author: BRADLEY, Judge.

text:
    John L. GWIN v. Fannie S. GWIN.
    Civ. 463.
    Court of Civil Appeals of Alabama.
    July 16, 1975.
    Gilmore & Keahey, Grove Hill, Howell, Johnston, Langford, Finkbohner & Law-ler, Mobile, for appellant.
    Edward P. Turner, Jr., Chatom, for ap-pellee.
   BRADLEY, Judge.

This is a divorce case.

The appellant, John L. Gwin, filed the original bill of complaint seeking a divorce from appellee, Fannie S. Gwin, on February 27, 1973. The ground for the divorce was incompatibility of temperament. Ap-pellee answered on March 12, 1973 by denying the allegations of the complaint. On June 25, 1973 appellee amended her answer and filed a cross-bill seeking a divorce from the appellant on the ground of incompatibility of temperament; a division of property; $500 per month as alimony; and attorney’s fees. On May 9, 1974 a hearing was held by the court on the matter; and, on June 6, 1974, a decree was rendered by the court wherein the appellee was granted a divorce from appellant on the ground of incompatibility of temperament; a division of property was ordered; periodic alimony in the amount of $60 per week was awarded, plus $2,000 to partially take care of appellee’s present indebtedness; and $350 as an attorney fee. The appeal is from that decree.

The parties to this proceeding were married on April 21, 1966 and finally separated January 7, 1972. Prior to the final separation there were four other separations lasting about three months each. There were no children born of the marriage, although appellee had four children by a former marriage that lived with them. She received $100 per month for the support of the children from the former husband. At the time of the trial the appellant, a disabled WWII veteran, was sixty years old, and the appellee was forty-six years old.

The parties jointly owned a house and lot on Woodland Drive in Jackson, Alabama valued by an independent appraiser at $23,050, on which there was a $14,900 mortgage outstanding; and a house and two lots in Wagarville, Alabama valued according to appellant at $14,500. The independent appraiser set the value at $6,600. The property was mortgaged, but the evidence does not reveal the amount.

The appellee owned a house and lot in Wagarville, Alabama free and clear of any indebtedness. The appellant owned a building on Forest Avenue in Jackson, Alabama valued at $15,400 with an $8,000 mortgage outstanding. The appellant also owns a dry cleaning business and two laundromats in the City of Jackson, Alabama. He stated he had been in the dry cleaning business about twenty-seven years. The income from these businesses was his main source of income with the exception of a monthly VA disability pension in the amount of $28. Appellant stated that his business equipment was twenty years old and valued at $8,000. An outside appraiser valued the equipment at $20,620. Appellant said he had recently sold $6,000 worth of equipment and the remainder was subject to a $30,000 mortgage held by the Merchants Bank of Jackson, Alabama.

One of the laundromats is located in a building in Jackson, Alabama owned by appellant. He paid $12,500 for the property but said it is run-down and is now valued at $500. An independent appraiser set the value at $20,000.

Appellant said he owned the building housing the dry cleaning operation and estimated its worth at $20,000; however, it was subj ect to a $20,000 indebtedness.

The evidence showed that appellee had worked prior to and subsequent to her marriage to appellant. In 1972 appellee had an operation and has not worked since that time. She stated that she would go to work when her doctors released her. The evidence also showed that only one child was living with appellee at the time of the trial.

Appellant has argued several assignments of error in brief, the first contending that the trial court erred in ordering the sale of a jointly owned house and lot on Woodland Drive in the City of Jackson, Alabama with the proceeds to be divided equally between the two parties. Appellant offers several reasons why the trial court erred in this aspect of the case, the first being that the trial court failed to bring in as parties the mortgagee and the person renting the premises so that their interests would be protected.

The record clearly revealed that Home Savings and Loan Association of Mobile, Alabama held the mortgage; and the decree provided that the proceeds of the sale would be divided equally between the two owners. We think it clear that the trial court decreed the net proceeds of the sale be divided between the owners, which would be the amount left after deducting the mortgage and the cost of the sale.

Appellant also says that there was no proof that an equitable partition could not have been made between the joint owners and cites our case of Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert. den. (appellee’s) 287 Ala. 740, 249 So.2d 860, cert. den. (appellant’s) 287 Ala. 740, 249 So.2d 861. In the Prosch case, the property in question consisted of 365 acres of farmland and we did hold that there must be proof that partition in kind could not be made prior to the execution of a property sale. We think it rather obvious that when the evidence shows that the property ordered to be sold for division is a dwelling house on a city lot, proof exists that an equitable partition could not be made.

Appellant further says that the decree ordering the property to be sold within sixty days or a judicial sale by the register would be required had the effect or would have the effect of a sale for less than what the property was worth. We disagree.

The trial court had the authority to order a sale of the jointly owned property. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308. And, we think the court could have directed the sale to be made originally by the register. But the court did not do this; instead, it permitted the parties to find a willing buyer so that the property would not be sacrificed. We find no error in this aspect of the decree.

The next argument put forth by appellant concerns the alimony aspect of the decree. He first says that alimony in gross and periodic alimony cannot be combined in the same decree. He says that the $2,000 cash payment required to be paid to appellee was alimony in gross and the $60 a week was periodic alimony. As authority for his contention, appellant cites our case of Welch v. Welch, 49 Ala.App. 647, 275 So.2d 162.

We did hold in Welch that alimony in gross and periodic alimony could not be awarded in the same decree, but the supreme court in Hager v. Hager, 293 Ala. 47, 299 So.2d 743, overruled that part of the decision in Welch, and the present rule is that the two awards in the same decree are not incompatible.

The next argument put forth by appellant is that the award of $2,000 in cash to appellee was error for that the decree directed that the award be used, “ . . . to partially take care oí her present indebtedness.” In support of this argument, appellant cites Leo v. Leo, 280 Ala. 9, 189 So.2d 558, for the proposition that the husband cannot be required to pay debts, other than medical bills, incurred by the wife during the separation of the parties where the husband did not expressly or impliedly assent thereto.

The record reveals that after the separation and before the award, appellee had incurred doctors’ bills of $304, and had borrowed $2,050 from her sister to purchase an automobile and to buy groceries.

In the case at bar the decree did not require the husband to pay particular debts owed by the wife as was the case in Leo v. Leo, supra. It simply gave appellee $2,000, as partial compensation for her indebtedness. As we construe this part of the decree, the $2,000 could be used by her for any purpose, including the payment of debts. This aspect of the decree simply amountd to an award of alimony in gross.

Appellant next raises the point that the periodic alimony of $60 a week is excessive and the trial court erred in requiring appellant to pay this amount.

The evidence in the present case as to the income of appellant is very sketchy.

Appellant’s income tax returns showed that he had a net loss in 1973 of $706, and net income of $2,392 in 1972, $9,252 in 1971, and $9,938 in 1970.

The income tax returns also show that depreciation was taken in the amount of $6,780.12 in 1970, $5,785 in 1971, $5,656 in 1972, and $6,847 in 1973.

The work sheet prepared by appellant’s accountants and introduced in evidence show that during 1973 appellant had obtained from his business cash in the amount of $5,292 through a drawing account.

In Leo v. Leo, supra, the supreme court said that an award of approximately fifty percent of the husband’s income as periodic alimony would not be excessive. In the instant case, appellee’s periodic alimony award was about $240 per month. This would amount to $2,880 on an annual basis. Based on the evidence before the trial court, we cannot say that the Leo rule was violated. No error here.

No prejudicial error appearing in the record of this case, the judgment of the trial court is affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    In re John L. GWIN v. Fannie S. GWIN. Ex parte John L. Gwin.
    Civ. 463-A.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1975.
    Wyman O. Gilmore, Grove Hill, for petitioner.
    Edward P. Turner, Jr., and S. J. Laurie, Chatom, for respondent.
   BRADLEY, Judge.

The petitioner, John L. Gwin, seeks review by certiorari of a decree rendered by the Circuit Court of Clarke County on January 21, 1975. In that decree petitioner was adjudged to be in contempt for failure to comply with a previous decree wherein he was required to pay periodic alimony in the amount of $60 a week. The contempt decree ordered petitioner to pay $1,800 back alimony or be incarcerated in the county jail.

The record now before us shows that on June 6, 1974 petitioner was ordered to pay his former wife $60 per week as periodic alimony; that petitioner at the time of the rule nisi hearing, i. e., January 21, 1975, was in arrears with his payments in the amount of $1,800; and that petitioner had paid no alimony in response to the divorce decree.

The former wife testified that petitioner was still operating his dry cleaning and laundromat business, and that he still owned all of the property left to him by the divorce decree. She also stated that she did not know the financial condition of his business enterprises.

Petitioner testified that he was still operating his dry cleaning business but had closed down the laundromat and had placed it for sale.

Petitioner’s bookkeeper submitted records showing that for the year 1974 petitioner’s business had lost $619.18, but those records also revealed that petitioner had drawn from the business during the year cash in the amount of $2,220.00. Furthermore, those same records revealed rental income received by petitioner in the amount of $3,023.66.

