author: BEATTY, Justice. JONES, Justice

text:
    Louise FIELDS v. Sterling PARKER.
    77-243.
    Supreme Court of Alabama.
    July 28, 1978.

      Wyman 0. Gilmore, Grove Hill, for appellant.
    Richard S. Manley, Demopolis, for appel-lee.
   BEATTY, Justice.

The plaintiff appeals from an order granting a new trial or in the alternative a remittitur. We affirm.

The action was based upon a collision between the plaintiff’s automobile which was struck from the rear by the defendant’s truck. The plaintiff, a resident of Demopo-lis, alleged negligence on the defendant’s part which proximately resulted in personal injuries. Trial ensued, and at the close of the evidence the defendant admitted liability, thus leaving the amount of damages as the sole issue for the jury’s determination. The jury assessed damages at $22,000.00, and judgment was entered for that amount. A motion for a new trial or in the alternative a remittitur was filed assigning four grounds in support. Two of these grounds raised issues not material here, while the other two challenged the amount of the judgment as excessive. In due course the trial court entered the following order:

Defendant having moved for an Order pursuant to rule 59(a), A.R.C.P., for a new trial, and it appearing to the Court that the jury verdict of TWENTY-TWO THOUSAND ($22,000.00) DOLLARS is clearly excessive, it is hereby
ORDERED, that the motion for new trial is granted unless and until the Plaintiff shall remit SEVEN THOUSAND FIVE HUNDRED AND NO/100 ($7,500.00) DOLLARS of the judgment heretofore rendered.

The plaintiff contends that the trial court erred in granting this motion, in essence because it was an interference by the trial court into a matter, compensatory damages for physical pain and mental suffering, which is within the jury’s prerogative, when there was absent clear abuse or passionate exercise by that body.

We have carefully reviewed the record in this case as well as the cases cited to us in the briefs of counsel for each party. The decisions relied upon by the plaintiff pertain to the restriction upon this Court when it reviews a decision of the trial court on the matter of his having granted or refused a new trial. Most of these recite the well established rule of our jurisdiction, that on its review this Court will not disturb a verdict as excessive when the trial court itself has refused to disturb the amount, unless in the view of this Court that amount is so excessive that it indicates passion, prejudice, corruption or mistake. Brandwein v. Elliston, 268 Ala. 598, 109 So.2d 687 (1959); Donald v. Matheny, 276 Ala. 52, 158 So.2d 909 (1963); Langdon v. Miller, 276 Ala. 195, 160 So.2d 479 (1964); Atlanta Life Ins. Co. v. Stanley, 276 Ala. 642, 165 So.2d 731 (1964); Stringfellow v. Rambo, 277 Ala. 349, 170 So.2d 494 (1965); Durham v. Sims, 279 Ala. 516, 187 So.2d 558 (1966); Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975). Some of these and other decisions allude to the strengthening of the presumption in the correctness of the verdict when the trial court has refused to grant a new trial. E. g., Clark v. Hudson, 265 Ala. 630, 93 So.2d 138 (1957); Jackson v. Brown, 49 Ala.App. 55, 268 So.2d 837 (1972); L. & N. R. Co. v. Phillips, 293 Ala. 713, 310 So.2d 194 (1975). Those cases demonstrate the difference in the positions occupied by the trial court, on the one hand, and this Court sitting in review of that court, on the other.

Historically, this Court has accorded the trial court a large measure of discretion, reviewable nevertheless, in determining whether to grant a new trial and in imposing conditions of remittitur upon that determination. Of that practice Montgomery Traction Co. v. Knabe, 158 Ala. 458, 48 So. 501, 504 (1909) furnishes an early recognition:

On motion to set aside a verdict on account of excessive damages, followed by the offer of the plaintiff to reduce the verdict to a certain amount, the trial court, if of opinion that the plaintiff is entitled to recover, but that the judgment is excessive, may properly make such reduction of the verdict and enter judgment accordingly. Indeed, that such power and authority inhere in the trial court seems to be fully recognized by this court in the case of Richardson v. Birmingham Cotton Co., 116 Ala. 381, 22 So. 478. ...

This Court has confirmed that discretion in a number of later decisions. E. g., Birmingham Electric Co. v. Thompson, 251 Ala. 465, 37 So.2d 633 (1948); Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958); Central of Ga. R. Co. v. Steed, 287 Ala. 64, 248 So.2d 110 (1971).

The principle was explained by Mr. Justice Simpson in Birmingham Electric Co. v. Thompson at 251 Ala. 465, 466, 37 So.2d 633, 634:

Regrettably, from the standpoint of an appellate court seeking to appraise the correctness of the amount of the judgment appealed from, we are not advantaged ' as the jury and the trial judge were in observing the objective symptoms, such as the scars on the plaintiff’s face, the deformity of the foot, and the cosmetic aspect of such injuries. We cannot foretell what future pain or suffering, also an element to be considered (15 Am.Jur. 483, § 73), might recur. Nor is there any yardstick to measure the amount of recompense which should be awarded for pain or mental suffering.
We must, perforce, rely upon the good judgment of the trial court, an able jurist of long experience, who was so advantaged and who reduced the judgment to the amount stated. On this point we must be impressed with his conclusion and, indeed, it has weight on review, and a favorable presumption as to its correctness is indulged. Thornton v. City of Birmingham, 250 Ala. 651, 35 So.2d 545(18); Birmingham Electric Co. v. Howard, 250 Ala. 421, 34 So.2d 830(6).

This position which recognizes the authority of the trial court in the matter of remitti-turs coincides with his discretion in the matter of granting or refusing motions for new trials, the exercise of which is presumed on appeal to be correct in the absence of a showing in the record that the trial court was palpably in error.

That authority was the subject of Chief Justice Stone’s opinion in White v. Blair, 95 Ala. 147, 10 So. 257 (1891). He wrote for the Court:

The rules for granting or withholding new trials after a verdict has been rendered are not always expressed in the same terms. Some courts give greater weight to the findings of a jury than others do, or, at least, they seem to do so. We are not inclined to adopt extreme views on either side of this question. We hold that no higher duty rests on a court of original jurisdiction than to assert his manhood, and grant, or refuse to grant, a new trial, as the merits of the controversy may point out his duty. Railroad Co. v. Powers, 73 Ala. 244. The case of Cobb v. Malone, 92 Ala. 630, 9 So. 738 . . brought this statute [allowing the Supreme Court to grant new trials or to correct errors of the circuit courts in granting or refusing to grant new trials] before us for the first time. In that case, as in this, the main ground of the motion was that the verdict was contrary to the evidence. In that case the motion had been denied by the trial court, and we were asked to reverse his ruling. We gave the question careful consideration, and declared two rules, which we intended should become a guide and precedent. We said: ‘The decision of the trial court, refusing to grant a new trial on the ground of insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.’ When the lower court grants a new trial, and the appeal is from that ruling, we said the decision ‘will not be reversed unless the evidence plainly and palpably supports the verdict.’ .

Accord, Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973).

What did the record in this case disclose in the matter of the plaintiff’s damages?

The plaintiff was injured when riding in the front seat of her 1970 Cadillac automobile which was being driven by someone else. Her car was struck from behind. Estimates of the damage to the automobile ranged from $600.00 to $2,600. She proved a total of $932.27 in medical expenses, broken down between $117.77 in drug bills and $814.50 in doctor’s bills. There is some dispute regarding a bill for the cost of a rental car, $528.64; however the record shows that objection was sustained to proof of that item and it is not argued here.

The plaintiff’s grandson, her driver at the time of the accident, testified to the nature of the impact. He was not wearing a seat-belt, but the force of the impact was not great enough to propel him into the windshield, or to throw him onto the floor, or to move him off of his seat. The force did push the car about fifteen feet up the highway and across the road. He testified that the plaintiff, as far as he knew, was still on her carseat after the accident. He drove the car home after the accident.

An investigating state trooper testified that after the accident he talked with the plaintiff in an antique store, and it was his opinion that she did not seem injured. When he inquired if there were any injuries the plaintiff made no statement.

The plaintiff testified to her age at the time of the accident, seventy-five, that she was injured about the neck and lower back, causing her pain just above her tailbone, that she had never had any problems with her back before the accident, never bothered with aches or pains, and could carry on her work and business, which consisted of farming, rentals and warehousing. She testified that since the accident, however, she was in severe pain, never free from it, took shots to relieve her back, and had been unable to carry on her normal duties. She had driven her ear only once or twice since the accident, and could not continue to care for her invalid daughter who lived with her. She also testified that her social activities had been restricted because of the accident: “Well, I’ve not even been in my next door neighbor’s house or the corner house either.” She testified that she did ride to Mobile and back, and saw a little Mardi Gras parade, leaning against a car to watch it. She also rode over to Soho, Mississippi since the accident to attend an antique auction, and to Greensboro and Winterboro for the same purpose.

The plaintiff’s daughter, Mary Fields, testified to the extensive physical assistance given to her by her mother before the accident, to the limitations upon her mother’s physical activities since the accident, and to her mother’s everyday complaints of pain.

