author: SAMUEL, Judge.

text:
    Mrs. Sallie THEODORE and Wilson Theodore v. The BANK OF NEW ORLEANS TRUST CO.
    Nos. 8775, 8822.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 1977.
    Gerald P. Aurillo, Metairie, for plaintiffs-appellants.

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine, J. David Forsyth, New Orleans, for defendant-appellee.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   SAMUEL, Judge.

This is a devolutive appeal taken by the plaintiffs from a judgment maintaining exceptions of no right or cause of action and dismissing their suit. The only matter before us at this time is an appellee motion to dismiss the appeal. The motion is jurisdictional; it is based on the allegation that the appeal was not perfected timely.

The delay for taking a devolutive appeal is controlled by LSA-C.C.P. Art. 2087, which in pertinent part reads:

“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within sixty days after:
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914. ...”

The record reveals these facts: The judgment appealed from was signed January 14, 1977. A motion for a new trial was denied by judgment signed February 11, 1977 and notice of that refusal to grant a new trial was mailed the same day, February 11, 1977. On April 14, 1977, the petition for appeal was filed, the order granting the appeal was signed, and the bond required by that order was furnished.

Thus, the delay for taking the appeal commenced to run February 12, 1977, the day after the court’s refusal to grant the application for a new trial and the mailing of notice of that refusal. The fact that February 12, 1977 was a legal holiday (a Saturday) did not prevent the appeal delay from beginning to run on that day. As the appeal was not taken, nor was the security therefor furnished, until April 14, 1977, a delay of sixty-two days, the appeal was not perfected within the sixty day delay required by the above quoted LSA-C. C.P. Art. 2087. Accordingly, the appeal must be dismissed.

For the reasons assigned, the motion to dismiss the appeal is maintained and the appeal is dismissed.

MOTION MAINTAINED; APPEAL DISMISSED.

      . Because the record was lodged in this court shortly after the motion to dismiss was filed, there are two docket numbers. The docket number of the motion is 8775 and the docket number of the case is 8822.

      . See LSA-C.C.P. Art. 5059; Midland Discount Company v. Phillips, La.App., 196 So.2d 832; Scalfano v. Doyal, La.App., 177 So.2d 398.


source: Caselaw Access Project

author: STOULIG, Judge. REDMANN, Judge,

license: Public Domain

text:
    Athanase Joseph JONES v. Gwendolyn Grant LARKINS.
    No. 8831.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 17, 1977.

      Max Zelden, New Orleans, for relator.
    William E. Rittenberg, New Orleans, for respondent.
    Before REDMANN, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

This matter is before us on a writ of certiorari from a judgment of the district court maintaining the exceptions filed by the defendant-mother that it lacked jurisdiction to inquire into the custody of minor children physically present in the Parish of Orleans.

Briefly the facts are that the defendant was granted the custody of her two sons, ages 14 and 11 years, in a divorce proceeding in Marion County, State of Indiana, in 1970. Subsequently the defendant remarried and moved with her husband to Pasca-goula, Mississippi, where she is presently residing. Allegedly on April 26, 1977, the two boys fled from their home in Pascagou-la, Mississippi, to their father’s residence in New Orleans. On April 28, the father instituted this present suit seeking the custody of his two sons alleging that in 1974 the defendant suffered a serious illness which renders her physically and emotionally unable to properly supervise her minor children. The mother filed an exception to the jurisdiction, which was maintained by the trial court and from which ruling this writ resulted.

In Rafferty v. Rafferty, 313 So.2d 356 (La.App. 4th Cir. 1975), we have previously considered the issue of jurisdiction raised by the defendant’s exceptions and have concluded that the court does possess jurisdiction to inquire into the custody of minor children when they are physically in the State of Louisiana and have even indicated the extent of such inquiry. In Rafferty, the court, sitting en banc, declared:

“We are of the opinion that C.C.P. art. 10(5) states in plain words that the District Court has jurisdiction of a custody proceeding if the minor is in the state. There is no restriction on the court’s jurisdiction regardless of what method was utilized to obtain the presence of the minor in this state.” 313 So.2d at 357.