Petitioner testified that he had lived off the rental income, and that he was still heavily in debt to a local bank.

In brief petitioner says that he did not pay the alimony for the reason that he was financially unable to do so, and pointed to his business records for the year 1974 which show a loss.

When the husband has the means to pay alimony but willfully and contemptuously refuses to do so, he may be compelled through the use of contempt proceedings to pay. Ryan v. Ryan, 267 Ala. 677, 104 So.2d 700. But, the lack of ability to pay is a complete defense. Ex parte Stephenson, 252 Ala. 316, 40 So.2d 716.

Petitioner contends that he is unable to pay the $1,800 back alimony and, therefore, should not be found in contempt. Yet, by his own testimony, he had rental income of $3,023.66, and by his own financial records, he drew $2,220 from his business^-operation during the year of 1974. We think the evidence clearly shows that the petitioner had the ability to pay the $1,800 back alimony he was deemed to owe his former wife.

Therefore, the trial court’s judgment finding the petitioner in contempt should be, and is, affirmed.

Affirmed.

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


author: HOLMES, Judge.

text:
    Donald G. JOLLY v. CITY OF BIRMINGHAM, a Municipal Corporation.
    Civ. 493.
    Court of Civil Appeals of Alabama.
    Aug. 27, 1975.

      Carl E. Chamblee, Birmingham, for appellant.
    Charles H. Wyatt, Jr., Birmingham, for appellee.
   HOLMES, Judge.

This appeal questions the validity of a municipal ordinance of the City of Birmingham imposing an occupational license tax.

The trial court found the ordinance constitutional, granted the city’s motion for a directed verdict, and allowed the jury to determine the amount due.

Appellant argues that the ordinance is invalid in that its enactment violated Act No. 452 of the Legislature of Alabama, Regular Session 1955; he further argues that the ordinance is, in fact, a proscribed tax on income in violation of § 89 of the Constitution of Alabama; he also urges error in that the ordinance violates the 5th and 14th amendments to the Constitution of the United States by its exemption of persons earning $3,000 or less from its application and operation; he additionally urges that he has been deprived of the equal protection of the laws in that he has been “singled out” for enforcement of the ordinance; and it is finally contended that due process and equal protection of the laws have been denied appellant in that discriminatory and burdensome record keeping is imposed upon him by the ordinance, and that the ordinance unjustifiably discriminates between classes of taxpayers.

I

The pertinent parts of Act No. 452, as codified in article 46, subdivision 3, § 1617, Appendix of the Alabama Code, Vol. 14A, provide procedures for the preparation and adoption of the budgets of cities having the mayor-council form of government. The pertinent parts of § 1617 at pages 973 and 974 require that:

“5. A balanced budget. — In no event shall the expenditures recommended by the mayor in the general fund budget exceed the receipts estimated, taking into account the estimated cash surplus or deficit at the end of the current fiscal year, as provided in subsection 4, unless the mayor shall recommend an increase in or levy of new or increased, taxes or licenses within the power of the city to levy and collect in the ensuing fiscal year, the receipts from which, estimated on the basis of the average experience with the same or similar taxes during the three full tax years last past, will make up the difference. If estimated receipts exceed estimated expenditures, the mayor may recommend revisions in the tax and license ordinances of the city in order to bring the general fund budget into balance. The same balanced budget restrictions shall apply in the adoption of any public utility budget.
“8. Publication of notice of public hearing. — At the meeting of the council at which the budget and budget message are submitted, the council shall determine the place and time of the public hearing on the budget, and shall cause to be published a notice of the place and time, not less than seven days after the date of publication, at which the council will hold a public hearing. Publication shall be made at least once in a daily newspaper published and of general circulation in the city. At the time and place so advertised, or at any time and place to which such public hearing shall from time to time be adjourned, the council shall hold a public hearing on the budget as submitted, at which any citizen of the city shall be given an opportunity to be heard, for or against the estimates or any item thereof.
“9. Action by the council on the general fund budget. — After the conclusion of the public hearing the council may insert new items of expenditures or may increase, decrease or strike out items of expenditure in the general fund budget, except that no item of expenditure for debt service, or any other item required to be included by this subdivision or other provision of law, shall be reduced or stricken out. The council shall not alter the estimates of receipts contained in the said budget except to correct omissions or mathematical errors and it shall not cause the total of expenditures as recommended, by the mayor to be increased without a public hearing on such increase, which shall be held not less than three days after notice thereof by publication in a newspaper of general circulation published in the city. The council shall in no event adopt a general fund budget in which the total of expenditures exceeds the receipts and available suA plus, estimated as provided in subsection 4 of this section, unless at the same time it adopts measures for providing additional revenue in the ensuing fiscal year, estimated as provided in subsections 2 and 5 of this section, sufficient to make up the difference.
“10. Adoption of general fund budget.— Not later than the 20th day of August of the current fiscal year, the council by a majority vote shall adopt the general fund budget, and such ordinances providing for additional revenue as may be necessary to put the budget in balance. . . . ”

The ordinance in question, imposing a tax upon occupations practiced within the City of Birmingham, was originally recommended to the council in order to balance the proposed budget; at this time its rate was three-fourths of one percent. After the public hearing was held, the rate was increased to a full one percent, which appellant contends was violative of that provision of subparagraph 9, as quoted above, forbidding alteration of receipts. The ordinance in this form, and the budget, were then adopted. As such, appellant urges the invalidity of the ordinance.

However, even conceding for the purpose of this opinion the correctness of appellant’s contention as to the violation of subparagraph 9 as it relates to the budget, the ordinance in question, to wit, the occupational license tax, must not necessarily fall due to the infirmity in the budget. The procedures of § 1617 apply only to adoption of a budget, and to this court have no application to ordinances duly enacted in connection therewith. While a budget may be invalidated by failure to comply with § 1617, the validity of such an ordinance duly adopted in concert with such budget is completely without that section’s scope of application. No inference can be drawn from § 1617 which would warrant invalidating a tax law not passed in conformity with its procedures. While this court has found no Alabama cases directly in point and none are cited in brief, the Texas Court of Civil Appeals had occasion to consider a similar situation in Rachford v. City of Port Neches, 96 S.W.2d 167, wherein a tax levy was attacked in that the requirements of the state budget law were not complied with. In upholding the validity of the levy, the court said:

“We find nothing in it which would warrant the conclusion that the Legislature intended by such law to invalidate a tax levy in any case where no budget has been prepared or where the levy is not made in accordance with the budget. It may be that failure to comply with the requirements of the Budget Law will subject the offending officials to the penalties provided by the act, or warrant the interference of the courts to compel compliance with the provisions of the act, but failure to comply with it does not go to the validity of the tax levy. ...” (96 S.W.2d at 169)

We would further point out that the budget in question is the 1970-71 budget and the suit upon which this appeal is based was filed in 1974.

II

Appellant’s contention that the ordinance is a prohibited tax on income was settled by the Alabama Supreme Court in McPheeter v. City of Auburn, 288 Ala. 286, 259 So.2d 833; and Estes v. City of Gadsden, 266 Ala. 166, 94 So.2d 744. McPheeter and Estes held ordinances materially indistinguishable from the one in question to be occupational taxes valid uner the authority of Tit. 37, § 735, Code of Ala. 1940. Appellant seeks to differentiate the present ordinance by characterizing its exclusion of incomes under $3,000 as a graduation feature typical of income taxation. However, Estes, supra, upheld exclusion of the first $2,080 of income. Graduation is not a necessary component of an income tax, nor is an otherwise valid occupational tax transformed into an income tax by an exclusion provision.

Ill

While appellant contends that he has been deprived of the equal protection of the laws by the exclusion of persons earning $3,000 or less from the application of the ordinance, it is only blatantly arbitrary and unreasonable classifications which will sustain such a claim for taxation purposes. In State v. Spann, 270 Ala. 396, 118 So.2d 740, the Alabama Supreme Court upheld the constitutionality of an architects’ licensing statute which excluded from its application architects preparing plans for one or two family residences costing not more than $10,000. The court said:

“We believe that it is within the discretion of the legislature to determine at what point licensing is to begin and at what point it shall end. . . .
“We cannot say that we know all the reasons for the classifications under the action in question. This is not necessary however. It is within the scope of legislative authority to make classifications in its regulatory enactments. Unless clearly and patently arbitrary, oppressive and capricious on its face, such classification is not subject to judicial review. Mere inequality under such classification is not sufficient to invalidate a statute. . . . ”
(270 Ala. at 400, 118 So.2d at 743)

It cannot be said that a classification such as the present one, which operates to relieve those persons in the lowest income brackets from a taxation burden which would be unduly burdensome as to them, is patently unreasonable. See also Haden v. Watson, 270 Ala. 277, 117 So.2d 694; and State v. Pure Oil Company, 256 Ala. 534, 55 So.2d 843.

