author: BEATTY, Justice. TORBERT, Chief Justice BLOOD WORTH, Justice

text:
    Floyd PEDDYCOART et al., Mrs. Peggy J. Salamone, etc., Robert Lee McKinnon, Sr., etc., Roger Dale Crocker and Richard Lambert et al. v. CITY OF BIRMINGHAM.
    S.C. 2552, S.C. 2662, S.C. 2731, S.C. 2356 and S.C. 2729.
    Supreme Court of Alabama.
    Jan. 13, 1978.
    Rehearing Denied Feb. 10, 1978.

      W. Eugene Rutledge of Rutledge, Williams, Williams & Norton, Anniston, for appellants Mrs. Peggy J. Salamone, who sues in her capacity as the mother of Michael A. Salamone, a 17-year old minor child, Robert Lee McKinnon, Sr., as Administrator of the Estate of Robert Lee McKin-non, Jr., deceased, and amicus curiae, Peggy J. Salamone as appellant in the case of Mrs. Peggy J. Salamone, who sues in her capacity as the mother of Michael A. Salamone, deceased, a 17-year old minor child v. The City of Birmingham, (appellee).
    Mike W. McCormick, Birmingham, for appellant Roger Dale Crocker.
    Roger M. Monroe of Jones & Monroe, Birmingham, for appellants Richard Lambert et al., and Floyd Peddycoart et al.
    Milford G. Bass, Jr., Birmingham, for City of Birmingham, appellee.
   BEATTY, Justice.

This is a consolidated appeal by five plaintiffs who filed tort actions against the City of Birmingham. In each case the trial court granted a motion to dismiss based upon a plea of governmental immunity under Tit. 62, § 660, Alabama Code (Recomp. 1958):

The city shall not be liable in damages for personal injuries or damage to personal property by reason of any act or omission done or omitted in the exercise of its governmental functions or failure to exercise such functions; provided, however, that this provision shall not be construed to prohibit or limit the recovery of damages for personal injuries arising out of defects in highways as now provided or allowed by law.

The plaintiffs have placed in issue the constitutionality of that statute under both the state and federal Constitutions. It is contended that § 660 is a local Act notwithstanding the fact that in its original form, Act 257, § 13, Acts of Alabama, Regular Session 1915, it bore a minimum population classification of 100,000. The plaintiffs argue that this section is constitutionally offensive under § 106 of the Alabama Constitution of 1901 because the population classification is not reasonably related to the purpose of the section, and because it permits an unequal application of the law.

Our cases have held that such a relationship must exist between the statute’s purpose and the population classification established, otherwise the classification will be deemed arbitrary, e. g., Dearborn v. Johnson, 234 Ala. 84, 173 So. 864 (1937). The case of Couch v. Rodgers, 253 Ala. 533, 45 So.2d 699 (1950) reviews many of our decisions on this point, in some of which we reasoned that the circumstance of size did bear a reasonable relationship to the purpose of the legislation. But we are unable to ascertain in this case such a relation. The purpose of § 660 is to provide governmental immunity, but that immunity is to be granted only to the largest city in the largest county in the state. If there is any reasonable relationship between the grant of immunity and the size of its population as denoted by its corporate boundaries, we are unable to perceive it. “Judicial ingenuity would exhaust itself in an effort to find any rational basis for the classification it presents.” City of Birmingham v. Moore, 248 Ala. 422, 425, 27 So.2d 869, 872 (1946). Such a classification, moreover, arbitrarily denies to citizens the right to pursue against that city remedies for injuries to person and property resulting from the exercise of its governmental functions, while they are free to pursue those same remedies against all others, as we shall show later. This results in a denial of equal protection of the laws, United States Constitution, Article Fourteen, because it constitutes an irrational difference in the treatment of our citizens, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); accord, Comer v. City of Mobile, 337 So.2d 742 (Ala., 1976).

We hold, therefore, that § 660 is unconstitutional under both the federal and state constitutions. It violates the equal protection principle and, because of its unreasonable population classification, it cannot qualify as a general law of local application.

It is also maintained that § 660 violates the provisions of Article 4, § 105, Alabama Constitution of 1901, in view of the earlier enactment of what is now Tit. 37, §§ 502-504, Alabama Code (now § 11-47-190-192, Code of Ala. 1975):

No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer or employe[e] of the municipality engaged in work therefor and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts, or the negligence, carelessness or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured.

Article 4, § 105, Alabama Constitution of 1901 mandates that:

[N]o . . . local law, shall be enacted in any case which is provided for by a general law, . nor shall the legislature indirectly enact any . . local law by the partial repeal of a general law.

The Alabama Constitution, § 110, defines a general law as one “which applies to the whole state,” and a local law as one “which applies to any political subdivision or subdivisions . . . less than the whole; . . ."

If the interpretation of § 105 were being addressed presently for the first time it would be less onerous to give a literal meaning to the language used. We are faced with a more difficult task, however, in view of the numerous instances in the past in which this Court has approved local enactments on subjects already covered by general acts, e. g., Dudley v. Birmingham Ry., Light & Power Co., 139 Ala. 453, 36 So. 700 (1903); Brandon v. Askew, 172 Ala. 160, 54 So. 605, 607 (1911); Board of Revenue v. Kayser, 205 Ala. 289, 88 So. 19 (1921); Mathis v. State, 280 Ala. 16, 189 So.2d 564 (1966); Dunn v. Dean, 196 Ala. 486, 71 So. 709 (1955); State ex rel. Jones v. Steele, 263 Ala. 16, 81 So.2d 542 (1955); Malone v. State, 46 Ala.App. 363, 242 So.2d 409 (1970).

With conscious regard to the doctrine of stare decisis et non quieta movere, nevertheless our duty is to apply the highest law in our state as conscientiously as our abilities allow, even though this application runs counter to reasons which heretofore have been espoused for opposite views. In so doing we perform only our judicial function and do not encroach upon the separation of powers doctrine which makes the legislative branch supreme in legislative matters. Indeed, in performing that duty we only re-assert the axiom of the supremacy of our organic law over all branches of government. State Docks Commission v. State ex rel. Cummings, 227 Ala. 414, 150 So. 345 (1933). If we entertained any doubt upon the meaning of § 105, we would, of course, accord a weighty consideration to the legislative interpretation which has been manifested through the years by the passage of numerous local laws on subjects already affecting those localities through general laws. Jansen v. State ex rel. Downing, 273 Ala. 166, 137 So.2d 47 (1962). But the fact that a class of statutes has been in existence for a long time and considered constitutional does not prevent this Court from declaring them unconstitutional. Sadler v. Langham, 34 Ala. 311 (1859). If a legislative act is repugnant to the Constitution, the courts not only have the power, but it is their duty, when the issue is properly presented, to declare it so. State ex rel. Bassett v. Nelson, 210 Ala. 663, 98 So. 715 (1924); Dyer v. Tuskaloosa Bridge Co., 2 Port. 296, 27 Am.Dec. 655 (1835).

The only phrase in the pertinent portion of § 105 requiring construction is “provided for.” “Provided” ordinarily signifies a condition, or a limitation, qualification, or a restraint or exception. Stanley v. Colt, 5 Wall. 119, 72 U.S. 119, 18 L.Ed. 502 (1886), and, in context, it may mean “of the same import.” Webster’s Third International Dictionary (G. & C. Meriam Co., 1971); Webster’s New Collegiate Dictionary (G. & C. Meriam Co., 1973); Abbott, Dictionary of Terms and Phrases (Little, Brown & Co., 1879). When we see the phrase “provided for” preceded by the words “No . . . local law,” we are bound to consider the phrase as one of restraint and limitation pertaining to matters of the same import dealt with in the general law. Section 105, then, is an additional constitutional proscription upon the type or kind of legislation which the legislature is allowed to enact, following as it does § 104 which also contains limitations upon the legislative power. Nothing in either section prohibits all local legislation, see §§ 106 and 107, but only that prohibited by §§ 104 and 105.

Notwithstanding the unclouded language expressed in § 105, nevertheless it has prompted a large amount of litigation, beginning as early as 1903 and continuing as late as 1976. Dudley v. Birmingham Ry., Light & Power Co., 139 Ala. 453, 36 So. 700 (1903); Parrish v. Stembridge, 337 So.2d 754 (Ala., 1976). Historically this Court has felt it necessary to construe this language, apparently to assure that the separation of powers doctrine would not be inhibited and that the legislative branch of state government would continue to be supreme in legislative matters. State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31 (1913). Thus this Court in an early case held that § 105 was intended:

[T]o prohibit the enactment of special, private, or local laws to meet the purposes of particular cases which may be accomplished by proceedings outside of the Legislature under the provisions of general statutes enacted to meet all cases of that general character. Brandon v. Askew, 172 Ala. 160, 54 So. 605, 607 (1911).

This explanation has been utilized in other cases, e. g., Dunn v. Dean, 196 Ala. 486, 495, 71 So. 709 (1914); Walker County v. Barnett, 247 Ala. 418, 24 So.2d 665 (1946).