We are of the opinion that the Civil District Court for the Parish of Orleans does have jurisdiction in this matter, and accordingly, we reverse the judgment appealed from and specifically overrule the exceptions to the jurisdiction of the court. This matter is remanded for such further proceedings as the nature of the case may warrant.

REVERSED AND REMANDED.

REDMANN, J., concurs with written reasons.

REDMANN, Judge,

concurring.

The mere presence of children in Louisiana grants the Louisiana courts the jurisdiction to decide their custody; C.C.P. 10(5).

A showing that the minor children ran away from their domicile with their mother in another state in order to be with their father in Louisiana readily distinguishes Smith v. Ford, La.App. 4 Cir. 1974, 288 So.2d 71 (“overruled” obiter dictum, Rafferty v. Rafferty, La.App. 4 Cir. 1975, 313 So.2d 356). This is not a case of one parent’s kidnaping the children into the forum state, and there is no apparent reason of comity or otherwise to decline to exercise the jurisdiction of the Louisiana courts and to require this father to take his children back to the state of their domicile to have his demand for a change in custody heard.


author: JONES, Judge.

text:
    Billie Thornton NICKELS, Plaintiff-Appellant, v. Mark Lawrence NICKELS, Defendant-Appellee.
    No. 13265.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    Caddo Bossier Legal Aid Society by Howard M. Fish, Jr., Shreveport, for appellant.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Billie Thornton Nickels appeals from a judgment holding her petition for divorce was premature. We reverse.

Billie Thornton Nickels brought this proceeding for a divorce based upon her husband’s conviction of a felony, LSA-C.C. Art. 139(2). She entered a preliminary default when her husband failed to answer timely. At a hearing to confirm the default, appellant introduced evidence her husband had been tried by a jury and found guilty of simple burglary, that he also pled guilty to being a second felony offender (also a felony under the laws of Louisiana), and he was then sentenced to ten years at hard labor. Appellant testified there had been no reconciliation since the conviction.

In written reasons for judgment, the lower court stated it took judicial notice of the records on the criminal docket of the court, which established the conviction of appellant’s husband was on appeal. It then held that since the conviction was not yet final the divorce proceeding was premature, and dismissed appellant’s demands without prejudice.

LSA-C.C. Art. 139(2) provides:

“Art. 139. Immediate divorce may be claimed receprocably [reciprocally] for one of the following causes:
* # * * * #
“2. Conviction of the other spouse of a felony and his sentence to death or imprisonment at hard labor. . . . ”

See also LSA-C.C. Art. 138(2), providing similar grounds for a separation.

To entitle a spouse to an immediate divorce, the statute requires only the “ . . . conviction . . . of a felony and his sentence to imprisonment at hard labor.” (Emphasis added). It does not require all delays for appeal to have expired, or that the convicted spouse actually serve any of the sentence. The conviction and sentencing alone are sufficient to provide the grounds for divorce, and the public policy underlying this ground for divorce is satisfied by this initial determination of guilt and sentencing.

Our rationale that such a criminal conviction, when used as grounds for divorce, need not have the protection of appellate review is buttressed by the provisions of LSA-C.C. Art. 138(7), which provides for a separation from bed and board when one spouse has been charged with a felony and has fled from justice, providing the other spouse proves the guilt of the absent spouse. In a proceeding under Art. 138(7), the absent spouse would not even have the benefit of the strong protections and presumptions of our criminal justice system, and the guilt of the absent spouse would be determined by the general rules applicable in a civil proceeding. Reading Article 138(7) together with Article 139(2) indicates the legislative intent was that grounds for a separation or divorce under Arts. 138(7) and 139(2) is not the absolute, final determination of guilt in a criminal proceeding but instead is only a showing by a preponderance of the evidence that the other spouse has committed the crime. In Article 139(2), a showing of the conviction of a felony and a sentencing to hard labor establishes, more probably than not, the accused is guilty of the offense.