The deposition of Dr. Reece Holifield, a physician, was read into evidence. He testified that the plaintiff had been his patent for approximately twenty years. According to Dr. Holifield, the plaintiff came to his office on the day of the accident, June 8, 1976, complaining of low back pain. An X ray of her pelvis was made. He subsequently examined her on June 29. She was complaining of a neck pain and low back pain. His examination revealed a paraver-tebral muscle spasm in the low back, with some areas of tenderness which he treated with injections. Upon a later examination on July 10 he administered injections and prescribed antispasmotic medication. On July 22, X rays of the lumbar spine disclosed severe osteoarthritis in the sacroiliac joint, and some degenerative arthritis in the cervical spine. On August 7 she was complaining of low back pain, with less severe neck pain. On August 18 her neck problems had improved but she continued to complain of “a lot of pain in her back.” On September 9 she still had marked tenderness in her back, and complained of severe generalized weakness which her inability to rest at night probably caused. He saw her on October 4, complaining of pain in the posterior cervical muscles, on November 11 and November 16. He prescribed a skeletal muscle relaxant. When he saw her on December 9 she complained of her back aching all night. He found her mentally depressed. He prescribed Retilin and Dal-mane, a muscle relaxant-type sleeping medication. He conversed with the plaintiff by telephone on December 28 and prescribed a pain medication with a sedative. On January 27,1977 she had ultra sound treatments on her back. Then on February 22 her back was injected with a local anesthetic and a steroid drug. On February 15 and 23 she had ultra sound treatments, as she did on March 10 and April 2. When she visited on April 26 she had a urinary tract infection. On May 7 she was given an injection for an arthritis-type condition. At that time she was not complaining as vigorously as before, but on May 28 her complaints renewed and she was given an injection. She was seen on June 13 and 20 about a rash, probably the result of some medication. On August 2 she was seen complaining about her back and physical weakness. He administered medication for depression and steroids for her back. He repeated the steroids on August 29.

When asked whether the plaintiff had any permanent disability with respect to her back, he testified, that her X-rays showed “rather severe degenerative arthritis or osteoarthritis, which is the wear and tear arthritis that all of us will get as we get older.” Previous to this time (June 8, 1976) I don’t remember ever treating her for any back pain or problems. I think her main problem is that she has had some aggravation of a pre-existing condition and she continues to have . . . a lot of problems with her back.” He added that she had made a good recovery with regard to her neck, but continued to complain vigorously about her low back, with the pain keeping her awake and keeping her from her needful activities. He noted a continuation of marked tenderness in her back and muscle spasm. It was his opinion that since June 8, 1976 until he saw her last she had not been able to carry out her normal duties, almost one hundred percent physically impaired for that period of time.

After the plaintiff rested, the defendant called several witnesses who testified that they had associated with the plaintiff since the accident. One witness had driven the plaintiff to the doctor’s office, the grocery store, an antique shop, and to her lawyer’s office about fifteen times since February, 1977. This witness and her husband drove the plaintiff on a one-day trip to Soho, Mississippi, a distance of around 140 miles from Demopolis. They attended an antique auction which lasted about five hours, and they returned to Demopolis early the next morning, the entire trip having taken around nine hours. They also drove the plaintiff to antique auctions in Greensboro and Winterboro, Alabama. They would leave around one o’clock (p. m.) and return around two o’clock (a. m.). They drove to Mobile in February for one day during Mar-di Gras, and while there visited an antique shop before witnessing a two o’clock (p. m.) parade. This witness testified that she had seen the plaintiff driving her automobile on more than one occasion in Demopolis within the past six months. She added that she had heard the plaintiff complain of pain.

At bottom, the question we must decide is whether under this evidence the trial court properly made a reduction of the verdict as a condition for denying a new trial. Richardson, supra. On this record we cannot state that his discretion was abused. We have no yardstick with which to measure the proper amount of damages which should equate pain and suffering, nor is there any litmus test useful in determining their extent. Admittedly, this plaintiff has sustained physical aggravations aside from her other special damages. The extent to which they have been imposed by this accident, and the extent to which they have affected her physical condition have been, and are, properly subjects for the jury’s consideration, Durham v. Sims, supra, subject, of course, to the trial court’s review. Granting the presumption to which his action is entitled, Steed, supra, we are also conscious of the fact that his decision to reduce the verdict or set it aside has involved his judgment based upon his observation of all of the witnesses who testified, his consideration of all of the evidence, and his awareness of the other incidents of the trial, “[all of] which cannot be reflected in the transcript and which are not available for observation by us.” Airheart, supra; Luquire Funeral Homes Ins. Co. v. Turner, 235 Ala. 305, 178 So. 536 (1938). In sum, upon examination of the entire record we cannot state that the trial court’s reduction of the jury’s award from $22,000.00 to $14,-500.00 represents a plain and palpable error, regardless of our own beliefs regarding any sum to which the plaintiff might have been entitled.

Accordingly, the judgment must be affirmed and it is so ordered.

AFFIRMED.

TORBERT, C. J., and MADDOX and SHORES, JJ., concur.

JONES, J., concurs in the result.

JONES, Justice

(concurring in the result):

While I still hold to the view expressed in my dissenting opinion in Hubbard Bros. Construction Company, Inc. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975), I concede that the result reached by the majority opinion is the settled law on motions for new trial in the factual context of this case.


source: Caselaw Access Project

author: SENTELL, Clerk.

license: Public Domain

text:
    OPINION OF THE CLERK, SUPREME COURT of Alabama.
    No. 13.
    Supreme Court of Alabama.
    Aug. 11, 1978.
   SENTELL, Clerk.

RULE 3(B), ALABAMA RULES OF JUDICIAL ADMINISTRATION — CONTRACTS WITH COUNTY COMMISSIONS FOR COURT SERVICES

Mr. Allen L. Tapley, Administrative Director of Courts, has requested my opinion, as Clerk of the Supreme Court, as follows:

. Rule 3(B) of the Alabama Rules of Judicial Administration authorizes the Administrative Director of Courts to contract with the county commissions for additional necessary court services. Does this rule authorize the ADC to contract with the county commission to pay a fixed sum of money for the use of a county-owned automobile? The automobile would be used by a judge during the performance of his official duties.

Section 12-2-19(d), Code of Alabama 1975, authorizes the Clerk of the Supreme Court to “give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the supreme court to any other officer or official of the state who shows a need for such opinion and requests the same.”

It is my opinion that this inquiry must be answered in the affirmative.

Rule 3 of the Alabama Rules of Judicial Administration reads as follows:

(A) Physical Facilities. — Counties shall furnish and maintain courtrooms and offices for court officials and employees, including judges, clerks, registers and district attorneys, utilities and other necessary facilities for state courts in accordance with standards prescribed by the administrative director of courts (ADC). Municipalities shall furnish and maintain such space and facilities where district courts are required to sit for the enforcement of municipal ordinances or otherwise. Counties and municipalities may provide additional court supportive personnel, services, equipment and furnishings.
(B) Court services. — The ADC shall have authority to contract, with the approval of the chief justice, for additional necessary court services with county commissions, municipalities, private individuals, corporations or other entities to facilitate the orderly function of the state judicial system.

Rule 3(A) prescribes certain “physical facilities” which counties “shall” furnish for the use of the State’s unified court system: courtrooms, offices, utilities “and other necessary facilities for state courts in accordance with standards prescribed by the administrative director of courts (ADC).” This language requires the counties to furnish those items related to housing and providing work space for the court system; but Rule 3(A) further states that the counties “may” provide to the court system “additional . . . personnel, services, equipment and furnishings.”

Rule 3(B) provides for the furnishing of “additional necessary court services” by contract between the Administrative Director of Courts and county commissions, municipalities, and other entities. The “additional necessary court services” contemplated by Rule 3(B) are those not furnished in accordance with either provision of Rule 3(A).

The word, “necessary,” as used in constitutional and statutory language can mean something less than “absolutely indispensable,” and may mean “convenient,” “useful,” “proper,” “needful” or “relevant” to the attainment of an objective. McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819); Venable v. Brockett, 69 Misc.2d 726, 330 N.Y.S.2d 604 (1972).

The word, “court,” as the modifier of “service” means “of, relating to or appropriate to a court.” Webster’s Third New International Dictionary (1976).

A “utility” in the context of Rule 3(A) is “a service provided by a public utility.” Webster’s Third New International Dictionary (1976). See Opinion of the Clerk, No. 7, 1977, Ala., 350 So.2d 308.

It is clear that the word, “service,” in Rule 3(B) means more than the furnishing of utilities, since utilities are dealt with in Rule 3(A).

The word, “service,” has different meanings. Claxton et al. v. Johnson County, 194 Ga. 43, 20 S.E.2d 606 (1942).

The term, “services,” is not limited in meaning to “labor,” but also includes materials and things furnished. People v. McCord, 15 Cal.App.2d 136, 59 P.2d 587 (1936), Addison Miller, Inc. v. Commissioner of Taxation, 249 Minn. 24, 81 N.W.2d 89 (1957).

A concise definition of the word, “service,” is “action or use that furthers some end or purpose.” Webster’s Third New International Dictionary (1976). This definition is peculiarly applicable in the context of Rule 3(B) because of the words, “to facilitate the orderly function of the state judicial system.”

In my opinion, the use of an automobile for travel by a judge in the performance of his official duties is a necessary service that relates to and is appropriate to a court and facilitates the orderly function of the state judicial system.

The conclusion, therefore, is that Rule 3(B), Alabama Rules of Judicial Administration, authorizes the Administrative Director of Courts, with the approval of the Chief Justice, to contract with a county commission for the use of a county-owned automobile by a state judge in the performance of his official duties.


author: PER CURIAM.

text:
    REICHHOLD CHEMICALS, INC. v. James W. McDANIEL et al.
    Civ. 1345.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1978.
    Rehearing Denied Feb. 1, 1978.

