author: EMBRY, Justice., JONES, Justice,

text:
    In re Etta Sorrell BRASWELL et al. v. J. B. MONEY, etc., et al. Ex parte Etta Sorrell Braswell et al.
    SC 2094.
    Supreme Court of Alabama.
    April 15, 1977.
    C. Neal Pope, Phenix City, John B. Craw-ley, for Crawley & Ford, Troy, William H. Johnston, for Johnston & Johnston, Huntsville, Truman Hobbs, for Hobbs, Copeland, Franco & Screws, Montgomery, for petitioners.
    Oliver W. Brantley, for Brantley & Calhoun, Troy, Walter R. Byars, for Steiner, Crum & Baker, Montgomery, opposed.
   EMBRY, Justice.,

In this case, on petition for the Writ of Mandamus, we ordered an answer filed in order to review the refusal of the trial court to grant a motion for change of venue in the contest of the will of Anise J. Sorrell. We find the evidence in support of the motion insufficient to show an abuse of discretion by the trial court in denying a change of venue and therefore deny the Writ of Mandamus.

Petitioners, Etta Sorrell Braswell, Lois Sorrell Phillips, and Joseph W. Burt, filed an action to contest the last will and testament of Anise J. Sorrell, and a codicil to that will. Proponents of the will are J. B. Money, Annette Colley, Louise Scott, Larry Johnston, Anise Johnston, Helen Johnston, Troy State University, Lurleen B. Wallace Memorial Cancer Hospital Fund, Inc., and Union Bank and Trust Company of Montgomery, Inc.

It is alleged that Anise and her husband, W. J. Sorrell, while living, entered into an agreement whereby W. J. promised to leave to Anise one-half of his entire estate, at his death, if Anise would promise to leave that portion of the estate to petitioners at her death. Anise executed a will in keeping with the agreement, but later executed a codicil wherein the contested portion of the estate was left to Troy State University, The Lurleen Wallace Memorial Cancer Hospital Fund, and members of the J. 0. Colley, Jr., family. The size of the estate is estimated at $4,700,000.

The action was set for trial in the Circuit Court of Pike County. Before trial date, petitioners filed their motion for change of venue which was denied after a hearing. This Court granted a stay of the proceedings pending final determination as to the writ of mandamus to review the ruling on the motion for change of venue.

The motion for change of venue was pursuant to the authority of Code of Ala., Tit. 7, § 65, on the basis that contestants could not have a fair and impartial trial in Pike County. It was based on two grounds: (1) local prejudice, and (2) influence over the public mind by the proponents of the will.

At the hearing on the motion, petitioners presented testimony and evidence which they contend was sufficient to support the conclusion that these two factors existed in this action. This being the case, they say, the trial court abused its discretion when it denied the motion for change of venue. We disagree.

Title 7, § 65, Code of Ala. (1940), states:

“Either party to a civil suit may, at any time before final trial, move the court to change the venue, making affidavit that for causes set forth, he cannot have a fair and impartial trial in the county where the suit is pending. * * * ”

As a standard against which this statute might be judged, petitioners quote from 77 Am.Jur.2d, Venue, § 59 (1975);

“ * * * it is sufficient if there are existent influential factors from which probable partiality in substantial degree, upon the part of a substantial number of persons, and such as to presage appreciable and extensive influence, may be reasonably inferred. * * * ”

To satisfy the requirement of Tit. 7, § 65, Code, that it be shown that one cannot have a fair and impartial trial, and to satisfy the above standard, petitioners presented the following evidence to support their grounds for change of venue:

A. Local prejudice

Troy State University, which stands to benefit considerably, should petitioners lose the will contest, is located in the City of Troy, Pike County, site of the trial. It is alleged that Troy State exercises pervasive influence over the public mind, and, due to this, the public’s interest in the contest is and will be adverse to that of petitioner’s interest. To support this proposition, the following evidence is offered: Troy State University is the area’s leading industry and greatest economic force. It is the largest employer in Pike County, employing approximately 300 persons. There are approximately 900 Troy State alumni in Pike County, including the judge in whose court this action is to be tried. Each year the Troy Chamber of Commerce sponsors a TSU Appreciation Day, in recognition of the contributions made by, and the favorable and extensive influence of TSU in the community. Appreciation Day involves the participation of many members of the community. A “number” of county residents contribute money to TSU.

Testimony of the Clerk of the Circuit Court of Pike County was presented. He produced the venire list for the term of court for which the will contest was originally docketed. It contained 119 names, including those not summoned for various reasons and those which might be excused. Forty-five persons listed reside in Troy, and ten persons on the list are employed by Troy State University. Testimony of various city officials and administrative officials of TSU was taken. The record shows six of these witnesses stated they saw no reason why contestants could not obtain a fair and impartial trial. Only two witnesses testified to the contrary: John B. Craw-ley, an attorney for the contestants, and, by oral deposition J. W. Burt one of the contestants.

This evidence must be analyzed both in light of meager Alabama case law and generally accepted standards on the subject of change of venue in civil actions.

The only Alabama case concerning local prejudice of the character asserted by petitioners, based on the above evidence, is Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953). This case involved a will contest in which a change of venue was granted after two mistrials occurred, and is so distinguishable on its facts as to be inapplicable in the instant case.

We recognize that local prejudice which tends to prevent a fair and impartial trial is ground for change of venue. In 92 C.J.S. Venue § 143, p. 853, it is stated:

“ * * * Generally speaking, the prejudice must exist throughout the county, and not in the particular locality, but if prejudice in a particular locality exists and the number of jurors from that locality is so proportionately large that an impartial jury cannot be selected, a change of venue may be granted. That the people of the community are generally interested in the question involved is not sufficient, but it has been held that venue may be changed if the residents of the community are interested in the event, to such an extent as to prevent a fair trial. * * * ”

The question then is, whether petitioners have spread on the record facts and circumstances of such character as to create a reasonable belief that a fair and impartial trial cannot be obtained in Pike County. We think not.

First, there is not sufficient evidence to prove local prejudice. To say that Troy State University has an impact on the City of Troy and its citizens is to elucidate the obvious. However, to conclude from this that TSU exercises pervasive influence over the public mind, of such a nature to create prejudice adverse to petitioners’ interest, is error. There is no evidence here that the trial of this case has created widespread interest and comment in the community, nor that opinions have been formed concerning the case. Indeed, as we have noted, petitioners produced six witnesses, four of whom are employed by TSU, who testified to the reasonable belief that a fair and impartial trial could be had. The only testimony to the contrary was from a contestant-petitioner and an attorney for petitioners.

Second, petitioners’ evidence regarding the potential number of “prejudiced” jurors falls short of its intended goal. The venire list produced was for the entire term of court for which this case was docketed, and consisted of 119 names, not all of whom will appear for duty. We cannot guess, or surmise, how many of the 45 residents of Troy and 10 employees of TSU will actually be on the venire for selection as petit jury. Since there is insufficient evidence as to general local prejudice, the fact that 45 Troy residents’ names are on the venire is not cause for alarm. Assuming, without deciding, that TSU employees might have a more direct interest in the outcome, we scrutinize this aspect more closely. Does the presence of 10 persons employed by TSU on a 119-member venire mandate change of venue in light of contestants’ right to challenge? We find no statistical evidence that the venire was so disproportionately weighted with TSU employees as to indicate the possibility of probable prejudice.

B. Influence of proponents of will

The evidence bearing on this aspect of the case is centered on Dr. J. 0. Colley, Jr., and his family, all of whom stand to inherit substantial sums should the will contest fail. It is Dr. Colley who petitioners allege exerted undue influence over the mind of Anise Sorrell when she executed the codicil to her will. Colley is a physician engaged in an active practice in Troy and in Pike County for the past 40 years. His files of. active patients currently indebted to him number 5,000. He is the college physician, serves on the Boards of Directors of a Children’s Home and the Farmers and Merchants Bank of Troy, and is the administrator for the Pike County Nursing Home. A building on the TSU campus is named in his honor. Petitioners contend that because Colley is such a prominent, influential figure in the community, because so many residents of the city and county owe him money for medical services, and because he and his family are so well liked and respected in the community, there will exist among the jury favorable sentiment in his behalf.

The mere fact that Dr. Colley is prominent and holds official positions in the community does not justify the inference that an impartial trial cannot be had. In Hattemer v. Davis, 206 Ala. 613, 91 So. 321 (1921), plaintiff, a nonresident of the county of trial sued a prominent resident businessman. The defendant did a large business, exercised considerable influence, and was a member of the County Board of Revenue. Plaintiff moved for change of venue, it was denied, and this Court upheld the denial. In Ex parte State ex rel. Ingram Land Co., 208 Ala. 28, 93 So. 820 (1922), we upheld denial of motion for change of venue based on the same grounds as in Hattemer, that was evidenced by even more extreme examples of probable prejudice: defendant’s business partner was active in inducing favorable sentiment with the jury in behalf of defendant, and four jurors (the case ended in mistrial) stated that defendant had done so much for the county that no jury would find against her. Although the movant in Ingram may have been held to a stricter standard than might be required today, petitioners in the instant case have failed to present sufficient evidence to support their contentions regarding Dr. Colley. A person is not to be penalized because he enjoys a good reputation and high standing in the community. This alone is not enough to warrant a change of venue. Other jurisdictions are in accord. See Henson v. Tom, 473 S.W.2d 258 (C.C.A.Tex.1971); South Carolina Electric & Gas Co. v. Aetna Insurance Co., 235 S.C. 147, 110 S.E.2d 165 (1959); 77 Am.Jur.2d, Venue, § 59.