The judgment of the trial court is reversed and remanded, all further proceedings to be conducted in accordance with this decision. Since appellee neither filed an answer nor appeared at trial, nor filed a brief on appeal, appellant is to pay all costs of this appeal.


author: BOLIN, Judge.

text:
    Ernest Roy SNELL, Sr., Plaintiff-Appellee, v. Phyllis Rose Tuminello SNELL, Defendant-Appellant. Ernest Roy SNELL, Sr., et al., Plaintiffs-Appellees, v. Phyllis Rose Tuminello SNELL, Defendant-Appellant.
    Nos. 13270, 13271.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.

      Glen H. Smith, Shreveport, for defendant-appellant.
    D. G. Tyler, Shreveport, for plaintiffs-ap-pellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

The issue presented in these consolidated custody proceedings is whether or not the trial court erred in disqualifying the natural mother of two minor children and awarding their custody to the paternal grandmother. We affirm the decision of the trial court.

Roy Snell married appellant, Phyllis Snell, in 1970 and of this marriage two children, Ernest and Michelle, were born. In 1976 Roy Snell filed suit for a legal separation and sought custody of the two children. While this action was pending Phyllis returned from California where she had been staying with her mother, and removed Ernest from the school in which he had been enrolled by his paternal grandmother, Betty Kellett. Roy Snell, Betty Kellett, and Robert Snell, the paternal grandfather of the child, jointly petitioned for a writ of habeas corpus seeking the return of Ernest. By agreement the habe-as corpus and original separation suits wherein custody was an issue were combined and the lower court considered all parties, except the father, Roy Snell, to be seeking custody of both children. For written reasons, the trial judge ruled that Phyllis was unable to properly care for the children and gave custody of both children to Mrs. Kellett.

Ernest, who was five years old at time of trial, suffers from hyperactivity, a neurological condition which deteriorates in an unstable environment. In finding that Phyllis was unfit because she was unable to give Ernest the care his special condition demands, the trial judge relied heavily on the testimony of two expert witnesses.

Carol Beverly, a psychiatric social worker who had counseled Ernest and Phyllis, testified that in her opinion Phyllis was not prepared to provide the structured environment so vital to Ernest’s well-being.

Dr. Pennington, a psychiatrist who had treated Ernest, also testified that if the child was returned to Phyllis it would have a disturbing influence on Ernest. He further testified that Mrs. Kellett was following his instructions and that Ernest was making excellent progress while under her care and supervision.

As to Michelle, aged two, the trial judge found that Phyllis delegated the responsibility of rearing the children to babysitters and grandparents far too often, and that Phyllis was not mature enough to properly raise either child.

The general rule to be applied in custody cases involving a parent and a third person is that the natural parent has the paramount right to custody of the child and can be deprived of that custody only when there are compelling reasons for so doing. For the parent’s right to be defeated it must be shown that the parent, through action or omission, has forfeited the parental right of custody. Wood v. Beard, 290 So.2d 675 (La.1974); Sanders v. Pepper, 305 So.2d 746 (La.App.2d Cir., 1974). Therefore, in this case the paternal grandparent had the burden of proving that Phyllis was either unfit or unable to adequately provide for the children.

In custody proceedings the decision of the trial judge who applies the correct principles of law shall not be set aside absent a clear showing that he abused his discretion. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972).

We find that the delicate physical and mental condition of Ernest was a suitable factor for the trial judge to consider in finding that Phyllis was unable to provide him with a proper home. Sanders, supra. We further find ample evidence to support the trial judge’s finding that Phyllis was unfit to provide a proper home for Michelle in light of her inconsistent and irresponsible actions and her overall attitude of neglect toward both children.

The judgment in these consolidated cases is affirmed at appellant’s cost.


author: HALL, Judge.

text:
    Bobby R. LONG, Plaintiff-Appellant, v. Jackalene Caffery LONG, Defendant-Appellee.
    No. 13276.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    McKinley, Bruscato & Loomis by Albert E. Loomis, III, Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

In connection with a final divorce awarded to the plaintiff-husband on the grounds of two-year voluntary separation, the district court ordered plaintiff to pay defendant support for three minor children, ages 10, 8 and 2, in the amount of $180 every two weeks, and to maintain hospital, dental, medical and life insurance for the benefit of the children. Plaintiff appealed and we affirm, finding no abuse of the trial court’s discretion.