      C. V. Stelzenmuller and J. Patrick Logan, Birmingham, for employer.
    George C. Cocoris, Montgomery, for appellant, Dept, of Industrial Relations.
    William J. Donald, III, of Zeanah, Donald & Hust, Tuscaloosa, for employee appellees.
    Fournier J. Gale, III and Cathy S. Wright, Birmingham, for Associated Industries of Alabama, Inc., amicus curiae.
   PER CURIAM.

This is an unemployment compensation case.

An appeals referee denied the claim of the plaintiffs for unemployment compensation. The Board of Appeals, Department of Industrial Relations, upheld the order of the appeals referee. Specifically, the Board of Appeals held that the plaintiffs were disqualified under the provision of Tit. 26, § 214 A., Code of Alabama 1940, on the ground that the unemployment of the plaintiffs was due directly to a labor dispute.

The plaintiffs, pursuant to Tit. 26, § 221, Code of Alabama 1940, appealed the decision of the Board of Appeals to the Circuit Court of Tuscaloosa County. That court, after a trial de novo, found as follows:

“Now, having considered the evidence carefully, the Court is of the opinion and finds from the evidence that the plaintiffs are entitled to receive benefits under the provisions of the Unemployment Compensation Law of Alabama for the week beginning December 14, 1975 and for each following week of unemployment and that the plaintiffs are not disqualified for such unemployment compensation benefits under Section 214-A thereof.”

The trial court went further and gave the following as the basis for its holding:

“The Court is of the opinion and finds from the evidence that the plaintiffs did not participate in the strike and did not cross the picket-line because each had a reasonable fear of violence to his person and that the apprehension of violence was reasonable and well-founded. The Court is of the further opinion and fúr-ther finds from the evidence that such a violent atmosphere prevailed at the strike site that no actual physical attempt to cross the picket line was required.”

It is from that decree that appellant-Reichhold Chemicals, Inc., appeals.

At the outset, we note the following provision of Tit. 26, § 214 A., Code of Alabama 1940, in pertinent part, is as follows:

“An individual shall be disqualified for total or partial unemployment:
“A. For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed; . . . ”

However, there is a “violence” exception to Tit. 26, § 214 A. This exception to the statute is a judicial interpretation which provides that if a claimant for unemployment compensation can show a well-grounded fear of personal violence, his refusal to cross a picket line would not require his disqualification for benefits. See Ex parte McCleney, 286 Ala. 288, 239 So.2d 311 (1970).

In Ex parte McCleney, supra, at p. 292, 239 So.2d at p. 315, the Supreme Court of Alabama stated that:

“To qualify for unemployment compensation, the burden of proof is on the claimant to show (1) that he was willing to cross a peaceful picket line, . . .; (2) that he made a reasonable attempt to cross the picket line in question, . .’ (3) that claimant’s sole reason for failing to cross the picket line was a well-founded and reasonable apprehension of violence to his person. . . . We use the word ‘sole’ as contrasted with refusing to cross a picket line because of union beliefs, sympathy with other strikers, pangs of conscience, or adherence to union principles. This court has already said that a claimant’s ‘refusal to cross the picket line is solely because of his adherence to a tenet of his trade unionism’ disqualifies him for benefits under Tit. 26, § 214(A), Code 1940; . . .”

With this in mind, we must now look to the evidence to determine if it substantially supports the trial court’s judgment of claimant’s qualification because of a reasonable fear of personal violence.

Appellant-Reichhold owns and operates a chemical plant near Holt, Alabama. At all times material to this action, there were two labor unions representing employees at this plant. The International Association of Machinists and Aerospace Workers, Local 1610, AFL-CIO, (hereinafter machinists) was the recognized bargaining agent for all employees in the plant’s maintenance department. The International Chemical Workers Union, Local 180, AFL-CIO, (hereinafter chemical workers) was the recognized bargaining agent for all employees in the production, shipping and laboratory departments. There were about 140 employees in the chemical workers’ bargaining unit and about 80 in that of the machinists.

The machinists called a strike at the Reichhold plant on December 8,1975, at 3 p. m. The strike lasted 100 days. A short time after the machinists struck, McDaniel and other members of the chemical workers’ executive board conferred at the picket line to decide whether the chemical workers would cross the picket line. The board members issued a “recommendation” or “temporary order” to the membership to honor the picket line, pending an “emergency” union meeting set for the evening of December 11, 1975.

On the morning of December 11, 1975, a chemical was poured, by persons unknown, on the cars of employees of Chicago Bridge and Iron Company (CBI) who were staying at a motel approximately 10 miles from the picket line. Some tires were slashed and roofing tacks were scattered about the parking lot. CBI was a plant contractor using its own employees and equipment to construct storage tanks inside the Reichhold plant area. CBI withdrew its men and equipment from the plant several days later.

At the “emergency” meeting of the chemical workers later that night, the temporary order was not rescinded nor was a vote taken by the membership to honor the strike. In fact, no vote was taken by the membership during the strike’s duration. The temporary order was also not rescinded at any time during the strike.

Although some witnesses testified to the contrary, the overwhelming tendency of the testimony reveals that the machinists’ picket line was peaceful and nonviolent. No one was physically prevented from crossing the picket line and no threats of real substance were, heard. While some “threats” were made at the picket line, most witnesses dismissed these as mere talk and the “threats” were not taken seriously.

The record further shows that the Reich-hold plant was in continuous operation throughout the strike. Approximately 40— 50 workers crossed the picket line each day without incident. At no time during the strike did a chemical workers’ member attempt to cross the picket line to go to work.

Perhaps the most serious incident at the picket line was the throwing of roofing tacks on the county road which led to the plant entrance. This occurred about 15 days after the strike started and was fairly constant throughout the strike. There was also evidence concerning nails being driven into the road, but the duration of this is uncertain.

The record does, however, reveal some incidents which took place away from the picket line. These incidents, as set out below, were never tied directly to the machinists although they were supposedly related to the strike.

ALLEGED INCIDENT DATE DISTANCE FROM PICKET LINE

Concrete block thrown from car into Chem-Hauler truck radiator .12-17-75 6-7 miles

Two or three shots fired at Chem-Hauler truck from passing car During strike Approx. 10 miles

Glass broken on two rental cars of salaried Reichhold employees 2-4-76 Approx. 2 miles

Plastic explosive detonated on concrete slab of power substation. Lights went off for a few minutes 2-25-76 1,000 feet

Several Reichhold salaried employees from other plants were assaulted by unknown persons with clubs who also broke car windows. Early Mar. 5-6 miles (Local hotel)

The appellant contends the trial court erred in finding that claimants were not disqualified for benefits by § 214 A. Appellant argues that the claimants did not sustain their burden of proving that they came within the violence exception to § 214 A.

Secondly, appellant argues that there was no evidence that appellee-McDaniel or any other claimant met the eligibility requirements of Tit. 26, § 213. Appellant contends that such requirements are conditions precedent to eligibility for unemployment compensation benefits.

Turning to appellant’s first contention, we noted above the requirements a claimant must meet in order to fall within the violence exception.

The Supreme Court of Alabama, however, in Clary v. Central Foundry Co., Ala., 333 So.2d 824 (1976), stated that if there was such an overriding atmosphere of violence at the picket line, so as to constitute a well founded and reasonable apprehension of violence to his person, it would be totally superfluous and unnecessary for the claimant to prove (1) he was willing to cross a peaceful picket line and (2) that he made a reasonable attempt to cross such picket line.

Keeping in mind the standard and facts set out in Clary v. Central Foundry Co., supra, and Ventress v. Rice, 289 Ala. 631, 270 So.2d 100 (1972), the activities at the picket line in this instance do not rise to such level as to create the violent atmosphere necessary to excuse the claimant from meeting the three requirements as expressed in Ex parte McCleney, supra.

This being the case, we now must look to the three requirements as set in Ex parte McCleney, supra.

As to the first requirements, the record indicates that one claimant testified he was willing to cross the picket line. Other than this, the record is devoid of any evidence of a claimant’s willingness to cross the line. According to Speagle v. United States Steel Corp., 268 Ala. 3, 105 So.2d 717 (1958), this amounts to a voluntary refusal to cross the picket line and would disqualify them for benefits. The only way to excuse this would be the presence of such a violent atmosphere at the picket line that the proof of willingness would be superfluous and unnecessary.

As to the second requirement, a claimant is required to make a reasonable attempt to cross the picket line. However, evidence that such an attempt would produce violence or be futile will excuse such an attempt. See Clary v. Central Foundry Co., supra; Ventress v. Rice, supra; Ex parte McCleney, supra.

The “reasonable attempt” criterion does not contemplate that a nonstriking employee risk physical harm. There are situations in which such a violent atmosphere prevails at a strike site that no actual attempt to cross the picket line would be required. See Clary v. Central Foundry Co., supra.

As noted above, no such violent atmosphere prevailed at the picket line in this case. One witness testified that he attempted to cross the line in January, 1976, but was told he would come out in a hearse. However, this witness also testified that he had been to the picket line prior to this statement and had no threats made against him. He also made several trips back to the line after the statement and encountered no threats.

It is well settled that the fear of violence must be real and not nebulous. Just because claimants say they are afraid of the pickets is not enough to excuse the claimants from crossing the line. See Ex parte McCleney, supra.