In this case, petitioners have failed to present sufficient evidence to create a reasonable belief that probable prejudice exists in the county of situs of trial of their action. We find no abuse of discretion in the trial court’s denial of the motion for change of venue. Ex parte Morrow, supra.

WRIT DENIED.

BLOODWORTH and ALMON, JJ„ and SIMMONS, R. C. J. (Retired Circuit Judge sitting by designation of the Chief Justice), concur.

JONES, J., concurs specially.

JONES, Justice,

concurring in the result:

On preliminary consideration of this case, after studying briefs and hearing oral arguments, I was of the opinion that the order denying plaintiff’s motion for change of venue should be reversed. After a more detailed study of the record, along with a clearer recognition of our scope of review, I have changed my mind. I concur in the result to deny the petition for the writ of mandamus.

An explanation of my concurrence in the result only (rather than in the opinion) will also explain the reasons for changing my view on the merits of the appeal. It is not within our scope of review to test the evidence against our independent judgment as to whether the contestants can obtain a fair and impartial trial in Pike County, the situs of Troy State University — a major beneficiary under the will.

If I were the trier of this issue, I would not hesitate to grant the motion — not only in the interest of justice, but also in the interest of the appearance of justice. The overview of the total atmosphere which necessarily pervades this trial, its issues, and its parties, are ample to support such a holding. But our role as appellate judges, as contrasted with that of the trial judge, does not include this prerogative.

This Court should not substitute its judgment for that of the trial Court. While the Court’s opinion, in the opening and closing paragraphs, makes a passing reference to the trial Court’s discretion, its rationale for upholding the denial of the “change of venue” motion is based on its independent evaluation of the evidence. Witness, for example, the following paragraph under subsection “A”:

“The question then is, whether petitioners have spread on the record facts and circumstances of such character as to create a reasonable belief that a fair and impartial trial cannot be obtained in Pike County. We think not.”

This theme is carried through in the first sentence in each of the next two paragraphs.

Instead, I believe we are confined to this question: Is the evidence of prejudice so compelling that the trial Court was bound to reach a single conclusion: the plaintiff cannot obtain a fair and impartial trial?

To be sure, this is a hard test and one that renders the ruling below virtually un-reviewable; but it is the test established by our cases.

A careful study of these cases discloses that trial judges have tended to view these motions for change of venue as an attack on the integrity of local jurors, and the trial courts’ reticence to grant such motions often reflects a response to the effect, “How dare you place in question the fairness and impartiality of the good people of this community?” While I do not approve this defensive reaction on the part of the trial bench, and I would continue to admonish the bench to employ objective standards within the spirit of the statute (Tit. 7, § 65, Code) in testing these motions for change of venue, I would not weaken the discretionary power of the trial courts in this regard, nor would I change our scope of review.

Although the evidence before the trial Judge in the instant case, in my opinion, was abundantly sufficient to sustain a ruling in favor of the motion to transfer, a contrary ruling does not mandate a reversal. A detailed review of the evidence would serve no purpose. Suffice it to say that the affidavits of the parties and their attorney were the only evidence of specific prejudice proffered in support of the motion. This, along with the overview-type data (size and general influence of the university and its economic and psychological impact), would support a ruling granting the motion (and I personally believe the appearance of justice would have been served thereby); but it falls short of legally compelling such ruling.

It is on these grounds and for the reasons expressed that I concur in the result to deny the writ.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    STATE of Alabama v. Roosevelt CRAYTON, d/b/a Jody’s Sporting Goods.
    Civ. 968.
    Court of Civil Appeals of Alabama.
    Jan. 12, 1977.
    Rehearing Denied Feb. 16, 1977.

      William J. Baxley, Atty. Gen., Willard W. Livingston, Ron Bowden, Asst. Counsel, Dept, of Revenue and Asst. Attys. Gen., for the State of Alabama, appellant.
    Calvin Whitesell for Whitesell & Gordon, Montgomery, for appellee.
   BRADLEY, Judge.

The State Revenue Department (hereinafter referred to as the State) entered a final sales tax assessment against Roosevelt Crayton, d/b/a Jody’s Sporting Goods (hereafter referred to as Crayton) pursuant to Title 51, Section 786(3)(b), Code of Alabama 1940. Crayton appealed to the Circuit Court of Macon County where judgment was rendered absolving him of any liability for payment of the taxes. The State appeals.

The evidence shows that Crayton operates a business that may be properly termed a “bingo parlor.” Bingo games are conducted at the parlor twice each week; at least ten games of bingo are played each night of operation. Prize money amounting from $25 to $100 is awarded to- the game winners. Additionally, each night a jackpot of up to $1,000 is awarded. The amount of prize money to be given away on a particular night is announced on the next preceding bingo night. For example, the amount of prize money for a Saturday night is announced on the preceding Wednesday night.

Customers may either bring their own bingo cards to the game or use cards provided by the taxpayer. No admission fee is charged; however, in order to win the prize money or the jackpot, a customer must register each card he or she intends to play with Crayton and pay a fee of $1.00 per card played. The prize money is paid out of the money collected from the customers or from Crayton’s own funds. Crayton operates the bingo business for profit.

During intermissions between bingo games, Crayton sells punchout boards; cash prizes are distributed to the winners of the punchout games. Crayton does not dispute the tax assessed on revenues from the punchout boards.

Title 51, Section 786(3)(b), supra, provides in pertinent part:

“There is hereby levied ... a privilege or license tax against the person or [on] account of the business activities and in the amount to be determined by the application of rates against gross sales, or gross receipts, as the case may be, as follows:
“(b) Upon every person, firm or corporation engaged, or continuing within this state, in the business of conducting, or operating, places of amusement or entertainment, ... or any other place at which any exhibition, display, amusement or entertainment is offered to the public ... an amount equal to four percent of the gross receipts of any such business.”

On April 15, 1975 the State Department of Revenue entered sales tax assessments against Crayton based on the gross receipts of the bingo operation. Both parties stipulated that the amount of the final assessments entered against the taxpayer is correct and that if the sales tax is in fact due, it is due in the amounts as assessed, as follows:

State of Alabama $13,174.71
Macon County 3,293.68
City of Tuskegee 3,293.68

The Circuit Court of Macon County, following Otto v. Kosofsky, 476 S.W.2d 626 (Ky.App.1971), cert. den. 409 U.S. 912, 93 S.Ct. 227, 34 L.Ed.2d 173 (1972), found that bingo is a lottery and set aside the tax assessed against Crayton under Title 51, Section 786(3)(b). The court’s reasoning was twofold. The court first concluded that since bingo is a lottery, and a lottery is gambling, bingo is therefore not amusement. The court apparently felt that bingo is played in order to win money and not merely for enjoyment, and that only the winners were amused by the activity. Playing bingo, said the court, is more like placing bets in a pool parlor or at a domino table than attending a theatre, restaurant, or amusement park. The second basis for the circuit court’s ruling was that by collecting a tax based on playing bingo, the State is in effect condoning the operation of a lottery, which is prohibited by Section 65, Constitution of Alabama 1901.

In its brief here, the the State argues that the legislature did not define the meaning of the term “place of amusement or entertainment” in the statute; therefore, this court should give to that term its “commonly understood meaning.” The State goes on to say that a place of amusement is commonly understood to be a place where people go for enjoyment, recreation, fun, sport, or any other type of pleasurable diversion. Thus, the patrons of Crayton’s bingo parlor go there because they like to play bingo; they derive enjoyment from the game and from the chance of winning prizes. The State adds that bingo is a game and people play games for amusement or entertainment.

Crayton replies by saying that bingo, played for a prize, is a game of chance and a lottery. A lottery is prohibited by Section 65 of the Alabama Constitution of 1901. Consequently, playing bingo is gambling and therefore evil. Since gambling is a vice which corrupts the morals of the public, playing bingo cannot be considered fun, pleasurable or amusing within the context of the phrase “place of amusement or entertainment,” as used in Section 786(3)(b), supra. Crayton concedes that gambling can be taxed but insists that such tax must be by a specific statute and that the words “amusement or entertainment” are too broad to permit a lottery to be taxed.

The sole issue for our decision is whether or not the proceeds from the operation of a bingo parlor where people congregate for the purpose of paying money to play bingo with the hope of winning a prize — an activity admittedly contrary to the State’s criminal laws — can be taxed as a “place of amusement or entertainment” as provided in Section 786(3)(b), supra.

As already noted, Section 65, Constitution of Alabama 1901, prohibits a lottery. The elements of a lottery are a prize awarded by chance for a consideration. Opinion of the Justices, 287 Ala. 334, 251 So.2d 751 (1971); Grimes v. State, 235 Ala. 192, 178 So. 73 (1937). The evidence shows that one playing bingo at Crayton’s bingo parlor pays a consideration to take a chance on winning a prize or the jackpot for that evening, and the patrons know in advance what the jackpot amount will be for the next gaming night. The evidence supports the conclusion that the manner of playing bingo at Crayton’s constitutes a lottery; therefore, those who play bingo at Cray-ton’s are gambling contrary to the criminal laws of this state. The evidence showed that this gambling operation has been in operation for at least nine months and, for this period, has grossed approximately $330,000.

The question that immediately arises is whether the State can tax an illegal activity. The answer is without doubt in the affirmative. Casmus v. Lee, 236 Ala. 396, 183 So. 185 (1938). In this case the supreme court clearly held that an illegal activity may be taxed, and settled the apparent incongruity between the State’s outlawing an activity and turning right around and taxing it. In Department of Public Safety v. Freeman Ready-Mix Co., 292 Ala. 380, 295 So.2d 242 (1974), the supreme court reiterated that “ . . . a tax of an illegal activity does not in any manner legalize the taxed activity.” We therefore conclude that bingo as played at Crayton’s, although an illegal activity, could nevertheless be taxed.