IV

There is nothing to indicate from the record that appellant has been the object of selective enforcement of the ordinance, as he urges in brief. Nor is there any reversible error shown by the trial court in ruling on certain evidentiary matters in this regard. Also, inconsistent enforcement of an ordinance constitutes no argument against the power to pass it. Dreyfus v. City of Montgomery, 4 Ala. App. 270, 58 So. 730.

V

There is no merit in appellant’s contention that discriminatory and overly burdensome record keeping has been imposed upon him in contravention of due process and equal protection of the laws. The maintenance of records is integral to any system of taxation. As such, requiring those citizens whose employer does not make reports to keep their own records cannot be found to be unreasonable.

There is no merit in the argument that the tax rate was increased from three-fourths of one percent to one percent without a public hearing, inasmuch as there is no such requirement as respects a licensing ordinance. The public hearing requirement of § 1617, subparagraph 8, is solely referable to adoption of a budget and has no application to enactment of an ordinance.

Appellant urges that a discriminatory condition is created by the fact the occupational tax imposes a greater burden upon those subject to it than upon those subject to other taxes. However, various taxes inherently impose varying burdens. So long as all within the class subject to the particular tax are treated equally, there can be no complaint.

The final contention of appellant is that the ordinance is unconstitutionally discriminatory in that persons residing within the city who are employed outside the city receive the benefits of the tax without being subject to its burden. The defect in this argument is that those who pay the tax do, in fact, receive its benefits, there being no actual diversion of the proceeds. That some who are not subject to the tax burden incidentally benefit thereby gives rise to no claim of discrimination.

All of the foregoing contentions of appellant were treated in accordance with the presumptions that an ordinance is presumed to be reasonable and valid, and that the burden is on the one challenging the ordinance to clearly show its invalidity. See Standard Chemical & Oil Co. v. City of Troy, 201 Ala. 89, 77 So. 383; City of Mobile v. La Clede Hotel Co., 221 Ala. 531, 129 So. 477.

No reversible error being found, this case is due to be affirmed.

ON MOTION

Appellee has filed with this court a motion to dismiss appellant’s appeal. The motion is based on the fact appellant failed within five days after perfecting his appeal to request the court reporter to transcribe the evidence as is required by Tit. 7, § 827(1), Code of Ala. 1940. Additionally, the transcript of testimony was not filed with the clerk of the circuit court within sixty days of the taking of the appeal. However, the learned trial judge granted an extension within thirty days after the expiration of the aforesaid sixty days. The trial court has such authority. See Johnson v. State, 269 Ala. 1, 111 So.2d 610; also Roberson v. McHenry, 46 Ala. App. 691, 248 So.2d 731.

This court, after careful consideration of appellee’s motion, finds the motion is due to be denied. We take particular note that the appeal was perfected on October 24, 1974; the transcript filed on February 19, 1975; and the record certified to this court on April 16, 1975. Put another way, only six ijnonths had elapsed from the taking of the appeal to the record being certified to this court. Therefore, no apparent subT stantial prejudice appears to have occurred by the appellant’s failure to comply with Tit. 7, § 827(1), Code of Ala. 1940.

Affirmed.

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


author: WRIGHT, Presiding Judge.

text:
    T. J. CARNES v. E. V. SHORES.
    Civ. 564.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1975.

      T. J. Carnes, pro se.
    No appearance for appellee.
   WRIGHT, Presiding Judge.

The question presented by this appeal is whether an attorney may intervene, after abandonment by his client, in an action to determine and collect the amount due under a prior decree for alimony. The purpose of such intervention being to establish and enforce an attorney’s lien under Title 46, Sec. 64 of the Code of Alabama (1940).

Appellant represented Dessie Lee Shores in a divorce suit against her husband, E. V. Shores. A decree of divorce and alimony was obtained. Approximately one year later Mrs. Shores secured the service of appellant for determination and collection of alimony due under the decree. Appellant filed a petition and other pleading on her behalf. Answer and cross-petition for modification of the previous decree was filed by defendant. Interrogatories were filed and answers obtained thereto by appellant. Hearing was set. Mrs. Shores subsequently notified appellant that she wished to abandon her petition and any contest of the petition of defendant. Appellant moved for leave to intervene and prosecute the matter to judgment so as to establish an attorney’s lien and enforce same against defendant.

The court denied the motion to intervene stating that there could be no enforcement of an attorney’s lien under Title 46, Sec. 64 until the suit had been prosecuted to judgment. As the suit had not resulted in a judgment, appellant could not intervene.

The court in ruling on appellant’s motion to reconsider stated that an attorney could intervene only in cases that had been settled by the parties without consent of the attorney for the purpose of defrauding the attorney of his fee.

Sec. 64, Title 46 of the Code provides for liens of attorneys. Subsection 2 of Sec. 64 is the only part of the section pertinent here. Subsection 2 reads as follows :

“Upon suits, judgments, and decrees for money, they shall have a lien superi- or to all liens but tax liens, and no person shall be at liberty to satisfy said suit, judgment or decree, until the lien or claim of the attorney for his fees is fully satisfied; and attorneys at law shall have the same right and power over said suits, judgments and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them.”

The trial court in its initial ruling on the motion to intervene cited the case of Peach v. Drennen, 253 Ala. 271, 44 So. 2d 257 as authority and quoted therefrom as follows:

“Though the lien is given on suits as well as judgments and decrees, there can be no enforcement of such lien until the suit has been prosecuted to judgment.”

This quotation came from the prior case of Wade v. Kay, 210 Ala. 122, 97 So. 129. It applied to the facts of that case. It clearly is not to be applied as a general rule when considered in the light of Subsection 2 of Sec. 64, Code. The Wade case was an action in equity to enforce an attorney’s lien alleged to have arisen from services rendered in another case. The statement by the court merely means that in an action to enforce a lien for attorney fees arising from service rendered in another case, such case must have been prosecuted to judgment. Subsection 2 of Sec. 64, of the Code plainly gives an attorney’s lien in suits for money together with the same power as their client to prosecute such suits to judgment so that the lien may be enforced.

It was said in the case of Bell v. Bell, 214 Ala. 573, 108 So. 375 as follows:

“The statutory lien attaches to the subject-matter of the suit, enforceable against the recovery. In cases to which it applies, it is a change of public policy theretofore obtaining insofar as it deprives the parties of control over lawsuits, and authorizes an intervening attorney to continue the litigation for the purpose of establishing the amount of his fee and enforcing its collection.”

It 'is true, as the trial court observed, that most cases of intervention by attorneys to protect their lien occur when clients attempt by collusion or settlement to avoid paying fees. The right given by statute is not limited to such cases. The purpose of the statute is to protect the attorney from loss of his investment in time, effort, learning and funds used in serving the interest of the client.

It has been held that the right to intervene in a suit given in Sec. 64 does not extend to actions for divorce and alimony. The principle stated in such cases is that such right would be an obstacle to reconciliation. Hindrance or reconciliation in such cases would be contrary to public policy. Bell v. Bell, supra; Johnson v. Gerald, 216 Ala. 581, 113 So. 447.

We do not find such reason for prohibition in the instant case. There was a judgment already in existence for monthly alimony. Divorce had been completed. The action here was for the purpose of enforcing the previous judgment which had become final. Payments already due under a decree for alimony represent a final judgment and are collectable as such. O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430; Blackwood v. Kilpatrick, 52 Ala.App. 505, 294 So.2d 753.

Appellant’s petition to intervene and prosecute the suit to a conclusion in this case is no different in principle than any other “suit for money,” as stated in the statute. We therefore hold that the court erred in denying the petition to intervene.

However, we point out that the burden of establishing proof of the client’s action against the defendant rests upon in-tervenor. It appears from the petition of intervenor that he perhaps is under the impression that he is entitled to establish an attorney fee against defendant for bringing the client’s petition. Such is not the case. He is entitled only to establish the amount of fee due from the client either from contract or on quantum meruit for value of services rendered up to the time of intervention. Bell v. Bell, supra. There is no right to an allowance of an attorney fee in favor of the wife and against the husband in a proceeding to enforce or collect an award already made. Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825; Jordan v. Jordan, 266 Ala. 386, 96 So.2d 809. The rule of these cases as applied to the facts of this case has not been changed by enactment of Title 34, Sec. 39(3). There has been no contempt of court citation issued in this case.

Reversed and remanded.

BRADLEY and HOLMES, JJ., concur.


text:
    Warren DILLON and Jean Dillon, jointly and severally v. C. T. NIX.
    Civ. 469.
    Court of Civil Appeals of Alabama.
    July 30, 1975.

      Vernon Z. Crawford and J. U. Blacksher, Mobile, for appellants.
    Fred F. Smith, Jr., Prichard, for appel-lee.
   HOLMES, Judge.

This is an appeal from a jury verdict in the amount of $3,750 and judgment thereon in a suit by appellee-plaintiff for malicious prosecution.