Another construction was placed upon § 105 in Board of Revenue v. Kayser, 205 Ala. 289, 88 So. 19 (1921). In that case this Court referred to the Proceedings of the Constitutional Convention, p. 114, for an explanation by one of the commentators:

‘Now is there any hardship [in] saying to any man, any individual, corporation or association, that if the laws of the state have already provided for your case and you can get everything you could possibly get by appealing to the Legislature, you ought not to consume the public time in trying to get the Legislature to do what has already been done for you. That is all this provision means.’ .

Those proceedings have been recognized, of course, as proper aids in constitutional construction. City of Montgomery v. Graham, 255 Ala. 685, 53 So.2d 363 (1951). The import of the explanation, however, was that § 105 was designed simply to prevent duplication in legislative enactments. This reasoning was followed in State ex rel. Brandon v. Prince, 199 Ala. 444, 74 So. 939 (1917) which resulted from a change in the general law regarding the selection of jurors by legislating a different procedure for Tuscaloosa County. Our Court observed:

If we should hold that, merely because there is a general law providing for the selecting and drawing of juries for the several counties, none of its provisions can be changed by a local law, it would be tantamount to holding that a local law cannot be passed upon that subject. We do not think that this is the meaning of section 105 of the Constitution, nor that such was the intent of the Constitution framers in ordaining it.

Prom this recognition favoring local laws enacted on the same subject of the general law, it was a short judicial step to the present explanation:

If, in the judgment of the Legislature, local needs demand additional or supplemental laws substantially different from the general law, the Legislature has power to so enact. Courts are charged with the duty to determine whether there is a substantial difference between the general and the local law, but cannot invade the legislative domain to determine whether a county should have a local law substantially different and in addition to the state law. . Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 235, 124 So. 523, 526 (1929).

To summarize, this Court has interpreted § 105 in at least three different ways: (1) It was intended to prevent local laws whose purposes might be accomplished outside the legislature; (2) It was intended to prevent duplication in legislative enactments; and (3) It was not intended to prevent the enactment of a local law on a subject already covered by a general law, when the local law is substantially different from the general law.

These differences present more than a mere play on words. If the facts in State ex rel. Brandon v. Prince, supra, are used as an example, the legislature changed the manner of statewide jury selection by establishing a different procedure in Tuscaloosa County. While the subject-matter of jury selection was already covered by general law, it might also be said that the different procedures established by the local law created a substantial difference between the local and general laws. Likewise, in Standard Oil Co. v. Limestone County, supra, the legislature authorized one county to impose a gallonage tax on gasoline sales even though there was already in existence a statewide gallonage tax. That Court found that this local tax was not “the same tax” (and thus there was a substantial difference), however, it cannot be reasonably maintained that the two laws did not concern the same subject matter because each provided for a gallonage tax on gasoline sales. In neither case was duplication present because there was a substantial difference between the two due to the effect of the local law. Indeed, it may be stated that every case involving a change in a general law by a local legislative act creates a “difference” which some could describe as “substantial,” and that “substantial difference” might in any case justify the conclusion, therefore, that the local law does not concern the same subject matter.

Being a limitation upon legislative authority, § 105 clearly means just the opposite of what the Court in State ex rel. Brandon v. Prince, supra, held that it meant. In the quotation we have noted earlier, that Court placed more emphasis upon the efficacy of local laws, and less upon that of general laws, than § 105 obviously intended to give them, for the Court stated “[i]f we should hold that, merely because there is a general law . . . 199 Ala. at 447, 74 So. at 941 (emphasis added). We do not look upon the presence of a general law upon a given subject as a bare segment, but to the contrary, its presence is primary, and means that a local law cannot be passed upon that subject. By constitutional definition a general law is one which applies to the whole state and to each county in the state with the same force as though it had been a valid local law from inception. Its passage is none the less based upon local considerations simply because it has a statewide application, and already having that effect, the constitutional framers have prohibited the enactment of a local act when the subject is already subsumed by the general statute.

Thus, in this case, the legislature had already enacted a statute of statewide application on the general subject of municipal immunity for torts. Title 37, §§ 502-504, making municipalities liable in tort, was originally enacted as a general law in 1907. Judicial limitation of its application was eliminated by judicial decision on July 10, 1975 when this Court overruled prior decisions construing the legislation to prohibit suits against cities when engaged in a governmental function. Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). Following the enactment of this statewide statute dealing with the subject of municipal liability in tort, the precursor of the present § 660, i. e., Act 257, § 13 Acts of Alabama, Regular Session 1915, became law. That Act dealt with a subject of the same import as the 1907 Act, that is, the subject of municipal liability in tort. To be sure, in its original form it was limited to cities with populations of one hundred thousand or more according to the Federal Census. Acts bearing such population classifications in the past have been classified as statewide Acts of local application, on the theory that they would automatically apply in the future to additional territorial subdivisions as their population increased. Masters v. Pruce, 290 Ala. 56, 67, 274 So.2d 33 (1973) contains a list of cases involving such legislation and in which this Court held that those laws were constitutional. Even though the entire law was enacted as a statewide act of local application, clearly it was intended to apply to Birmingham (whose population we judicially know to have been 132,685 in 1910 and 178,806 in 1920, U. S. Bureau of the Census, 1970, Vol. I, Characteristics of the Population, Part A, Sec. 1, Table 28, p. 116), and, according to Tit. 62, § 1, Alabama Code of 1940 (Recomp. 1958) is one applying to less than the whole state.

But the defendant insists that any objection to the character of § 660 has been resolved by subsequent legislative action and judicial opinion thereon. Specifically, we are referred to the adoption of Title 62 (including § 660) as a part of the entire Code of 1940 which was adopted by the legislature in a single act. In Jenkins v. State, 245 Ala. 159, 16 So.2d 314 (1944) this Court held that “the Code as a whole provides a system of law applicable to the [whole] state,” and in Burns v. State, 246 Ala. 135, 19 So.2d 450, 453 (1944) this Court reiterated that conclusion by observing “that when the Act was passed by the legislature, adopting the Code of 1940 in its entirety, a general law was enacted.” Under this blanket of general statewide application of what originally were local laws, of course, we would not presently declare that § 660, or any other acts existing at that time are deficient under § 105 of the Alabama Constitution of 1901, however questionable they now appear to be. Indeed, legislation of local application adopted after these decisions may have been in response, at least in part, to such court approval.

However, we must take particular note of the fact that the body of local acts present in the Alabama Code of 1940 (Recomp. 1958) and enacted since that Code’s original enactment were not adopted by the legislature when it enacted the Code of Alabama 1975. See Tables, Vol. 2, Code of Ala. 1975. This action removed from the statewide influence of the Code of 1940 any legislation which may follow the enactment of the Code of 1975 and which is local legislation by constitutional definition.

Therefore we respectfully direct the legislature’s attention to the fact that § 110 of the Alabama Constitution mandates the definition of a local law. It is one “which applies to any political subdivision or subdivisions of the state less than the whole; . . . ” (emphasis added). Applies when? Obviously, when it becomes law! If, when it becomes law it applies only to a subdivision of the state, it is a local law. That is the clear meaning of the language employed by our constitutional framers. In the face of this plain language, to conclude that the application of a law to less than the entire state makes no difference when a futuristic population classification is employed is to engage in sophistic reasoning. We reject such reasoning in favor of the clear definition of a local act which is contained in the Constitution. A population classification cannot be utilized in the future to avoid the definition of a local act.

We are mindful of prior decisions which have approved enactments based upon population classifications when the classifications were found to be “substantial,” were not “arbitrarily” fixed, and were based upon a “reasonable necessity” for the several classifications. E. g., Dearborn v. Johnson, 234 Ala. 84, 173 So. 864 (1937). No citation of authority is necessary to demonstrate the elusive nature of such a judicial test, or to point out that a number of these cases might have been decided either way. The specificity of the constitutional framers manifested by §§ 104, 105 and 110 discloses their intent, and negates tolerance with any such tests which give to both courts and legislature such wide discretion. Henceforth when at its enactment legislation is local in its application it will be a local act and subject to all of the constitutional qualifications applicable to it. With regard to legislation heretofore enacted, the validity of which is challenged, this Court will apply the rules which it has heretofore applied in similar cases.

With deference to those members of this Court who in the past have been concerned that such a construction would impinge upon the legislative power to enact local legislation, we must observe that such is not the case. As we have shown, our Constitution authorizes local legislation, and sets out a procedure for its enactment. Under that authorization local legislation reflecting responses to local needs may be enacted. It is only when those local needs already have been responded to by general legislation that § 105 of our state Constitution prohibits special treatment by local law.

Because the trial court erred in granting the defendant’s motions to dismiss the plaintiffs’ complaints, these cases must be reversed and remanded.

REVERSED AND REMANDED.

TORBERT, C. J., concurring specially.

MADDOX, FAULKNER, JONES, AL-MON, SHORES and EMBRY, JJ., concur.

BLOOD WORTH, J., concurring in part, dissenting in part.

TORBERT, Chief Justice

(concurring specially):

I concur in the result based upon the denial of equal protection under the law as to these plaintiffs.

As I understand the majority in its interpretation of §§ 105 and 110 of the Constitution as applied to the issues in these cases, this decision will have prospective application. That is, with respect to statutes heretofore enacted by the Legislature their constitutionality would be measured by those elusive standards heretofore set forth in the many decisions of this court over the past seventy years. The principle of prospective application is not of recent vintage, but was recognized by this court as early as 1890. Farrior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532 (1890). The rule of stare decisis is founded upon the principle of conservatism but was never intended to prevent progress in the science of the law. Neither does the rule disregard the importance or necessity of correct determinations of the law, nor require its perpetuated subversion.