It is true that in Casmus the supreme court was concerned with a statute which specifically levied a tax on punchboards, which were a form of lottery. However, the court did not restrict its holding to only those statutes which specifically levy a tax on an illegal activity. And, in Department of Public Safety v. Freeman Ready-Mix Co. the taxing statute was not specifically directed to an illegal activity; yet the supreme court said that if the activity is illegal, it can nevertheless be taxed. Cray-ton’s argument that only statutes specifically levying a tax on an illegal activity can be enforced is not persuasive.

The next question to be answered is whether bingo, as played at Crayton’s can be construed as entertaining and amusing so that the proceeds of the bingo operation can be taxed under Section 786(3)(b), supra. We think the answer is obviously in the affirmative.

The general rule of statutory construction is that absent any indication to the contrary, words in a statute will be given the meaning generally accepted in popular, everyday usage. Morgan County Commission v. Powell, 292 Ala. 300, 310, 293 So.2d 830 (1974). This construction was applied by a New York court in a decision which involved a New York statute levying a tax on admission charges to places of amusement. The statute defined a “place of amusement” to be, “Any place where any facilities for entertainment, amusement, or sports are provided.” The court held that the words contained in the statutory definition were to be given their commonly understood meanings since no other meaning was obviously intended by the legislature. Wien v. Murphy, 28 A.D.2d 222, 284 N.Y.S.2d 303 (1967).

When we examine Title 51, Section 786(3)(b), supra, we do not find any legislative intent to delineate the term “place of amusement.” A broad range of activities is specifically enumerated within the statute, including race tracks where pari-mutuel betting will be allowed. Opinion of the Justices, 287 Ala. 334, 251 So.2d 751 (1971). Since the statute does not define “place of amusement,” and since there does not appear to us to be legislative intent to the contrary, we give the term “place of amusement” its commonly understood meaning.

As suggested by the State, we believe that Crayton’s patrons were there because they wanted to be entertained and amused and that the majority of them received exhilaration, pleasure and enjoyment from the prospect of winning a. prize or the jackpot. The mere fact that playing bingo Crayton style is gambling and possibly morally corrupting does not necessarily mean that such activity cannot be pleasurable and entertaining. After careful examination of the evidence we consider that Crayton’s bingo parlor is a “place of amusement or entertainment” as that term is used in Section 786(3)(b) and the proceeds of its operation are subject to the gross receipts tax provided by that law.

The judgment of the trial court is reversed and the case is remanded for the entry of a judgment affirming the State’s final tax assessment against Roosevelt Crayton, d/b/a Jody’s Sporting Goods.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: JONES, Justice.

text:
    In re STATE of Alabama v. Roosevelt CRAYTON, d/b/a Jody’s Sporting Goods. Ex parte Roosevelt CRAYTON.
    SC 2386.
    Supreme Court of Alabama.
    April 1, 1977.
    William R. Gordon, Montgomery, for petitioner.
    None for the State.
   JONES, Justice.

In denying the writ in this case, we are not to be understood as saying that the game of bingo, conducted under any and all circumstances, is an illegal activity.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Jean Marie BROWN v. Tyrus Edward BROWN.
    Civ. 1005.
    Court of Civil Appeals of Alabama.
    Feb. 16, 1977.
    Rehearing Denied March 30, 1977.
    George W. Cameron, Montgomery, for appellant.
    James R. Seale, Montgomery, for appel-lee.
   HOLMES, Judge.

This is an appeal from a judgment refusing to modify a prior child custody decree.

The mother appeals and by able counsel contends the trial court erred in awarding custody of a 2 year old child to the paternal grandmother. We find no reversible error and affirm.

The mother and father were married in June of 1973. A child, Jason, was born of the union in 1974, and the parties were divorced in January of 1975. By an amended agreement which was incorporated in the decree of divorce, custody was awarded to the paternal grandmother. In March of 1976, the mother filed a petition in circuit court seeking custody of her child. In May of 1976, temporary custody of the child was given to the mother and in September of 1976, the final decree of the learned trial judge retained custody in the paternal grandmother and allowed visitation rights to the mother. From this September decree the mother appeals.

Viewing the evidence with the attendant presumption of correctness, we find that since the decree of divorce the mother, who is now 21 years of age, has remarried. However, she had only been married for approximately one week at the time of the hearing. Her husband, who is also 21 years of age, testified he wanted Jason to live with them. Additionally, the mother is now employed and has adequate housing to provide for the child. There was very little, if any, pertinent derogatory testimony regarding the fitness of the mother. In fact, it appears that the mother is making a conscious effort to rehabilitate herself. It is noted, however, that if custody of Jason were awarded to the mother, during the day he would be left with his maternal grandmother. Suffice it to say that the home situation of the maternal grandmother could be viewed as not being conducive to his welfare.

On the other hand, the evidence shows the paternal grandmother to be 43 years old. She is financially secure and does not work. She lives in a good neighborhood where Jason has several playmates. She is a widow, but her daughter lives with her. The daughter works for a physician and plans to study nursing. Jason has his own bedroom. It is important to note that since his birth he has been with the paternal grandmother most of the time. Numerous witnesses testified as to the good character of the paternal grandmother and her love for Jason. These witnesses also stated that he was well adjusted while in the care of the grandmother. In fact, his mother, the appellant, testified favorably regarding the love and care given to Jason by the paternal grandmother.

As this court has previously stated, cases involving family tragedies are among the hardest to deal with and the court is seldom satisfied with the result reached. Evans v. Wilkes, 48 Ala.App. 363, 265 So.2d 145, cert. denied, 288 Ala. 742, 265 So.2d 147 (1972).

In a proceeding to modify a prior custody decree, the trial court applies a two pronged test: whether it is in the best interest of the welfare of the child to change custody, and whether the party seeking modification has alleged and shown a change in conditions which will justify modification. Quintanilla v. George, Ala.Civ.App., 340 So.2d 804, cert. denied Ala., 340 So.2d 808 (1976). Additionally, in this instance the trial court must consider the presumption that the mother is the best fitted to care for children of tender years. Williams v. Williams, 54 Ala.App. 703, 312 So.2d 396 (1975). However, the fundamental controlling inquiry in a child custody proceeding, is the welfare and best interest of the child. Talley v. Lott, 283 Ala. 499, 218 So.2d 828 (1969).

As noted above, the trial court found that the child should remain with the paternal grandmother. There is a strong presumption favoring the trial court’s finding in cases of this nature. 2A Ala. Digest Appeal & Error «=>931(1). Furthermore, the trial court’s finding in this instance has the weight of a jury verdict and will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence. Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. denied 294 Ala. 757, 316 So.2d 214 (1975). This is so even though the reviewing court might have reached a different conclusion.

Here, after examining the entire transcript of testimony, we cannot say that it was plainly and palpably wrong to allow custody to remain with the paternal grandmother.

It is clear that the child is loved and well cared for by his 43 year old grandmother. Additionally, the child has been with the grandmother practically all of his life.

On the other hand, the young mother has only recently remarried; has only recently obtained steady employment; and has been with the child very little. With these factors in mind, we cannot reverse the trial court.

It should be pointed out that this court’s ruling and the trial court’s order are never res judicata, Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961), and under different circumstances the court may well reach a different conclusion.

In addition to the above, the mother contends that the trial court could not award custody to the paternal grandmother since the paternal grandmother was not a party. Our view of the record clearly shows she was a party and the trial court had the authority to allow custody to remain with the grandmother.

There being no reversible error, the case is affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Ex parte Jean Marie BROWN.
    SC 2479.
    Supreme Court of Alabama.
    April 29, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Paul S. JERNIGAN v. Ellen Louise JERNIGAN.
    Civ. 1036.
    Court of Civil Appeals of Alabama.
    April 12, 1977.

      Harold P. Knight, Birmingham, for appellant.
    Robert C. Barnett and Robert R. Sexton, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This appeal is from a divorce decree. We affirm.

The parties were married on September 21, 1972. In March of 1976 Mrs. Jernigan petitioned for divorce on the ground of irretrievable breakdown of the marriage. The court heard the evidence ore tenus and granted a divorce. It ordered Mr. Jernigan to pay $200 monthly alimony, awarded the family home and a 1975 Dodge Dart to Mrs. Jernigan, awarded property in Shelby and St. Clair counties and a 1970 Chevrolet truck to Mr. Jernigan, voided the transfer of $10,897.78 by Mr. Jernigan to his daughter as trustee, and directed such sum be held for satisfaction of the amounts due under the divorce decree, and awarded $1,200 to Mrs. Jernigan as an attorney’s fee. Mr. Jernigan’s motion for new trial was denied and he appeals.

Mrs. Jernigan was 59 years old at the time of trial. Prior to the marriage her left breast had been completely removed because of cancer. She informed Mr. Jerni-gan of her physical condition prior to the marriage. Since the marriage she has had a cancerous growth removed from her right breast and a nerve removed from one toe. She suffers from degenerative arthritis of both knees, lymphodema of the left arm which causes swelling and requires her to wear specially made clothing, and she has high blood pressure. At the time of the trial she was about to undergo surgery to remove her gall bladder. Mrs. Jernigan’s doctor indicates she is permanently and totally disabled. She has not worked since her radical mastectomy in late 1972. Prior to that time she had been a clerical worker at a local hospital and earned approximately $5,000 a year. She now receives a monthly social security disability check of $184. Prior to the marriage she purchased a duplex in Birmingham, now valued at $10,000-$12,000; she rents one side for $60 a month. A daughter from a previous marriage resides rent-free in the other side. She testified she needed $250 more each month to meet her needs. She had a negligible amount in a checking account at the time of trial.

