last word of the Supreme Court. Appellant’s designated Charge 20, or at least one of defendant’s other requested written charges on the subject of “a reasonable doubt of guilt ‘arising out of any part of the evidence’,” should have been given.

For the error indicated the judgment should be reversed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby reversed and the case remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    In re Charles Everett KING v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2699.
    Supreme Court of Alabama.
    Feb. 10, 1978.

      William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
    No brief for respondent.
   TORBERT, Chief Justice.

Charles Everett King, appellee, was convicted of the robbery of Mike Toles. Punishment was set at fifteen years imprisonment. The conviction was reversed by the Court of Criminal Appeals and remanded to the Montgomery County Circuit Court.

Briefly stated, the evidence at trial showed that in April, 1976, Mike Toles entered a grocery store in Grady, Alabama, while its owner and a customer were allegedly being robbed by two men, one of whom carried a .22 calibre pistol. The two men ordered Toles to lie on the floor and took his billfold containing $4.00. They then left the store and fled in an automobile driven by a third man.

Later that same day, an automobile matching the description of the alleged robbers’ automobile was stopped by police and searched. The driver of the automobile was the appellee, Charles King. A .22 calibre pistol was found. The three occupants of the automobile, Charles King, Donald King, and William Cline, were then arrested.

At the close of the trial, counsel for Charles King requested several written charges which were refused by the trial judge. One such charge, designated by the parties to this appeal as Charge 20, is as follows:

“The Court charges the jury, if the jury upon considering all the evidence, has a reasonable doubt about the defendant’s guilt, arising out of any part of the evidence, they should find the defendant not guilty.”

The Court of Criminal Appeals reversed Charles King’s conviction of robbery for the trial court’s failure to grant designated Charge 20 or at least one of Charles King’s other requested written charges concerning a reasonable doubt arising from “part of the evidence.” This decision was based upon Rakestraw v. State, 211 Ala. 535, 101 So. 181 (1924), in which this court approved charges similar to Charge 20 and ruled that it was error to refuse such charges.

We granted certiorari to review the alleged conflict between this decision based upon Rakestraw and the holding of this court in Cagle v. State, 211 Ala. 346, 100 So. 318 (1924).

In Cagle, released a short time before Rakestraw, this court reviewed the refusal of charges similar to Charge 20 at issue in the present case and held that such charges were “misleading in their predicate of an acquittal on a reasonable doubt of guilt ‘arising out of any part of the evidence,’ ” and were therefore properly refused. Id. at 348, 100 So. at 320.

Thus, as Judge Clark noted in speaking for the Court of Criminal Appeals, “inconsistencies” exist among the previous opinions of this court concerning the refusal of charges on reasonable doubt arising from “part of the evidence.” For a further review of the way this court has dealt with such charges, see Sanford v. State, 37 Ala. App. 603, 75 So.2d 109 (1954).

Rakestraw is, as Judge Cates stated, the “last word” of this court relative to the refusal of these charges. We believe its holding to be correct, and hereby expressly overrule that portion of the Cagle decision dealing with the refusal of the charge on reasonable doubt arising from “part of the evidence.” Therefore, the refused charge in the present case, considered solely by itself, is a proper charge concerning reasonable doubt.

Although requested Charge 20 and other similar written instructions at issue here state a valid proposition of law, the refusal of these charges by the trial court in the present case does not constitute prejudicial error because the principle of law expressed therein was substantially and fairly covered elsewhere in the trial court’s charge to the jury. Tit. 7, § 273, Code of Alabama 1940 (§ 12-16-13, Code 1975); Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied, 288 Ala. 735, 265 So.2d 202, cert. denied, 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512 (1972).

A careful reading of the trial court’s lengthy oral charge shows that the jury was presented with a discussion of the reasonable doubt standard as applied to the evidence generally which adequately covered the rule of law contained in Charge 20 and other similar refused instructions. The trial court informed the jury that a reasonable doubt which would justify an acquittal is a “reasonably substantial doubt arising from the evidence and remaining after a careful consideration of all of the testimony”; that if “after comparing and considering all of the evidence in the case your minds are left in such a condition that you cannot say that you have an abiding conviction to a moral certainty of the Defendant’s guilt then you are not convinced beyond a reasonable doubt and it would be your duty to find the Defendant not guilty”; and further that the “jury must be satisfied with any other evidence tending to prove the Defendant’s guilty connection with the charged felony beyond a reasonable doubt and to a moral certainty.” It thus appears that the jury was instructed that a reasonable doubt may arise from some of the evidence when considered with the whole of it.

This case is hereby reversed and remanded to the Court of Criminal Appeals for entry of an order consistent with this opinion.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


text:
    Charles Everett KING, alias, v. STATE.
    3 Div. 665.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
   After remandment by the Supreme Court of Alabama, AFFIRMED on mandate of the Supreme Court, 356 So.2d 1220. No opinion. All the Judges concur.


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

text:
    Edward Arnold KENDRICK and Sarah Rolanda Kendrick v. STATE.
    4 Div. 537.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Oct. 4, 1977.

      Earl V. Johnson, Andalusia, for appellants.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Indictments were returned separately against each appellant. Each was charged with unlawfully possessing, selling, furnishing, or giving away marijuana, a controlled substance, in violation of Chapter 9E, T. 22, § 258(47), Recompiled Code 1958. Trials were consolidated by agreement. The jury returned separate verdicts of guilt and separate judgments were entered pursuant to the verdicts. The court sentenced each defendant to five years’ imprisonment in the penitentiary. The case against Edward Arnold Kendrick is No. 6529 and against Sarah Rolanda Kendrick is No. 6530. The appeals here are consolidated.