The Legislature is now in its last regular session of the members’ term of office. In order to accord that body the effect of the principle of stare decisis as they represent the people in legislative matters it would seem preferable to make this decision effective upon the conclusion of this regular session. This would allow time for that body to publicly advertise for passage of local legislation where permissible, undertake a careful study as to the effect of this decision, and embark on its legislative process at the beginning of its first regular session at the next term of the Legislature under this settled construction of our Constitution.

The constitutional issue as to whether any general law of local application based upon population is a local law under § 110 of the Constitution is clearly presented. That issue is now decided, and the law henceforth should be well settled. However, further judicial refinement and interpretations in other cases may well be necessary with respect to the application of § 105 prohibiting the Legislature from enacting local laws where the subject matter has been “provided for by a general law.”

BLOOD WORTH, Justice

(concurring in part, dissenting in part.)

I concur only in so much of the Court’s ’opinion which holds that § 660, Tit. 62, Code of 1940, is unconstitutional because it violates the equal protection clause of both the federal and state constitutions. This is as much as the Court needs to say, and as far as the Court needs to go, to decide this case, in my judgment.

Thus, I cannot join the Court in the remainder of its decision, and I respectfully dissent therefrom. For over 70 years this Court has been committed to the proposition of upholding general acts of local application. Parrish v. Stembridge, 337 So.2d 754 (Ala. 1976); Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 124 So. 523 (1929); State ex rel. Crenshaw et al. v. Joseph et al., 175 Ala. 579, 57 So. 942 (1911); Griffin v. Drennen et al., 145 Ala. 128, 40 So. 1016 (1906). I think it unwise, at this time, to depart from such settled construction.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Wendell Allen STEWART v. Gloria Jean Finley STEWART.
    Civ. 1148.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1977.
    Rehearing Denied Jan. 4, 1978.

      John D. Cates, Montgomery, for appellant.
    Wayne P. Turner, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This is a child custody case.

The parties to this proceeding were divorced on March 4, 1976 and the wife was awarded custody of the three minor children resulting from the marriage. Approximately eight months after the divorce decree was rendered, the father filed a petition in the Circuit Court of Montgomery County seeking a modification of the custody arrangements prescribed in the trial court’s original decree. The father’s petition asked that the custody of the three minor children be awarded to him. The basis of his complaint was that the mother was no longer a fit person to have custody of the children. The respondent-wife filed an answer denying this contention and a counterclaim asking for increased child support and attorney’s fees.

After a hearing on the matter, the trial court denied the relief requested by petitioner and also denied the respondent’s demand for an increase in child support. The court did, however,' find that respondent was unable to pay her attorney for his services and thereby ordered the petitioner to pay respondent’s lawyer $750 as a reasonable attorney’s fee.

The evidence submitted to the trial court in support of the petition for modification revealed that the parties, prior to the divorce in 1976, had lived in Northport (Tuscaloosa County), Alabama. At this time respondent became acquainted with a teenaged girl named Sheila Watson. Sheila was thirteen years old when she first met respondent and over the course of a number of years she frequently acted as a babysitter for respondent’s children. In April 1976, shortly after the Stewarts’ divorce, Sheila came to Montgomery to care for the children of the couple while respondent worked in a lawyer’s office.

Evidence at the custody modification proceeding indicated that Sheila had an abortion when she was sixteen years old. Respondent stated that the aborted pregnancy occurred about the same time that Sheila’s parents were divorced and that Sheila was very distraught as a result of this event in her life. Sheila is now approximately twenty years of age and is employed by the same lawyer for whom respondent works.

The hearing on this matter also revealed that in 1973 and 1974, while the parties lived in Northport, respondent had a sexual relationship with a young man several years her junior. Petitioner did not know of this relationship at that time; however, he subsequently learned of his wife’s adulterous acts. Nevertheless, respondent testified that her illicit relationship with the young man ended in 1974 and has not been renewed.

The respondent also testified that she met a man by the name of Royce Daughtry, who is employed as an aircraft mechanic at Fort Rucker, Alabama, about three months after the divorce and began dating him on a regular basis in July or August 1976. This man stayed overnight in her house on several weekends in September of 1976. Respondent stated that when the children were present in the house, she and her male friend slept in separate rooms. Moreover, she further testified that no sexual activity occurred while the children were in the house. This testimony was uncontradicted. The male friend has not spent the night in respondent’s house since October 1976.

Respondent’s testimony reveals that her children attend school regularly and make good grades. Additional evidence indicates that for a period of thirteen days in September 1976, the children had no one with them at their house from the time school ended at 3:45 p. m. until respondent came home from work at 5:50 p. m., because Sheila had taken a job in a lawyer’s office and respondent had difficulty obtaining a babysitter to replace her. The children were, however, required to call respondent as soon as they got home and to stay there until she arrived.

Two of the children have had medical problems and one will need orthodontic work in the near future.

There was testimony from several witnesses to the effect that both parents loved and cared for the children and that both were fit to have custody of the children.

At the request of petitioner’s attorney, the court had an investigation made of respondent’s house by the Department of Pensions and Security. The report made by the investigator from Pensions and Security was turned over to the court for its examination. Respondent did not object to the report or its use by the court. Nevertheless, the investigator was placed on the stand by petitioner’s attorney and questioned about the contents of the report.

The investigator’s testimony and written report was to the effect that the respondent was a good mother, loved her children and took care of their needs. In addition it indicated that the children loved their mother, were well adjusted and did well in school. It was the investigator’s opinion that the ^custody of the children should not be changed.

At the close of the hearing on the petition for modification, the trial court’s decree concluded that both parents were fit to have custody of the children but that there was no change in circumstances sufficient to justify taking the children from their mother and placing them in the custody of their father.

Petitioner contends that the trial court committed several errors, any of which is sufficient to warrant reversal.

Petitioner’s major contention, and the first one presented to this court for review, is that the trial court erred in finding that the respondent was a fit person to have custody of her three minor children. This contention is based on petitioner’s view of certain portions of the evidence.

The evidence that petitioner relies on relates to the sexual relationship which respondent had with a young man prior to her divorce. The evidence shows the petitioner was unaware of this relationship at the time of the divorce. Petitioner now submits that this evidence, along with the evidence that respondent permitted her boyfriend to spend the night in her house on the weekends, demonstrates that respondent is morally unfit to have custody of her children.

Despite the aforementioned evidence of respondent’s misconduct and indiscretion, there is also evidence in the record that respondent terminated the relationship with the young man about one and one-half years prior to the divorce and it was not resumed. Furthermore, respondent stated that at no time while the children were in her house did she and her boyfriend sleep in the same room and that at no time had her children seen her in bed with her boyfriend. This testimony is undisputed. Moreover, respondent has corrected this situation and the boyfriend no longer spends the night at her house when he visits her.

Nor is the fact that for a thirteen day period the children were without a babysitter for one and a half hours each day after school sufficient to demonstrate that respondent is unfit as a mother. Many single parents find themselves in a similar situation and for a trial court to decree that such persons are unfit to care for their children solely because they cannot be present when their children come home from school would penalize single parents for a situation over which they often have no control. In addition, the evidence shows respondent made a diligent effort to find someone to stay with the children and subsequently hired a babysitter to be with them after school. Before obtaining this babysitter, she did the best she could under the circumstances. That is, she had the children call her as soon as they got home and she also instructed them to contact a neighbor if anything occurred which required an adult’s attention.

Furthermore, the Pensions and Security investigator found that the children were happy living with their mother and that they appeared to be well adjusted and well cared for. On the basis of her investigation she recommended that the court’s original decree awarding custody to the respondent not be changed.

We have said that unless unusual circumstances exist, immoral conduct by itself is insufficient to justify a change in child custody. See Jenkins v. Jenkins, 45 Ala.App. 500, 232 So.2d 680 (1970). Instead, it is a significant factor to be considered by the trial court in deciding whether circumstances have changed in such a manner that a change in custody is warranted. Jenkins v. Jenkins, supra. Nonetheless, the trial court may consider other evidence and factors in deciding if an original decree awarding custody of children to a party should be modified and those children placed in the custody of another person. Stuckey v. Stuckey, 50 Ala.App. 682, 282 So.2d 283 (1973). In the present case it is apparent that the trial court did not find such other factors to be present.

Moreover, the burden is on the moving party to convince the trial court that the circumstances and facts on which the original decree was based no longer exist or now differ to such a degree that a change in custody is required. Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210 (1975). Likewise, the party seeking modification must also demonstrate that such a change is in the welfare and best interest of the children. Gould v. Gould, supra.

After a careful reading of the evidence it is obvious that petitioner failed to convince the trial court that there were changed circumstances sufficient to justify taking the children from their mother and placing them in the custody of their father. Nor did petitioner prove to the court’s satisfaction that the welfare and best interest of the children would be materially served by a change in custody.

It is well established that in cases where the trial court hears all the evidence ore tenus, the judgment of the trial court is presumed correct unless the evidence documented by the record before this court demonstrates that the trial court’s judgment is plainly and palpably incorrect. Given this rule and the facts before us, we are not convinced that the trial court’s decree refusing to grant a change in custody was plainly and palpably in error. Strickland v. Osborn, Ala.Civ.App., 333 So.2d 582 (1976).