The “reasonable attempt” criterion could also be met by a claimant who never approached the picket line at all if several people attempting to cross had met with violence and a claimant knew of this violence. See Clary v. Central Foundry Co., supra. As noted above, 40-50 workers crossed the line each day without any threats or violence.

It is clear that the claimants did not make a reasonable attempt to cross the picket line. This in itself would be sufficient to deny claimant unemployment benefits due to the lack of violent atmosphere at the picket line. See Ventress v. Rice, supra.

As to the third requirement, there is no proof that the sole reason for the claimant’s failure to return to work was because of a real and genuine fear of personal violence. The McCleney case states that the fear of violence must be the claimant’s sole reason.

The testimony of several claimants indicated that they did not work because it was not the accepted thing to do and it would not be a popular thing to do. There was also a statement by a claimant that the strike was honored as a matter of policy.

There was a petition circulated and signed by approximately 50 chemical workers which expressed their desire to return to work. The record further revealed that charges could be filed against a chemical worker member if he returned to work during the strike period.

In consideration of the above, we cannot find that the sole reason of the claimants in refusing to cross the picket line was a fear of violence. An adherence to union principles, as is evident in this case, serves as a disqualification for unemployment compensation benefits according to Ex parte McCleney, supra.

In this instance, all the elements set out in Ex parte McCleney, supra, must be proven before nonstriking employees are entitled to unemployment compensation. If the claimant fails to meet one of the requirements, he is barred from receiving any benefits. In this case, as pointed out above, the claimant failed to meet any of the requirements.

While the above is dispositive of this case, we will address appellant’s second contention. Appellant argues that the judgment was erroneous because claimant did not prove compliance with § 213 eligibility requirements.

The theory in this case was whether the claimants were disqualified for benefits under § 214 A. because of unemployment due to a labor dispute in active progress. Specifically, whether the claimant’s sole reason and well founded fear of violence, i. e., violence exception to § 214 A.

Since the question of eligibility requirements was not raised or passed upon by the trial court, we do not consider it here. See Greene v. Department of Industrial Relations, 38 Ala.App. 199, 83 So.2d 360 (1955).

In summary, when an unemployment compensation case has been heard orally before a trial judge, his findings are clothed with a presumption of correctness unless plainly contrary to the weight of the evidence. Department of Industrial Relations v. Jaco, Ala.Civ.App., 337 So.2d 374 (1976).

We do not find in this case such an overriding atmosphere of violence at the picket line so as to substantially support the trial court finding that claimants had a reasonable fear of personal violence. This court finds the preponderance and weight of the evidence to show the claimants disqualified from receiving unemployment compensation. This cause is therefore due to be and is reversed and remanded to the trial court to enter a judgment not inconsistent with this opinion.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

All Judges concur.

      . We note that the parties in this case entered into a stipulation concerning testimony of claimants. Appellant-Reichhold agreed with the appellee-James W. McDaniel, et al., that the testimony of one claimant would be substantially the same as another claimant. This was done to prevent calling approximately 130 claimants to the witness stand.
      There was also an agreement between appel-lee and the Director of Industrial Relations that the decision on the claim of James W. McDaniel, President of Local Chemical Workers, would be binding on all the other claimants who are members of the same union.


author: BEATTY, Justice.

text:
    In re REICHHOLD CHEMICALS, INC. v. James W. McDANIEL et al. Ex parte James W. McDANIEL et al.
    77-325.
    Supreme Court of Alabama.
    Aug. 4, 1978.
    William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for petitioners.
    C. V. Stelzenmuller and J. Patrick Logan, Birmingham, for respondent, Reichhold Chemicals, Inc.
    George Gocoris, Gen. Counsel, Dept, of Industrial Relations, State of Alabama, Montgomery, for Director of Industrial Relations, State Dept, of Labor, respondent.
    Fournier J. Gale, III and Cathy S. Wright, Birmingham, for amicus curiae, Associated Industries of Alabama, Inc.
    James P. Alexander and Stephen E. Brown, Birmingham, for amicus curiae, Jim Walter Resources, Inc.
   BEATTY, Justice.

Writ quashed as improvidently granted.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Joseph Allen SMITH v. Edith SMITH.
    Civ. 1288.
    Court of Civil Appeals of Alabama.
    May 10, 1978.
    Rehearing Denied June 14, 1978.

      John Tucker, Birmingham, for appellant.
    William N. Clark, of Rogers, Howard, Redden & Mills, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals.

The parties separated in South Carolina in 1968. On October 9, 1968, the wife obtained an order from the Juvenile and Domestic Relations Court of Greenville, South Carolina requiring the husband to pay a weekly sum of $46.35 into the court for the support of two minor children. In 1970 the husband obtained a decree of divorce from the wife in North Carolina. In 1971 a South Carolina court declared the North Carolina decree void. The husband, in the interim, had married another and established a residence in Alabama. In 1973 the wife secured a judgment for $100 per month in Jefferson County, Alabama against the husband under the Uniform Reciprocal Non-Support Act. The husband brought suit for divorce against the wife in Jefferson County in 1976. The wife, a resident of South Carolina, answered and filed a counterclaim seeking judgment for the accumulated unpaid sums due under the order for support of the South Carolina Domestic Relations Court entered October 9,1968. She further asked for alimony and support in the event divorce was granted.

The court heard the case orally upon petition, answer and counterclaim. It found, after all credits, that there was due under the South Carolina order the amount of $8,752. Judgment was entered in that sum. Divorce was granted and the wife was awarded monthly alimony of $125 and support for the minor child in the amount of $125 per month. The alimony was to increase to $200 per month after the child attained majority. Attorney fees of $1,000 were awarded the wife.

The first issue presented by the appeal is whether the order of the South Carolina Domestic Relations Court for weekly support of minor children may be reduced to a cumulative money judgment.

The order of the South Carolina court is a part of the record in this case. An examination of the order leads to Title 15, Chap. 7, Article 5 of the South Carolina Code of 1962. Article 5 relates to the family court. It confers upon that court jurisdiction within the county to compel the support of a wife and child. Section 15-1221. It grants the court power in the exercise of its jurisdiction to order support and to make the order run until modified or until the child becomes twenty-one years of age. Section 15-1225. The court may require respondent to give bond with sureties to insure compliance with the order. Section 15-1264. If there is default the court may enter judgment for the amount in default and the judgment becomes a lien on the respondent’s real estate. All sums collected shall be applied by the court clerk to the support of those for whose benefit the order was made. Sections 15-1266 to 1268. If there is a failure to comply with the order of support, the court may issue a warrant for the arrest of the respondent and commit him to jail until the order is obeyed but in no event longer than twelve months. Section 15-1256.

We have been cited no case construing these provisions of the South Carolina Code. In fact, we were not cited by counsel to the appropriate statutes. Our research discloses authority in the decisions of the Supreme Court of South Carolina which hold that weekly support payments ordered by the family court are cumulative and judgment may be rendered at a hearing for contempt for the total of those payments that have become due. Bigham v. Bigham, 264 S.C. 101, 212 S.E.2d 594 (1975). The statement of the facts in the opinion of the court in the cited case indicate .that a prior order of the family court for weekly support was calculated for arrearage and judgment rendered in a subsequent divorce hearing. Thus we are satisfied, both from the provisions of the statutes and from the decisions of the courts, that unpaid support payments accumulate and judgment may subsequently be entered for those unpaid.

A second issue presented is correlated to the first; that is, may an Alabama court entertain a petition to determine ar-rearage under the South Carolina order for support and render judgment thereon?

It is appellant’s contention that an Alabama court cannot render judgment on the South Carolina order because the order was modifiable by the South Carolina court and thus not final.

It is the law of this state and others in applying the Full Faith and Credit Clause of the Federal Constitution that a judgment of one state must be final to require full faith and credit from another state. Green v. Green, 239 Ala. 407, 195 So. 549 (1940); Fowler v. Fowler, 45 Ala.App. 354, 230 So.2d 744 (1970). It is the law of South Carolina that though support payments decreed may accumulate if unpaid and judgment rendered thereon, in actions to enforce such decrees, a court of equity has the power upon proof of equitable circumstances to modify the decree, even to payments which have already accrued. Bigham v. Bigham, supra; Grossman v. Grossman, 242 S.C. 298, 130 S.E.2d 850 (1963); Jeter v. Jeter, 193 S.C. 278, 8 S.E.2d 490 (1940). Therefore, orders for payment of support in South Carolina are not final judgments and do not become final even after they are past due. They are not required to be extended full faith and credit in Alabama until reduced to final judgment by a court of South Carolina.

Does what we have said require reversal of the judgment of the trial court? We do not so hold. Instead, in the absence of any known previous decision by the supreme court of this state, we hold that though past-due payments were not final judgments and due full faith and credit, the circuit court was at liberty to entertain the wife’s counter-claim, hold a hearing and determine the amount of arrearage due as a matter of comity. We conceive of no reason why the Alabama court could not hear and consider any equity that defendant offered as a reason for modification or for non-payment. The record discloses that it did in fact do so and gave credit for the sums paid under the reciprocal non-support judgment, and considered the obligation ended as the children became of age.

As the husband invoked the jurisdiction of the Alabama court of equity to secure a divorce,no sound reason appears why all claims and liability should not be enforced against him. It is coincidental that the Supreme Court of South Carolina came to the same conclusion when the assistance of the South Carolina court was sought to collect accrued and unpaid alimony payments due under an Ohio divorce decree in Grossman v. Grossman, supra.