Appellants make only one contention of prejudicial error. That is, over objection of defendant, the district attorney, in an opening statement to the jury, said:

“MR. MCGILL: And they talked after advising Mrs. Kendrick of her constitutional rights, they talked with her and told her that they were there to search. We expect the evidence to show that she said, ‘Well, there’s no need to search. It’s in the hall closet’” * *

Appellant’s counsel correctly asserts in his brief (with citations) as follows:

“The law in Alabama has long been that extrajudicial confessions and admissions against interest are prima facie inadmissible, and it is the duty of the trial court to make a determination that any such statement made by a defendant in a criminal case was made voluntarily. Hines v. State, 260 Ala. 668, 72 So.2d 296; Guenther v. State, 282 Ala. 620, 213 So.2d 679.”

It appears from the testimony of Deputy Don Harrell (R. 47 and 48) that neither he nor anyone in his presence threatened or abused Mrs. Kendrick to get her to make a statement; nor did they offer her any reward to get her to talk or make any sort of statement. This evidence was before the jury. Thus, it appears that sufficient predicate was laid as a preliminary to the introduction of the statement.

Hence, there was no error in permitting the opening statement, supra. The statement was within the confines of the evidence. Pope v. State, 174 Ala. 63, 57 So. 245(4).

We pretermit discussing other reasons why the ruling of the court was free of error.

We find no error in the record. Both judgments are affirmed.

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

AFFIRMED.

All the Judges concur.

ON REHEARING

BOWEN W. SIMMONS, Retired Circuit Judge.

We omitted to point out clearly that Deputy Don Harrell testified that defendant Sarah Rolanda Kendrick made the statement (R. 48), “Well, there’s no use in going any further, it’s in the closet.” This evidence comports with the opening statement of the District Attorney. In view of such supportive testimony, there was no prejudice accruing to defendant from the opening statement, supra.

OPINION EXTENDED: APPLICATION OVERRULED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Arthur James HURST v. STATE.
    3 Div. 525.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.

      Von G. Memory of Riggs & Memory, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Milton Belcher, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. He was represented by court-appointed counsel and executed a waiver of arraignment form, and pleaded not guilty and not guilty by reason of insanity. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

On August 15, 1975, appellant’s counsel filed a motion to have him committed to Bryce Hospital for an evaluation and determination as to his competency to stand trial and to make a determination as to his sanity at the time of the alleged offense. This motion was granted. He was committed to Bryce Hospital on September 15, 1975. He was discharged from Bryce to the custody of the Sheriff of Montgomery County, Alabama on January 16, 1976, as “competent.” This discharge report was signed by “G. G. Ochoa, Level 1-A Psychiatrist, with recommendation that he be returned to Court, and is able to cooperate in his defense.”

The hospitalization summary from Bryce states, in pertinent part, “The patient was given a more descriptive diagnosis of his condition-295.73, Schizophrenia, Schizo-affective type, Excited, on 1-8-76, Mr. Hurst was seen by treatment team members at which time he requested to be returned to jail to stand trial for charges of murder. After interviewing Mr. Hurst, it was felt that he understood the charges against him and could aid his lawyer in his defense. It was recommended that arrangements be made for his return to Court. Mr. Hurst was discharged on 1-16-76 to the Montgomery Sheriff’s Department.”

Appellant was committed to Bryce Hospital by Honorable Perry 0. Hooper, one of the Circuit Judges of Montgomery County, and on January 12, 1976, the Superintendent of Bryce wrote Judge Hooper saying:

“On September 22, 1975, Arthur Hurst was admitted to Bryce Hospital under Title 15, Section 426, by your order. “Since that time, he has be'én evaluated' by the Forensic Board and has received treatment by ' the staff' of Extended Treatment Program, Level 1-A! The staff' now feels that Mr. Hurst is ‘restored to his right mind’ and able to assist in his defense.
“We respectfully await the'arrival of your duly appointed officer to take Mr. Hurst back into custody for further proceedings before the Court.”

Upon appellant’s return to Court, trial was begun on May 10, 1976.

Bertha Mae McClain testified that on' May 14, and 15,1975, she lived at 438 North Bainbridge in Montgomery with the deceased, her three children, and appellant; her brother. McClain had lived with the deceased for twelve and a half years and considered him to be her husband. . She stated that ■ appellant, at the time of deceased’s death had lived with them for approximately six months.

McClain testified that her brother owned a pistol and that he had it for a month before the shooting occurred. Appellant told McClain that he had gotten the gun at Max’s Pawn Shop and that he would kill somebody with it.

A few nights before the deceased was killed, McClain testified, she and the deceased had an argument. McClain had bought some “dope” for a “guy” and had brought it home where it was to be picked up. The deceased told McClain that he didn’t want any drugs around the children. At this time appellant entered into the argument, exclaiming, “Why you jump on my sister, man. You ain’t got nothing to do with it.” The deceased and appellant began to scuffle, but McClain stopped them. The deceased ran and got a wrench and appellant locked himself in the bathroom. Deceased told appellant;' “Come 'ou't/yoü - -, I’m going to kill you.” McClain stated that she calmed deceased down and no further trouble resulted that night.

During the late hours of May 14, 1975, or the early morning hours of May 15, 1975, McClain was visiting near her home. One of her children summoned her home. McClain heard shooting, entered her home and found appellant standing at the kitchen table loading a pistol, saying, “Come on, you_I’ll kill you.” She found Leonard Harris lying in front of the stereo in the living room. He had been shot. McClain told appellant to leave Harris alone and then called the police.

Mrs. McClain testified that appellant had been in mental institutions on four occasions. Appellant was committed to Rock-land Hospital in New York on two occasions and twice in Bryce.