Mr. Jernigan was 62 years old at the time of trial. He was an electrician and earned an average of $11,000 each year from 1972 through 1975; at his last job he earned $364 a week without any overtime. An operation in 1975 resulted in the removal of a portion of his stomach. He apparently has not worked since that time but has drawn unemployment compensation of $90 per month. He stated he also suffered from a heart condition, emphysema and asthma but there was no other testimony to support these contentions. He is still listed on the register of his union as available for work and apparently does extensive work on his properties. Prior to this marriage he and his first wife had purchased 4.5 acres of land in Shelby County near the Riverchase development; he rents this for $125 a month. Testimony of value as presently used ranged from $15,000 to $32,000, but if put to a commercial use from $67,000 to $71,000. Upon his retirement he would be entitled to receive social security benefits plus a union pension equal to two-thirds of those benefits. Mr. Jernigan testified he needed $200 each month for living expenses. At the time of trial he had $1,500 in a checking account.

After the marriage of the parties they purchased a home in Birmingham. Mr. Jer-nigan supplied $11,000 and Mrs. Jernigan $5,000 of the purchase price. Mrs. Jernigan purchased certain furniture and furnishings for the home. The home was valued at between $16,000 and $18,500.

Also after the marriage of the parties some five acres in St. Clair County were purchased for $6,000 with funds from a joint checking account. A house was moved there from another location and various improvements made on house and property. This property was valued at between $17,000 and $27,000.

Around the time Mr. Jernigan filed a prior divorce petition in 1975, he closed out accounts he had with his credit union ($4,309.07) and a savings account held jointly in his name and that of his first wife ($13,588.71). He gave $10,897.78 by cashier’s check to his daughter who deposited it in a savings account with the daughter holding in trust for Mr. Jernigan.

We see no need to lengthen this opinion by a discussion of the marital relations here. There was sufficient evidence to indicate the parties were entitled to a divorce. Ray v. Ray, 50 Ala.App. 155, 277 So.2d 614 (1973).

Mr. Jernigan first contends there was error in the award of any alimony to Mrs. Jernigan since they were married only a short time, she has a substantial separate estate and an income sufficient for her support and maintenance, and he is physically unable to work and pay the alimony.

In determining whether to award alimony, the criteria to be considered include the earning ability of the parties; their future prospects; their age, sex, health and station in life; the duration of the marriage; and the conduct of the parties relative to the cause of the divorce. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974). The matter of alimony is largely discretionary with the trial court. Where the evidence was taken orally, the determination will not be reversed on appeal unless palpably wrong. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962); Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975).

Even though the parties were married for only a short time, Mrs. Jernigan has been in poor health for most of that time and will apparently need substantial and continuing medical care in the future. She has little prospect of future employment because of her disability. The trial court apparently concluded that Mr. Jerni-gan was able to work and on his normal income could afford to pay the alimony. Even if he were to retire, his benefits would be sufficient to meet his living expenses as well as pay the alimony. It also appears Mr. Jernigan was more responsible for the breakdown of this marriage than was Mrs. Jernigan. We thus find no palpable error committed by the trial court in awarding alimony.

The second contention of Mr. Jernigan is that the court erred in awarding the family home to Mrs. Jernigan without giving him one-half interest or reimbursing him for his contribution.

A division of property between the parties to a divorce is a matter resting largely in the discretion of the trial court, subject to reversal only for clear abuse or error. Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185 (1976); Clary v. Clary, 56 Ala.App. 494, 323 So.2d 380 (1975). Mrs. Jernigan contributed substantially to the purchase of the home. She received between one-fifth and two-fifths of all the property held jointly and separately by the parties. We find no error in the award of the home to her.

Mr. Jernigan’s third contention is that the court erred in setting aside the transfer in trust to his daughter. A court of equity in a divorce case has power to use any reasonable means to effect a just property settlement and adjust the equities of the parties. Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert. denied, 287 Ala. 740, 249 So.2d 860-61 (1971). Mr. Jernigan admitted he transferred the money to his daughter to keep it from Mrs. Jernigan. His rental income and unemployment payments were sufficient to meet his living expenses. To provide alimony and attorney’s fee the court voided the transfer and required him to use the sum to meet his liabilities under the divorce decree. We find no error in this matter as a court of equity seeks to do complete justice in respect to the matters and parties before it. Billingsley v. Billingsley, 285 Ala. 239, 231 So.2d 111 (1970).

The final contention of Mr. Jerni-gan is that the court erred in awarding an attorney’s fee because Mrs. Jernigan could afford to pay her own counsel. An allowance of an attorney’s fee rests in the sound judicial discretion of the trial court, which must consider such factors as the labor and skill involved, the results of the litigation, and the earning capacities of the parties. Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150, cert. denied, 291 Ala. 782, 280 So.2d 155 (1973). The record reveals the expenditure of much time and effort by Mrs. Jernigan’s attorney. The award of $1,200 is not excessive. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974). We find no error committed in the allowance of an attorney’s fee.

Mrs. Jernigan has petitioned this court for an attorney’s fee for defending this appeal. In light of the factors mentioned above, including the award of the fee by the trial court, we deny her the motion. Campbell v. Campbell, 51 Ala.App. 295, 285 So.2d 105 (1973).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    LOFTIN’S RENT-ALL, INC., a corporation v. UNIVERSAL PETROLEUM SERVICES, INC.
    Civ. 1044.
    Court of Civil Appeals of Alabama.
    April 12, 1977.

      William M. Jackson, Dothan, for appellant.
    None for appellee.
   BRADLEY, Judge.

Loftin’s Rent-All, Inc., a corporation, filed an action in the Circuit Court of Houston County for goods sold and delivered against Mercer and Company, Inc., David Morris Mercer, individually, and Universal Petroleum Services, Inc. David Morris Mercer was dismissed as a party defendant and a default judgment was rendered against Mercer and Company. A trial before the court without a jury resulted in a judgment in favor of defendant, Universal Petroleum Services, Inc. Loftin’s Rent-All appeals.

This is a ease of mistaken identity.

Mercer and Company ordered some equipment from Loftin’s Rent-All to be used in its contracting business and sought to charge the purchase to its account. Mr. Edward S. Parr, the vice-president and sales manager of Loftin’s Rent-All, advised Mr. David Morris Mercer, the president of Mercer and Company, that the company had exceeded its credit limit and that the equipment could not be charged until further credit arrangements were made.

Parr testified that Mercer told him that a management firm, Universal Petroleum Services, Inc., had been retained to manage Mercer and Company and that Mr. Walter L. Johnson of Universal Petroleum Services had been made executive vice-president of Mercer and Company for management purposes; Mercer said that Johnson had completely taken over the day-to-day operation of Mercer and Company and was authorizing all purchases and paying all bills; Mercer also told him to contact Johnson about the purchase of the equipment on credit.

Parr said he called the telephone number given him for Universal Petroleum Services and asked to speak to Mr. Walter L. Johnson. He was connected with a man who said he was Walter L. Johnson and they discussed the Mercer and Company account with Loftin’s Rent-All. Mr. Johnson confirmed that he was managing the purchasing and payment of bills for Mercer and Company. Parr testified that on the basis of that telephone conversation and the assurance of Mr. Walter L. Johnson, he extended further credit to Mercer and Company for the purchase of $3,318.89 worth of equipment.

Mr. Mercer said that he told Parr the name of the management firm engaged was Universal Management Consultants, Inc., and that Mr. Walter L. Johnson was its president. When asked whether he had ever dealt with Universal Petroleum Services, Mercer responded that he did not know; the contract was signed with Universal Management Consultants. The agreement between Mercer and Company and Universal Management Consultants showed Universal to be a partnership composed of Walter L. Johnson, Lee W. Johnson, and Bailey Powell.

Mr. Lee W. Johnson, president and chairman of the board of Universal Petroleum Services then testified. He is Walter L. Johnson’s brother; Walter did not appear at trial.

Lee W. Johnson said that Universal Petroleum Services is in the business of chartering off-shore drilling rigs. Universal Management Consultants is in the business of assisting business concerns with the planning and management of their operations. Universal Petroleum Services and Universal Management Consultants have the same address as they are located in the same building on the same floor; they do not share offices. They also share the building telephone switchboard.

Universal Petroleum Services and Universal Management Consultants are completely separate entities. There is an interlocking of membership to the extent that, in addition to being president and chairman of directors of Universal Petroleum Services, Lee W. Johnson is a partner in Universal Management Consultants. However, Walter L. Johnson is only a partner in Universal Management Consultants; he has no interest in or control over Universal Petroleum Services. There is no interrelationship between the two businesses; Walter L. Johnson runs the management consultant business exclusively.

Mr. Lee W. Johnson said that Universal Petroleum Services had never extended a guarantee of payment for the debts of Mercer and Company. Furthermore, Universal Management Corporation had agreed only to manage the business of Mercer and Company; at no time had Universal Management Consultants ever extended, or offered to extend, its credit on behalf of the credit of Mercer and Company.

The trial court rendered a judgment in favor of Universal Petroleum Products.

The first issue for review is the trial court’s alleged error in excluding evidence of the telephone conversation between Ed Parr of Loftin’s Rent-All and a person who was supposed to be Walter Johnson of Universal Petroleum Services. Appellant Lof-tin’s Rent-All argues that evidence of a telephone conversation is admissible where the witness has called a specific telephone number and the person answering says he is the person called, citing Midwestern Welding Co. v. Coosa Tool & Die, Inc., 54 Ala.App. 159, 306 So.2d 25 (1975); McElroy, Law of Evidence in Alabama 2d, § 329.01.