The second ground asserted by petitioner as a basis for this appeal relates to a conversation which occurred between the judge and the Pensions and Security investigator in the hallway next to the courtroom after the investigator had filed her report and had completed her testimony in the case.

Petitioner contends that matters relating to the present controversy were discussed by the judge and the investigator outside the presence of the parties and their attorneys and that as a consequence of not being present, petitioner was denied the right to examine or cross-examine the investigator concerning what she might have said to the judge during their conversation in the courthouse hallway.

Respondent replies that if there was error, it was harmless and did not prejudice the substantial rights of the petitioner. Moreover, the trial court permitted petitioner to cross-examine the investigator at a hearing on petitioner’s motion to set aside the court’s decree refusing to modify the original award of custody. Respondent argues that the transcript of this subsequent examination of the investigator demonstrates that nothing was discussed by the investigator and the judge that was not covered in the investigator’s report.

After reading the investigator’s testimony and report, we are not persuaded that the petitioner’s rights have been prejudiced or that he suffered injury by the trial court’s inappropriate discussion of a matter before the court with a third party outside of the presence of the parties and their attorneys.'

However, the lack of prejudicial error does not mean that this court condones such actions by a trial judge. Nor are we willing to say that the action by the court in permitting an examination of a witness by the complaining party after a conversation has occurred between the judge and that witness outside the presence of the complaining party (or his attorney) automatically cures such conduct. However, in this instance the subsequent examination of the investigator by counsel for petitioner at the hearing on the petitioner’s post-trial motion demonstrates that no substantial injury occurred to petitioner by the judge’s conduct. While the judge’s discussions with the investigator may have constituted nothing more than a friendly chat or an effort by the judge to compliment the investigator on her report, the conversation was nonetheless ill-timed and unseemly. Indeed, the Alabama Canons of Judicial Ethics which were adopted by our supreme court in 1975 state that a judge should avoid even the appearance of impropriety in all his activities. Canon 2, A.C.J.E., Code of Alabama 1975. In this regard a private interview or conversation between a judge and a witness or non-party (where interests which might be affected by such conduct are not represented) could be deemed an impropriety and worthy of criticism. See Canon 3 A(4), A.C.J.E., supra.

However, merely because a judge’s conduct is inappropriate, such conduct is not necessarily a sufficient ground for reversal by this court, particularly in the absence of a showing by the complaining party that the action taken by the court was inconsistent with substantial justice or materially prejudiced the complaining party. Rule 45, ARAP. See Kilgore v. State, 263 Ala. 606, 83 So.2d 315 (1955); Isom v. State, 51 Ala.App. 114, 283 So.2d 188, cert. den., 291 Ala. 523, 283 So.2d 194 (1973). Since the petitioner made no such showing in the present case, the trial court’s decree will not be reversed on the basis of the conversation which took place between the trial judge and the investigator from the Department of Pensions and Security.

The next objection raised by petitioner on appeal is that the trial court improperly refused to allow petitioner’s attorney to ask one of respondent’s witnesses a hypothetical question.

This objection arises from the following facts. The witness for respondent was asked on direct examination if she had an opinion about the respondent’s fitness to have custody of her children and the witness replied that she did indeed have an opinion on that subject. However, she never stated what that opinion was or what she thought about respondent’s fitness (or lack thereof) to have custody of the children. Then on cross-examination the witness was asked the following question:

“Okay. I’m going to pose a hypothetical question to you and I just simply want "you to give me an answer regarding that. Would it have any bearing on your opinion of [the] fitness of a person to be a parent or to have custody of his or her children, if you subsequently learned that that person was having say male friends in the home while the children were in the home and were having male friends there to spend the night during the weekend and at other times during the week?”

There was an objection and the court sustained the objection by saying:

“COURT: I think the hypothetical would tend to test the witness rather than the party whose character is brought into question. I believe I’ll sustain that.”

The hypothetical question asked by petitioner on cross-examination was based on the fact that respondent’s witness had been questioned on direct examination concerning her opinion as to the fitness of the mother (respondent) to have custody of her children. Respondent’s witness, however, never expressed her opinion on this subject; thus, the latter’s opinion in respect to respondent’s fitness as a mother was never placed in evidence. And it is quite generally stated in various decisions by the courts of this jurisdiction that a hypothetical question asked of a witness cannot be based upon facts which are not in evidence. Gamble, McElroy’s Alabama Evidence, § 130.01 (3d ed. Samford Univ. 1977). Consequently, if the trial court sustains an objection to a hypothetical question based on facts not in issue as it did in this case, such a ruling will be upheld on appeal.

Petitioner also claims that the trial court erred by stating that respondent’s adulterous behavior prior to the divorce was irrelevant to the current proceedings.

This matter arose when respondent was asked on cross-examination if she had, prior to the divorce, a sexual relationship with a young man by the name of Johnny Gray. She stated that she had had such a relationship but that it ended in 1974 and had never been renewed. Respondent’s counsel objected and moved to exclude the answer. The court overruled the motion and allowed the answer into evidence, but nevertheless stated:

“COURT: I’m not sure it has any relevance at all. I tend to disregard it as something that occurred previous to the divorce. If he connects it up with a subsequent event I’m inclined to let it in for whatever it is worth.”

It appears to this court that the trial judge was merely ruling that despite the fact that the testimony was admissible, he would give little weight to it since it concerned a matter which occurred prior to the divorce of the parties.

In a case relied upon by petitioner, Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797 (1965), the trial court took the position that evidence relating to conduct prior to the divorce could not be considered in a proceeding for modification of that decree. The supreme court, however, concluded that:

“. . . facts which were known but not disclosed to the trial court in the original proceeding may be considered in a proceeding for modification, for neither the silence of the parties to the original proceeding nor any agreement entered into by them can prevent a court from looking after the interests of its ward.”

Likewise, in the case at bar, the trial judge should have and did admit the testimony regarding sexual activity by respondent pri- or to the divorce; however, the weight that is to be given such testimony is the prerogative of the trial court. In the instant case the trial court indicated that the evidence would receive little weight and he was not in error for so indicating. A determination as to the weight to be given testimony presented to a trial court while that court is sitting as a trier of fact is fully within the discretion of the court since one of the primary functions of a trier .of fact is to weigh the evidence before it and reach its conclusions according to the weight given to each portion of evidence presented.

The final issue presented to this court for review concerns petitioner’s contention that the trial court erred in awarding an attorney’s fee to respondent. This contention is based on two grounds: (1) petitioner argues that respondent was not entitled to any attorney’s fee because she did not present evidence at trial which proved the value of the legal services rendered in her behalf; and (2) he urges that even if the court did not err in awarding the respondent an attorney’s fee, the amount of $750 which was awarded was excessive.

This court held in Godec v. Godec, Ala.Civ.App., 346 So.2d 459 (1977), that in a divorce action a wife was not required to prove the reasonable value of her attorney’s services in order to permit the court to make an award of an attorney’s fee. Accordingly, the absence of evidence bearing on the reasonableness of the award of an attorney’s fee by the trial court in the present case did not preclude the court’s right to make such an award.

Since the trial court had the authority to make an award in this instance, we must also consider whether the award is excessive.

In Phillips v. Phillips, 277 Ala. 2, 166 So.2d 726 (1964), the supreme court said:

“. . . Attorneys for the wife in a divorce action are entitled to a reasonable fee for their services commensurate with their labor and skill involved, the results of the litigation and the earning capacity of the parties, and such allowance rests in the sound judicial discretion of the trial court . . .

After a careful examination of the record in the case before us, we are unable to say that the trial court abused its discretion in awarding respondent’s attorney a fee of $750.

As we have indicated in this opinion, the trial court committed no reversible error. Thus the trial court’s judgment is due to be affirmed.

Respondent has requested that this court award her a reasonable attorney’s fee for the services performed by her counsel in defending this appeal. We consider $300 to be a reasonable fee in this matter and thereby award respondent an attorney’s fee in this amount.

ATTORNEY’S FEE AWARDED.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Ex parte Wendell Allen STEWART.
    77-267.
    Supreme Court of Alabama.
    Feb. 3, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Jimmy Earl HALL v. STATE.
    4 Div. 534.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Dec. 20, 1977.
    Jack W. Smith for Smith & Smith, Do-than, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the offense of selling marijuana and the Court sentenced him to seven years imprisonment in the penitentiary. Throughout the trial proceedings appellant was represented by counsel of his choice and at arraignment pleaded not guilty. After sentence was imposed appellant gave notice of appeal. His sentence was suspended pending appeal and he is free on bond in the amount of seven thousand dollars.

The evidence is in sharp conflict. The evidence adduced by the State made out a clear-cut sale of a bag of marijuana to a Mobile Police Officer who was on loan to the Dothan Police Department and assigned to the Narcotics Division as an undercover agent. Appellant denied that he sold the undercover agent a bag of marijuana and further denied being in the automobile at the time the alleged sale took place.