W. T. Sheriff testified that he was in the Patrol Division of the Montgomery Police Department in May of 1975. He stated that he investigated a shooting incident shortly after midnight on May 15, 1975. Sheriff testified that when he arrived on the scene appellant approached his car with a gun in his hand. Appellant told Sheriff, “I shot him. He hit me in the privates, and I shot him.” Sheriff took the gun from appellant and went into the house. There he found Harris dead on the floor, surrounded by a pool of blood. Sheriff summoned an ambulance and the detective division. Shortly afterwards, an ambulance and Officers Rutland and Norton of the detective division arrived on the scene.

Lawrence Rutland testified that he was a detective with the Montgomery Police Department on May 15, 1975. He stated he investigated a shooting at 423 North Bain-bridge Street. He received a pistol from Officer Sheriff which he marked and sent to the toxicologist’s office.

Out of the presence of the jury, Rutland testified that he read appellant his rights and appellant signed a waiver form at 1:50 a. m. Appellant told Rutland that he understood his rights. At that time appellant gave a written statement which he signed after Rutland read it to him. In pertinent part the statement reads as follows:

“City of Montgomery, Alabama, Department of Police; name, Arthur Hurst; place detective office; date, 5/15/75; time, 1:50 a. m.; charge, murder.
“Before asking you any questions, I must explain to you that you can remain silent, that anything you say can be used against you in court, that you can talk to a lawyer first and that you have the right to the advice and presence of a lawyer even though you cannot afford to hire one. If you cannot afford to hire a lawyer and want to have one present during interrogation, the court will appoint one before we question you. If you want to answer questions now, you can do so, but you can stop answering at any time.’ And it’s signed by me, L. G. Rutland. “I fully understand the foregoing statement and do willingly agree to answer questions. I understand and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.’ And it’s signed Arthur James Hurst, witnessed by H. C. Norton.”

Rutland testified that he had no knowledge that appellant had ever been in a mental institution.

Appellant then called Bradley Adams, Ph.D., out of the presence of the jury. Adams testified that he was a clinical psychologist at Bryce Hospital. Adams received a Ph.D., in clinical psychology from the University of Alabama. Over the thirteen years of his employment at Bryce as a clinical psychologist, Adams treated “virtually thousands” of patients.

Adams stated that appellant was under his supervision for approximately one month in December, 1975. The Forensic Evaluation Board at Bryce diagnosed appellant’s problem as schizophrenia, paranoid type on November 26, 1975. Having decided that appellant required extended treatment, the Board transferred him to Adams’ supervision.

Based on appellant’s medical records at Bryce, information from a mental institution in New York, his interactions with appellant, and knowledge of how schizophrenics of the paranoid type “maintain themselves,” Adams formed an opinion of appellant’s mental condition on May 15, 1975. From the record:

“BY MR. MEMORY:
“Q. Would you give us that opinion?
“A. It was our opinion and my — and I certainly concur that it is my opinion— that Mr. Hurst was in a psychotic state, that he was — his behaviors were determined emotionally, and that he was unable to control himself in terms of the commission of a crime.
“Q. Was he in a position to be able to determine the difference between right and wrong?
“A. Mr. Hurst knows right and wrong. It is our opinion that he was not able to adhere to the right at that time.
“Q. And so your answer would be what?
“A. Well...
“Q. At that time, meaning May 15th, 1975?
“A. ' Yes, sir.
“Q. Was he able to distinguish between right and wrong—
“A. No, sir.
“Q. —if he could not distinguish right?
“A. No.
“Q. And if at that time he could not distinguish between right and wrong, could he intelligently and voluntarily make a statement?
“THE COURT: Did he have the mental capacity to do it?
“MR. MEMORY: Right.
“Q. (By Mr. Memory) Did he have the mental capacity to give a statement_
“A. Competently?
“Q. To waive his rights as a citizen of the United States to voluntarily give a statement?
“A. I would say no.”

Dr. Adams further testified that a person suffering from the disorder afflicting appellant could give a statement as appellant did in the case. This behavior would be consistent with the delusional system occurring in such persons.

Adams stated that he believed appellant willingly gave his statement to police. However, from the record:

“THE COURT: Did he have a mental capacity to know what he was doing or realize what he was doing?
“THE WITNESS: Your Honor, it’s my opinion that he would not have the mental capacity to appreciate the ramifications of what he was doing, the future consequences; that his delusional system would require him to do this at that time in order to be a man.”

Such a statement, Adams testified, was consistent with appellant’s “life style.” From the record:

“Q. And explain his life style, please sir.
“A. It’s one of grandiose, fantasy, and religious preoccupation, and with this primary drive of T am a man and will be and will prove it in every way that I can at any given opportunity.’
“Q. And isn’t it also consistent with a normal person to desire to be a man and to act in a man-like manner?
“A. Well, all I could say is the ones that do it like Mr. Hurst frequently come to Bryce Hospital, because it’s a very bizarre fashion.
“Q. And those persons do not knowingly give statements to the police?
“A. Well, I’ve already said that in terms of understanding the ramifications, the future consequences, of this behavior, my answer is he did not; in my opinion. I wasn’t there.”

According to Adams, the fact that appellant was advised that his statement would be used against him in court was not a warning to “someone like that.” Adams testified that he would be very surprised if the statement was made in a lucid interval. He stated that it was conceivable and possible but highly unlikely.

The trial court allowed the statement into evidence over the objection of appellant.

Rutland was then recalled after .the jury returned. Miranda, and voluntariness predicates were laid and appellant’s confessory statement was read to the jury over appellant’s objection.