The record reveals that in 1968 the appellant-defendants instituted in a federal district court a suit alleging that appellee-plaintiff maintained a policy of racial discrimination in the operation of a trailer park owned by appellee. The federal court action sought injunctive relief and damages. This federal court action was later amended to include appellee’s mother and sister and appellee, in this appeal, was then stricken as a party defendant in the federal court action.

Thereafter, appellee, in the instant appeal, filed suit in the Circuit Court of Mobile against appellants, with the result as previously indicated.

Appellants present to this court several assignments of error, the dispositive one being that the learned trial judge erred to reversal in failing to grant appellants’ motion for a directed verdict after the close of the evidence in that appellee failed, as a matter of law, to prove malice on the part of appellant-defendants. This assignment of error is well taken and requires reversal.

We note at this point the argument of able counsel for appellee in brief that appellants are under a misapprehension as to the cause of action of appellee. Appel-lee contends the suit was tried on the theory of abuse of process and not malicious prosecution. We do not agree with appel-lee. The pretrial order clearly states that the controversy is based upon a suit for malicious prosecution. This order controls the course of the action. Rule 16, ARCP.

We further note that even if the issue had been tried under the theory of abuse of process, reversal would be required. Abuse of process is an action which rests upon improper use of regularly issued process. In order to maintain an action for abuse of process the existence of an ulterior purpose must be proven. Clikos v. Long, 231 Ala. 424, 165 So. 394. Without further elaboration, suffice it to say there is no evidence in this case of an ulterior purpose.

To prevail in an action for malicious prosecution based on a civil prosecution the proof must show first, a judicial proceeding; second, that it was instigated by the defendant; third, want of probable cause; fourth, malice; fifth, termination of judicial proceeding favorable to the plaintiff; and sixth, damage. Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555.

Malice in a malicious prosecution action has been defined as whatever is done willfully and purposely, whether the motive is to injury accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor. Gulsby v. Louisville & Nashville RR Co., 167 Ala. 122, 52 So. 392.

Malice may be inferred from the want of probable cause, or from defendant’s conduct, where such conduct will admit of no other reasonable construction. Hanchey v. Brunson, 175 Ala. 236, 56 So. 971.

Furthermore, in an action for malicious prosecution, malice is an inference of fact, not of law, and must be determined by trier of facts as any other issue of fact is tried, and may be inferred from an absence of probable cause unless facts disclose that defendant in malicious prosecution action was acting in good faith. Huffstutler v. Edge, 254 Ala. 102, 47 So. 2d 197.

Assuming the lack of probable cause, neither that fact nor the conduct of the appellants in this instance permits such an inference of fact on the issue of malice to allow submission thereon to the jury.

The evidence shows that appellant inquired as to who was the owner of the trailer park and was informed it was a “Mr. Nix.” The sign in front of the trailer park states “Nix’s Trailer Park.” Mr. Nix, the appellee here, resided at the trailer park. In fact, he was the only Mr. Nix residing there. There is no other evidence to the contrary.

Appellants then filed suit against the ap-pellee. After discovering who the real owners and operators were, appellant amended his complaint to include these persons. Appellee’s motion to be struck as a party defendant was granted on the same day the real parties were included. While appellee was not an owner or operator, one of the actual co-owners was his mother and the other was his sister. All three were represented by the same attorney.

For whatever value it may be, appellee himself testified that he had no malice toward the appellants, and as far as he knew, they had none against him; that he did not have to go to court; and that he was dismissed from the law suit.

One appellant testified, again for whatever value it may be, that based on the information given him the owner was a Mr. Nix and that appellee was the only Mr. Nix dwelling there. He “honestly believed” appellee was the owner and operator.

To this court it appears that the question of whether appellants had probable cause for bringing suit against appellee could be a question for the jury. American Discount Co. v. Ramsey, 28 Ala.App. 382, 184 So. 820. However, we are not of the opinion that appellants’ actions, under the facts of this case, even assuming lack of probable cause, give inference of malice. The most that can be said is that there was a mistake as to the proper party sued. When the facts became known, appellee was struck from the suit and the correct parties were included. In this instance, we find, as a matter of law, no malice as previously defined.

As Mr. Justice Merrill said in Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555, suits for malicious prosecution are "not favored in law.” This action has been hedged by limitations more stringent than those in the case of almost any other action which causes damages to another. Courts have allowed recovery only when the requirements limiting it have been fully complied with.

The judgment is due to be reversed and remanded.

Reversed and remanded.

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


author: HARRIS, Judge.

text:
    Roni BROWN v. STATE.
    3 Div. 353.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Benjamin E. Pool, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of grand larceny and sentenced to ten years imprisonment in the penitentiary. Appointed counsel represented him at arraignment and throughout the trial. He pleaded not guilty. After conviction he was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The facts relating to the theft are not in dispute. Appellant offered no evidence in his behalf.

At approximately 12:30 p. m. on August 16, 1972, two cases containing 14 diamonds of the aggregate value of $23,757.50, the personal property of Capitol Wholesale Distributors, Inc., a corporation, located on the Southern Boulevard in Montgomery, Alabama, were taken from the store by two white men.

Mrs. Susie Faile testified that she went to the jewelry department in the store on August 16, 1972, to return a ring and get a refund. While an employee went to get the manager to approve the refund, she saw two men standing at the jewelry counter looking at a catalogue. There were no other employees in the immediate vicinity of the jewelry counter. She saw the taller man raise the glass on the diamond case and the short man reach in the display case and take two diamond trays. The short man gave the tall man one tray and he put it inside his jacket and the short man kept the other tray. She saw them put the top down on the diamond display case. She then saw them turn around and walk a few steps toward the door and then they ran out of the store. Mrs. Faile called the saleslady and told her what she had seen. Mrs. Faile remained in the store until the officers arrived and she gave them a description of the two men.

She was recalled later in the trial and was shown state’s exhibit no. 16, which was a photograph of a line-up of six suspects and she positively identified the tall man as the one who lifted the glass from the counter while the short man took the two trays of diamonds. He was the fifth man in the line-up looking from the left to the right. She further testified that the man on the far left — the first man in the line-up — (the defendant on trial) resembled the man who took the diamond trays from the case, but she could not positively identify him.

Mrs. Betty Mitchell testified that she was employed by Capitol Jewelers and Distributors on August 16, 1972, and had been so employed for eight years. She was employed to work in the jewelry and diamond department. She testified that she remembered Mrs. Faile coming into the store to return a ring on that date, and she saw appellant in the store at that time. She said he was in the vicinity of the diamond department and remained there for a considerable length of time, that he was with the taller man and they were looking through a catalogue.

This witness further testified that the last time she observed appellant he was looking at rings on the diamond counter. She said the diamonds were taken at approximately 12:30 p. m. because ten minutes before that time she had observed the diamonds. During her dealings with Mrs. Faile she had gone to get the manager to approve the refund to Mrs. Faile and did not see the actual theft. She further testified that the top of the counter was glass and could be moved even though the counter was locked. She saw one end of the top sticking up and saw that two diamond trays were missing. She immediately reported to the manager that the diamonds had been stolen.

Mr. Christopher Filley testified that he was an employee of this store on August 16, 1972, but he left the store at 12:30 p. m. to buy a newspaper. He returned to the store at approximately 12:35 p. m. and saw two men running out of the door. Mr. Filley positively identified appellant as one of them and stated they ran to a 1970 or 1971 Cadillac, got in and drove away. He said the taller man was wearing red knit pants and a striped shirt and tie. He saw a black case in the hands of one of the men just like the cases his employer uses to display diamonds. He saw the car appellant was driving again at 2:00 p. m. the same day at the police station, and he identified the two men later in a line-up. He had observed appellant in the store from 9:00 o’clock a. m. until shortly before the theft at 12:30 p. m. on August 16, 1972.

This witness further testified that the short man had dark black hair and was a conservative neat cut; that the tall man had brown hair. He described the Cadillac as having a pale yellow body with a beige vinyl top.

Mr. Arthur Glenn Sexton testified that he was employed at Capitol Jewelers and Distributors as manager of the diamond department and was on duty on August 16, 1972. He further testified that he saw appellant, Roni Brown, on several occasions that day in the vicinity of the diamond department for approximately an hour or an hour and a half before the diamonds were stolen. He stated that a taller man was with appellant, and that he last saw them about 12:15 or 12:20 p. m. He said the tall man asked for a catalogue, and Mr. Sexton asked him if he could help him. He gave him the catalogue at the diamond counter. He spoke to appellant several times but did not see him take the jewels. Upon being notified that the diamonds were missing, he conducted an inventory of the department within thirty minutes and found two diamond trays were missing. He went into considerable detail in describing the missing diamonds and the value of each diamond. He was shown state’s exhibit no. 15 and testified this was a true and accurate photograph of the stolen diamonds. He then identified various metal tabs as being the tabs that were attached to the stolen diamonds as shown by state’s Exhibits Nos. 1-14. He further testified that he saw the diamonds and tabs at the police department on the date of the theft, and further identified them as the same tabs which had been attached to the diamonds stolen from his employer on August 16. The diamonds were surrendered to him by the police department on the afternoon of August 16.