The Mobile Police Officer, David Havard, testified that he arrived in Dothan, Alabama, on March 28,1976, to work undercover in the Narcotics Division. He stated that he conferred with officers in Dothan and was given the name of Jimmy. Earl Hall who was suspected of dealing in the sale of narcotics. He said he met Hall at The Club in Dothan which was a nightclub, and he asked Hall if he had any “pot” for sale. Hall told him he had a couple of bags. Hall and Havard got in the back seat of an automobile driven by a man by the name of Carlos Fiddes. On the passenger side of the car driven by Fiddes was a man named Hatfield Wilder. As Fiddes was driving around the block Hall reached under the car seat and pulled out a plastic bag containing green plant material and told Havard the price was $20.00. They returned to the nightclub and Havard gave Hall $20.00 and took the bag and left the nightclub. The date was April 15, 1976, and the time was around 10:00 p. m.

Officer Havard was working under Sergeant Wallace Williams of the Dothan Police Department, and he called Sergeant Williams the next morning and made arrangements to meet him that afternoon at a designated place. The two officers met and Havard delivered the plastic bag to Williams. At the same time, Havard gave Williams the tag number of the car in which he purchased the bag from appellant Hall and a description of the automobile. The tag number was 38-26350 and the car was a 1970 LeMans with black vinyl over white top two-door hardtop. When the description of the car was given during the trial, appellant spoke out saying, “That is my car.” A check was run on the tag registration and it revealed that this tag was issued to Carlos Fiddes.

Sergeant Wallace Williams testified that Officer Havard called him on or about April 15,1976 and gave him a report on appellant. They agreed to meet the following afternoon at an agreed place and Officer Havard gave him a plastic bag containing green vegetable matter. He said he put this bag in a white-envelope with the name Carlos Fiddes on it as he was the owner of the car driven at the time of the purchase. Williams sealed the envelope, put his initials on it, and also put appellant’s case number, 76041007, on the envelope. He stated that he gave this sealed envelope to Officer Robert Sorrells to deliver to the Enterprise Crime Laboratory.

Richard Dale Carter, State Toxicologist, who was in charge of the Enterprise Crime Laboratory, whose qualifications were admitted by the defense, testified that he examined the contents of the sealed envelope and that it contained 18.19 grams of marijuana.

When the State rested, appellant made a motion to exclude the State’s evidence on the grounds that the State had failed to prove the corpus delicti and that the evidence was insufficient to convict the defendant. This motion was overruled.

Appellant makes two contentions in urging a reversal of this case: (1) The evidence was insufficient to convict, and (2) the classification of marijuana with hard drugs is unconstitutional as a denial of due process and equal protection of the laws. We do not agree with either of these contentions.

There was positive and unequivocal testimony that Officer Havard purchased the marijuana from appellant. The appellant’s denial that he sold the marijuana to Officer Havard made and presented an issue for the jury to resolve. The jury resolved this issue against the appellant.

Conflicting testimony is for the jury, and a verdict rendered thereon will not be disturbed on appeal. Waters v. State, 55 Ala.App. 646, 318 So.2d 342, certiorari denied, 294 Ala. 773, 318 So.2d 346. 7 Ala.Dig.Crim.Law, «=>1159.3(1).

Appellant’s second contention is equally without merit under the holding of the Supreme Court in Boswell v. State, 290 Ala. 349, 276 So.2d 592. See also the following cases, Warren v. State, 52 Ala.App. 35, 288 So.2d 817; Sawyer v. State, 50 Ala.App. 490, 280 So.2d 196; Kenny v. State, 51 Ala.App. 35, 282 So.2d 387.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Jimmy Earl HALL.
    77-247.
    Supreme Court of Alabama.
    Feb. 3, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Jessie HOUSTON v. STATE.
    6 Div. 154.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Dec. 6, 1977.
    Larry Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

Jessie Houston, the appellant, was indicted for the first degree murder of his wife. A jury found him guilty of manslaughter in the first degree and fixed his punishment at ten years imprisonment. Accordingly the trial judge entered judgment and sentence from which Houston appeals. Houston has been ably represented by retained counsel both at trial and on appeal.

We are presented with two issues on appeal: (1) The prosecutor’s comments on the post-arrest silence of the accused and (2) the admission of a photograph of the deceased.

For the most part the facts are not disputed. On August 20, 1974, Houston was scheduled to pick up his wife from work at 11:00 P.M. at the Carraway Methodist Hospital in Birmingham, Alabama. Having been drinking that afternoon, Houston was late in arriving for his wife. When Mrs. Houston got in the car she made a remark about the fact that her husband had been drinking and slapped him. The argument continued and Mrs. Houston kept slapping and hitting her husband. Finally she hit him in the eye with her fist and almost caused Houston to wreck the car. After this the evidence is in dispute.

In a transcribed version of a tape recorded confession, Houston stated that “I just jumped out (of the car) and I just started _ When she said she was shot. I turned around and took her to the hospital.” Sergeant Albert Wallace of the Birmingham Police Department testified that he took Houston’s confession and that, before the statement was tape recorded, Houston told him that he got out of the automobile and then shot his wife.

At trial, Houston denied making this statement and testified that after his wife hit him in the eye he saw her reaching for a pistol which he kept under the driver’s seat. A struggle ensued and a number of shots were fired while both Houston and his wife were inside the car. Then Houston got out and realized that he had the pistol in his hand.

Mrs. Houston was shot twice in the back under the shoulder blade. The pistol was fired four times. There were no powder burns or residue on either Mrs. Houston’s clothing or body. A toxicologist testified that the wound (both bullets entered at approximately the same location) was neither a “contact wound” nor a’“near contact wound.”

I

The major issue presented by this appeal is whether the state prosecutor may comment on either the silence or refusal of the accused to make a statement after his arrest and after he has been advised of his Miranda warning. Because this is an issue of first impression before this court and because of the importance we attach to that issue, we find it necessary to quote at length from the trial record.

The first objected to remarks were made by the prosecutor in his opening argument to the jury.

“MR. JOHNSON: No questioning was done of Jessie Houston, done at this time. He didn’t offer to make any statements to them. The police officers found out his name—
“MR. WAITES: We object to this. I’m sorry to interrupt.
“THE COURT: That’s all right.
“MR. WAITES: But he’s making comments about this man not making a statement. That is improper. At no time can the prosecutor comment on something like that. I object to it, may it please the Court.
“THE COURT: Sustained.
“MR. JOHNSON: Your Honor, that is in no way commenting about the evidence. That is just what I expect the evidence to show. There was no statement made.
“THE COURT: I understand that but I further understand the defendant is not required to make a statement.
“MR. JOHNSON: I understand that.
“THE COURT: The jury may not understand that. I sustain the objection and instruct the jury that the defendant at no time has to make a statement unless he desires to do so after proper warnings.
“MR. JOHNSON: The point is there was no statement made there. That is the point I want to make.
“MR. WAITES: Sorry, I have to object again.
“THE COURT: Overruled.
“MR. WAITES: We except.
“MR. JOHNSON: Jessie Houston was taken to the Homicide Bureau of the Birmingham City Hall. There he was asked if he would make a statement and he said he didn’t want to—
MR. WAITES: Now that is what I object to, the whole thing, may it please the Court. That is improper. A man has a right to stand on his right not to make a statement and the fact that he refused at some point not to make a statement or any indication of that is improper. It is improper argument and improper testimony.
“THE COURT: I will sustain the objection. I have already instructed the jury that the fact that he did not make a statement is of no significance whatsoever. He is not required to make a statement in anywise, shape or form.
“MR. JOHNSON: Of course, Your Hon- or, that is very true and Mr. Waites can bring all of that up in his closing argument but I am just telling them what the evidence is going to be.
“THE COURT: I understand that but I think it is objectionable.
“MR. JOHNSON: Well, eventually he did make a statement—
“MR. WAITES: Now I object to that, if your Honor please, eventually. Again it is implying that he did make a statement at some point.
“MR. JOHNSON: He did make a statement.
“THE COURT: Overruled.
“MR. WAITES: We except.”

In the state’s direct and redirect examination of Sergeant Wallace, the prosecutor adduced testimony of the fact that Houston refused to make a statement following his arrest.

“Q. Did you ask him whether or not he wished to make a statement at that time?
“A. Yes, sir, having these rights in mind, do you wish to talk to us now.
“Q. What did he say?
“A. He said no.
“MR. WAITES: We object to the question and object to the answer and we move that be excluded, may it please the Court.
“THE COURT: Overruled. I’ve already instructed the jury on that I think at the time we had the voir dire.
“MR. WAITES: We except, may it please the Court.”
* * * * * *
“Q. What happened up there? Did you drink coffee? Was there a period where you all had coffee or something like that before you started talking?
“A. No, sir.
“Q. What happened, as you recall?
“A. Like I say, I advised him of his rights and he at that time said he didn’t wish to make a statement.
“MR. WAITES: Sorry Judge, I believe I have to object to that to protect the record, and I do.
“THE COURT: Overruled, we have gone into that.”

And finally, in closing argument, the prosecutor again referred to the refusal of the accused to make a statement following his arrest.

“MR. ROGERS: . . . had four hours to think about what he was going to say. The first time, no, I don’t want to talk—
“MR. WAITES: I object to that, may it please the Court, an improper statement about the defendant exercising constitutional rights.
“THE COURT: Overruled.
“MR. WAITES: We except.”