“May 15, 1975 2:10 a. m.
“This is a statement from Arthur Hurst about the shooting that happened at 438 N. Bainbridge St. on the morning of 5-15-75. This statement is given to Det. L. G. Rutland.
“Last Sunday night or early Monday morning me and my brother-in-law got into a fight about him getting on to my sister about the way that she ran the house. I took up for my sister and I told him that he didn’t have any reason to be telling my sister how to run the house for that he never did bring any money in. And if he had any money that he was spending it on the women that called him at the house on the phone. All this time that we were arguing we were in my sister’s bedroom. This is the back bedroom. At this time he kicked me between my legs and I hit him on the jaw. After I hit him he then grabbed me and at this time I ran my two fingers under his neck and started putting pressure on his neck. At this time my sister ran in between us and broke us up. He then picked up a pair of high stack shoes and told my sister to move. I then told him to stop all the bad talk and do what he said he was going to do. My sister then started begging us to quit and at this time he put the shoes down and ran down the steps. When he ran down the steps my sister told me to watch it and for me to go in the bathroom. At this time I went into the bathroom and closed the door. I was in the bathroom running water in the tub and he ran back upstairs and kicked the door open. He then told me to come out of the bathroom and that he was going to bust me in the head. I told him that he was the one that had the hammer for him to come and get me. My sister then got to begging us to quit and he then said that it was all over. But he said the next time we had trouble that he was going to have his shit ready. I then told him that I had mine downstairs and that I didn’t have it loaded at this time but I was going to load it. I also told him that I didn’t buy it to hurt anybody with but if I had to use it I would. After I got through taking my bath I went downstairs and got my pistol out of the closet and loaded the pistol and put it back in the closet. I then put my clothes on and cooked breakfast and then went down to the city lot and got ready to go to work.
“Q. Did you and him Leonard have any more trouble after the trouble Sunday night?
“A. No we didn’t, not until tonight.
“Q. How long have you been staying at the house?
“A. About six months.
“Q. Was Leonard living there when you moved in?
“A. Yes.
“Q. Where was you tonight when the trouble started?
“A. I was lying down on the blanket on the floor where I always sleep.
“Q. What started the trouble tonight?
“A. I was lying on the floor and he came in and asked me if I had found me a place to go. I then told him that I had talked to my sister and she told me that she was paying the rent and that the house was in her name and that I didn’t have to go anywhere. He (Leonard) then told me that I had to go somewhere and at this time he called my sister and at this he hit me on the jaw with his fist. And when he did this I rolled over and started shooting.
“Q. How many times did you shoot at him?
“A. I shot at him five times. He made his move and I made my decision.
“Q. Was there anyone else in the house at the time that you shot Leonard?
“A. No just me and him.
“Q. What did you do after you shot him?
“A. I took the emptys out of the gun and reloaded the gun and was fixing to do it all over again and my sister came in and got in the way. I then walked out on the porch and I had to think a few minutes what I was going to do. I told myself that I was a man and I had to act like a man. I then walked toward the street and had gotten to the side of the street when the police pulled up and I turned the gun around with the butt of the gun toward the police officer and gave him the gun and told him that I was the one that had did the shooting.
“This is a true statement and I willingly agreed to give the statement after being advised of my rights.
“/s/ Arthur James Hurst
“Arthur Hurst
438 N. Bainbridge St.
/s/ L. G. Rutland
Det. L. G. Rutland”

Richard A. Roper testified that he was employed by the State of Alabama, Department of Toxicology and Criminal Investigation. Counsel stipulated to Roper’s qualifications.

Roper testified that he conducted a postmortem examination of the body of Leonard Harris. Roper observed five gunshot wounds; two passing through the right upper arm, one in the right chest, one in the left upper chest, and one in the side of the right thigh. The wound which entered the right chest traveled through the body cavity, through the right lung, heart, left lung, and lodged in the left armpit. Roper recovered this bullet. It was this wound, Roper testified, that caused Harris’ death. He further testified that the angle of the wounds indicated that the deceased and his assailant were on the same level facing one another.

W. T. Sheriff was recalled and testified that the appellant handed him a pistol at the scene of the shooting. He identified a pistol exhibited at trial as the one he received from appellant. Sheriff turned this weapon over to Detective Norton when he arrived at the scene. Sheriff testified that appellant was not “delirious” or “uncontrollable” at that time.

H. C. Norton testified that he was a detective with the Montgomery Police Department and that he investigated a homicide on May 15, 1975, with Detective Rut-land. Norton identified the weapon which Sheriff had identified and stated that he received it from Sheriff. Norton stated that he gave the weapon to Detective Coy Smith. He also recovered clothing worn by the deceased which he gave to Smith, and also three spent hulls and a small piece of lead. Norton stated that appellant was acting “normal” on May 15, 1975, and that he appeared to be neither calm nor excited.

Coy Smith testified that he was a detective with the Montgomery Police Department. He further testified that he took the evidence, given to him by Norton and Rut-land, to the toxicologist’s office. He gave that evidence to Charles Smith.

Charles Smith testified that he was employed by the Alabama Department of Toxicology and Criminal Investigation. He stated that he received the above mentioned evidence from Coy Smith. Smith further testified that, after he made test firings from the pistol he had received, he formed the opinion that the cartridges recovered from the scene at 438 North Bain-bridge were fired from the same revolver that he had tested. After examining the clothing of the deceased, Smith concluded that the fatal shots were fired from a distance of less than six feet away.

At this time the State rested its case. Appellant moved for a directed verdict as to murder in the first and second degrees on the grounds that the evidence was insufficient to support a conviction of murder in any degree. This motion was denied.

Mrs. Beatrice Vickers testified on behalf of the appellant. She stated that she was his oldest sister and that she lived in Montgomery. Appellant had been in a mental institution in Spring Valley, New York, at one time and had returned to Montgomery where he remained until “he lost his mind again.” Mrs. Vickers then had appellant “sent to Bryce.” After appellant was released from that commitment, he was staying at the Rehabilitation Center in Montgomery. Mrs. - Vickers testified that he “still wasn’t in his right good mind.” When appellant moved in with his sister Bertha McClain, he was “talking random,” Mrs. Vickers stated. Appellant’s mind “rambled.” From the record:

“Q. Tell me a for instance when you heard him act like that.
“A. Well, the first time when my brother — when I see my brother act off, he was walking around with his head tied up with a big white rag and a stick in his hand, walking around, talking about preaching and just a whole lot — just preaching and going on.”