Plaintiff, a repairman for an electric utility company, earns gross monthly wages of $1,180, with a net of $950. He itemized his monthly expenses at $1,306 per month, including alimony of $165 per month and child support of $235 per month being paid under a prior judgment rendered in connection with a separation judgment. Defendant itemized the monthly expenses of the children at $830 per month.

Plaintiff’s chief complaints are that the district court substantially increased the amount of child support over that previously awarded and failed to take into account defendant’s ability to work and contribute to the children’s support.

By virtue of the divorce judgment, plaintiff is relieved of the obligation to pay alimony pendente lite. His ability to pay chilÜ support is increased and an increase is justified.

Defendant, who has worked as a nurse’s aide in the past but who currently has only a small income from baby-sitting, is enrolled in school to become a licensed practical nurse. This effort to improve her future earning capacity, together with the need of the children to have their mother’s care at home when she is not at school, relieves her of the obligation of obtaining full-time employment and contributing additionally to the children’s financial support at this time. Ducote v. Ducote, 339 So.2d 835 (La.1976); Gravel v. Gravel, 331 So.2d 580 (La.App.3d Cir. 1976).

A substantial portion of plaintiff’s monthly expenses is for payments in connection with purchases of land made by him both before and after the parties’ separation. Considering his ability to pay and the needs of the children, the award of the district court, while at the maximum limit, is within that court’s sound discretion.

The judgment is affirmed at plaintiff-appellant’s costs.

Affirmed.


author: MARVIN, Judge.

text:
    Carlene Brandon STASER, Plaintiff-Appellee, v. Elbert Warren STASER, Defendant-Appellant.
    No. 13277.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.

      Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for defendant-appellant.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for plaintiff-appel-lee.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

The husband appeals from a separation judgment in which the trial court awarded the wife $950 per month alimony pendente lite and $225 per month child support. We affirm.

The husband’s gross annual income is approximately $29,000. He also receives $35 per diem during the four or five months a year he travels for his employer. The husband voluntarily paid expenses of his wife and fourteen-year-old son in excess of $1,000 a month for four months before the legal separation.

The wife owns separate property. The trial court found her separate income was $1,419.45 a year. She proved expenses in excess of the amount awarded.

Under LSA-C.C. Art. 148 the wife is entitled to alimony pendente lite in an amount sufficient to maintain her in a style comparable to that which she enjoyed prior to the separation. Small v. Small, 173 So.2d 854 (La.App.4th Cir. 1965). There is no requirement that she deplete her capital before she is entitled to enforce the support obligation of the husband. McMath v. Masters, 198 So.2d 734 (La.App.3d Cir. 1967).

The amount to be awarded as alimony pendente lite is within the discretion of the trial court and its conclusions will not be disturbed on appeal except in cases of abuse. Whitmeyer v. Whitmeyer, 326 So.2d 884 (La.App.2d Cir. 1976). While the award is perhaps maximal, no abuse of discretion is presented.

At appellant’s cost, judgment is affirmed.


text:
    G. E. McQUILLIN, Plaintiff-Appellant, v. E. L. HAYES, Defendant-Appellee.
    No. 13278.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.

      Alex W. Rankin, Bastrop, for plaintiff-appellant.
    Woodrow Wilson, Bastrop, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff had a one-year, verbal farm lease on land which was purchased by defendant in September, before the lease was to expire in January. Shortly after the purchase defendant removed some of the fences. Plaintiff, alleging that defendant bought the property subject to the lease and had agreed verbally and in writing to abide by the lease, sued defendant for damages for removing the fences, which plaintiff claims interfered with the pasturing of his cows on the property. For reasons made a part of the record the trial judge found defendant had agreed to honor the terms of the lease; that the conditions of the lease were uncertain; and that plaintiff and defendant had damaged each other about equally. Plaintiff’s demands were rejected and he appeals. We affirm.