The Montgomery Police Department sent out a radio dispatch giving a description of the automobile stating that it was occupied by two men, one tall and one short, and they were suspects in a diamond theft from Capitol Wholesale Distributors in Montgomery a short time prior to the dispatch.

Mr. C. E. Ward, a state trooper, picked up the radio dispatch while on patrol in Autauga County. He first saw appellant in the Cadillac automobile when he got out of the car at a service station at the intersection of Interstate 65 and U.S. Highway 31. He had a passenger with him who was much taller and he subsequently learned that his name was Crane. Mr. Ward walked up to appellant and told him he had a description of the car and that it had been involved in a theft from a jewelry store in Montgomery. The time was about one o’clock on the afternoon of August 16, 1972, — 30 minutes after the larceny.

From the record:

“Q. All right. What did you then do?”
“A. I went back and radioed or called headquarters and asked them to give me another description . . a full description of the occupants of the car. The type of clothes, and so forth. They checked it out and called and got a good full description, and, of course, these two subjects fit the description, and I told them that we would have to bring them back to Montgomery.”

Appellant was searched at the scene and Mr. Ward found fourteen diamond rings in a paper bag stuck underneath his belt in the back. The officer took custody of the diamonds and kept them in his exclusive possession and control until he turned them over to a city detective with the Montgomery Police Department. At trial he identified the metal tabs that were attached to the rings when he removed them from appellant’s person.

On cross examination, this witness said the Cadillac was a light yellow with a white top. That he frisked both men to see if they were armed and he did not find any weapons. He searched the car and found no weapons. He further testified that appellant did not deny taking the jewelry but did say that he had not been to Montgomery.

Mr. Ward viewed the line-up at the police headquarters and positively identified appellant and his companion in the line-up and also made a positive in-court identification of appellant.

The city detective to whom Mr. Ward gave the fourteen diamonds removed from the person of appellant testified that he gave appellant his rights by reading them to him from a Miranda card carried by all officers of the Montgomery Police Department. He then asked appellant if he understood his rights and he said he did. He was asked if he wanted to make a statement and appellant replied:

“I’m not going to tell you anything about it. There’s no need in me giving you any statement. I know y’all got us on this case.”

This witness was present when a photograph was made of the fourteen diamonds. After the proper predicate was laid this photograph was admitted in evidence over appellant’s objections that the diamonds were the best evidence. This witness removed the metal tabs from each diamond and was present when photographs of these tabs were made. He identified these at trial and after the proper predicate was laid, state’s exhibits nos. 1 through 14 were admitted in evidence over appellant’s objections.

This detective was present at the line-up and at the time a photograph of the line-up was made. He identified appellant as number one in the line-up and identified Ronald Crane as number five in the line-up. The proper predicate was laid and this photograph was admitted in evidence over appellant’s objections.

At the conclusion of the state’s case appellant made a motion to exclude the state’s evidence. This motion was overruled. He also requested the affirmative charge and it was refused.

A police radio message as to a felony involving fleeing suspects is sufficient to support a lawful arrest. Spurlin v. State, 46 Ala.App. 485, 243 So.2d 758; Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210; Fennell v. State, 51 Ala.App. 23, 282 So.2d 373; Daniels v. State, 290 Ala. 316, 276 So.2d 441; Turk v. State, 53 Ala.App. 106, 298 So.2d 37.

We are unwilling to hold that the evidence in this case is insufficient to establish the essential elements of the crime for which appellant stands convicted. The corpus delicti is a fact, proof of which may be shown by circumstantial evidence, and if there is a reasonable inference to prove its existence, the court should submit to the jury for consideration the question of the sufficiency and the weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Burleson v. State, 52 Ala.App. 399, 293 So.2d 317.

The photographs of the stolen items were properly admitted in evidence. Burleson v. State, supra.

The rule is best stated in McKee v. State, 253 Ala. 235, 237-238, 44 So.2d 781, 783:

“ ‘ * * * (T)he art of photography is generally relied on for depicting the resemblance of persons, objects, things and places and when verified by evidence, extrinsic of the photographs, going to show that they correctly depict the thing or object at the time they were taken, photographs are admissible in evidence in a criminal prosecution, if they tend to shed light on, strengthen or illustrate the truth of other testimony offered by the prosecution. * * * ’ ”

The fact the photographs are cumulative of other evidence offered by the prosecution does not render them inadmissible. King v. State, 43 Ala.App. 628, 198 So.2d 308.

Overruling appellant’s motion to exclude the state’s evidence was not reversible error where the evidence was sufficient to submit the question of his guilt to the jury. Young v. State, 283 Ala. 676, 220 So.2d 843.

The trial court gave at the request of appellant fourteen (14) written charges and refused only the charges that were affirmative in nature. There was no error in refusing the affirmative charges.

We have carefully searched the record for errors injuriously affecting appellant’s substantial rights and have found none. The judgment is affirmed.

Affirmed.

All the Judges concur.


author: •BOOKOUT, Judge.

text:
    Ronald J. CRANE, alias v. STATE.
    3 Div. 354.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Benjamin E. Pool, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen. for the State.
   •BOOKOUT, Judge.

Grand larceny; sentence: ten years imprisonment.

Testimony established that the appellant, Ronald J. Crane, and an accomplice Ronnie Brown stole fourteen diamond rings from Capitol Jewelers and Distributors in Montgomery on August 16, 1972.

Witness Susie Faile testified that around 12:30 P.M., on that date, she was at the diamond counter of the establishment returning a ring. She observed the appellant and another man at the same diamond counter. She testified that she observed the appellant lift the glass on the diamond case and the other man remove two trays of diamond rings. Appellant put one tray under his coat and both men ran from the store. The witness immediately reported the theft to Mrs. Betty Mitchell, a clerk in the diamond department.

Mrs. Mitchell testified that she had observed the appellant and Brown in the store at the time and on the date in question. She did not see them take the diamonds as she was at another counter obtaining authority for a customer’s refund. Mrs. Faile alerted her to the theft, and she notified Mr. Arthur Glenn Sexton of the diamond department of the store. Mrs. Mitchell observed the counter to have been locked, but the glass top had been displaced. She made a definite identification of appellant and Brown at the police lineup later that day.

Mr. Sexton testified that he had observed the appellant and Brown in the diamond department of the store on the date and at the approximate time of the theft. He did not personally see the theft, but on being informed of it, he examined the diamond counter and discovered two trays totaling fourteen diamond rings were missing. He identified the missing diamond rings at the police station later that day. He made an individual identification of the rings at that time and in court, he separately identified the tags which were attached to the rings. He testified as to the value, description and identification of each ring and the tags were introduced into evidence. Likewise, admitted into evidence was a photograph of the diamonds taken at the police station upon being identified by Mr. Sexton as depicting the rings stolen.

Christopher Filley, an employee of the store, was just returning from a break when he saw the appellant and Brown run from the store, get into a light colored Cadillac and speed off. He observed one had a black case in his hand similar to the diamond cases used by the store. The two passed within thirty feet of him, and he observed the direction in which théy drove. He had first observed appellant and Brown in the store around 10:00 A.M. that morning. He, likewise, made a positive identification of the two from a police lineup later that day.

Officer Clarence Edward Ward, an enforcement agent of the State Alcoholic Beverage Control Board testified as to the arrest and search of the suspects. He received a radio dispatch over the State Trooper network that two white males in a light colored Cadillac bearing a white or a black and white license tag had been involved in a theft. When the suspects stopped at a service station, the witness apprehended them. Before a search was made, he radioed for a more detailed description of the suspects to include their clothing. The description fit the suspects, and they were searched and fourteen diamond rings were found on Ronnie Brown. The witness said each ring had an identification tag on it, and he identified State’s Exhibits 1 through 14 as being those tags. He testified that he showed the rings with tags attached to Mr. Sexton who also identified them.

Counsel for appellant cross examined each witness for the State and offered one witness for the defense. Detective R. M. Lindsey testified he was unable to obtain any identifiable fingerprints from the diamond cabinet due to the prints being smudged.

There was no motion to exclude the State’s evidence after the State rested its case in chief. There was no exception to the court’s oral charge after additional instruction requested was given, and there was no motion for a new trial. Appellant filed a pretrial motion to suppress the evidence obtained by the search of Officer Ward, and renewed such motion verbally during trial, all of which were overruled by the trial judge.