The last two issues stated in brief to be presented for review relate to the award of alimony and attorney fees. Neither issue was sufficiently argued in brief to require our consideration. Rule 28, ARAP. In any event, there was more than sufficient evidence to support the award. There could be no abuse of the discretion of the trial court under such circumstances. Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App.1977); Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461 (1972).

In response to the request of the wife, we grant her $500 for attorney fees on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Though there is discussion in brief as to whether the court should have considered the minority of the child ended at an earlier date, such was not a .stated issue and no South Carolina authority was authenticated.


author: SHORES, Justice.

text:
    Ex parte Joseph Allen SMITH.
    77-611.
    Supreme Court of Alabama.
    Aug. 25, 1978.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Clarence P. McGHEE v. CONVEYOR MACHINERY CORPORATION, a corporation.
    Civ. 1448.
    Court of Civil Appeals of Alabama.
    June 21, 1978.
    Rehearing Denied July 19, 1978.

      Clarence P. McGhee, pro se.
    James T. Upchurch, III, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal brought pro se from judgment denying an ARCP Rule 60(b) motion.

We affirm.

Plaintiff originally brought suit claiming workmen’s compensation. He was represented throughout that action by competent counsel. The court heard the evidence. It entered judgment finding plaintiff had suffered neither accident nor injury while engaged in the scope of his employment with defendant. No post-trial motion was filed. Nearly four months after judgment, plaintiff filed a Rule 60(b) motion alleging that there were witnesses and evidence which could have sustained his complaint. The motion was filed by counsel who limited their representation of plaintiff to the preparation and filing of the motion. Plaintiff proceeded pro se. He subpoenaed witnesses and documents for the hearing of the motion. He obtained a continuance for further preparation. The witnesses were served but only one appeared. The court permitted showings for those who failed to appear and permitted introduction of several documents as evidence.

After consideration, the court denied relief, stating that the evidence and showings presented at the hearing would not have been sufficient for recovery even had they been presented at the trial.

The purpose of a Rule 60(b) motion is not to retry the original case, but is to present good cause why plaintiff should be relieved from the judgment. 11 Wright & Miller, Federal Prac. & Proc. § 2851. None of the grounds set out in Rule 60(b) were established by plaintiff at the hearing on the motion. The granting or denial of a 60(b) motion is within the judicial discretion of the trial court. We find no abuse of that discretion. We rather find that the trial court went to great length to permit plaintiff to appear and prosecute the motion pro se.

Further discussion of the case cannot possibly serve any precedential purpose.

We affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice.

text:
    Ex parte Clarence P. McGHEE.
    77-692.
    Supreme Court of Alabama.
    Aug. 18, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Cathryn G. TUCKER, Marie G. Millson, Earlene G. Nall, Ruth G. Hager and R. L. Goldsmith v. Broox G. GARRETT and J. Boyd Sigafoose.
    Civ. 1403.
    Court of Civil Appeals of Alabama.
    Aug. 2, 1978.
    W. E. Garrett, Atmore, for appellants.
    J. Connor Owens, Jr., Bay Minette, for appellee, Broox G. Garrett.
    James E. Hart, Jr., Brewton, for appellee, J. Boyd Sigafoose.
   BRADLEY, Judge.

The lawsuit on which this appeal is based began when appellants-plaintiffs (Cathryn Tucker, Marie Millson, Earlene Nall, Ruth Hager and R. L. Goldsmith) filed an action in the Circuit Court of Escambia County against appellee-defendant (Broox Garrett) for the wrongful disbursement of proceeds and against appellee-defendant (J. Boyd Si-gafoose) for money mistakenly had and received.

Plaintiffs sought a judgment against the defendants in the amount of $10,000. Their action was based on a disagreement concerning money disbursed by defendant-Garrett in the course of a sales transaction involving plaintiffs’ farm. After a hearing ore ten us the trial court held that the plaintiffs were not entitled to a judgment in their favor and dismissed plaintiffs’ action against both defendants. From the trial court’s decision in this matter plaintiffs have brought this appeal. We affirm the judgment of the trial court.

A brief summation of the relevant facts in this case will suffice to illustrate the soundness of our conclusion. Plaintiff-Goldsmith owned a large quantity of farmland. The land and the farming operation thereon were incorporated under the name Dink’s Farms, Inc. Plaintiff-Goldsmith, his wife and four daughters owned the stock in this corporation. The husband of one of the daughters acted as attorney for the corporation.

In early 1974 Goldsmith began negotiations with defendant-Sigafoose for the sale of Dink’s Farms to the latter. Sigafoose agreed to purchase all assets and shares of stock in the farm corporation for the sum of $1,000,000. Defendant-Garrett was employed by the corporation’s attorney to aid in the tax considerations and closing.

However, before the farm was actually conveyed, a dispute arose between Goldsmith and Sigafoose with regard to twenty-five bred heifers and a bull. The animals were valued at $10,000. Sigafoose believed that the cattle were assets of the farm corporation and thus demanded that the livestock be included in the transaction. Goldsmith insisted that they were not a part of the transaction.

When this dispute threatened to prevent the completion of the transaction between the two men, the attorney for the farm corporation suggested to his wife and three sisters-in-law (or husbands of the latter individuals) that a plan be devised whereby the four women would, without their father’s (Goldsmith) knowledge, agree to each pay Sigafoose $2,500 from their share of the proceeds from the sale so that the transaction could be closed. The purpose of this scheme was apparently to compensate Siga-foose for the $10,000 value of the cattle which he felt that Goldsmith had wrongfully refused to include as a part of the sale.

The corporation’s attorney claimed at trial that the four daughters had agreed to the above described arrangement. He also stated that defendant-Garrett met with the four women privately on the morning of the closing to discuss this arrangement. Garrett testified that at the meeting each of the daughters agreed that $2,500 was to be deducted from their individual share of the proceeds and given to Sigafoose so that the sale could be concluded. Garrett continued by stating that the daughters requested that their father (Goldsmith) not be informed of this arrangement. Accordingly, Garrett said that when he disbursed the purchase money to the four women he deducted $2,500 from the proceeds which each one of them received. Garrett, however, testified that he did not show this deduction in the itemization of cost which he sent to the women and their father because of the daughters’ desire that their father not be told of the deduction.

Conversely, plaintiffs-daughters contended at trial that defendant-Garrett never informed them that the sum of $2,500 would be deducted from each of the checks that they received and that they never agreed to the arrangement under which Garrett claimed he had made the deductions. Moreover, the daughters denied that the purported meeting between Garrett and themselves had ever occurred. Five other witnesses were also sworn who testified either that the meeting had not occurred or that the meeting could not have occurred because one of the daughters was with Mr. and Mrs. Goldsmith at the time the purported meeting had taken place.

Nevertheless, defendant-Garrett and Goldsmith’s former attorney and son-in-law both stated that the meeting did occur. And Garrett testified that the daughters had agreed at the meeting to pay Sigafoose $10,000 after he (Garrett) fully discussed the details of the arrangement and.asked each if she was willing to permit a portion of her share of the proceeds to be used for such a purpose.

The trial court had the opportunity to observe the demeanor and hear the testimony of the parties as well as the witnesses who testified on behalf of the respective sides; it was for the court as trier of fact to reach a conclusion on the candor and credibility of these persons and it obviously chose to believe the defendant’s testimony rather than that given by the plaintiffs. We cannot say it acted incorrectly in so doing or that its determination in this matter warrants reversal. Gann & Lewis Roofing Co. v. Sokol, 359 So.2d 815 (Ala.Civ.App., 1978).

It is axiomatic that a decision by the trial court based on evidence heard within the confines of the ore tenus rule has the weight of a jury verdict and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Gann & Lewis Roofing Co. v. Sokol, supra. The record in this case demonstrates no such error or injustice.

We must also reject plaintiffs’ assertion that the court erred by failing to grant plaintiffs’ motion for a judgment on the pleadings under Rule 12(c), ARCP.

Plaintiffs filed their motion seeking a judgment on the pleadings on June 6, 1977. It alleged that defendant-Garrett had admitted in his answer to plaintiffs’ complaint that his letter reporting the disbursement of funds contained figures which indicated a disbursement of money to plaintiffs when in fact that money had been paid to a third party (Sigafoose). On June 24, 1977 Garrett submitted an affidavit explaining that he had taken such action pursuant to the agreement which he and the four daughters had reached at their private meeting. Consequently, Garrett’s affidavit presented matters outside the pleadings and the trial court was compelled by the language of Rule 12(c) to treat the plaintiffs’ motion for a judgment on the pleadings as a motion for summary judgment. Moreover, Rule 56 of the Alabama Rules of Civil Procedure precludes the granting of a motion for summary judgment unless there is no genuine issue as to any material fact. As our opinion indicates, the facts and circumstances of this case were materially disputed. The trial court acted properly in denying plaintiff’s motion for a judgment on the pleadings.

We find that no error was committed by the trial court and therefore its judgment must be affirmed.

AFFIRMED.

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

      . This couple was subsequently divorced.


text:
    Richard BLAKE v. BARTON WILLIAMS, INC., a corporation, and Barton Williams, Individually.
    Civ. 1500.
    Court of Civil Appeals of Alabama.
    Aug. 2, 1978.