The questions are: (1) Was defendant bound by the verbal lease? (2) Assuming the first question is answered in the affirmative, did plaintiff prove defendant breached the lease and damaged plaintiff?

Assuming for the purpose of this decision that defendant was bound by the verbal lease, we need consider only the second question.

In a written contract to sell, entered into between defendant and his vendor, it was stated that the property described, with the exception of the house and barn, “is presently leased for agricultural purposes for the calendar year 1975, and the proposed deed and sale shall be executed subject to said verbal lease.” Other evidence as to the terms of the lease was contained in a letter which the previous owners wrote to plaintiff advising him that defendant could have access to the house and barn and could make needed fence repairs, which should not interfere with plaintiff’s crop.

We conclude the trial judge correctly held there was insufficient proof of the conditions of the lease, and that agricultural does not necessarily mean cattle grazing. The letter indicates defendant could use the house and barn and could repair fences; that plaintiff had the use of the farm for growing and harvesting crops.

Plaintiff having failed to establish that defendant violated the conditions of the verbal lease, the judgment is affirmed at plaintiff’s cost.


text:
    Curtis J. MUSTIFUL, Plaintiff-Appellant, v. STATE of Louisiana, Through the BOARD OF TRUSTEES FOR STATE COLLEGES & UNIVERSITIES, et al., Defendants-Appellees.
    No. 13281.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.

      Larvadain & Scott by Edward Larvadain, Jr., Alexandria, for appellant.
    Hudson, Potts & Bernstein by James A. Rountree, Monroe, William J. Guste, Jr., Atty. Gen., Baton Rouge, for appellees.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Dr. Curtis J. Mustiful appeals a judgment upholding the decision of Grambling State University to not renew his contract of employment for an additional year. We affirm.

Plaintiff was employed by Grambling as an assistant professor in the Department of Education in August, 1972. In 1974 a dispute arose concerning the amount of pay which plaintiff was receiving, with Gram-bling eventually filing suit to recover the alleged overpayment.

On March 8,1976, the President of Gram-bling sent plaintiff the following letter:

“Dear Dr. Mustiful:
It is common knowledge by now to the teaching faculty and supporting staff that it is imperative for the administration of Grambling State University to immediately initiate a program of retrenchment. You no doubt have felt the effects of the cutbacks of expenditures in your unit of operation with respect to materials and supplies, and equipment and travel. More than likely you gleaned from the news media about a week ago that the Board of Regents did not recommend an increase in our appropriation for the year 1976-77.
“In that we are overstaffed in certain units of the instructions, we have no other choice but to reduce the teaching and supporting personnel in order to bring our operating budget in line with the state appropriations. Regretfully, we will have to terminate your service May 16, 1976.
“Meanwhile, I want to take this opportunity to thank you for the service you have rendered the institution.
“Sincerely yours, /s/ R. W. E. Jones, President.”

Plaintiff was not a tenured teacher.

At the time the letter was mailed, the suit between Grambling and plaintiff had been tried but not decided. The suit was eventually decided adversely to plaintiff.

After receipt of the letter of termination, plaintiff filed this suit, alleging his employment was terminated solely as a vindictive and retaliatory act on the part of the president of Grambling in response to plaintiff’s refusal to acknowledge he was mistakenly overpaid. Plaintiff prayed for reinstatement with tenure, renewal of his contract with no loss of seniority, one year’s salary lost because of the termination, and reasonable attorney’s fees. In a scholarly and well-reasoned opinion, the trial court rejected plaintiff’s demands.

Plaintiff contends his dismissal is improper because it was motivated by his exercise of a constitutional right, i. e., his right to demand a judicial resolution of the salary dispute between himself and Grambling. Alternatively, plaintiff contends he could not be dismissed without a one year notice as provided in the Grambling Personnel Handbook.