The principle forbidding the prosecution to use evidence of defendant’s post-arrest, post-Miranda warning silence for substantive purposes or as evidence of defendant’s guilt is soundly established and based on fundamental principles of our jurisprudence. In Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966) the Supreme Court of the United States announced in dictum that

“it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

Though this issue has never been before the Supreme Court, lower federal courts have uniformly held that a defendant’s silence during police custody and interrogation cannot be admitted on the question of guilt. F. O’Keefe, “Impeachment By Silence,” 25 Cleveland State Law Review 261, 271, n. 65. See also Wigmore, Evidence § 821, n. 3 (J. Chadbourn rev. ed. 1970) for a listing of recent state cases which have considered the effect of Miranda on tacit admissions (silence) by the accused. On this issue it has been asserted that the court’s pronouncement in the Miranda dictum “leaves little doubt that silence or a claim of the privilege made in response to a police accusation during custodial interrogation is inadmissible.” C. McCormick, Law of Evidence § 161 (2d ed. 1972); Booton v. Hanauer, 541 F.2d 296, 298 (4th Cir. 1976). Generally see West Digest, both federal and state, under Criminal Law, Key Number 407(1).

Not only is the prosecutor forbidden to use as evidence of substantive guilt the fact of defendant’s silence following his arrest and Miranda warnings but the state may not constitutionally impeach a defendant’s trial testimony with proof of post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976).

“Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S. [171] at 177, 95 S.Ct. [2133], at 2137 [45 L.Ed.2d 99]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in . United States v. Hale, 422 U.S., at 182-183, 95 S.Ct., at 2139, put it very well: “ ‘. . when a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony .... Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’ ” Doyle, supra, 96 S.Ct. 2244.

It is the opinion of this court that Doyle, supra, and the considerable body of case law both prior to and in the wake of Miranda give the force and effect of law to the Miranda dictum. Thus we hold that the use of the post-arrest, post-Miranda warning silence of the accused as evidence of his guilt is a violation of the Due Process Clauses of both the Fourteenth Amendment to the Constitution of the United States and Section Six of the Alabama Constitution of 1901. An accused has the constitutional right to remain silent following arrest and where the accused remains silent, his silence can be attributed to reliance on this right. That silence may not be used to support an inference that his trial testimony is a later fabrication. People v. McClure, 42 Ill.App.3d 952, 1 Ill.Dec. 617, 356 N.E.2d 899 (1976); United States v. Moore, 484 F.2d 1284 (4th Cir. 1973). Counsel for the prosecution must scrupulously avoid all reference to or use of an accused’s assertion of his right to remain silent. United States v. Wycoff, 545 F.2d 679, 682 (C.A.Cal.1976).

A comment on or evidence of the post-arrest silence of the defendant or his refusal to give a statement may not be ineradicable and may be cured by prompt corrective action by the trial court. Jones v. Wyrick, 542 F.2d 1013 (C.A.Mo.1976); McClure, supra. An error involving an infringement of a defendant’s constitutional right can be held harmless only if the court is able to declare beyond a reasonable doubt that the error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Here the error was not harmless. On four separate occasions throughout the course of the trial reference was made to the fact of the defendant’s silence. Only on one of these occasions did the trial judge sustain defense counsel’s objection and instruct the jury. Had the trial court sustained the objections, instead of overruling, and admonished the jury that the argument was improper, the prosecutor’s comments would not have constituted reversible error. Adkins v. State, 265 Ala. 666, 93 So.2d 522 (1957).

“When there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error. .
“The infusion of ‘harmlessness” into error must be the exception, and the doctrine must be sparingly employed. A miniscule error must coalesce with gargantuan guilt, even where the accused displays imagination of Pantagruelian dimensions.” Chapman v. United States, 547 F.2d 1240, 1250 (5th Cir. 1977).

In this instance we cannot declare beyond a reasonable doubt that the prosecutor’s comments were harmless because of the prosecutor’s continuing references to the silence of the accused and the failure of the trial court to sustain each and every objection by defense counsel to the improper argument and testimony.

II

In view of our decision we specifically refrain from ruling on the admissibility of the photograph of the deceased. However, on retrial, we strongly urge the state to reevaluate the necessity for the introduction into evidence of such a picture in light of the argument advanced by the appellant on appeal against its admissibility.

Because of the several references to the silence of the accused following his arrest and Miranda warning the judgment of conviction is due to be reversed and remanded for new trial.

REVERSED AND REMANDED.

All Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-210.
    Supreme Court of Alabama.
    Feb. 3, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Bessie S. WILLIAMS, alias v. STATE.
    3 Div. 754.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Rehearing Denied Dec. 20, 1977.

      Charles Langford for Gray, Seay & Lang-ford, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The appellant, Bessie S. Williams, alias, was indicted for the first degree murder of one Charles Jackson “by shooting him with a pistol.” The jury found the appellant guilty of murder in the second degree and fixed punishment at fifteen years imprisonment. The trial court entered judgment accordingly, and, following the filing of a motion for new trial and a hearing thereon, overruled same.

Phillip Paradise, Jr., testified that he was employed by the Montgomery Fire Department, and he identified a photograph of one Charles Jackson, an uncle by marriage, who is now deceased.

Leroy Fuller, an employee of the Pekin Cafe in Montgomery, Alabama, stated that on the evening of September 23, 1976, he attended a high school football game at Cramton Bowl, accompanied by Charlie Briggs, Betty Floyd, and the appellant, Bessie Williams. The group took a bottle of wine and a bottle of gin. Upon leaving the football game, they stopped at the “Cozy Room” on the corner of Monroe and Lawrence Streets where each had one beer. The group then drove to the “Cool Breeze,” or “House of Breeze,” a night club on Cleveland Avenue. While there, the group encountered Charles Jackson, the deceased, who was “spinning records.”

According to Fuller, the appellant, Bessie Williams, was “back and forth through the place, having some beers and dancing.” She was observed seated at the bar, talking with the deceased, Charles Jackson. Fuller indicated they were there about two hours, and that he went outside to the car and went to sleep. He stated that he sent word through a friend to Charles Jackson that he would be sitting outside to drive him home. Fuller stated that he was awakened by the sound of some noise and an argument between Charles Jackson and Bessie Williams. Fuller indicated that Jackson and Williams had gotten in the car, then began tussling, and their feet were inside the car and their bodies outside on the sidewalk. From the record (R. pp. 15-16):

“Q. And what happened after that?
“A. And Bessie got in and they started tussling.
“Q. Okay.
“A. And by that time they went out of the car. Their heels were in the car, but they was outside the car.
“Q. Okay. What happened?
“A. After that a shot fired once and by that time I got out the car, but when I got around, around the back of the car, she was standing with the pistol pointed and he was sitting in the car and at that time she shot him.
“Q. Okay. Let me ask you this, please. You’re saying Charles Jackson got in the car and was sitting down when the Defendant got in the car?
“A. Yes.
“Q. All right. Now, where was Deborah Robinson, please?
“A. Her and Bessie come out together.
“Q. Okay. They came out together, about the same time?
“A. Yes.
“Q. Okay. Did you know whether or not the Defendant, Bessie Williams, had a pistol?
“A. I know she used to have one.
“Q. Okay. Did you say anything to either Bessie Williams or Deborah Robinson in reference to a pistol or the whereabouts of a pistol while they were tussling out there?
“A. I said something about the pocketbook.
“Q. And what did you say about the pocketbook?
“A. I said: Give me your pocketbook or something like that. I said something about the pocketbook.
“Q. And who did you tell that to?
“A. Anne Robinson.
“Q. And what did Anne Robinson say, or do you recall?
“A. I can’t recall that.”

On cross-examination, Fuller indicated that he had had several glasses of wine and beer during that evening as he was tired, that he had gotten up before 6:00 o’clock that morning. He admitted giving the police officers a signed statement that evening concerning the shooting, in which he stated he saw Deborah Robinson trying to get into the car, but that she did not make it because Charles Jackson and the appellant were “tussling.” Fuller stated that the appellant’s head and shoulders were on the ground, and that the deceased was on top of her when he heard the first gunshot. He stated he got out and ran around the car, then saw the appellant fire a second shot into the automobile in the direction of Jackson, the deceased. Fuller estimated that just a few seconds elapsed between the two shots.

Fuller also indicated that immediately after the shots were fired, the appellant and Deborah Anne Robinson got in the car and asked him to take them to the emergency room at St. Margaret’s Hospital. Fuller indicated that he and Jackson were good friends and had formerly worked together at T. G. & Y. in Montgomery.

Deborah Anne Robinson, an employee of the Pekin Cafe in Montgomery, indicated that on the night of September 23, 1976, she, accompanied by Bessie Williams, the appellant, Charlie Briggs, and Leroy Fuller, went to a high school football game at Cramton Bowl. Robinson indicated that the group stopped by the “Cozy Room” and had one beer each, then drove over to the “House of Breeze” on Cleveland Avenue in Montgomery, Alabama, arriving there shortly before 11:00 o’clock in the evening. Robinson indicated that she sat “at the bar, drinking a few beers and danced.” She stated that Charles Jackson, the deceased, was the disc jockey there, and there was a record hop going on. She stated that Bessie Williams was observed having a few beers, dancing, and talking with Charles Jackson. She stated the group stayed there until about 1:00 the next morning when they walked outside, that Fuller was already in the car waiting for them.