      Richard D. Shinbaum, Montgomery, for appellant.
    Robert E. Sasser, Montgomery, for appel-lees.
   BRADLEY, Judge.

Appellant Richard Blake (hereinafter referred to as plaintiff) brought suit against his former employer, appellees Barton Williams, Inc., a corporation and Barton Williams, individually (hereinafter referred to as defendant) for malicious prosecution and false imprisonment. Plaintiff alleged that defendant improperly caused his arrest on a charge of unlawfully and willfully taking and using a vehicle without the consent of defendant, the owner of the vehicle.

After a consideration of the pleadings of both parties and affidavits submitted on behalf of defendant, the Circuit Court of Montgomery County granted defendant’s motion for a summary judgment. From the circuit court’s order dismissing his action plaintiff has filed this appeal.

The circuit court’s order granting a summary judgment in favor of defendant did not specify its reason for dismissing plaintiff’s suit. However, such an order was certainly proper with respect to plaintiff’s allegation of false imprisonment. Plaintiff was arrested under a valid warrant issued by the assistant clerk of the Municipal Court of Montgomery County. And if an arrest is made pursuant to a warrant issued by a lawfully authorized, person, neither the arrest nor the subsequent imprisonment is “false,” and, as a consequence, the complaining party’s action must be one for malicious prosecution. Prosser Law of Torts at 47 and 835 (4th ed. 1971). See Prince v. Bryant, 274 Ala. 134, 145 So.2d 837 (1962); Sears, Roebuck & Company v. Alexander, 252 Ala. 122, 39 So.2d 570 (1949); Bryant v. Hartford Fire Insurance Co., 230 Ala. 80, 159 So. 685 (1935).

On the other hand, the issue of whether plaintiff’s complaint may survive the defendant’s motion for summary judgment on the malicious prosecution theory depends upon the determination of the date upon which such right of action may have accrued.

Defendant argues that plaintiff’s action was filed on June 4, 1976, approximately fifteen months after the criminal proceedings were dismissed against plaintiff on March 17, 1975. Thus, defendant asserts that plaintiff’s action for malicious prosecution was not commenced within one year after the action accrued. Title 6, chapter 2, section 39(a)(1), Code of Alabama 1975. Plaintiff, however, maintains that the criminal proceedings against him were not dismissed until September 8, 1975 and that consequently the filing of his suit against defendant for malicious prosecution on June 4, 1976 was within the one year statute of limitations provided in section 39(a)(1).

Title 6, chapter 2, section 39(a)(1), Code of Alabama 1975 establishes a one year statute of limitations for malicious prosecution suits. The majority of jurisdictions has adopted the rule that the limitations period begins to run upon a final termination in favor of the accused in the criminal proceeding on which the action for malicious prosecution is based. Savage v. United States, 450 F.2d 449 (8th Cir. 1971); Giglio v. Delesparo, 46 A.D.2d 928, 361 N.Y.S.2d 721 (1974). See 87 A.L.R.2d 1047.

Moreover, we have held that a person may be subjected to liability for malicious prosecution in any instance where the criminal proceeding is terminated in such a manner that it cannot be revived and the prosecutor, if he proceeds further, will be put to a new prosecution. Kroger Company v. Puckett, Ala.Civ.App., 351 So.2d 582 (1977). This view encompasses any situation where the criminal proceeding against the party is dismissed from court so as to terminate that particular prosecution, and is applicable even though future criminal proceedings may be brought against the accused on the same charge. Kroger Company v. Puckett, supra.

In the instant case the affidavits of defendant Barton Williams and the attorney who originally acted as city prosecutor in the criminal proceeding against plaintiff indicated that the charges against plaintiff were dismissed on (or before) March 17, 1975. It is not apparent from the record why the charge was dismissed. Nonetheless, this dismissal constituted a termination in favor of the accused from which date the one year statute of limitations began to run. Accordingly, an action filed by plaintiff after March 17, 1976 would be barred by the applicable statute of limitations.

However, the affidavit of Williams also stated that the criminal action against plaintiff was subsequently reinstated and dismissed a second time on September 8, 1975. The subsequent reinstatement of the criminal charge against plaintiff operated to toll the running of the statute of limitations and plaintiff had one year from the termination of the proceedings in his favor on September 8, 1975 in which to file his action for malicious prosecution. See Childers v. Beaver Dam Plantation, Inc., 360 F.Supp. 331 (N.D.Miss.1973); Bailey v. General Apartment Co., 139 Ga.App. 713, 229 S.E.2d 493 (1976).

Plaintiff’s malicious prosecution suit was initiated on June 4, 1976. His action was barred by the one year statute of limitations if the criminal proceeding against him was dismissed on March 17, 1975 and never reinstated. However, if the criminal proceeding was reinstated and dismissed a second time on September 8, 1975, his suit against defendant may be maintained because it was filed within one year of a final termination of the criminal proceeding in plaintiff’s favor.

No trial docket sheet was included in the record to support or refute either party’s contention with regard to the varying dates on which the prosecution against the plaintiff was purportedly dismissed. Nor are there any other materials contained in the record other than the affidavits submitted by defendant which would indicate when the criminal action against plaintiff was dismissed. Furthermore, defendant’s affidavits are in dispute as to when the dismissal of the criminal proceeding occurred. The affidavit of the city prosecutor states that to his knowledge there was no reinstatement of the case after the dismissal of March 17, 1975 and that the case was not dismissed a second time on September 8,1975. On the other hand, the affidavit of defendant Barton Williams states that the criminal charge was reinstated after March 17, 1975 and was subsequently dismissed on September 8, 1975. These affidavits demonstrate a genuine issue as to a material fact. A summary judgment is not the appropriate method for disposing of actions in which there is a genuine issue as to any material fact. Rule 56, ARCP and committee comments thereto. Accordingly, the circuit court acted incorrectly in granting defendant’s motion for summary judgment. The order of the circuit court dismissing plaintiff’s action for malicious prosecution is hereby reversed.

REVERSED AND REMANDED.

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


author: BOWEN, Judge.

text:
    James ROBINSON, alias v. STATE.
    4 Div. 591.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.
    Rehearing Denied May 30, 1978.

      Gary R. Maxwell, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the offense of possession of marijuana after having been previously convicted of possession of marijuana in the State of Alabama. Title 22, Section 258(47), Code of Alabama 1940, Recompiled (now Section 20-2-70, Code of Alabama 1975). The trial court imposed a sentence of five years’ imprisonment. Appellant’s retained trial counsel was appointed by the court to represent him on appeal.

Two grounds of error are asserted on appeal: (1) The admission of evidence of prior marijuana offenses and (2) the lack of probable cause to stop and search the appellant’s automobile.

The sufficiency of the evidence to support the conviction was not challenged at trial nor is it raised on appeal. There was no motion to exclude the state’s evidence, request for a directed verdict or the affirmative charge, no exceptions were taken to the oral charge of the trial court and there was no motion for a new trial. Under these circumstances we see no need to recite the evidence except as it pertains directly to the issues.

I

In examining the arresting officer to establish probable cause to make the arrest and subsequent search, the state elicited testimony from Sergeant Robert Jackson of the Dothan Police Department that he had a personal knowledge of the appellant and that he had known the appellant for a long time. From the record:

“Q. (District Attorney) Did you know anything about him being involved in marijuana?
“A. (Sergeant Jackson) Yes.
“Q. Have you ever known of him being involved in the sale of marijuana?
“MR. MAXWELL (Defense Counsel): Your Honor, we object.
“MR. SORRELLS (District Attorney): I am laying probable cause, Your Hon- or.
“THE COURT: Overruled. If he knows, I’ll permit him to answer.
“A. Yes, sir.
“Q. Had you received information about that?
“A. Yes, sir.
“Q. And were you familiar with any record that he had involving marijuana?
“A. Yes, sir.”

The appellant alleges that this permitted proof of distinct and independent offenses and therefore constitutes reversible error.

In Hatton v. State, Ala.Cr.App., 359 So.2d 822 (1977), we find support for the proposition that the reputation of the accused, though insufficient in itself to support a finding of probable cause, may do so when combined with other factors. Certainly an officer’s knowledge of a suspect’s prior history or reputation is a material and relevant factor in establishing probable cause for the arrest of that individual. Yet clearly any prior involvement with marijuana by the appellant was inadmissible as evidence of his guilt under the general exclusionary rule of evidence which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question. Gamble, McElroy’s Alabama Evidence, § 69.01(1), p. 134 (3rd ed.).

If an item of evidence is admissible for one purpose, it will be received in evidence despite the fact that there exists some other purpose for which it is not admissible. This is known as the doctrine of multiple admissibility. McElroy, supra, § 12.01, p. 11; Rollings v. State, 160 Ala. 82, 49 So. 329 (1909).

“(W)hen an evidentiary fact is offered for one purpose, and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable. to it in some Other capacity and because the jury might improperly consider it in the latter capacity. This doctrine, though involving certain risks, is indispensable as a practical rule.”
***•*«
“Here, the only question can be what the proper means are for avoiding the risk of misusing the evidence. It is uniformly conceded that the instruction of the Court suffices for that purpose; and the better opinion is that the opponent of the evidence must ask for that instruction; otherwise, he may be supposed to have waived it as unnecessary for his protection:” 1 Wigmore, § 13, p. 300, 301 (1940 ed.). (Emphasis present in original).