The dismissal of even a nontenured teacher may not be predicated on his exercise of First and Fourteenth Amendment rights. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The burden of proving Grambling dismissed plaintiff based on such grounds lies with plaintiff.

Plaintiff introduced circumstantial evidence attempting to establish such a basis for his dismissal. Plaintiff testified although no Grambling officials expressly threatened to terminate his employment if he did not voluntarily repay the alleged salary overpayment, he received this impression from discussions with superiors. Additionally, plaintiff received the notice of termination during his litigation with the school. Plaintiff also contends Grambling has hired additional teachers since his termination who instruct some of the same courses he previously taught, which substantiates that his termination was not due to Grambling’s financial problems.

Defendant’s position is that the answers to plaintiff’s interrogatories and the testimony adduced at trial clearly establish plaintiff was simply the victim of a forced reduction in Grambling’s expenditures. Defendant established that due to the necessity of reducing expenses, six faculty members were terminated concurrently with plaintiff (although one was later rehired), and eighteen faculty members who either retired or resigned were not replaced. Defendant also established plaintiff’s name was not chosen for termination by anyone actively involved in the salary dispute with plaintiff, but rather by the head of the Department of Elementary Education and the Dean of the College of Education, plaintiff’s immediate supervisors.

The head of the Department of Education explained plaintiff was chosen for termination based on a priority of retaining teachers who enjoyed tenure, and of retaining those teachers who possessed the particular qualifications most critical to the department. The department head admitted the department needed two new teachers, one of which had been hired, and the newly hired teacher taught one of the courses previously taught by plaintiff. However, she explained the new teacher taught additional courses plaintiff was not qualified to teach. The department head also explained the teacher they were still seeking was one with expertise in areas not possessed by plaintiff. The testimony of the Dean of the College of Education was substantially the same as that of the department head. All Grambling officials who testified denied any motive existed for plaintiff’s termination other than the necessity for faculty reduction mandated by financial problems.

The trial judge was correct in his finding that plaintiff fell far short of proving his termination was motivated by his exercise of a constitutional right.

As regards his second contention, plaintiff established he was not given one year advance notice that he would not be reappointed as stated in the Grambling Personnel Handbook. However, plaintiff made no showing the policy stated in the Handbook had the status of a contractual obligation owed to plaintiff by Grambling. Testimony of the president of Grambling at trial established that while the policies declared in the handbook were followed as closely as possible, they were not absolute. Plaintiff has established no legal reasons why the policy of giving one year notice of termination should not give way to the financial exigencies of Grambling.

It is significant the policy contained in the handbook specifically provides a tenured teacher serving on a continuous appointment may be terminated under extraordinary circumstances because of financial exigencies. There is no stated requirement of notice prior to termination under these circumstances, the policy requirement being only “termination of a continuous appointment because of financial exigency should be demonstrably bonafide.” It would be unreasonable to find the nontenured plaintiff, serving on a year by year appointment, is entitled to more notice of termination than a teacher serving with tenure. The record adequately establishes plaintiff was terminated because of bona fide financial difficulties of the university.

The judgment of the trial court is affirmed, appellant to pay all costs.

Affirmed.


author: LEE, Justice,

text:
    In the Interest of James Timothy WILDER, Jerry Miles, and Larry Simmons.
    No. 49654.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied July 13, 1977.
    Robert L. Williams, Ben F. Horan, Horan & Horan, Water Valley, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

The Youth Court judge of the Second Judicial District of Yalobusha County, after a hearing on petitions alleging that James Timothy Wilder, Jerry Miles and Larry Simmons were delinquent because of violating Mississippi Code Annotated Section 97-37-21 (1972) [Bomb Threat Statute], found the minors to be delinquent and committed them to Columbia Training School until they attained the age of twenty (20) years.

The appellants assign the following errors:

(1) The court erred in admitting illegally-obtained confessions of the appellants.

(2) The order of the court amounted to cruel and unusual punishment in violation of the Eighth Amendment and Section 26 of the Mississippi Constitution.

(3) The finding of delinquency was against the overwhelming weight of the evidence.