Mrs. Vickers further stated that appellant acted “real strange,” and that he had never been normal even as a child. When they were children, their mother “used to make me go up under the house and get him out from under the house. He used to sleep up under the house, and I used to have to go and drag him out.”

John Bradley Adams testified that he was Chief of Psychology and Clinical Coordinator for one of the large extended treatment units at Bryce Hospital in Tuscaloosa, Alabama. He stated that he had a Bachelor’s Degree from the University of Florida, a Master’s Degree from Emory University in Atlanta, Georgia, a Ph.D in Clinical Psychology from the University of Alabama, and that he completed a year’s internship approved by the American Psychological Association at Bryce Hospital. He further testified that he had been employed at Bryce for thirteen years and had treated thousands of patients. Since 1965, Adams had concentrated his work with people with criminal charges against them or people from the penal system.

Adams testified that he treated and evaluated appellant at Bryce Hospital beginning December 15, 1975. Adams stated that appellant had been a resident at Bryce on two separate commitments: from September 7, 1973 to April 25, 1975 and from September 22, 1975 to January 16, 1975. Prior to his treatment of appellant, Adams stated that appellant was under supervision of the Forensic Program at Bryce.

Adams further stated that appellant was returned to stand trial on January 16, 1976. This resulted from a treatment planning conference held on January 8, 1976. At that time, Adams testified, appellant was able to understand the nature of the charges against him and assist his counsel in preparing a defense.

An evaluation of appellant’s sanity was made at that time. From the record:

“A. That he continued to be mentally ill. We changed the diagnosis on that day to one that we considered more descriptive of his condition at that time than the one that was appended at the time he was admitted in September.
“Q. And what was that description, mental description?
“A. The second one?
“Q. Yes.
“A. The diagnosis was schizophrenia, schizoaffective type, excited. This is descriptive of an individual who is psychotic, who has broken with reality as the rest of us perceive and interact with reality, who lives in a more or less fantasy world within their own mind.”
******

Further,

“It’s a thinking disorder. It means his thoughts are not connected with one another the way the rest of us do, that perhaps words mean different things to him than they do to us. It is an emotional disorder. His mood is markedly affected with this, which is what the schizo-affective describes. It’s a major mood disorder with periods of deep depression and withdrawal, not talking, not doing anything, but a person who is primarily motivated or whose behaviors are determined by their feelings at the time.”

Adams testified that in addition to his two admissions to Bryce, appellant had also been committed to Rockland State Hospital on two occasions. Considering his past history, his own conversations with and testing of appellant, Adams formed an opinion of appellant’s competency at the time of the commission of the crime. Adams testified that appellant was not competent at that time. Appellant, in Adams’ opinion, was not in a “lucid interval” at the time the crime was committed. He stated that such a lucid interval was conceivable, but highly unlikely.

On cross-examination of Adams by the District Attorney Adams testified that the mental disorder that appellant suffered from was a mental disease. From the record:

“Q. Isn’t this a mental illness somewhat of an emotional disorder or mood disorder that he is going through?
“A. He has — his moods are affected, yes. His is primarily a thought disorder.
“Q. Is that a mental disease?
“A. Yes.
“Q. And how do you classify that as a mental disease?
“A. I don’t. I’m forced to adhere to the diagnostic and statistical manual of the International Association of Psychiatry, or something. They refer to it as a disease.
“Q. And as a psychologist, you cannot testify as to whether or not it is a mental disease, can you?
“A. Yes, I’m- qualified to evaluate and diagnose that.
“Q. As a mental disease?
“A. Well, that’s your term. I wouldn’t call it that.
“Q. Well, it’s a legal term that we’re faced with today, Dr.
“A. Well, yes, I do this quite frequently.
“Q. Since we’re faced with it, then you can’t. I understand.
“A. I have testified to it quite frequently, yes.
“Q. And how serious is his mental disease?
“A. Very.
“Q. Very serious?
“A. Yes.
“Q. On a scale of one to ten, how serious would you say his mental disease is?
“A. Nine.
“Q. Nine?
“A. Yes.
“Q. But he could sit here today and talk with his lawyer, Mr. Memory, and adequately help him prepare with his defense, and he can also understand the circumstances and the charges and the events that are going on here today?
“A. Yes.
“Q. Even on a nine out of ten?
“A. Urn hum.”

Adams again testified that appellant could have had a lucid interval on May 15, 1975. However, he again stated that this was extremely unlikely.

On redirect examination, Adams testified on May 14, and 15, 1975, appellant suffered from a diseased mind.

Appellant then ■ testified in his defense. He testified that he was in a mental institution in New York on two occasions some time in the sixties. He remained there until he got ready to come home. When he returned to Montgomery, appellant lived with his girl friend. He then went to Bryce Hospital in 1972, where he remained for six or seven months.

Appellant stated that when he was released from Bryce and returned to Montgomery he lived in the Rehabilitation Center rather than live with relatives.

From the record:

“Q. Why was that?
“A. Because I wanted peace, because my relatives would give me hell, and I want peace. I die and go to hell for my rights. They can’t take my rights from me.”

Appellant testified that he worked for Montgomery Roofing Company three or four months and then worked for the Coca Cola plant for five and a half months. He left that job because “me and the foreman couldn’t get along and everybody was trying to tell me hurt the foreman, the old man, and I ain’t going to nothing like that.”