I

Appellant contends that Officer Ward did not have probable cause to arrest or search him and Brown. We disagree. Officer Ward was a law enforcement officer of the state acting upon a State Trooper radio dispatch. The vehicle and occupants fitted the description given him by radio. A felony had been committed, and he had probable cause to believe the suspects may have committed the crime. Officer Ward testified in part as follows:

“Q. Now, what was the cause for your having had your attention centered on these individuals ?
“A. We received a broadcast over our radio that there had been a car involved in a theft, two subjects occupying a light colored Cadillac, a theft from the Capitol Wholesale and Jewelers. They said it would be two white males in the car and the car bearing a white or a black and white tag.
“Q. All right. Now, did you have occasion to see these individuals when they stopped their car ?
“A. Yes, sir.
“Q. Now, which one was driving the car when you first observed them ?
“A. Brown was driving.
“Q. Now, where was the defendant, Ronald Crane ?
“A. He was in the passenger’s seat in the front.
“Q. Now, what kind of a car was this?
“A. It was a Cadillac.”

On cross examination, he further testified concerning the search:

“Q. Mr. Ward, I want you to tell the Jury exactly what occurred relative to your radio information or any information that these two men were coming through your County in a Cadillac or describe the information and who related it to you.
“A. The broadcast came over the radio that Capitol Wholesale Jewelry had just had two subjects take — at that time, they said several trays of diamonds and leave there in a white or a light colored Cadillac and was last seen going west on the Bypass.
“Q. They said it was a white Cadillac.
“A. Light colored.
“Q. Light Cadillac.
“A. Yes, sir.
“Q. And what else did they tell you besides that ?
“A. They said it would be bearing a black and white tag and occupied by two white men.
“Q. And you didn’t have any description of the men that you were looking for except that they were white men. Is that right ?
“A. Two white men.
“Q. On the basis of that you went in there and made the search of these two men?
“A. After we got to them we called back for another positive check or description of the subjects, including the clothing, and we received it back and the description fit the two subjects.
“Q. But, this was after you had made your search and found the rings—
“A. No, sir. That was before.”

Justice Bloodworth sets out the law applicable to the facts of this case in his scholarly opinion in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). We hold the above testimony sufficient to establish probable cause to search without a warrant under the particular circumstances of this case. See: Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925).

II

Appellant contends the trial court committed reversible error in admitting into evidence a photograph of the stolen rings without proper authentication. The record shows the following sequence:

“Q. I show you State’s Exhibit No. 15. Will you look at that and identify that for the record, please ?
“A. This is a photograph of the diamonds taken at Police Headquarters after they had recovered them and I viewed them at Police Headquarters and this paid here.
“Q. Were these the diamonds that were missing from your store on August 16th, 1972?
“A. I would say that they were. Yes.
“Q. All right. Did you examine those diamonds on that day and date ?
“A. ' Yes, I did.
“Q. Did you determine that those were the diamonds ?
“A. Yes.
“Q. We offer State’s Exhibit — does this correctly and accurately depict the diamonds at the time that you saw them?
“A. This is a very technical question that you have asked me on this. It is difficult to look at a photograph and correctly identify the diamonds.
“Q. Did you look at the diamonds on the display ?
“A. Yes.
“Q. And these are the diamonds—
“A. Yes. These are the diamonds.
“Q. We offer State’s Exhibit No. 15 into evidence.
“MR. LOWERY: We object on the grounds that they haven’t established a
“THE COURT: The objection is taken under advisement.
“MR. LOWERY: All right, sir.”

The State next proceeded to have the witness identify and authenticate each of the fourteen tags which were previously attached to the rings. The fourteen exhibits were then offered into evidence along with Exhibit No. 15 (the photograph) and the following occurred:

“Q. We again offer State’s Exhibits 1 through 14 and these were the diamonds in this photograph ?
“A. Yes.
“Q. And State’s Exhibit No. 15.
“MR. LOWERY: We renew our obj ection.
“THE COURT: I believe we accepted 1 through 14 already into evidence—
“THEREPORTER: No, sir.
“THE COURT: We have not. They are received in evidence — 1 through 15, now. Cross-Examination?
“MR. LOWERY: Do you overrule our objection, Your Honor?
“THE COURT: Yes. Overruled and received.”

There is no question concerning the admissibility of Exhibits No. 1 through 14. They were properly identified, authenticated, were relevant and material. The photograph (Exhibit No. 15) was illustrative of the testimony of witness Sexton concerning the rings. The objection to Exhibit No. 15 apprised the court of no ground upon which to exclude it from evidence. In its incomplete form, it was nothing more than a general objection and was taken under advisement by the trial court. The first objection to Exhibits No. 1 through 14 was on the ground that no proper predicate had been established. After a predicate had been established for the tags to be admitted, they along with the photograph were combined in one offer to be introduced into evidence. The defense then merely stated, “We renew our objection.” Such procedure will not suffice to put a trial court in error.

The photograph was sufficiently authenticated, in our opinion, and even had it not been, its admission would have constituted only harmless error under Supreme Court Rule 45. Courts take judicial knowledge that photographs are generally relied upon for depicting the resemblances of persons, objects, things and places and when verified by evidence, extrinsic of the photograph, they are admissible if they tend to shed light on, strengthen or illustrate the truth of other testimony. McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950); King v. State, 43 Ala.App. 628, 198 So.2d 308 (1967); Cook v. State, 52 Ala.App. 159, 290 So.2d 228 (1974). We hold that the photograph met the above test and its admission did not constitute reversible error.

Ill

Refused charges 1, 13 and 14 were affirmative charges and properly refused. Refused charge 16 was substantially and adequately covered in the trial court’s oral charge and in given charges requested by the appellant. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied 292 Ala. 743, 290 So.2d 213 (1973).

The Circuit Clerk’s return to this Court’s writ of certiorari shows a corrected judgment entry establishing that there was a proper adjudication of guilt by the trial court after receipt of the verdict of the jury.

We have reviewed the record as required by law and find no error which would be prejudicial to the rights of the appellant.

Affirmed.

TYSON, HARRIS, and DeCARLO, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: TYSON, Judge.

text:
    Willie LEBO v. STATE.
    3 Div. 345.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    Rehearing Denied July 29, 1975.

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

The appellant was charged with the unlawful assault with intent to murder upon one Arthur Glover by hitting him with his fist. The jury found the appellant “guilty of assault and battery,” and fixed his fine of $500.00. The trial court, in addition, set sentence at thirty days imprisonment in the county jail as additional punishment. The appellant’s motion for new trial was overruled.

Mrs. Mattie J. Glover testified that she was the wife of Arthur Glover, and on December 8, 1973, as she was preparing supper, sh'e saw the lights on the truck at the front gap of a cattle gate, about one-half mile from their home. She also saw another green pick-up truck, which she recognized as belonging to the appellant. She testified that her husband was almost eighty-four years of age, that he was beaten badly about his head and face with a cut over his eye and blood running down his face, and that she took him to Professional Center Hospital where he was treated and remained for slightly over one week. She testified that she notified the Montgomery Sheriffs Department, who investigated.

Dr. George Peters testified that he examined Arthur Glover at Professional Center Hospital on the evening of December 8, 1973, and that he had “facial contusions, contusions of his abdomen, and a laceration of his left eye, which required several stitches,” that he remained under his care for approximately one week at Professional Center Hospital.

On redirect examination, Dr. Peters indicated that Mr. Glover had had hardening of the arteries which was a part of damage from a previous heart attack. Photographs made of Mr. Glover at the time he was admitted to the hospital were introduced in evidence.

Mr. Arthur Glover testified that he lived on the Alabama River, about twelve miles from Montgomery, on some land which he purchased in 1935; that this was in Montgomery County about one mile from the Washington Ferry Road. He testified that on December 8, 1973, shortly after 5:00 in the afternoon, he encountered Willie Lebo at the cattle gap, entering onto his premises, and that he had been driving his truck and stopped. He testified that he stopped his pick-up truck and saw the appellant walking toward him. He stated that the appellant did not say a word. From the record:

“Q What next transpired after he walked up to you ?
“A He walked up to me, and I thought he wanted to talk to me; but he didn’t say anything. He walked up and hit me with his fist some two or three times.
“Q Were you in the truck at that time ?
“A Yes, sir. I was in the truck.
“Q Did you try to get out of the truck ?
“A No, sir.
“Q After he hit you two or three times, what next transpired ?
“A I told him I was feeling bad, that I needed to go to the house and go to bed.
“Q What did he do then ?
“A And before he turned off there, he said that he was going to kill me. He was up on top of me hitting me, and he said, ‘I’m going to kill you.’
“Q All right sir. Where did he strike you? Show this jury and this Court where he struck you.
“A Well, I can’t tell you all the places he hit me. It was on the shoulder and on my face here and on my sides. He must have hit some 8 or 10 times. I don’t know just how many.
“Q Now, did he take his hand and open it up and slap you with it, Judge ?
“A No. He just hit me with his fist.
“Q Did he ball up his fist and hit you with it ?
“A Yeah, that’s right.”

Mr. Glover stated that Willie Lebo hit him eight or ten times about his face and stomach. He admitted on cross-examination that the two of them had had words before over some cattle getting on each other’s property. He testified that his wife carried him to Professional Center Hospital that evening, and he remained there for one week.