(4) The court erred in overruling Jerry Miles’ motion for severance.

(5) The court abused its discretion in committing the minors to Columbia Training School.

The appellants were each thirteen (13) years of age and were enrolled at Water Valley Attendance Center. They walked downtown, on January 22,1976, to a service station where Larry Simmons telephoned the local police station stating that a bomb had been placed in the school. Jerry Miles and Timothy Wilder helped look up the telephone number and aided in the telephone call. When Simmons dialed the number, Miles and Wilder ran. On the next day, January 23, Simmons again called the police station and stated a second bomb threat. The boys claimed that a school bully conceived the bomb threat idea and that the call(s) was made because they feared him.

I.

Did the court err in admitting the confessions of the appellants?

Sheriff Jones received a tip that the boys had made the telephone calls, he signed a petition against Larry Simmons, went to his home with a summons, and, in the presence of Larry and his parents, advised Larry of his Miranda rights. Mr. Simmons told his son to talk with the sheriff. Larry indicated that he understood his rights, that he did not mind talking, and he voluntarily confessed to both calls. Thereupon, he was arrested. The sheriff then obtained a summons for Wilder and Miles and went to the Miles home. He advised Miles, in his father’s presence, of his Miranda rights, both understood them, Miles gave a voluntary confession and was arrested. Sheriff Jones next went to the home of Timothy Wilder, advised him of his rights in the presence of his mother, Wilder voluntarily confessed and was arrested.

The appellants contend that they could not execute a proper waiver of their Miranda rights without knowing what they were to be questioned about, and that the sheriff failed to inform them they had the right to stop interrogation at any point they so desired. An individual has a right to stop the interrogation at any time he wishes, but it is not required that he must be so informed. If the accused indicates in some way that he wishes questioning to cease, the interrogation must end. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record reflects that the warning given by the sheriff complied with the Miranda decision. Further, the Miranda warnings are applicable to custodial interrogation, that is, questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way. Appellants were advised of their rights under the Miranda decision in the presence of their parents, they voluntarily made statements to the sheriff with the consent of their parents, and they were not arrested and detained until after the statements were made. We are of the opinion that the court committed no error in admitting the confessions of the appellants. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

II.

Did the order of the Youth Court constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and Section 26, Mississippi Constitution?

The Youth Court ordered the minors committed to Columbia Training School until they attained the age of twenty (20) years, “or until the earlier further orders of the court.” Mississippi Code Annotated § 97-37-21 (1972), under which the minors were found to be delinquent for violation of same, provides a penalty of not exceeding one (1) year imprisonment in the county jail and not exceeding five hundred dollars ($500.00) fine, or both, for violation of the statute (misdemeanor: reporting placement of a bomb in a public place). It is contended that appellants potentially could be deprived of their freedom for seven (7) years. This contention also presents the question of whether or not appellants have been deprived of equal protection of the law in violation of appellants’ Fourteenth Amendment rights under the United States Constitution.

Courts in other jurisdictions have distinguished penalties and punishment provided by penal statutes from corrective treatment, rehabilitation, and social redemption and restoration in Youth Correction Acts.

In McGann v. United States, 440 F.2d 1065 (5th Cir. 1971), the Court said:

“In a motion to vacate and set aside his conviction and sentence under 28 U.S. C.A., Section 2255, petitioner contends that his six-year indeterminate sentence as a youth offender amounted to cruel and unusual punishment in that the Dyer Act penalty would have been limited to a five-year maximum.
The Youth Corrections Act reveals a statutory scheme directed toward rehabilitation and earliest possible release. Commitment is ‘in lieu of the penalty of imprisonment.’ Sentence under the Act is an effort to aid the defendant by giving him the benefit of its specialized and selective treatment. See United States v. Dancis, 2 Cir., 406 F.2d 729 (1969).
That a sentence is not invalid for the reason advanced by petitioner has been so repeatedly and uniformly held that the contention is ‘entitled to be treated as legally frivolous.’ Kotz v. United States, 8 Cir., 353 F.2d 312 (1965).” 440 F.2d at 1066.