Then appellant worked for the City. He lived at his sister’s, Bertha McClain’s, house and in a house owned by the Rehabilitation Center. Appellant worked as a garbage collector.

Appellant stated that while he stayed at Bertha’s he slept on a pallet on the floor. Appellant began to have trouble with Leonard Harris four to six months after he had moved in at Bertha’s.

From the record:

“Q. And on that Sunday or Monday early in the morning, what happened between you and Leonard, if anything?
“A. Well, one Sunday night or Monday night, whatever you want to call it, before Monday morning, Leonard woke me up by fussing with my sister about some kind — I don’t know. They were arguing about — I tried to break the argument up before coming to a fight, trying to get—
“Q. Slow down, so we can all—
“A. I tried to give him back what the judge would have gave him. And when I opened my mouth and gave my tenure what the judge had said, that he wasn’t doing nothing at the house, and why should he tell Bertha how to run the house. If he don’t like the way she run it, that’s her house. She run it like she wanted to run it, and that was my opinion. I gave him the same thing to keep me out of the truck. And I guess he done crusaded that back. He asked me who in the hell I was, nigger. So when he kicked me in my private, I tried to kick him right then; and that’s then. That’s where his right right there, and I put my two fingers — after I flung and hit him, I put two fingers there, where the shock, and pressed on it; and Bertha broke that hold up.
“Q. She broke you up?
“A. Right.
“Q. And you went up there originally to break up the fight between — what appeared to be between your sister and_
“A. Right.
“Q. And then what happened?
“A. Then he told me the next time—
“Q. I want you to slow down and speak clearly.
“A. Then he said, ‘Nigger, I want you to have your shit ready.’
“Q. Did he threaten to kill you?
“A. Yes, he did.
“Q. And what did he do next, if you know?
“A. He picked up a pair of high stack shoes, after she broke us a loose.
“Q. Okay. And then what after she had broken you up?
“A. Right. Then he ran downstairs to get a hammer.
“Q. A hammer?
“A. Right.
“Q. And what did he do? — Where did you go while he was downstairs?
“A. Well, I was in the bathroom.
“Q. Why did you go in the bathroom?
“A. Because my sister told me to go in the bathroom.
“Q. She told you to go to the bathroom?
“A. Right.
“A. And that’s what you did?
“A. That’s what I did. And I closed the door, and he came and kicked the door open; and I turned around like this. And when I turned around like this, he jumped me and told me to come in the hall and said he was going to bust my living head open with the hammer. I told him he was the man with the hammer, to come in and get me. ‘I ain’t got nothing but man to man.’ So he picked the weapon up, and I told him, T done told you about picking up the weapon.’ He didn’t tell me a thing right then, but next time, ‘Have your shit.’
“Q. He said he wasn’t going to hurt you then, but the next time?
“A. Right, ‘to have my shit.’
“Q. Okay. Did you fight anymore that night?
“A. No, we didn’t.”

Appellant stated that the shooting occurred the next Wednesday night. From the record:

“Q. You went to bed?
“A. Yes.
“Q. Did you go to sleep?
“A. I went to sleep.
“Q. And then what was the next thing you remember?
“A. The next thing I remember, Leonard Harris come in kicking on me and had a hammer in his hand; and when he raised the hammer up, I rolled up and let him have what I had waiting.
“Q. Is that when you shot him?
“A. That’s when I shot him, was with a .38, under the pillow.
“Q. Your .38 was under the pillow?
“A. Right.
“Q. But he came — and you were asleep when he kicked you and hit you?
“A. Right.
“Q. What did he tell you?
“A. He told me, ‘You ain’t got out yet?’
“Q. He told you, ‘Haven’t you got out yet?’
“A. Right.
“Q. And that was when he started hitting you and kicking you?
“A. Right.
“Q. And that was when you shot him?
“A. Right.
“Q. What was the next thing you did?
“A. I emptied the gun in him.
“Q. You what?
“A. I emptied the gun in him..
“Q. Okay. And what were you going to do?
“A. Reload it and start over. That much hell he had in him, that’s how much hell I had in me.
“Q. And then what stopped you?
“A. Bertha.
“Q. Bertha?
“A. Yes.
“Q. And after she stopped you and went and called, what did you do?
“A. Well, I walked out the door. And at that time I hoping the police would come out there.
“Q. You were hoping the police would come?
“A. Yes. They took them too long to come, and I got ticked off with them; and they hadn’t showed up, and I got ticked off. Something told me to be patient, they will be here.
“Q. Something told you to be patient? “A. Yes. And I walked- — something told me, ‘go out there to the curb. They are out there.’ By the time I got to the curb, I seen the car coming down; and that’s when I gave them the gun.
“Q. Gave him the gun?
“A. Yes.”

Appellant stated that if he was pushed a little bit he was ready to “show them where the power is.” When the deceased “made his move,” appellant made the decision, “give me hell or jail.”

From the record:

“Q. And did it make you feel like a man when you shot him?
“A. Did it make me feel like a man? I was stupid. Idiot.
“Q. Idiot, stupid?
“A. Right.
“Q. Why?
“A. Fighting also. I found fighting real stupid. Killing was stupid.
“Q. Stupid?
“A. Right.
“Q. Is it wrong?
“A. I wouldn’t say it was wrong.
“Q. You don’t think it’s wrong to kill?
“A. I don’t think so. Sometimes you have to prove a point to a person some kind of way.”

Subsequently the appellant testified that he knew it was wrong to kill another man but he had no choice. Appellant stated that he was now “fighting his case,” because his white brother and sister wanted him alive. Appellant stated that he didn’t mess around with normal folk. He said that he got understanding from people with mental problems.

Appellant contends that his statement given to police was involuntarily made and should not have been submitted to the jury.