In Midwestern the witness testified that he called Midwestern Welding Company at the telephone number listed in the directory and talked to a man who identified himself as the purchasing agent for Midwestern Welding. On appeal Midwestern claimed the trial court erred by admitting testimony concerning the telephone conversation. We said that no objection was made to the content of the discussion but only to whether it took place, and that the trial court would not be placed in error unless the matter complained of was called to its attention. We did comment, however, that even had a proper objection been made the trial court was not in error for the conversation was admissible and cited McElroy, Law of Evidence in Alabama 2d, § 329.01, for the proposition that:

“Where the witness has himself called the telephone number of a specific person or business concern as listed in the telephone directory, and the person answering says that he is the person called for, or that he represents the business concern, the identity of the person answering and also his authority to represent the business concern is sufficiently authenticated, even though the caller does not recognize the voice of the person answering the call.”

In the case at bar, Ed Parr, the witness for Loftin’s Rent-All, testified that he talked on the telephone to a man who identified himself as Walter Johnson, the person he had been told by David Mercer who represented Universal Petroleum Services. He said his information was that Universal Management Consultants had the same telephone number and office address. Based on our decision in the Midwestern case, we' find that the trial court erred in not permitting Parr to relate his conversation with Walter Johnson. The error, however, is harmless.

The rule is that where objection to a question is erroneously sustained, if the same question is again asked and answered without objection the erroneous ruling by the trial court is not reversible error. Mersereau v. Whitesburg Center, Inc., 47 Ala.App. 146, 251 So.2d 765 (1971); Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert. den., 287 Ala. 740, 249 So.2d 860 and 287 Ala. 740, 249 So.2d 861 (1971).

Subsequent to the trial court’s refusal to permit Parr to testify concerning his conversation with Walter Johnson, this same witness in answer to questions on direct and cross-examination related that he talked to Walter Johnson of Universal Petroleum Services over the telephone and was given a purchase order number by Johnson. This testimony was admitted without objection.

Loftin’s Rent-All next contends that the trial court erred by admitting into evidence the contract entered into between Universal Management Consultants and Mercer and Company, since the contract is not relevant to the issue whether Universal Petroleum Services had agreed to pay Lof-tin’s Rent-All for the equipment. We. do not agree.

We consider the written contract relating to the management agreement between Mercer and Company and Universal Management Consultants to be relevant to the question whether Universal Petroleum Services was liable for the equipment delivered to Mercer and Company. Evidence which to any reasonable degree establishes the probability or improbability of fact should be submitted to the trier of fact. George D. Witt Shoe Co. v. Mills, 224 Ala. 500, 140 So. 578 (1932). Furthermore, whether evidence is relevant is largely a matter of discretion with the trial court. Water Supply Board of City of Arab v. Williams, 53 Ala.App. 560, 302 So.2d 534 (1974).

In the case at bar the contractual relationship between Mercer and Company and Universal Management Consultants, whereby Walter Johnson of Universal Management Consultants had been made manager of Mercer and Company and who in turn had discussed the purchase of equipment with Ed Parr of Loftin’s Rent-Alls, was certainly relevant to the question whether Universal Petroleum Services had agreed to be responsible for equipment purchased from Loftin’s Rent-All for Mercer and Company. The trial court found that it was relevant; we do not believe it abused its discretion in so treating it.

Furthermore, even had the trial court erred in admitting the contract, the error would be harmless, since the written document was merely confirmatory of evidence already before the court at the time the written agreement was offered as an exhibit.

“ . . . Prejudicial error may not be predicated upon the admission of evidence which has been admitted without objection or motion to exclude at some other stage of the trial.” Turner v. Blanton, 277 Ala. 536, 541, 173 So.2d 80, 84 (1965), overruled on other grounds Lonnie Russell Ford, Inc. v. Mitchell, 279 Ala. 340, 185 So.2d 132 (1966).

At the time the contract between Mercer and Company and Universal Management Consultants was introduced, Morris Mercer had already testified without objection that he told Ed Parr that Mercer and Company had entered into a contract with Universal Management Consultants for the complete management of the company. Pursuant to the contract Walter L. Johnson, who had been named executive vice-president and general manager of Mercer and Company, was making all purchasing decisions and arranging for the payment of all debts on behalf of Mercer and Company. Not only did Loftin’s Rent-All fail to object to this testimony, but added to it by questioning on cross-examination. It appears, then, that the written contract only confirmed Mercer’s testimony. Therefore, Loftin’s Rent-All was in no way harmed by the admission of the contract.

Loftin’s Rent-All finally claims that since it is not a party to the contract in question, the contract should have been excluded under the doctrine of res inter alios acta. This “doctrine” is a rule of evidence which excludes evidence of the acts and declarations of non-parties to the lawsuit, or dealings of parties with non-parties, on the ground of irrelevancy. Gruss v. Cummins, Tex.Civ.App., 329 S.W.2d 496, 502 (1959). One statement of the doctrine was quoted in Roosth & Genecov Production Co. v. White, Tex.Civ.App., 281 S.W.2d 333, 339 (1955), as follows:

‘Res inter alios acta (things done between strangers) [is] incompetent evidence. This rule precludes the introduction of evidence of transactions by which the proponent was in no way affected and to which he was in no sense a party, or evidence of transactions with which the parties against whom it is offered are not connected. Ordinarily therefore, proof of the acts of, or transactions between strangers, or as to independent and disconnected acts or conduct by one of the parties to the suit, or of contracts or other transactions between either of the parties to a suit and strangers, is within the rule of res inter alios acta and is inadmissible.’ ”'

The rationale underlying this rule of evidence is that such collateral facts “are incapable of affording any reasonable presumption or inference as to the principal matter in dispute.” State v. McCarty, Iowa, 179 N.W.2d 548 (1970).

It appears that the focus of the rule of res inter alios acta is upon the relevancy of the evidence, rather than the fact that the evidence involves the acts or declarations of a non-party, as Loftin’s Rent-All stresses. Thus relevant evidence, even though it be the acts or declarations of a non-party to the lawsuit, falls without the scope of the doctrine. As was said by a California court:

“ . . . [A]ny evidence which affords any reasonable presumption or in- ferenee as to the principal fact or matter in dispute is proper evidence.” Firlotte v. Jessee, 76 Cal.App.2d 207, 172 P.2d 710, 711 (1946) (emphasis theirs).

Our own cases support this conclusion. In Cargall v. Riley, 209 Ala. 183, 95 So. 821 (1923), the supreme court said that a conversation between witness and defendant about settlement of an automobile accident case after the collision was res inter alios acta; the plaintiff was not present, did not hear it, and was not interested in any settlement. The court went on to say the conversation was irrelevant to the issue in the case and the trial court acted properly in striking the conversation from consideration of the jury. See also Tennessee Valley Sand & Gravel Co. v. Pilling, 35 Ala.App. 237, 47 So.2d 236, cert. den., 254 Ala. 14, 47 So.2d 245 (1950); Rattray v. W. P. Brown & Sons Lumber Co., 29 Ala.App. 93, 192 So. 285, cert. den., 238 Ala. 548, 192 So. 288 (1939).

In the case at bar the contract that was admitted into evidence was relevant to the issues in the case and therefore was properly admitted.

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

AFFIRMED.

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


text:
    Mary PHILLIPS v. H. Atlee PHILLIPS.
    Civ. 1060.
    Court of Civil Appeals of Alabama.
    April 12, 1977.

      W. H. Rogers, Moulton, for appellant.
    Fred Ray Lybrand, Lybrand, Sides, Ham-ner, Oglesby & Boozer, Anniston, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The primary issues on appeal are whether the trial court erred to reversal in its division of property and in its award of alimony and child support payments.

The wife, who brings this appeal, also contends through able and distinguished counsel that the trial court erred in granting the divorce on grounds of incompatibility of temperament rather than for adultery. We perceive no error with regard to the trial court’s ruling on these matters and, accordingly, affirm.

The wife’s complaint for divorce alleged as grounds therefor incompatibility of temperament and the commission of adultery by her husband. Hearings on these matters were held on December 18, 1975, and July 28, 1976.

Viewing the evidence adduced at these proceedings in accordance with the attendant presumption of correctness which attaches to the trial court’s ruling, we find the following:

Mary Phillips, plaintiff below and appellant herein, and H. Atlee Phillips, appellee-husband, were married in 1947. Both worked throughout their marriage. For the last thirteen years, the wife has been employed at First National Bank, where she earns approximately $525 per month.

The husband’s average annual taxable income for the years 1971-1973 was approximately $7,300. During this time he was employed as a salesman. However, commencing in 1973, the husband opened his own food brokerage business. This business operated at a loss in 1974. The amount of income he thereafter derived from the business is questionable. He testified that he withdrew $300 per month from the business during the first six months of 1975. However, we note that there were other funds drawn from the business by the husband for expenses. Additionally, there were other funds from the business apparently available to the husband. In any event, his adjusted gross income as shown on his tax return for 1975 was $395.

While married, the parties purchased a three bedroom brick home. They paid $4,000 as a down payment for the home and financed the remaining $10,500 of the purchase price. The balance on the mortgage at the time of divorce was approximately $2,100, payable in $89 monthly installments. The home was valued at $25,000-$35,000.

The parties also owned two other parcels of real property. One, a lake lot purchased for $1,000, had an estimated value of $3,000. They also had acquired a building, which the husband used as a business office, for $10,000. There was a balance of $4,500 owed on the mortgage on this building at the time of trial; fair market value of the building was $17,000.