Robinson stated she overheard part of the conversation between Jackson and Williams, that Jackson was “fussing because Williams had ordered a bowl of soup and pig feet and she told Jackson that he was going to pay for it.” She stated the argument was over the food and who was to pay. Robinson indicated that she heard the appellant tell Charles Jackson “that she was going home, she didn’t care if he didn’t go, but she was going because she had to go to school.” She stated that the two began “tussling and arguing,” and the “way I seen it, Bessie hit Charles first.” From the record (R. pp. 44-45):

“Q. Okay. And then they started tussling; and you got out of the car, is that correct?
“A. Yes.
“Q. What, if anything, did you see then? “A. Bessie going for her gun.
“Q. Okay. And where was the gun, if you know?
“A. In her bra.
“Q. Okay. Had you seen that gun earlier that night?
“A. Yes.
“Q. And where was it when you saw it earlier?
“A. Me and Bessie went to the bathroom together and she took it out of her pocketbook and put it in her bra.
“Q. Took it out of her purse and put it in her bra?
“A. Yes.
“Q. Okay. Now, how many shots did you hear out there that night, please? “A. Two.
“Q. Okay. Now, when you heard the first shot, where was Charles? What were they doing, if you recall?
“A. The way I seen it, he was in the car.
“Q. Okay. When you heard the second shot where was Charles?
“A. In the car.
“Q. Okay. What was he doing in the car on the second shot?
“A. He was laying back.
“Q. Okay. Now, what, if anything . Where was Bessie Williams when you heard the second shot?
“A. She also was in the car.
“Q. She was in the car or was she standing out beside the door? Where was she?
“A. The way I seen it she was in the car.
“Q. She was in the car and Charles was in the car lying back. Where were you then, please?
“A. In the car.
“Q. When you heard the shots, I mean.
“A. Standing beside the car door.
“Q. Standing beside the car door. Okay, now, what if anything, did Bessie do after she shot Charles?
“A. She said she done shot Charles and told Leroy to take her to the Emergency.
“Q. Now, did you ever see Charlie with a weapon?
“A. No.
“Q. Was Charlie beating her when you heard the second shot?
“A. I ... No.
“Q. Did you go down to Police Headquarters that night? Did you see the police at the hospital or anywhere out there that night?
“A. Yes.”

Robinson indicated that she did not give the police a statement that night because “she was scared and nervous.” She identified a purse which she said contained the pistol used by the appellant that night.

On cross-examination, Robinson indicated that she had quite a few drinks that night, but that the appellant “passed the first lick,” and she heard two shots. She admitted on cross-examination that when she heard the first shot, Charles was on top of Bessie, and that she had stated this to the appellant’s attorney. She further indicated that she told the appellant’s attorney, “It seemed the appellant was struggling to get the pistol.” Robinson also indicated that later she gave the police a statement concerning the incident in question.

Richard A. Roper, State Toxicologist, stated that he performed a post-mortem examination on one Charles Jackson on September 24, 1976. He found a wound “located in the forehead on the right side.” He further indicated that during the course of his examination, several bullet fragments were found and removed. He stated that “death resulted from central nervous system trauma or, a brain injury, and inter-cranial hemorrhage, or bleeding, inside the skull. So, central nervous system trauma; intercranial hemorrhage, subsequent to a single gunshot wound to the head.” Dr. Roper indicated that the wounds were consistent with a .22 pistol shot, that he performed a blood alcohol test and the blood contained alcohol at a level of .15 per cent, and that Jackson “would be considered to be unequivocally intoxicated.” Dr. Roper stated the body measurement was a height of five feet, nine inches, and the weight was approximately a hundred and sixty pounds.

Montgomery Police Detective Lawrence G. Rutland testified he first saw Bessie Williams on September 24,1976, at St. Margaret’s Hospital in Montgomery. Rutland testified that he advised the appellant of her “Miranda rights” before any questioning, and that the questioning took place at Police Headquarters after she was brought there by Officers Stewart and Evans. He stated that he questioned her for about ten minutes in Room 204 at Headquarters after first advising her that she did not have to give any statement, that it could be used in evidence against her, that she had a right to confer with an attorney, and that one would be appointed for her if she could not afford one.

Rutland also stated that the appellant was offered no hope of reward, or any inducement whatever, and there was no threat or intimidation of any kind made in order to obtain a statement. He indicated that the appellant did not appear to be intoxicated, but had been drinking, that she gave him an oral statement, which he wrote down in notes, but that she declined to sign a written statement. From the record (R. pp. 77-78):

“THE WITNESS: She told me that they had been inside . . . That she had been at Cramton Bowl to a ball game and she got this Fuller subject to carry her to the House of Breeze. She stated that once they got to the House of Breeze that they was having a record hop there and that Charles Jackson was part of the record hop — this was her boyfriend that she went there to meet. She stated she had something to eat in the House of Breeze and once they got ready to go that her and Charles Jackson got into an argument as they was en route to the car about the stuff that she had charged there at the House. She stated that en route to the car was when they got into the argument and at this time he had slapped her and knocked her down and this was when she reached for her pistol because she knew that Charles Jackson normally carries a pistol on him. This is when she fired the pistol, while she was on the ground.
“MR. PRICE: Thank you. I have no further questions.”

On cross-examination, Officer Rutland indicated that at the hospital he only obtained the names of witnesses and then they transported her to Police Headquarters. Rut-land further stated that after typing up her statement and reading it back to her, Bessie Williams stated “she did not want to sign it.” She stated to Rutland that she was willing to give an oral statement, but did not want to give a written statement until she talked with her attorney. This statement was made after advising her of her right to have an attorney.

The appellant then took the stand for the limited purpose of testifying concerning the voluntariness of her statement to Police Sergeant Rutland. She stated that she talked with Rutland at Police Headquarters for about ten or fifteen minutes in a room, and there was no one else present. Williams indicated that Rutland told her it was necessary to get fingerprints and a photograph made, that she told Rutland that she did not want to do anything before talking with an attorney, and that she did not want to answer any questions. She denied being given a warning before giving an oral statement.

Montgomery Police Identification Officer T. R. Shanks stated that he examined the clothing of Charles Jackson and found no weapon in them.

The appellant’s motion to exclude the State’s evidence was overruled. Also, the appellant made a motion to reduce the degree of homicide as to each degree thereof, and this was denied.

Reverend Joseph W. Bozeman indicated that he was pastor of King Hill Baptist Church in Montgomery, and that Bessie Williams had attended his church for the past five and one-half years. He stated that he was familiar with her reputation, and that she was a nonviolent person and honest.

Montgomery Sheriff’s Deputy Billy White identified a pistol permit issued to Bessie Williams on June 23, 1976, for a CDM .22 caliber pistol. He stated the reason given for the permit was “self protection.”

Bessie Williams, age twenty-eight, testified she lived with her mother and three children at 3324 West Tuskegee Circle in Montgomery, and that she was employed at Empire Rouse Cleaners. She testified on the night of September 23-24, 1976, she went with Ethel Floyd, Charlie Briggs, Leroy Fuller, and Anne Robinson to a high school game at Cramton Bowl, that after the game, they stopped by the “Cozy Room” and had a beer. The group then rode with Leroy Fuller to the “House of Breeze” on Cleveland Avenue, arriving there between 10:30 and 11:00 p.m. She stated that Charles Jackson was the disc jockey there, and they had a beer and danced. Williams indicated that she had known Charles Jackson for approximately two and one-half years and had dated him in the past.

Bessie Williams indicated that the group left around 1:00 a.m. because she was to go to school that day. She stated that Charles Jackson had asked Leroy Fuller to take them home, and Fuller was waiting outside in the car for them. Appellant stated that she ordered some food and asked Charles Jackson if he minded paying for it. She stated she ordered a bowl of stew and “pickled pig feet,” that Jackson got mad and said she had been ordering food off and on and charging it to him. She denied making a statement that she was going to get Jackson when they got home because she was not going home that night. Williams indicated that she asked Deborah Anne Robinson to ride home with them, that Jackson had been drinking a lot, and she did not want to ride home alone with him. Williams indicated that when Jackson drank a lot he became aggressive, that he had struck her two or three times in the past.

Williams indicated that she, Deborah Anne, and Charles Jackson left the House of Breeze, walking toward Fuller’s car, which was directly across the street. She stated that Jackson got in the car first, and as she was trying to place the food in the car, Jackson began shoving and pushing her. She stated that Jackson hit her with his left hand and she threw up her hands to protect herself. She stated Jackson’s blow knocked her out of the car, that her head and shoulders hit the pavement, and it made her “sort of dizzy.” Jackson was then on top of her trying to choke her, and she heard Jackson ask Fuller to look in her pocketbook for her pistol. She said that Jackson then began trying to reach under her blouse, and she pulled her pistol and fired once straight up in the air. Jackson then jumped back in the car, and she saw his hand go into his pocket as though to pull a weapon, and she fired one time in his direction. Williams stated she had no intention of killing Charles, and that she then asked Deborah Robinson and Fuller to take them to the hospital.

On cross-examination, Williams indicated that Jackson had been drinking a good deal that night, but that she had had only two or three beers at the “Cool Breeze” before the argument over the food.

The appellant was then asked about certain statements which she gave Detective Rutland on the morning of September 24, 1976, at Police Headquarters.