In general an extrajudicial confession, oral or written, is prima facie involuntary and inadmissible. The duty rests in the trial judge in the first instance to determine whether the confession is voluntary, and, unless it so appears it should not be admitted. Pike v. State, Ala.Cr.App., 340 So.2d 865; Hardin v. State, Ala.Cr.App., 344 So.2d 234. Where the trial judge finds that a confession is voluntary, in a hearing outside the presence of the jury, that finding will not be disturbed unless contrary to the great weight of the evidence and manifestly wrong. Balentine v. State, Ala.Cr.App., 339 So.2d 1063.

We hold that appellant’s confession was properly submitted to the jury in this case.

The Supreme Court of Alabama, through Simpson, J., stated in Goldin v. State, 271 Ala. 678, 127 So.2d 375, that:

“. . . The fact that an accused is not in full possession of his or her mental faculties when the confession is made does not render it inadmissible, but only affects the weight to be accorded by the jury; or is provable merely to support other evidence that the confession was not voluntary. To render such a confession inadmissible on that ground the mania must have been such that the accused was either an idiot or a lunatic during lunacy. Redwine v. State, 258 Ala. 196, 61 So.2d 724.”

Also in Elrod v. State, 281 Ala. 331, 202 So.2d 539, the Supreme Court of Alabama, through Merrill, J., stated the proposition as follows:

“. . . Accused’s intelligence, character and situation at the time of the confession of the crime charged are important considerations in determining whether the confession was voluntary, but the fact that accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary. State v. Ashdown, 5 Utah 2d 59, 296 P.2d 726, affirmed 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443. Evidence tending to show a defendant’s weak mentality, feeblemindedness, and mental stress does not affect the admissibility of the confessions, but rather is a matter that bears on the weight, credibility and effect to be given the confessions by the jury. State v. Stewart, 238 La. 1036, 117 So.2d 583.
sjs * jfc ‡ * *
“We have said that a ‘person may be partially insane and still be competent to testify or make a confession.’ The (sic) involves an inquiry into his appearance, demeanor and the nature of his statements. It is for the court to determine whether he has or had the requisite intelligence and ability to communicate his responses to questions. Redwine v. State, 258 Ala. 196, 61 So.2d 724. .. . ”

Appellant relies solely on Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242. In Blackburn the evidence indisputably established the strongest probability that he was insane at the time he gave a confession. Additionally, law enforcement officers interrogated defendant for eight or nine hours. We cannot say here that there existed that strongest probability of appellant’s insanity at the time the statement was given. Indeed, Adams testified that the statement could have been given in a lucid moment, although it was highly unlikely. Also, the appellant’s statement was given only twenty or thirty minutes from the time officers arrived on the scene. Under the evidence in this case it cannot be said that the trial judge was manifestly wrong.

Appellant contends that the trial court erroneously limited his examination of John Bradley Adams, Ph.D.

From the record:

“Q. Dr. Adams, I assume that you — I realize that you cannot testify concerning anything other than your treatment, but have you looked or considered his past history?
“A. Oh, yes.
“Q. And what does that reveal as far as his mental illness is concerned?
“A. A lengthy period covering five years or so.
“MR. POOL: Judge, I’m going to object at this time. I’m not trying to hide what happened before this, but I believe the law allows this doctor to testify as to his conclusions. And in basing his conclusion, he can draw upon the man’s past record.
“THE COURT: Yes, I agree with you on that, because this other party wouldn’t be here for cross-éxamination.
“MR. POOL: That’s true, Judge. He can draw upon it, but he can’t testify as to what the past record is.
“THE COURT: I’m going to sustain your objection on that.
“MR. POOL: Thank you, Judge.”

Here there was no error. Appellant was attempting to elicit the opinion of Adams as to appellant’s mental state at the time of the commission of the offense based, in part, on the medical records from Bryce Hospital.

Analogous to the question at hand are those cases which hold that physicians cannot testify to information concerning the condition of their patients. See McElroy, Law of Evidence In Alabama, Second Edition, Sec. 110.01(3), which states:

“A physician-witness’ testimony to his opinion with respect to the condition of his patient may not be supported by testimony by such witness that certain opinions or reports (including reports of radiologists) concerning the patient had been made to him by other physicians; or that in inferences between him and other physicians associated in the treatment of the patient, they expressed and concurred in a certain opinion with respect to the patient’s condition, citing Clark v. Hudson, 265 Ala. 630, 93 So.2d 138; Prince v. Lowe, 263 Ala. 410, 82 So.2d 606; and Hussey v. State, 87 Ala. 121, 6 So. 420.”

Additionally, witnesses, including medical witnesses, cannot testify to facts of which their knowledge is derived from the unsworn statements of others. Cordle v. State, 53 Ala.App. 148, 298 So.2d 77, cert. denied 292 Ala. 717, 298 So.2d 85.

These records were properly admitted, however, under the Business Records Act, Alabama Code 1940, Title 7, Section 415.

Appellant, in a related contention, also argues that the trial court committed reversible error.

From the record:

“Q. Could Mr. Hurst determine the difference between right and wrong at that time?
“MR. POOL: Judge, I would object to that. That’s an ultimate decision to be made by the jury.
“THE COURT: Yes, I’m going to sustain the objection. You must first show there is a disease of the mind, Mr. Memory, that he bases this on, under the law.
“MR. MEMORY: I’m going to get to that, Judge.”

The trial judge was correct in this ruling. See Wingard v. State, 247 Ala. 488, 25 So.2d 170; Hafley v. State, 342 So.2d 408; and Breen v. State, 53 Ala.App. 588, 302 So.2d 562.

Appellant argues that he was deprived of a fair and impartial trial because of the District Attorney’s remarks made during the opening statement, and closing argument.