Additionally, the parties owned two automobiles and furniture and household items. The furniture and household items were estimated to be worth $10,000-$12,000.

The husband and wife’s daughter, Rose Fenese Phillips, was fourteen at the time of the divorce decree. The wife itemized $95 in monthly expenditures required for the support of the daughter. The husband testified that he was unable to pay over $200 per month for child support.

Evidence regarding the incompatibility of the parties revealed that the husband’s “drinking problems” significantly contributed to the demise of the marital relationship. The wife testified that on several occasions she had had to retrieve the husband from motel rooms and attempt to sober him up.

Around midnight on June 29, 1975, the wife, in company of her sister and daughter, found the husband in a motel room with his secretary, who had been in his employ for one year. Both the husband and secretary were scantily clad, and the husband’s face was covered with lipstick. Testimony also showed the secretary accompanied the husband on his out-of-town business trips. Both the husband and secretary denied ever having had sexual intercourse.

The wife testified that there was no hope of reconciliation between her and her husband.

On August 11, 1976, the trial court rendered its decree granting a divorce to the wife on incompatibility of temperament. The wife was awarded custody of the daughter, $10 per month alimony, and $100 per month child support. She also received one of the two automobiles owned by the parties and certain household goods. The husband was awarded the other automobile and the business building. The home, lake lot, and all other property was ordered sold and the proceeds divided equally between the parties.

The wife’s motion to alter, amend, or vacate the judgment was overruled by the court and she thereafter took this appeal.

As previously stated, the wife contends the trial court erred in granting the decree for incompatibility of temperament rather than for adultery. She cites numerous cases for the proposition that adultery may be proven “if the circumstances would lead the guarded discretion of a reasonable and just man” to such a conclusion. She says the above evidence compels a finding of adultery in this instance. We disagree.

This court has previously addressed itself to this same argument under similar circumstances. In Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715 (1976), we stated:

“[S]uffice it to say that the evidence, in regard to [the grounds for divorce was] . somewhat in conflict. It is for the trier of facts to resolve that conflict. While there was evidence to support a finding of adultery, the trial court did not so find. The law in this instance does not allow this court to substitute our own judgment for that of the trial judge. . . . ” (57 Ala.App. at 707, 708, 331 So.2d at 718)

We deem the above language to be fully applicable to this ease.

The wife also contends the trial court’s award of alimony and child support and its division of property were such as to warrant reversal. We must disagree with each of these contentions.

The division of property, grant of child support, and award of alimony are matters within the sound discretion of the trial court and are not to be reversed on appeal absent a manifest abuse of discretion. Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185 (1976); Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974); Ellison v. Ellison, 48 Ala.App. 80, 261 So.2d 911 (1972).

There is no mathematical formula to ascertain the propriety of the amount awarded as alimony. Self v. Self, 49 Ala.App. 665, 275 So.2d 345 (1973).

It can hardly be said that $10 per month constitutes a substantial sum. It does little to assist the wife in meeting her estimated $850 per month in living expense. However, the magnitude of the husband’s income is a material consideration in the award of alimony. Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975). Here, the trial court could reasonably have determined that such an amount was all the husband could reasonably be expected to pay at that time. Moreover, the husband’s testimony was to the effect that he received only $300 per month in wages, one third of which was designated for child support payment. We cannot say that under the circumstances herein the award of alimony is an abuse of discretion warranting reversal, even though it might not coincide with what this court would have done in the first instance. We point out that an allowance of alimony installments not in gross is subject to modification as circumstances may warrant. Dean v. Dean, 51 Ala.App. 249, 284 So.2d 276 (1973).

The amount of child support to be granted depends upon both the needs of the child and the ability of the parent to pay. Metcalf v. Metcalf, Ala.Civ.App., 340 So.2d 38 (1976). Here, the wife itemized $95 in monthly expenditures required for the support of the daughter, The trial court’s award of $100 per month as child support assured these expenses will be paid by the husband. Moreover, under one view of the evidence, the trial judge could reasonably have concluded that the husband’s income was $300 per month or less. Hence, it seems apparent that the trial court considered the needs of the child and the father’s limited ability to pay in establishing the amount of the monthly payments. Although' we may not agree with the amount of' child support awarded in this instance, the law will not permit this court to substitute its judgment for that of the trial court. A showing of changed circumstances will allow modification of the amount of the payments. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974). We cannot say the award by the trial court constitutes reversible error.

The division of property in a divorce proceeding should be equitable. Dickson v. Dickson, 57 Ala.App. 732, 331 So.2d 740 (1976). The division does not have to be equal but should be graduated according to the nature of the case. Hamaker v. Hamaker, 57 Ala.App. 333, 328 So.2d 588, cert. denied, 295 Ala. 404, 328 So.2d 594 (1976). Here, each party was given an automobile. Additionally, the husband was given his business office and the wife a number of household items. The remainder of the property, real and personal, was ordered sold and the proceeds therefrom equally divided. The husband received property more valuable in amount only to the extent that the value of the office building exceeded that of the personalty awarded to the wife. The trial judge could reasonably have concluded that the husband had financially contributed more to the acquisition of the property during the twenty-seven years of marriage than had the wife. Moreover, the award of the office building could have been viewed by the trial court as enabling the husband to continue his livelihood. See Griffin v. Griffin, Ala.Civ.App., 338 So.2d 416 (1976). A greater disparity between amounts awarded to the respective spouses than is present here has been sustained on other occasions by this court. Griffin and Dickson, supra.

The decree of the trial court is to be affirmed.

AFFIRMED.

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


author: TYSON, Presiding Judge.

text:
    Robert Lewis RUDOLPH, alias v. STATE.
    3 Div. 675.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.
    Robert T. Meadows, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, for appellee.
   TYSON, Presiding Judge.

The appellant was indicted for the first degree murder of one Eddie Givan, Sr., “by shooting him with a pistol.” The jury found the appellant guilty of murder in the second degree and fixed punishment at twenty-five years imprisonment.

Frank James Givan stated that he lived in Wetumpka, Alabama, and that on March 31, 1973, he had been at a house located on Oak Street in Montgomery, Alabama. Also present within the house were his companions, Walter Clay, John Phillips, and Clifford Phillips. Each of these four, in essence, related that they had been playing a Rockola and drinking wine and beer on the evening in question inside the house. Each of these witnesses testified that the appellant, Robert Lewis Rudolph, came over to the table with a gun in his hand and told Frank Givan that “he was going to kill him.” He stated that he asked him to go outside, and after walking outside, he told him “he was going to blow his brains out,” and fired two or three shots into the ground near his foot. Frank Givan stated that about this time his father, Eddie Givan, called out, “Don’t shoot,” and was running across the street toward him. He stated that his father was unarmed, that he had nothing in his hands. He stated that as his father approached them, the appellant turned and fired a shot and struck his father, that his father fell to the ground near an automobile. He stated that the appellant then turned and ran away, but that his father was just a few inches (two or three) from him when the appellant shot him (R. p. 38). He stated that the police were notified, that they made an investigation, but that his father was dead upon arrival at the hospital. He identified a photograph of the scene, which depicted his testimony.

The above story was corroborated by the testimony of his companions of that evening, Walter Clay, John Phillips, and Clifford Phillips.

Walter Clay stated that he came out of the house in time to see the appellant “shoot my uncle (Eddie Givan, Sr.).” He stated that none of the Givans were armed, that they had nothing in their hands, and that all of them other than Givan, Sr., had been inside the premises having a few drinks when they were first accosted by the appellant.

Clifford Phillips stated that the first time he noticed the appellant was when he approached their table inside with a pistol and said that “he was going to blow their brains out.” He stated that later Frank Givan walked outside with the appellant, that he heard some shots and saw the appellant fire three times.

Dr. James L. Small testified he was a state toxicologist and performed a post mortem examination on the body of Eddie Givan, Sr. He testified that he removed a .38 caliber bullet from his body and “death in this case was attributable to shock, hemorrhage, and trauma with a gunshot wound to the body (R. p. 91).”

The appellant took the stand and testified that he was a resident of 502 Mobile Street, Montgomery, Alabama. He had gone to the house on Oak Street on the evening of March 31, 1973 about 10:30, and that alcoholic beverages, such as whiskey, wine and beer were being sold there. He stated that some people were having drinks and playing the “Rockola,” and that he saw Frank Givan and Clifford Phillips in the room. He stated that someone had come up behind him and said something “smart,” that they walked outside, that he slapped Frank Gi-van, and shot into the ground, and that Frank Givan said, “Don’t shoot me.” He stated that about this time, he heard someone running toward him, and as he was turning, someone “snatched the gun, and my finger was on the trigger and it went off.”

I

The appellant contends the State failed to prove a prima facie case of second degree murder.

In Holcey v. State, 52 Ala.App. 664, 296 So.2d 750, cert. denied 292 Ala. 723, 296 So.2d 753, we find the following discussion:

“Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. Smith v. State, 47 Ala.App. 513, 257 So.2d 372; Young v. State, 47 Ala.App. 674, 260 So.2d 406; Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Warren v. State, 34 Ala.App. 447, 41 So.2d 201.
“In Miller, supra, we find:
“ ‘ “Legal Malice” as an ingredient of murder is an intent to take human life without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption. Coates v. State, 1 Ala.App. 35, 56 So. 6; Warren v. State, supra.’ “Here, the appellant’s use of the pistol presented sufficient evidence from which the Jury could infer that he acted with malice.
“The conflict in the evidence presented a question for the Jury to determine, and the evidence was sufficient, if believed by the Jury, under the required rule to support the verdict. Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Rogers v. State, 49 Ala.App. 78, 268 So.2d 859; Carmichael v. State, 52 Ala.App. 25, 288 So.2d 807; Williams v. State, 51 Ala.App. 694, 288 So.2d 753.”