This is the rule in Alabama. Cook v. Parham, 24 Ala. 21 (1853); Williams v. State, 81 Ala. 1, 1 So. 179 (1887). When such evidence has been admitted against the appellant his only remedy is to request the court to instruct the jury that the evidence is to be considered only for the admissible purpose. If he does nothing more than object to the admittance of the evidence, the overruling of such an objection gives him no ground for complaint on appeal. Williams, supra; Sheppard v. State, 172 Ala. 363, 366, 55 So. 514 (1911); Hanners v. State, 147 Ala. 27, 34, 41 So. 973 (1906).

Because the witness’s knowledge of the prior criminal activity in a related matter was admissible on the issue of probable cause though inadmissible to prove the guilt of the appellant and because defense counsel requested no limiting instructions, we find no error in the admission of the objected to testimony.

II

The appellant maintains that the police officer who actually stopped the appellant had no probable cause to do so.

The governing facts are that Sergeant Jackson received a telephone call from a reliable informant in the early morning hours of April 29, 1977. The informant stated that, just a few minutes prior to the call, he had been with the appellant and the appellant had a large amount of marijuana. The informant stated that he had seen the marijuana in the appellant’s automobile. Sergeant Jackson testified that he had known his informer for twenty years, that he had given reliable information in the past, and had never given any false information. Apparently, it is not disputed that Sergeant Jackson had probable cause to personally stop and search the appellant.

Fifteen or twenty minutes after receiving the information, Sergeant Jackson spotted the appellant in his automobile traveling in the opposite direction. Sergeant Jackson turned around and radioed Officer Theodore Merritt to stop the appellant. Officer Merritt testified that he stopped the appellant as requested but had not been given the reason for stopping the appellant’s vehicle.

The appellant argues that Officer Merritt had no probable cause to stop the appellant because he had no independent knowledge of any wrongdoing by the appellant.

In Cook v. State, 56 Ala.App. 250, 254, 320 So.2d 764 (1975), it was held that:

“Where an officer who has probable cause to make an arrest radios ahead to have an automobile stopped the officers who stop such automobile have probable cause to arrest without a warrant and the ensuing search of the automobile is valid.”

See also Brown v. State, 55 Ala.App. 615, 318 So.2d 311 (1975); Spurlin v. State, 46 Ala.App. 485, 243 So.2d 758, cert. denied, 286 Ala. 738, 243 So.2d 763 (1969); McClendon v. State, Ala.Cr.App., 341 So.2d 174, cert. quashed, Ala., 341 So.2d 178 (1976).

Under these circumstances, the fact that the arresting or detaining officer did not personally have probable cause does not invalidate the arrest. Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); United States v. Calhoun, 542 F.2d 1094 (C.A.9 1976), cert. denied in Stephenson v. United States, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781.

“When a superior officer orders another officer to make an arrest, it is proper to consider the superior’s knowledge in determining whether there was probable cause. Likewise, when a group of agents in close communication with one another determines that it is proper to arrest an individual, the knowledge of the group that made the decision may be considered in determining probable cause, not just the knowledge of the individual officer who physically effected the arrest.” United States v. Woods, 544 F.2d 242 (C.A.6 1976).

The knowledge possessed by the superiors of an individual arresting officer can be imputed to him in assessing whether probable cause existed for the arrest. United States v. Regan, 525 F.2d 1151 (C.A.8 1975). The court may evaluate the knowledge of all officers collectively in assessing police justification for arrest. United States v. McManus, 560 F.2d 747 (C.A.6 1977); Brewer v. Wolff, 529 F.2d 787 (C.A.8 1976); United States v. Vasquez, 534 F.2d 1142 (C.A.5 1976), cert. denied, Chavez-Cortinos v. United States, 429 U.S. 962, 97 S.Ct. 389, 50 L.Ed.2d 330 and 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587. See also United States v. Loundmannz, 153 U.S.App.D.C. 301, 472 F.2d 1376 (1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1431, 35 L.Ed.2d 691; Kiel v. United States, 406 F.2d 1323 (C.A.5 1969).

“The knowledge or information of the arresting officer at the time of arrest is relevant only where an arrest is predicated on that officer’s personal observations and information concerning the criminal act. The correct test is whether a warrant if sought could have been obtained by law enforcement agency application which. disclosed the corporate information, not whether any one particular officer could have obtained it on what information he individually possessed.” Smith v. United States, 123 U.S.App.D.C. 202, 204, 358 F.2d 833, 835 (1968), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448.

For other cases in support of these propositions see 4 West’s Federal Practice Digest 2d, Arrest, Key Number 63.4(11).

We have carefully searched the record for error. Finding none we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


text:
    In re James ROBINSON v. STATE of Alabama. Ex parte James Robinson.
    77-577.
    Supreme Court of Alabama.
    July 21, 1978.
    Gary R. Maxwell, Dothan, for petitioner.
    No brief for the State, respondent.
   PER CURIAM.

This case is before us on petition for writ of certiorari filed by petitioner seeking a reversal of the Court of Criminal Appeals’ affirmance of his conviction, 361 So.2d 379.

Although the Court of Criminal Appeals’ opinion does not indicate the precise manner in which the issue of probable cause arose, there does not appear to be any factual dispute on this issue. We have gone to the record for a more complete understanding of this feature of that court’s opinion as we are permitted to do under our decisions. See Wilbanks v. State, 289 Ala. 171, 266 So.2d 632 (1972); Crim.Law, Ala. Dig. &wkey;1179.

We have found that probable cause was made an issue in the court below by petitioner’s counsel himself, who objected to the introduction of the fruits of a search unless probable cause is laid. Counsel for petitioner made no motion to exclude the jury during the time probable cause was being laid, although this is undoubtedly the best practice. Thus, petitioner cannot be heard to complain now.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Demp COLLINS v. STATE.
    3 Div. 863.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
    Rehearing Denied June 20, 1978.

      Emily B. Gassenheimer, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James Hampton, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The three-count indictment charged Demp Collins with three separate and distinct robberies of persons in Lowndes County. The appellant’s counsel filed a written motion to quash the indictment, averring a misjoinder of offenses and a misjoinder of transactions, which was overruled prior to trial (R. pp. 4, 5).

Appellant’s counsel also challenged the proof offered on trial by requesting an election, and by objection to the evidence, on the basis of a misjoinder of offenses, and further asserted the same points by motion for judgment notwithstanding the verdict, and by motion for new trial, all of which were denied by the trial court.

Three verdicts were brought in by the jury, each finding the appellant guilty of robbery, as charged, and fixing the punishment at ten years imprisonment. The trial court then entered judgment in accordance with these three verdicts. From these adverse rulings, the appellant prosecutes this appeal.

The issue dispositive of this appeal may be stated in the following manner. May three separate and distinct robberies, each constituting a separate offense and being wholly unrelated to the other alleged robberies, be combined in three separate counts in one indictment? We answer in the negative.

I

The indictment in question reads as follows (omitting formal parts):

“COUNT I:
The Grand Jury of said County charge that before the finding of this Indictment Demp Collins, whose name is to the Grand Jury otherwise unknown, feloni-ously took, towit: $135.00 in lawful currency of the United States, the denominations being otherwise unknown to the Grand Jury, of the value of, towit: $135.00, and a .32 caliber pistol of the value of, towit: $50.00, of the aggregate value of, towit: $185.00, the property of Reeves Favor, which was in the care, custody or control, of Betty Favor, from her person, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same against the peace and dignity of the State of Alabama.
“COUNT II:
The Grand Jury of said County further charges that before the finding of this Indictment, Demp Collins, whose name is to the Grand Jury otherwise unknown, feloniously took, towit: $67.00 in lawful currency of the United States, the denominations being otherwise unknown to the Grand Jury, of the value of, towit: $67.00, the property of Lucy Ryals, from her person, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same against the peace and dignity of the State of Alabama.
“COUNT III:
The Grand Jury of said County further charges that before the finding of this Indictment, Demp Collins, whose name is to the Grand Jury otherwise unknown, feloniously took, towit: 6 beers, of the value of, towit: $3.00, the property of Margie Rhodes, from her person, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, against the peace and dignity, etc.”

The rule covering the situation presented by this record is well stated in the early Alabama case of Wooster v. State, 55 Ala. 217:

“. . . The rule to which the counsel of appellant refers, extracted from former decisions of this court — that two offenses, committed by the same person, may be included in the same indictment, in different counts, only when they are of the same general nature, and belong to the same family of crimes, and where the mode of trial and nature of punishment are also the same — obtains only in cases of felony. In such cases, no objection to the indictment, for a misjoinder, can be made by demurrer. A motion to the court, to compel an election of the counts on which a conviction will be sought, is the only right of the accused. — 1 Arch. Cr.Pl. & Pr. 94-5. The motion will always be granted, or the court, of its own motion, will interfere, by quashing the indictment, when an attempt is made, as manifested either by the indictment or the evidence, to convict the accused of two or more offenses, growing out of distinct and separate transactions. The court ought not and will not interpose, when the joinder is intended and calculated to meet the different aspects in which the evidence may present a single transaction, or a single offense. — Mayo v. State, 30 Ala. 32 . .”

See also Butler v. State, 91 Ala. 87, 9 So. 191; Thomas v. State, 111 Ala. 55, 20 So. 617; and Perry v. State, 25 Ala.App. 224, 143 So. 835.