From the record:

“OPENING STATEMENT BY MR. POOL
“ — But the only thing exciting about the murder is the thrill, the sheer joy, and the blood curdling excitement_
“MR. MEMORY: Now Your Honor, I object, and I think he’s gone way beyond the bounds. When I got into this point—
“THE COURT: You almost made an opening argument, and I didn’t call you down until the very last. Overrule your objection.”

Further:

“MR. POOL: —This man slaughtered him, this man slaughtered him_
“MR. MEMORY: I object to those characterizations. I don’t believe that slaughter and all of that should_
“THE COURT: Well, he was just using that as an illustration. Overruled.
“MR. MEMORY: If I may, note my objection and give me exception.
“THE COURT: Go ahead.”

There is no legal standard by which the prejudicial qualities of improper remarks of the District Attorney in a trial of a case can be judged, each case must be determined on its own merits. Binion v. State, Ala.Cr.App., 327 So.2d 729. Counsel for both the state and the defendant are allowed a wide latitude in drawing their deductions from evidence in argument to the jury. Summers v. State, Ala.Cr.App., 348 So.2d 1126.

Here we do not think that the District Attorney overstepped the bounds of fairness and impartiality.

Appellant argues that the trial court erroneously omitted from the oral charge an instruction that a person who is attacked in his own home does not have a duty to retreat. At the end of the Court’s oral charge to the jury, counsel stated that he had several matters which he wished to take up outside the presence of the jury. When the jury retired, counsel made several exceptions to the Court’s oral charge, including the above alleged error. The trial judge stated that it was counsel’s duty to prepare written instructions to that effect, which counsel had not done.

Here, there was no error for two reasons.

First, the trial judge was correct in his statement to counsel that written requested charges should have been submitted. Cooper v. State, Ala.Cr.App., 331 So.2d 752.

Secondly, exceptions to the oral charge or any part of it, to be availing, must be taken and reserved in the presence of the jury and before the jury retires. Hafley v. State, Ala.Cr.App., 342 So.2d 408; Lowery v. State, Ala.Cr.App., 342 So.2d 797.

Finally appellant urges that his conviction is unsupported by the evidence in the case. In particular he contends that the evidence of insanity at the time of the shooting is overwhelming. He stresses the testimony of Mrs. Vickers, Adams, and appellant’s medical records from Bryce Hospital.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, the Court of Criminal Appeals has no right to disturb the verdict. Whether there is such evidence is a question of law, with the weight and probative value for the jury. Woods v. State, Ala.Cr.App., 344 So.2d 1225; Williams v. State, Ala.Cr.App., 348 So.2d 1142.

The question of insanity at the time of the commission of a crime is a matter to be determined by the jury from consideration of all the evidence. Carr v. State, 43 Ala.App. 642, 198 So.2d 791. In making this determination, the jury may reject all expert testimony though it is without conflict. Hockenberry v. State, 246 Ala. 369, 20 So.2d 533.

We are conscious of the principle that, “cases of insanity may be so clear, that the jury should be instructed in like form.” Boyle v. State, 229 Ala. 212, 154 So. 575; cited in Christian v. State, Ala.Cr.App., 351 So.2d 623. However, it does not appear that this is the case here.

In Christian, supra, the Supreme Court pointed out the following:

“To sustain the burden of the issue of insanity raised by his plea, the appellant introduced testimony of three psychiatrists, each of whom testified that Christian was insane at the time he committed the homicide. The record also shows Christian had a history of mental disorders and had been admitted to Bryce Hospital on several occasions prior to the homicide. Members of Christian’s immediate family testified to the following unusual behavior of their brother prior to the homicide: talking to a television set; imagining that every radio and television set contained a microphone to spy on him; imagining that red and blue subversives were out to get him through the use of their control over all the birds; believing that he was Jesus and possessed by the devil; believing that he saw winged monsters; and pretending he was talking to deceased relatives.
“One of the police officers, who fingerprinted Christian after his arrest, testified that later the same night Christian made other unusual statements such as, ‘It is in the stars,’ T can see it in the stars,’ T can see it in the future,’ ‘It is in my eyes.’
“The State presented no expert testimony concerning Christian’s sanity, but points to the testimony of Miss Joyce Williams, Christian’s sister, on this issue. Her testimony in part was that in 1972 a Bryce Hospital case worker told her and her mother that Christian was in good condition and that if he would take the medication prescribed for him he could live among normal people. Miss Williams also stated that her mother told her on one occasion that Christian had said he would kill her if she tried to put him back in Bryce Hospital. No objection was made to the introduction of this testimony.”

Appellant’s records from Bryce Hospital were admitted into evidence as a defense exhibit. Nothing in those records unequivocally states that he was impaired by a mental disorder at the time Leonard Harris was killed. Only a progress report made by medical resident Ochoa, level 1-A psychiatrist, addresses the matter of sanity at the time of the offense. That report, written on December 16, 1975 states that there was a “strong indication” that an affective disorder “determined or allowed the behavior which brought on his court charges.”

At trial, Adams was not able to state unequivocally that appellant was not in a lucid state at the time of the shooting.

Mrs. Vickers stated that her brother, the appellant, was not “normal” from childhood.

Such evidence does not constitute a case of insanity “so strong and undisputed,” that the jury could not have found that appellant was sane at the time of the commission of the crime.

In Parrish v. State, 139 Ala. 16, 36 So. 1012, it was said: “The question as to the competency of the witness, whether expert or not, to give an opinion as to the sanity or insanity of the party inquired of, is a question for the court, and not for the jury.”

The testimony of the psychologist was much more confusing than enlightening and certainly failed to meet the test of insanity laid down in the celebrated case of Parsons v. State, 81 Ala. 577, 2 So. 854.

As to the qualifications of a non-medical psychologist to testify as to mental condition or competency of an accused see the annotation in 78 A.L.R.2d at page 919.

We find the record free of error and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.