Bobby Milstead testified that he was employed as a deputy sheriff for Montgomery County on December 8, 1973. He testifed that in response to a sheriff’s radio call, he went to the home of Arthur Glover, a short distance off Washington Ferry Road on the late afternoon of December 8, 1972. He stated he saw the truck there near the cattle gap, which belonged to the appellant, that he spoke to Mr. and Mrs. Arthur Glover and saw that Mr. Glover was badly beaten, that Mrs. Glover was taking him to the hospital. He testified that he next saw the appellant about 8:00 that same evening at the Montgomery County Jail, that he was present when some photographs were taken of the appellant, that appellant’s hands were swollen and bloody, and there was blood on appellant’s shirt sleeve.

W. M. Pilgreen testified that he was a deputy sheriff for Montgomery County on December 8, 1973. He testified that he went to the home of Arthur Glover, that at a cattle gap leading onto the property he observed the appellant, Willie Lebo, and that he appeared to have blood on his hands. He testified that later that evening some photographs were made of the appellant at the Sheriffs Office after appellant was first advised of his Miranda rights. He testified that the appellant made no statement to him.

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

The appellant first sought to present the testimony of one Elmer McGuire, who lived near Hunter Station in the Western part of Montgomery County, and who was a neighbor of both the appellant and Arthur Glover. Through this witness, the appellant sought to present the testimony that Arthur Glover was mean and quarrelsome. This testimony was first admitted by the trial court, and then subsequently the jury was directed to ignore it and to strike this testimony from their consideration.

The appellant, Willie Lebo, testified that he was fifty-four years of age and lived on the Washington Ferry Road about 2.8 miles from the cattle gap leading to the premises of Arthur Glover. He stated that he was retired from the United States Air Force and that he leased some land adjoining the Glover’s property that was used for fishing.

He testified that on the late afternoon of December 8, 1973, he saw Mr. Glover near a cattle gap, that he stopped his pickup truck and tried to talk with Mr. Glover about leaving the cattle gap open, and the two men started arguing after he stated that he did not want the “Glover’s cows coming out on my land.”

He stated that Mr. Glover actually walked into him, bumping him, that he then threw up his hand and slapped Mr. Glover, that as Mr. Glover was arguing with him he slapped him three or four times with an open hand, and that he then saw Mr. Glover turn and go to get in his pick-up truck. He denied ever hitting Mr. Glover with his fist.

He testified that about thirty minutes after Mr. Glover departed, he saw someone drive near his pickup truck, that he heard a sound like a shotgun, and later observed what he thought to be three pellet marks on his windshield. The appellant stated that he made a complaint to the sheriff’s deputy that evening about this incident and stated that he and Glover had had words before about the cattle coming through the cattle gap onto his property.

On cross-examination, appellant stated that he did not know that Mr. Glover had a heart condition or hardening of the arteries, and that he did not say that he was going to kill him.

The appellant also presented a number of neighbors, who testified as to his good character and reputation in the community where he lived.

The State recalled Bobby Milstead, a deputy sheriff, who testified that he observed the appellant’s vehicle on the night of December 8, 1973, and that he saw no evidence of any bullet holes or shotgun pellet holes in the windshield at that time.

Arthur Glover was recalled and testified that he had lost two teeth as a result of being struck by the appellant on the night of December 8,1973.

The appellant called his wife, Dora Lebo, in rebuttal. She testified that prior to leaving their home on the later afternoon of December 8, 1973, there were no pit marks on the windshield of their truck, but that she later saw some when her husband showed them to her the next morning.

I

The appellant first contends that the State should not have been allowed to ask questions of his character witness, Elmer McGuire, on cross-examination as to the specific conduct, or acts, of the victim, Mr. Glover.

We have examined this incident and find that, in light of the negative answers, which were given by the witness, such questions were thereby rendered harmless. Robinson v. State, 44 Ala.App. 206, 205 So.2d 524; Peyton v. State, 40 Ala.App. 556, 120 So.2d 415, cert. denied 270 Ala. 740, 120 So.2d 429; Ellis v. State, 39 Ala.App. 325, 100 So.2d 725, cert. denied 267 Ala. 235, 100 So.2d 732.

We have also examined the ruling of the trial court wherein the jury was instructed that, in light of its own questioning of the appellant, himself, it was inappropriate under the circumstances of this case for the appellant to invoke the doctrine of self-defense (R. pp. 84 — 85). Therefore, any evidence as to Mr. Arthur Glover’s reputation for peace and quiet should be disregarded. This is correct under the evidence. Lawson v. State, 155 Ala. 44, 46 So. 259; McElroy’s Law of Evidence of Alabama, Volume I, Section 33.01(2).

II

After the jury brought in its verdict (R. p. 115), the trial court then made the following inquiry of the District Attorney before imposing an additional thirty days imprisonment as punishment:

“(JURY EXCUSED)
“THE COURT: The fine was $500. There is a question in my mind as to whether any time ought to be added to it since it was such a severe beating and uncalled for and unprovoked, and there was no excuse for it whatsoever. What did you-all offer him ?
“MR. EVANS: From assault and battery to 30 days, Judge.
“MR. SMITH: Your Honor, the fine ought to be adequate.
“THE COURT: The whole thing is, a man was beaten very severely, and there wasn’t any excuse for it.
“MR. SMITH: Yes, sir.
“THE COURT: I don’t think it was murder. Of course, he could have murdered him if he wanted to; and it was just by the grace of God he didn’t have a heart attack while he was beating on him. I don’t know what the cost would be. I’ll put blank number of days for cost.
“MR. SMITH: Yes, sir.
“THE COURT: Are you going to pay the fine now ?
“MR. SMITH: Yes, sir.
“THE COURT: Do you have anything to say why the sentence of law should not now be imposed upon you ?
“THE DEFENDANT: No, sir.
“THE COURT: Upon the jury’s verdict of guilty of assault and battery and affixing a fine of $500, the Defendant is found guilty of assault and battery and fined $500 plus blank number of days for the cost. In addition thereto, I sentence you to 30 days in the County Jail.”

We see no error in the court making this inquiry as to the District Attorney’s recommendation since this is a proper and rightful function of the District Attorney in the exercise of his authority. Ex parte State ex rel. Bailes, 235 Ala. 133, 177 So. 752. Moreover, such is not binding upon the trial court, but is a proper function of the District Attorney in advising the court as to his opinion of the disposition of the cause. In light of this, we see no error in the trial court’s obtaining this information before setting sentence in this cause. Ex parte State, supra; and Mullis v. State, 258 Ala. 309, 62 So.2d 451, and cases cited therein. Title 14, Section 33, Code of Alabama 1940.

Ill

Finally, the appellant asserts as error the failure of the trial court to give certain written requested charges, and asserts as error the failure of the trial court to make a proper oral charge.

From the record:

“THE COURT: . . . State satisfied?
“MR. EVANS: Yes, sir, Your Honor.
“THE COURT: Defendant satisfied?
“MR. SMITH: We are satisfied with the Court’s oral charge. We would like to know whether or not the Court is going to give the written charges ?
“THE COURT: The written charges were included in the oral charges.
“MR. SMITH: Well, we respectfully except for the record.
“THE COURT: I read them out when I was giving the oral charge, and that covers it so they don’t have to be burdened down with a lot of papers.
“MR. SMITH: Okay, sir.
“THE COURT: So you all will retire, ladies and gentlemen, and bring back a verdict.

(JURY RETIRES TO JURY ROOM)”

The exception as reserved above is not sufficient to invoke our review of the oral charge. As observed by Judge DeCarlo, speaking for a unanimous court, in Garner v. State, 53 Ala.App. 209, 298 So.2d 630, cert. denied 292 Ala. 721, 298 So.2d 633:

“. . . [W]e are compelled to follow that rule announced in innumerable decisions of our appellate courts that, in order to put the court in error upon its oral charge, the reserved exception must designate and set out the particular part of the charge to which the exception is directed. Brock v. State, 28 Ala.App. 52, 178 So. 547; Robinson v. State, 38 Ala.App. 315, 82 So.2d 815; Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193.”

As to the written requested charges, we have examined each of these, and find that they were either covered by the trial court’s oral charge, or were abstract, or were affirmative in nature under the evidence in this case, or incorrect principles of law, hence, their refusals were proper. Title 7, Section 273, Code of Alabama 1940; Cannon v. State, 53 Ala.App. 509, 301 So.2d 272, and authorities therein cited.

We have carefully examined this record 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.


author: MERRILL, Justice.

text:
    In re Willie LEBO v. STATE. Ex parte Willie Lebo.
    SC 1408.
    Supreme Court of Alabama.
    Aug. 28, 1975.
    Elno A. Smith, Jr., Montgomery, for petitioner.
   MERRILL, Justice.

Petition of Willie Lebo for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lebo v. State, 55 Ala.App. 624, 318 So.2d 319.

Writ denied.

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


author: BOOKOUT, Judge.

text:
    Janice STINSON v. STATE.
    6 Div. 744.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Rehearing Denied July 29, 1975.