II

The appellant next asserts that the trial court failed to charge the jury on self-defense.

We have carefully examined the oral charge in this ease and find that after an extensive charge, the appellant’s attorney requested that the jury be charged on murder in the second degree. This was done (R. pp. 159-160). The appellant then announced, “For the record, defendant is satisfied with the charge.” Inasmuch as the evidence does not justify a charge on self-defense, and further, the appellant’s counsel had announced, “Satisfied,” and did not ask for any clarifying instructions, we are of the opinion that nothing further is presented for review. Cox v. State, 280 Ala. 318, 193 So.2d 759; Massey v. State, 49 Ala.App. 341, 272 So.2d 267, cert. denied 289 Ala. 747, 272 So.2d 270, and authorities therein cited.

III

Appellant asserts that the trial court improperly permitted the appellant to be asked whether or not he had previously been convicted on a felony (R. p. 153). To this, the appellant replied, “I been felony twice. First time was forgery.”

We note here there was no objection or motion' which invoked a further ruling by the trial court, hence, this question is not properly before us for review. Moreover, such examination was clearly proper. Moore v. State, 12 Ala.App. 243, 67 So.2d 789, and authorities therein cited.

Credit is here given for the excellent quality of the briefs for both the appellant, through counsel appointed to represent him, and by the Assistant Attorney General representing the State. We commend them for their efforts.

After careful examination of this record, as required by Title 15, Section 389, Code of Alabama 1940, we find same to be free from error. The judgment is therefore

AFFIRMED.

All the Judges, concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Robert Lewis RUDOLPH.
    SC 2366.
    Supreme Court of Alabama.
    April 29, 1977.
   TORBERT, Chief Justice.

WRIT DENIED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.


author: DeCARLO, Judge.

text:
    Gladys GOLDSMITH v. STATE.
    3 Div. 577.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 8, 1977.
    Robert S. Hill, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Murder, first degree; life.

I

The State filed a motion to strike the entire record and dismiss the appeal based on an alleged late filing of the record.

The record indicates that on August 5, 1975, judgment was rendered and a notice of appeal was given. On September 3, 1975, the motion for a new trial was filed and a hearing held. After the expiration of four thirty-day continuances, ranging from October 2, 1975 to January 2, 1976, the record on appeal was filed with this court on May 28, 1976. In a supplemental record filed with this court on June 18, 1976, there was an order dated June 16, 1976, denying the motion for a new trial. The order also stated that the motion was taken under advisement by the trial court on February 2, 1976. Basically, the State maintained there should have been continuances for the motion for the new trial until there was a ruling on it. The State contends, the beginning of the running of time for filing the transcript was the date from the notice of appeal and not the time of the ruling on the motion.

The rule outlined in Holman v. Baker, 277 Ala. 310, 169 So.2d 429, is that the taking of the motion under advisement operates to keep the motion alive and the matter rests in the breast of the court until a judgment on the motion is rendered.

In following this rule, the motion for a new trial would have continued to be alive in the breast of the court for the duration of the period that the court was considering the matter so that the time for filing the transcript with this court would have been computed from the date the court denied the motion for a new trial.

II

On Friday, March 8, 1975, Gladys Goldsmith left her home in New York and came to Montgomery to attend the funeral of her brother. She was accompanied by her brother, J. D. Morris and his friend, Debbie Foster. On their arrival, they went to the St. Francis Motel where they spent the night with her brother and Foster occupying one room and Gladys Goldsmith occupying another, alone.

Sometime in the early morning hours of Saturday, March 9, Gladys Goldsmith gave birth to a male child. She was alone at the time and according to her statement to the police, she blacked out after giving birth to the baby. In her statement, she related that she left the child on the bed until after 1:00 P.M. and then after inserting the baby in a paper bag, placed it in a suitcase. Subsequently, she dressed and after they placed the luggage in the car, they drove to her mother’s house at 3428 Homeview Street in Montgomery, where the suitcase was placed in a bedroom. They then left and attended her brother’s funeral in Au-tauga County.

Ada Mae Thomas testified that she was the appellant’s aunt and was present at the Homeview Street address on the day in question. She stated that Elaine Morris told her that she had heard a baby crying in a suitcase. Thomas went to the back room and picked up the suitcase and laid it down. She stated that: “There was something moving in there that I could hear . like some kind of whine . . . . Whine, going on, you know, like they were smothering.” Thomas said she did not open the suitcase but called her eight-year-old nephew, Bruce Morris, to open it. In the suitcase she saw a baby in a brown paper sack along with some dirt and a green pants suit. The baby was alive and according to some witnesses, there was blood on the child and the sack. According to Elaine Morris it was around 2:00 P.M. when they discovered the baby in the suitcase. Various other witnesses testified that they saw the baby during that time and that it was having difficulty in breathing.

Roberta Minor was present when the baby was discovered and stated that she had seen the appellant wearing the green pants suit found in the suitcase.

None of the witnesses had any knowledge of the appellant’s pregnancy.

Shortly after the discovery, the police were summoned and in ten or twenty minutes they arrived and the baby was taken to St. Margaret’s Hospital.

Subsequently, the appellant returned to her mother’s house after the funeral and when she made her identity known to the police, she was taken to the Youth Aid Division of the police department for questioning. There she was informed that she was charged with assault with intent to murder and questioned about the baby. After signing a form waiving her “Miranda rights,” she gave a statement which she signed.

On the morning of March 10, 1975, the baby died. Dr. Keith Hester was the pathologist at St. Margaret’s Hospital, who performed the autopsy. According to Dr. Hester, the cause of death was “adrenal hemorrhages” and in addition, “there was pulmonary edema, some hemorrhage into the lungs and failure of complete expansion of the lungs.” The doctor said that the adrenal hemorrhage was due to shock and indicated that it caused the baby’s death. He said the shock was due to the baby not being cleaned or having his air passages cleared and from not being kept warm. Dr. Hester testified that he knew nothing about the baby except what was on the hospital chart and that his only encounter with it was during the autopsy. On cross-examination Dr. Hester stated there was no indication of strangulation, bruises or anything that would indicate physical mistreatment.

At the completion of Dr. Hester’s testimony, the State rested its case and the defense called Dr. Thomas Nolin, after its motion to exclude was overruled.

Dr. Nolin’s specialty was pediatrics. He testified that the baby came in during the early afternoon of March 9,1975, about 3:00 P.M. Dr. Nolin said that in his very brief examination of the baby, he pulled the blanket from it and determined the baby had been carried a full term of pregnancy. It was active and still covered with the “usual body juices.” Further, he said that the umbilical cord was nice and clean but that the child seemed cold. He also stated that the baby was very active and alert and seemed to be slightly larger than an average baby. Dr. Nolin said that except for being cold, the baby was normal. He acknowledged writing a summary of the baby’s case for the hospital records. In that discharge summary, he referred to a possible coagulation deficit that could have caused or been a contributing factor in the baby’s death. According to Dr. Nolin: “The fact that the baby had unusually prolonged bleeding at the sight of the puncture done on its heel, for routine blood work and blood sugar,” supported his “. . . finding as far as clotting deficiency.” The doctor added that he did not give the baby a thorough physical because he thought the most urgent thing was to get it warm.

The defense next called Dr. Charles Harold Smith, a physician practicing psychiatry in Montgomery, Alabama. He testified that he had seen the appellant, Gladys Goldsmith, on March 28 and again on March 31, 1975. The meetings were in his office and were for about an hour each. Dr. Smith stated that it was his impression that, at the time of the original interview, the appellant was suffering from extreme depression which was very close to becoming a psychotic depression. Further, at the time he saw her on March 28 she was not legally insane and was able to distinguish right from wrong. Dr. Smith could not say with medical certainty that appellant was psychotic at the time of the incident, but did say that there was better than a “50/50” chance that she was.

On the second day of the trial, Gladys Goldsmith was called to testify in her own behalf. She stated that she worked for a senior citizen’s home in New York where she had lived for nine years. Appellant said that she was married and the mother of four children. She stated that she had had health problems and was being treated for extreme anemia. Goldsmith recalled watching the television on the night of March 8, 1975 until the end of the broadcast. She stated that she then went to sleep and did not remember anything until the next day about 12:30 P.M. when Debbie Foster awakened her. Appellant stated that Foster did not come into the room but only inquired whether she wanted breakfast. Afterwards she dressed and when the luggage was placed in the car, they drove to her mother’s house. Goldsmith stated that on returning from the funeral, she was taken downtown by the police. She remembered signing a statement but did not remember what she said.

Appellant testified that upon coming to Montgomery she did not know about her pregnancy but said she could have been pregnant. She did not remember giving birth to the child in the motel but added, had she not wanted the child, she could have received a legal abortion in New York. Goldsmith explained that she worked for the county and that her job would have paid for it.

On cross-examination, she admitted signing the statement and talking to the police. However, on further questioning, she denied remembering what was said in the statement or anything concerning the baby’s birth.

III

Counsel contends that the statement given by appellant should not have been admitted into evidence. He maintains: “. . . that in her exhausted mental and physical condition together with the emotional strain of the funeral of a brother . and the police questioning, Gladys Goldsmith was not competent to judge whether or not she should waive her rights provided by law.”

Before the confession was admitted into evidence, the court held a hearing out of the presence of the jury and Officer Janice Jones testified that the appellant had executed a waiver of rights form which contained the “Miranda Rights.” The officer stated that the rights form was read to the appellant and that she had signed the form in the officer’s presence. Further, Officer Jones stated that she did not threaten, harass or intimidate appellant in any way, or did she promise her any hope of reward to get her to sign the form.