The appellant’s attorney, at trial, objected to the laying of this predicate, saying that such statements were not shown to have been voluntary, and were in violation of Miranda. Following the overruling of this objection, the appellant did indicate that she gave Detective Rutland a statement, but denied stating that Jackson was seated in the ear, and that she walked over to the car and shot him. The appellant stated that she had gotten completely into the car and was attempting to place the food out of her hands when Jackson began pushing her and hitting her. She denied being intoxicated or feeling high, and said she had one gin and tonic, and possibly three beers that evening.

Montgomery Police Detective L. G. Rut-land was recalled to the stand and stated that after briefly speaking to the appellant at St. Margaret’s Hospital, she was taken to Police Headquarters by two other officers. Detective Rutland stated that at Police Headquarters, and before talking with her, she was fully advised of her “Miranda rights,” as follows (R. p. 129):

“City of Montgomery, Alabama, Department of Police. Name: Bessie Williams; Black Female; Place: Detective Office; Date: 9/24/76; Time: 3:20 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. 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. It is typewritten: Bessie Williams, and she refused to sign.”

Detective Rutland stated that while the appellant did appear to have been drinking, she was not intoxicated and indicated that she fully understood her rights, that there was no coercion, inducement, intimidation, or threat made or offered in order to obtain her statement. From the record (R. pp. 132-133):

“Q. Okay. I ask you specifically whether or not . . . where the Defendant told you Mr. Jackson was when she shot him in the head?
“A. Well, she stated that the first time she fired the pistol that she was lying on the ground and he was crouched over her. She stated she fired the pistol at this time; he backed up to sit down on the edge of the seat of the car and she walked over toward the vehicle and fired again.
“Q. Okay. Did the Defendant . will you state, then, as to what the Defendant told you in respect to where she was when they first started tussling; whether or not they were in the back seat of the car or whether or not they were walking toward the car?
“A. She told me that they had just left the House of Breeze and was going toward the car.
“Q. Did she tell you what allegedly took place between the house and the car in respect to whether or not Mr. Jackson slapped her, hit her, pushed her or what?
“MR. MANDELL: We object to the leading question.
“THE COURT: Sustained.
“MR. PRICE: I will withdraw and rephrase it, Your Honor. Did she tell you with respect to what took place, if anything, between she and Mr. Jackson on the way from the house to the car? “A. She told me that she had purchased some food inside the Housb of Breeze and that she and Jackson got into an argument about this — He had to pay for the food. On the way to the car they were still having some discussion or argument about this and at this time he slapped her.
“Q. She told you that he slapped her on the way to the car?
“A. That’s right, and she fell to the ground.
“MR. PRICE: I have no further questions.”

On re-cross-examination, Detective Rut-land indicated that his testimony on rebuttal was based upon notes made at the time of talking with the appellant at Police Headquarters. He indicated that he wrote the conversation down verbatim after conferring with her from 3:20 to 3:30 a.m. on September 24, 1977, in the interrogation room at Police Headquarters. He stated that she was the only witness he talked with concerning the shooting of Jackson, that he wrote out her statements, had them typed up, but she declined to sign the statements.

I

The appellant asserts that the trial court erred in allowing testimony to be given by Detective Rutland concerning the statements made by her at Police Headquarters on the morning of the incident in question without first determining that such statements were voluntarily given, and that the appellant was properly apprised of her constitutional rights.

We have carefully examined the testimony of Detective Rutland, which affirmatively reflects that the appellant was properly advised of both her “Miranda rights,” and also that there was no coercion, intimidation, hope of reward, threat, or inducement made in order to obtain her statements. The record discloses that she was interrogated for about ten to fifteen minutes at Police Headquarters before making her oral statements in the police interrogation room at Police Headquarters.

No intimidation or abuse of the appellant is here shown by the record. We are of the opinion that the trial judge’s conclusion that the appellant’s statements were voluntary is adequately supported by the facts, Shewey v. State, 48 Ala.App. 730, 267 So.2d 520, and therefore the trial judge properly admitted the appellant’s alleged statements into evidence in this cause. Bills v. State, 49 Ala.App. 726, 275 So.2d 706, and authorities therein cited.

II

Appellant next contends that the trial court erred in not granting her motion for a mistrial based upon the District Attorney’s remarks and his “flamboyantly” waving the statement while interrogating the appellant on cross-examination. This matter is as follows (R. pp. 122-124):

“Q. Now, Ms. Williams, do you recall telling the police that Mr. Jackson was sitting in the car and you walked over to the car and shot him?
“A. No, I was standing right by the door.
“Q. Well, you do recall giving the police a statement that night, is that correct?
“A. Yes.
“Q. Okay. Will you now look, then over this statement and read it?
“MR. MANDELL: Your Honor, again—
“THE COURT: Sustained.
“Q. Well, to refresh your present recollection, can you testify about what you told the police that night without the aid of the statement?
“MR. MANDELL: I believe she has testified—
“A. I told you what I could tell you about it.
“Q. And in your opinion, then, you have testified accurately about the statement?
“A. Yes.
“Q. Okay. Then, I’ll ask you again: Did you recall telling the police that Mr. Jackson was sitting in the car and you walked over to the ear and shot him?
“A. No.
“Q. Would you say, if that is what’s in the statement—
“MR. MANDELL: I object, Your Honor.
“THE COURT: Sustained.
“MR. MANDELL: And make a motion to exclude that.
“THE COURT: So granted. The jury will disregard the last statement by the District Attorney.
“MR. PRICE: Well, Your Honor—
“THE COURT: Sustained.
“MR. PRICE: Your Honor, maybe the jury should go out again.
“THE COURT: Ladies and gentlemen, will you please step back out.
“(Whereupon, the following was held out of the presence of the jury as follows:)
“MR. MANDELL: Your Honor, at this point I would like to make a motion for a mistrial. If you will just let me state, if I may, that is far beyond the bounds, to walk around with a police statement to the jury and say this police statement that I have, here.
“MR. PRICE: I never said this police statement, Your Honor.
“MR. MANDELL: Well, just let me close to that, Your Honor. I know Your Honor granted the motion to exclude, but—
“MR. PRICE: Your Honor, I don’t know how—
“THE COURT: Just a moment—
“MR. PRICE: How I could impeach the witness—
“THE COURT: Just a moment. The motion is hereby denied. I have granted your motion to exclude that statement to this jury and it’s the Court’s opinion that that has cured anything. I have also admonished counsel for the State not to walk around with any kind of police statement any more in his hands, period, and the statement is not to be carried around nor is it to be referred to as a statement. You may ask her whether or not she told the police that night, questions. You may ask those questions. If she denies telling the police anything such as that you may call in the officer to whom those questions were made by and he may testify that she told him certain things, but that is not a statement by this witness.
“MR. PRICE: Well, only this witness can say whether this is a statement by her, Your Honor. I know it’s not signed, I know it’s not signed—
“THE COURT: I am telling you the proper procedure to follow. Any other procedure, if you do it again, I am going to grant a mistrial.
“MR. PRICE: Well, Your Honor, I will just join in the motion for a mistrial now.
“THE COURT: Both motions are denied. Now, are we ready to go back?
“MR. PRICE: I guess we are, Judge.
“THE COURT: Then, let me see both counsel in my chambers.”

In Shadle v. State, 280 Ala. 379, 194 So.2d 538, we find the following:

“. . . [I]t is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion. . . . ”

In light of the prompt admonishment of the trial judge to the jury and the admonishment to the attorneys, we are of the opinion that no error is here shown. Napier v. State, Ala.Cr.App., 337 So.2d 62; and Retowsky v. State, Ala.Cr.App., 333 So.2d 193.

Ill

The appellant’s attorney excepted to the oral charge of the trial court pertaining to its charge which included the provisions of Title 14, Section 316, Code of Alabama 1940. This section is as follows:

“Same; killing in sudden rencounter with concealed weapon. — When the killing in any sudden rencounter or affray is caused by the assailant by the use of a deadly weapon, which was concealed before the commencement of the fight, his adversary having no deadly weapon drawn, such killing is murder in the second degree, and may, according to the circumstances, be murder in the first degree.”

Under the evidence in this cause, the State’s witnesses testified that Jackson, the deceased, was unarmed, and that Williams “struck the first blow.”

Under this statement of the evidence, the trial court properly included the above Code section in its oral charge. Thus, no error is shown.

Likewise, the use of the .22 pistol by the appellant constituted a proper basis for the trial court to charge on the question of malice. Likewise, no error is shown.

IV

Appellant’s counsel submitted a large number of written requested charges which were refused by the trial judge.

A large number of these were affirmative in nature, and therefore properly refused under the conflicting evidence.

As to the remaining refused charges, we have carefully examined each and find that such were either incorrect statements of applicable law, argumentative under the evidence and therefore invasive of the province of the jury, or were fully and substantially covered in the trial court’s oral charge, therefore their refusals were proper. Title 7, Section 273, Code of Alabama 1940; Prince v. State, 50 Ala.App. 368, 279 So.2d 539, cert. denied, 291 Ala. 796, 279 So.2d 549.

We have carefully reviewed this record, as required by law, and find same to be free from error. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte Bessie S. WILLIAMS.
    77-235.
    Supreme Court of Alabama.
    Feb. 3, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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