      J. Louis Wilkinson and Charles M. Pur-vis, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years.

The manager of the Western Supermarket in Hoover had been counting his money in his office when a man wearing a green jacket with a hood on it and a mask pulled over his head, snatched open the door to his office, stuck a gun in his ribs, and demanded the money. The manager put the money into a black leather bag which the robber was holding, and the robber then backed out of the store, ran across the sidewalk to his car, drove south and made a right turn.

Witness Gary Wyatt stated that on December 29, 1972, he noticed a car being driven somewhat out of the ordinary. This car, a maroon Pontiac, proceeded down the highway to the parking lot of the Western Supermarket. Wyatt kept the car under observation as it parked at the outer edge of the lot. He then went into the store, made a purchase and returned to his car and noticed that the Pontiac had moved closer to the Supermarket. Just before the car was about to move again, Wyatt used his mobile telephone to call the Hoover Police Department, informing them of the situation. He then observed the car move to the front of the Supermarket, saw the robber go into the manager’s office, saw all the cashiers and customers stand erect and saw him leave with a “doubled-up bag of some type.”

The witness followed the car and by his mobile telephone kept the Hoover police constantly informed of its whereabouts. Wyatt stated further that once while he was following the Pontiac, it stopped and the driver got out and proceeded back toward him. He backed up, and the robber went back to his car and continued. Wyatt still continued in pursuit and watched the car turn down an alley behind the Alabama Mills Store. He pulled partly into the alley and observed the Pontiac park behind another car. The robber then got out of the rear car and got into the right-hand passenger side of the front car.

Wyatt stated that as the car pulled off, he noticed that it was another Pontiac of a “goldish-brown” color. As the car sped out of the alley, it turned onto Southland Drive and stopped at a traffic light two cars back from the light. Wyatt, still following the robber, was able to ascertain that the person driving the car was a woman and the person riding in the passenger side was the person who had robbed the Supermarket.

Sergeant Donald P. Ray of the Hoover Police Department, in response to a call from the police radio operator with whom Wyatt had been in constant contact, pulled up in front of the three cars waiting at the light. The dispatcher told him that the robbery suspect’s vehicle was the third from the traffic light heading east. Sergeant Ray then had the drivers of the three cars turn off their ignitions. He told the occupant sitting on the right-hand passenger side of the third car to step out. The occupant stepped out, and the Sergeant stated further that the occupant was a man and that the person driving the car was Janice Stinson, the wife of the passenger. Sergeant Ray then stated that he saw a black bag sitting on the floorboard of the car with United States currency hanging or sticking out. He also noticed a green jacket with a hood in the car. Sergeant Ray stated that he was able to see both the bag and the jacket under the passenger’s legs and that no portion of the bag was under the front seat of the car. The Sergeant, after turning the appellant’s husband over to another officer, retrieved the bag and the green jacket and placed appellant’s husband under arrest and told the appellant that she was also under arrest.

On January 12, 1973, Janice Stinson was indicted for robbery. She went to trial on January 29, 1974, and the next day a jury found her guilty and fixed her punishment at ten years in the penitentiary.

I

The record reveals that after the State had presented its case, the appellant’s attorney asked for a “directed verdict of acquittal,” stating that the State had failed to prove a prima facie case. The court overruled such motion, which the appellant contends is error.

Appellant’s attorney stated that according to the testimony, the appellant was a mile away from the scene and that there was no testimony that she entered the store in question. The trial judge then asked, “Are you saying that there’s no evidence that she was an accessory before the fact?” The appellant’s attorney answered, “In our opinion.” To this, the prosecutor stated that, “ . . . there is suff-cient evidence on the question of conspiracy to go before this jury. Because of the dark alley and speeding off, and a man gets into her car with a bag with money sticking out of it.”

Title 14, § 14, Code of Alabama 1940, provides that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, are to be indicted, tried and punished as principals.

In Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950), Justice Lawson stated:

“It is well established that when, by pre-arrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Such community of purpose or conspiracy need not be proved by positive testimony. It rarely is so proved. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Morris v. State, 146 Ala. 66, 41 So. 274, and cases cited; Jones v. State, 174 Ala. 53, 57 So. 31; Teague v. State, 245 Ala. 339, 16 So.2d 877.”

Also, Judge Cates in the case of Brown v. State, 39 Ala.App. 149, 96 So.2d 197 (1957), wrote:

“ . . . We have come to the conclusion that the question as to whether or not the defendant, certainly as the chauffeur for his associates, was thereby an aider or abetter — a derivative principal under the statute (Code 1940, Title 14, § 14) — was for the jury. Davis v. State, 36 Ala.App. 573, 62 So.2d 224.”

This Court has held that the participation in a crime in the community of purpose of the perpetrators need not be proved by direct or positive testimony, but may be inferred from circumstantial evidence. Parsons v. State, 33 Ala.App. 309, 33 So.2d 164 (1947), and cases cited therein.

II

Counsel for appellant objected to the following question put to the appellant on cross examination concerning her husband:

“You knew that he was a robber and a burglar didn’t you ?”

After the question was asked, appellant’s attorney objected but the appellant answered in the negative before the trial judge was able to sustain the objection. The trial judge thereafter immediately sustained the objection and instructed the jury not to consider the statement as evidence. Appellant moved for a mistrial which was overruled.

The question was improper, but resulted in no injury to the appellant as she answered it in the negative. The appellant by so answering was not prejudiced, and the motion for a mistrial was properly overruled. The appellant’s answer in the negative removed the possibility of injury. Anderson v. State, 44 Ala.App. 388, 210 So.2d 436 (1968). Furthermore, the trial judge instructed the jury as to what evidence they were to consider and that statements of attorneys on either side were not evidence in the case. See Crump v. State, 43 Ala.App. 136, 181 So.2d 620 (1965).

Ill

Appellant’s attorney objected to evidence obtained by Sergeant Ray in making the search of the car, claiming a lack of probable cause. We are of the opinion that the evidence was ample to establish probable cause to search the appellant’s automobile. Sergeant Ray was in pursuit of a car which the dispatcher had told him over the radio was stopped three cars back from the traffic light. Also the robbery had just taken place at the Western Supermarket, and the law enforcement officers were looking for a car which met the description which had been called in by the eye witness, Gary Wyatt. The report of the robbery, Mr. Wyatt’s pursuit, coupled with his constant contact by mobile telephone with the Police Department, the report of the dispatcher, and the fact that the robbery had just taken place, gave Sergeant Ray the probable cause needed to search the vehicle driven by the appellant. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); also see, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925).

The ruling of the trial court could likewise be sustained under the “plain view” doctrine. The testimony of Sergeant Ray was that the bag with money sticking out of it and the green jacket were in plain view. Sergeant Ray testified that he observed a black bag sitting on the floorboard of the right-hand side of the car, and there was money, United States currency, sticking out of the bag. Therefore, the trial court was not in error in allowing the evidence to be presented. It is a well-settled principle that articles inside of a car in plain view are subject to seizure. Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210 (1972); United States v. Davis, 423 F.2d 974, cert. denied 400 U. S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69 (1970); Powers v. State, 49 Ala.App. 690, 275 So.2d 369 (1973).

IV

The trial court was not in error in refusing the appellant’s written requested charges 3 through 12, 16, 17, 19, 20 and 22 through 24 since each was substantially and adequately covered by given charge 18 or by the court’s oral charge, to which her counsel had announced “satisfied.”

Charges 1 and 2 were properly refused as being erroneous statements of law and misleading in that they would predicate guilt only upon the actual presence of the appellant at the scene of the robbery and exclude the possibility of guilt as an accessory pursuant to Title 14, § 14, Code of Alabama 1940.

Charge 13 was properly refused as such is argumentative. A similar charge was held to be properly refused in Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948). Likewise, charge 14 is misleading and incomplete. It has no meaning unless read in conjunction with charge 13 and would be greatly confusing to a jury.

Charge 15 was properly refused as it contains a grammatical error and is not predicated upon the evidence in that it relates to the weight to be given testimony of general reputation for truth and veracity when no such testimony was introduced nor character witnesses called during the trial. Charge 21 was properly refused on the same ground as it dealt with character witnesses.

Charges 7, 25 and 26 were properly refused on authority of Pratt v. State, 27 Ala.App. 301, 171 So. 393 (1936) and McDowell v. State, 238 Ala. 101, 189 So. 183 (1939). In addition, the trial court’s oral charge concerning presumption of innocence and circumstantial evidence adequately covered the subject which the appellant wanted brought to the attention of the jury.

We have searched the record for error prejudicial to the appellant and find none.

Affirmed.

TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., not sitting.


author: ALMON, Justice.

text:
    In re Janice STINSON v. STATE. Ex parte Janice Stinson.
    SC 1403.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    J. Louis Wilkinson and Charles M. Purvis, Birmingham, for petitioner.
    None for respondent.
   ALMON, Justice.

Petition of Janice Stinson for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Stinson v. State, 55 Ala.App. 629, 318 So.2d 325.

Writ denied.

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