Officer Billingsly testified that he was present when Officer Janice Jones advised the appellant of her rights and he too said that the statement was not the product of any coercion. He explained that at the time the statement was taken, appellant was charged with assault with intent to murder and the statement was taken the night before the child’s death. Further, he said that after the child’s death the appellant was charged with murder and executed another waiver form. He added that the statement in evidence was given after the first rights form was executed and before the child’s death. The pertinent part of that statement which was given in response to questions was:

“ T, Gladys Goldsmith, do give the following statement to Officer D. E. Billingsly of the Montgomery Police Department of my own free will.
“ ‘There have been no threats or promises made, and I have been advised of my rights and understand them.’
“Q What is your name, age and address?
“A Gladys Goldsmith, Age 33, 3428 Homeview.
“Q How long have you been in Montgomery?
“A Got here Friday morning at 6:30 A.M.
“Q Why did you come to Montgomery from New York?
“A To my brother’s funeral.
“Q How did you get to Montgomery and who with?
“A I came on a plane with Debbie and my brother, James Washington and a girl friend.
“Q What is your brother’s name, and Debbie’s name?
“A Debbie Foster and J. D. Morris.
“Q Where did you stay while you were in Montgomery?
“A St. Francis Motel.
“Q Who rented the room at the motel?
“A My brother.
“Q Did you stay in the same room with your brother?
“A No, I was in a room by myself.
“Q While you were in the room, did you have a baby?
“A Yeah.
“Q What part of the room were you in when you had the baby?
“A I was on the bed.
“Q What time of day did you have this child?
“A I don’t know, it was after 12 midnight.
“Q Was anyone else in the room when the child was born?
“A Not as I know of, I blacked out.
“Q What did you do with the child after it was born?
“A When I came to it was on the bed, and I just let it lay there.
“Q When did you move the child?
“A I left the child on the bed until after 1:00 P.M.
“Q What did you do with the child after 1:00 P.M.?
“A It was on a towel and I put it in a paper bag, I didn’t look at it and I put it in a suitcase.
“Q What did you do with the suitcase?
“A I took it to Homeview Street and put it in a bedroom.
“Q Did you clean the baby after it was born?
“A I don’t remember.
“Q Who else knew that you were going to have the baby?
“A Nobody.
“Q Did anyone come into the room at the motel when the child was there?
“A No. Debbie stuck her head in the' door but she didn’t come into the room.
“Q Did anyone see the baby or you when the child was born?
“A No.
“Q Did your brother come into the room after the child was born?
“A No.
“Q What color was the suitcase that you put the child in?
“A It was green with blue flowers on it.
“Q Was this your suitcase?
“A No; it was not mine. I borrowed it in New York.
“Q How did you get from the motel to your mother’s house?
“A My brother had a friend’s car.
“Q Why did you do this to this child?
“A I don’t know. I guess I was out of my mind or upset over my brother.
“Q Do you have any other children?
“A Yes, four.
“Q What were you going to do with this child?
“A I don’t know.
“Q Why did you leave it at your mother’s?
“A I don’t know.
“Q Have you seen a doctor or want to see one?
“A No.
“Q Again, did anyone know about the baby or see it during this time?
“A No; as I know of.
“Q What is the purpose of the dirt in the suitcase?
“A It is called sour dirt, and I was taking it back to New York with me. I eat it.
“Q Were you going to take the child back to New York?
“A I don’t know.
“Q Did you intend to kill this child or let it die?
“A No; I was going to -tell my mother about it.
“Q Is there anything you would like to add to this statement?
“A No.”

After the hearing, out of the presence of the jury, the trial judge found that the confession was voluntarily made. This court has held that great weight must be given to his judgment and only upon a finding that his decision is palpably contrary to the weight of the evidence, will his finding be disturbed. Jackson v. State, 51 Ala.App. 263, 284 So.2d 289. In Goldin v. State, 271 Ala. 678, 127 So.2d 375, the Supreme Court of Alabama stated:

“. . . The fact that an accused is not in full possession of his or her mental faculties when the confession is made does not render it inadmissible, but only affects the weight to be accorded by the jury; or is provable merely to support other evidence that the confession was not voluntary. To render such a confession inadmissible on that ground the mania must have been such that the accused was either an’ idiot or a lunatic during lunacy.” [Citation omitted.]

In Elrod v. State, 281 Ala. 331, 202 So.2d 539, the Supreme Court observed:

“. . . Evidence tending to show a defendant’s weak mentality, feeblemind-edness, and mental stress does not affect the admissibility of the confessions, but rather is a matter that bears on the weight, credibility and effect to be given the confessions by the jury.” [Citation omitted.]

In our judgment there was a full compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and there was no error in admitting appellant’s statement in evidence. Barnett v. State, 51 Ala.App. 470, 286 So.2d 876.

IV

Appellant next argues that the verdict of the jury was contrary to the evidence in the case. He maintains: (1) that the evidence did not prove that Gladys Goldsmith caused the death of the child; and (2) that appellant’s actions were not deliberate, premeditated or malicious.

Judge Harris, writing for the majority of this court in Albright v. State, 50 Ala.App. 480, 280 So.2d 186, which was reversed because of a defective indictment, made the following observations:

“. . . The law of neglect or omission as the same relates to infant children comes to us from the ancient common law being grounded upon a status relationship of paternal support, care, protection and nurture. An obligation imposed by law carries with it the corresponding legal duty to meet and discharge the responsibility. Willfully allowing one to be exposed to conditions which will probably result in death, where there is a duty to protect such person, constitutes murder. To create criminal responsibility for death resulting from exposure, there must be neglect to perform a legal or contractual duty which accused was bound to perform.” [Citation omitted.]

Further, Judge Harris quoted from Regina v. Hughes, 7 Cox C.C. 301, p. 302, wherein Lord Campbell, C. J., said:

“ ‘But it has never been doubted that if death is the directed [sic] consequence of the malicious omission of the performance of a duty (as of a mother to nourish her infant child) this is a case of murder. If the omission was not malicious and arose from negligence only, it is a case of manslaughter.’ ”

Noteworthy also is 1 Wharton’s Crim. Law, 12 ed. § 485, which states:

“. . . it may be generally stated that for a parent, having special charge of an infant child, so culpably to neglect it that death ensues as a consequence of such neglect, is manslaughter if death or grievous bodily harm were not intended; and murder if there was an intent to inflict death or grievous bodily harm.” [Footnote omitted.]

In Alabama the guilty agency component of corpus delicti may be established by circumstantial evidence. Smith v. State, 54 Ala.App. 237, 307 So.2d 47; Clark v. State, 54 Ala.App. 217, 307 So.2d 28.

The testimony summarized above shows that Goldsmith gave birth to a child and at no time did she give aid to the helpless infant. In fact, the evidence shows that sometime after delivering the child, she “put” it into a paper bag which was placed into a suitcase that was subsequently closed. These are facts from which a jury could determine that the infant’s death was the direct result of Goldsmith’s intentional acts.

The testimony of Dr. Hester, the pathologist, and the lay witnesses, showed facts from which a jury could infer that Goldsmith’s willful omissions in not caring for the infant, resulted in the exposure that caused its death. The sufficiency of this proof was for the jury and not for the court. Hearns v. State, 47 Ala.App. 725, 261 So.2d 64; Potter v. State, 44 Ala.App. 376, 209 So.2d 856; Cook v. State, 43 Ala.App. 304, 189 So.2d 595.

The second prong of this insistence, that Gladys Goldsmith at the time of these acts was psychotic was a question for the jury and the responsibility for such proof was on the appellant. Breen v. State, 53 Ala.App. 588, 302 So.2d 562; Lester v. State, 270 Ala. 631, 121 So.2d 110. The only evidence presented by defense in support of her plea of not guilty by reason of insanity came from Dr. Smith. He testified that he had examined appellant after her arrest on two occasions, each lasting one hour. Dr. Smith determined that she had a transient psychosis and there was a “50/50 chance that she had slipped into a psychotic state at the time the infant was placed in the suitcase. Although this evidence was un-contradicted, it in and of itself, was not sufficient to remove the question of insanity from the jury. It was within the province of the jury to accept or reject such expert testimony. Hockenberry v. State, 246 Ala. 369, 20 So.2d 533; Carr v. State, 43 Ala.App. 642, 198 So.2d 791; Luster v. State, 45 Ala.App. 19, 221 So.2d 695; George v. State, 240 Ala. 632, 200 So. 602; Cunningham v. State, 47 Ala.App. 730, 261 So.2d 69.

After considering all the evidence presented, we conclude that it was sufficient to support the verdict under the rule in Bridges v. State, 284 Ala. 412, 225 So.2d 821.

V

The appellant complains that reversible error was committed when several State witnesses were allowed to testify, even though they had remained in the court room during opening statements to the jury. In overruling this objection, the court stated it was basing its ruling on the fact that no witness had taken the stand and nothing but the statement of the case had been presented to the jury. In view of the fact that no showing was made of any injury to the appellant as a result of the witnesses’ presence during the opening statements, we are of the opinion the court’s actions were not error. Page v. State, 57 Ala.App. 265, 327 So.2d 760.

Whether these witnesses should have been permitted to testify was within the discretion of the trial judge. Under the circumstances, we find no abuse of discretion. McMurtrey v. State, 39 Ala.App. 319, 101 So.2d 88.

We have searched the record and did not find any error.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Gladys GOLDSMITH.
    SC 2427.
    Supreme Court of Alabama.
    April 29, 1977.
   EMBRY, Justice.

WRIT DENIED.

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