The proof offered on trial established that on March 12, 1977, or March 15, 1977, the proprietors of three small grocery stores in Lowndes County, Alabama, were robbed by several black males. The appellant is alleged to have been one of the alleged five participants in each of the three robberies.

It was admitted in oral argument of this cause that none of the other four defendants were charged with these same three offenses in one indictment.

We pretermit consideration of other assignments of error as the same are not likely to occur again on retrial of this cause.

For the errors shown in allowing the mis-joinder of the three offenses, the judgment is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-641.
    Supreme Court of Alabama.
    August 25, 1978.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: HARRIS, Presiding Judge. TYSON, Judge,

text:
    Alphonsia SOMMERVILLE v. STATE.
    2 Div. 207.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    Orzell Billingsley, Jr., Quentin Q. Brown, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of assault with intent to murder and the Court sentenced him to twenty years imprisonment in the penitentiary. At arraignment, in the presence of his retained counsel, he pleaded not guilty. After sentence was imposed he gave notice of appeal. He was found to be indigent and a free transcript was furnished him. Trial counsel represents the appellant on this appeal.

The evidence in this case was in hopeless conflict. The testimony adduced by the State more than amply proved the corpus delicti. Six eyewitnesses for the State testified that appellant fired the pistol that struck the deceased. They saw the pistol in appellant’s hand and saw a blaze of fire come out of the barrel as appellant shot the victim.

This case arose from a dispute at the Soul Club of which appellant was the manager. It was a club primarily for young blacks under thirty years of age located in or near Aliceville, Pickens County, Alabama. The club had music for dancing and also served soft drinks and beer on occasions. There was an admission fee of one dollar per person and the club opened around 8 o’clock p. m. and closed at about midnight.

On the night of February 11, 1977, the victim, William E. Gosa, and two companions, arrived at the Soul Club at 10:30 p. m. The victim’s friends informed him that nothing was happening there and they were preparing to leave and go to the 506 Club. The victim wanted to enter the club and buy a beer to carry with him to the other club but appellant told him he could not go in the club without paying the admission fee. One Joseph Williams who had paid his admission fee got into an argument with appellant about requiring the victim to pay a dollar just to go into the club and purchase a beer. At this point appellant ordered Williams and the victim to leave the premises. Williams told appellant that he had paid his dollar and he was not going to leave. Appellant left the entrance doorway for a few minutes and returned and said to Williams, “you ain’t gone yet?” Williams again stated that he had paid his money and was not going anywhere. Appellant left the door again and in a few minutes he returned with a pistol and fired one shot which struck the victim in his side. According to the eyewitnesses for the State, appellant laid the pistol across his left arm to steady his aim. It is not disputed that the shooting took place outside the club.

The victim further testified that he intended to go inside the club and “pick up a beer” but did not when appellant told him he had to pay a dollar. The victim denied being involved in an argument about the payment for admission.

Several other witnesses testified to substantially the same facts. All of the State witnesses stated that after some dispute or argument, the details of which are unclear from the record, appellant shot William E. Gosa. All of these witnesses stated that Gosa did not have a weapon of any kind and did not attempt to use a weapon on appellant.

James Moore, an investigator for the Pickens County Sheriff’s Department, testified that he took several photographs of the scene of the shooting. The photographs were admitted into evidence without objection. Investigator Moore stated that appellant’s parents told him that a black man by the name of James E. Moore had done the shooting but they also stated that James E. Moore told them later that he was kidding and that he did not shoot the victim. The investigator was never able to locate James E. Moore.

At the conclusion of the State’s case appellant made a motion to exclude the evidence but no grounds were specified in this motion. The motion to exclude was overruled.

Appellant then presented numerous witnesses who were at the Soul Club on the night of the shooting. All of these witnesses testified they did not know who shot the victim and all of them stated they did not see a pistol that night. Some, but not all of them, testified they heard one shot but did not know who shot the victim. One or more of these witnesses testified to the good character of appellant.

Appellant took the stand in his behalf and said he did not shoot the victim and did not even own a pistol. No pistol was ever found. He further stated that a dispute arose between the victim and three white boys and the victim and Joseph Williams. He told them he was going to call the police after the victim pulled a knife on these white boys and he went to his house nearby but he did not call the officers. He returned to the club and saw the argument was still in progress. He heard a shot but did not know who fired it.

Two of the white boys were called as witnesses by appellant and they admitted they went to the Soul Club on the night of the alleged shooting but no one pulled a knife on them. They stated they did not know the victim of the shooting but they had a few words with a black boy and then left the place. They were not present when the shooting occurred.

In sum, appellant testified that the State witnesses who said he shot the victim were simply lying and that it was all a frame-up.

Appellant filed a motion for a new trial alleging, among other grounds, that the evidence failed to prove the elements of assault with intent to murder.

To sustain a conviction for assault with intent to murder, the evidence must establish an assault with the intent to take life; which, had the assault resulted in the victim’s death, would have constituted murder. Malice is a necessary element. Hamm v. State, 56 Ala.App. 632, 324 So.2d 345. The necessary elements of intent and malice, in a prosecution for assault with intent to murder, can be inferred from the act of using a deadly weapon. Roberts v. State, 49 Ala.App. 729, 275 So.2d 709.

Here, the evidence presented by the State showed that appellant shot William E. Gosa from a distance of twenty feet with a pistol. Gosa was struck in the side. Hospital records of William Gosa were admitted in evidence without objection. Those records show that Gosa’s wound necessitated repair of stomach lacerations and the removal of his spleen. It is relevant to show the extent of the victim’s wounds as tending to prove the severity of the injuries and the intent with which they were inflicted. Dixon v. State, 57 Ala.App. 30, 325 So.2d 546.

This evidence is sufficient to sustain appellant’s conviction, though he testified that he did not fire the shot. Conflicting evidence is always a jury question to determine. Alabama Digest, Criminal Law, Key Number 747.

Prior to trial, appellant moved that a transcript of the testimony before the Grand Jury be produced for his examination. The Court denied this motion. The State’s attorney then told appellant that the testimony of the witnesses before the Grand Jury is not transcribed.

Appellant contends that he was entitled to discovery of the Grand Jury proceedings. He relies on Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973. That decision holds that where defense counsel shows a “particularized need,” he may have access to relevant portions of Grand Jury testimony.

A Grand Jury is not required to compile records and the testimony in the absence of statute requiring preservation of the proceedings. State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779. There is no such statute in this state. Steward v. State, 55 Ala.App. 238, 314 So.2d 313.

In the absence of a transcript, denial of a motion to produce is proper. Steward, supra; Strawbridge, supra; Sparks v. State, 46 Ala.App. 357, 242 So.2d 403. If appellant desired to use Grand Jury testimony to impeach the State’s witnesses, he could have done this through a subpoena for the Grand Jurors who sat on the case. Strawbridge, supra.

During the direct examination of the victim, William Gosa, the State’s attorney drew a diagram, laying out the scene. All geographical details were filled in under the instructions of the witness. Appellant objected to the State’s attorney “laying out the scene.” This objection was overruled.

While the State’s attorney was making his closing argument, the following occurred:

“MR. JOHNSTON: We’ve got the 4th fellow standing here by the door Steve Gosa, We’ve got a 5th man standing right here on the corner (Writing these names on blackboard.)
“MR. BILLINGSLEY: Your Honor, we are going to object to this, we strongly object to it unless you follow all those people standing there, you are bypassing some of those people.
“MR. JOHNSTON: Who did I bypass?
“MR. BILLINGSLEY: You are putting some people in 2 places.
“THE COURT: Overruled.
“MR. BILLINGSLEY: We except.
“MR. JOHNSTON: Was he in any danger? How was his life in danger? (speaking of the defendant)
“MR. BILLINGSLEY: I am going to object to that. Your own witness placed Mr. Alphonsia Sommerville at another spot and I think he should be made to give both spots Your Honor.
“MR. JOHNSTON: Put him in any spot you want to.”

The trial court’s actions in overruling appellant’s objections to the diagram and references to the diagram made in closing -argument are not before this Court, since the diagram is not contained in the record. Gilliam v. State, 38 Ala.App. 420, 89 So.2d 584, cert. denied, 265 Ala. 697, 89 So.2d 587.

A thorough search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is due to be affirmed.

AFFIRMED.

All the Judges concur.

TYSON, J. concurs with an opinion.

TYSON, Judge,

concurring.

I concur in the principal opinion in this cause as prepared by our distinguished Presiding Judge John 0. Harris.

Counsel for the appellant cited to this Court in his brief, Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, in support of his argument that he be allowed to examine the minutes of the Grand Jury in this cause. Dennis, supra, is an interpretation of Rule 6(e) of the Federal Rules of Criminal Procedure. Such rule has not been made applicable to state proceedings, nor insofar as has been cited to this Court, no opinion has been made known to us that such “particularized need” rises to the stature of a federally protected constitutional right.

This Court has several times noted that transcripts of Grand Jury testimony, tapes of Grand Jury testimony, or other proceedings before the Grand Jury which are by statute in Alabama secret, may not be made the subject of pretrial disclosures. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; State ex rel. Baxley v. Strawbridge, 52 Ala. App. 685, 296 So.2d 779; and State ex rel. Baxley v. Archer, Ala.Cr.App., 335 So.2d 240.


author: BLOODWORTH, Justice.

text:
    Ex parte Alphonsia SOMMERVILLE.
    77-699.
    Supreme Court of Alabama.
    August 18, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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