Previously, Justice Burger stated the same principle in Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962).

We agree that there is a distinction and difference between the penal statutes and the juvenile delinquency statutes and that there is no merit in this assignment.

III.

Was the finding of delinquency against the overwhelming weight of the evidence?

The appellants admitted that Larry Simmons actually made the telephone calls and they admitted that Timothy Wilder and Jerry Miles were present, aiding and abetting Larry Simmons in making the first call. The confessions were corroborated by other evidence. It is an elementary principle of law that all persons who aid, incite, and abet the commission of a misdemeanor are guilty as principals. State v. Lahella, 232 So.2d 354 (Miss.1970).

The evidence sustains the finding of delinquency by the court.

IV.

Did the court err in overruling Jerry Miles’ motion for severance?

There is no provision in the Youth Court Act for severance or that juveniles alleged to be delinquent be entitled to separate hearings. Appellant Miles does not show, nor does the record reflect, that he was prejudiced in any way by consolidation of the petitions and by hearing them together, and there is no merit in this assignment.

V.

Did the court abuse its discretion in committing the minors to Columbia Training School?

In Ford v. Grenada County Youth Court, 214 So.2d 462 (Miss.1968), an eleven-year-old Negro boy was committed to Oakley Training School for having stolen a wash-pot of the value of three dollars ($3.00). The Court vacated the decree and remanded the cause to the Youth Court to consider further evidence of the youth’s conduct and condition since entry of the decree. This Court affirmed the Youth Court in Hopkins v. Youth Court of Issaquena County, 227 So.2d 282 (Miss.1969), stating that the action of the Youth Court judge in committing Hopkins to an industrial training school, under the facts there developed, was within his sound discretion.

Each of the appellants here was thirteen (13) years of age at the time of the hearing, they had not been in any previous trouble, they were members of good families, and the evidence discloses that their parents maintained supervision over the children and disciplined them. We are unable to say that the Youth Court judge abused his discretion in committing the appellants to Columbia Training School, and we affirm the judgment. However, we remand the case to the Youth Court and direct that it hear additional evidence covering the period since January 31,1976 (date of Youth Court order) pertaining to the conduct, behavior and attitude of the appellants for determination as to whether or not said judgment should be modified.

AFFIRMED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, SUPREME COURT of Alabama.
    No. 4.
    Supreme Court of Alabama.
    June 6, 1977.
   SENTELL, Clerk.

RULES 18(II)(A)(4) AND 19(B)(2)(a) ALABAMA RULES OF JUDICIAL ADMINISTRATION SCHEDULE OF FINES FOR TRAFFIC INFRACTIONS

Mr. Charles Y. Cameron, Administrative Director of Courts, has requested my opinion as Clerk of the Supreme Court, pursuant to Section 6-105, Act No. 1205, Acts of Alabama, 1975 Regular Session, as to whether the fine schedule for traffic infractions listed in Rule 18(II)(A)(4) and Rule 19(B)(2)(a) of the Alabama Rules of Judicial Administration is mandatory for both magistrates and judges, thereby precluding a judicial determination for lesser fines.

It is my opinion that the schedules of fines listed in Rules 18 and 19 of the Alabama Rules of Judicial Administration are mandatory, and that the schedules preclude a judicial determination providing for a lesser fine.

The Supreme Court, on October 14, 1976, adopted the Alabama Rules of Judicial Administration, effective January 16,1977, under the authority of Section 6.11 of Amendment 328 to the Constitution of Alabama.

Section 6-105, Act No. 1205, Acts of Alabama, 1975 Regular Session, refers to the fact that “the supreme court now has the initial primary duty to make and promulgate rules,” including “rules of administration for all courts.”

Rule 19, Alabama Rules of Judicial Administration, governs uniform traffic infractions. This rule must be read in connection with Section 4-106(e) of Act No. 1205, supra, which defines a “traffic infraction” in sub-paragraph (e)(1) and provides for the punishment thereof in sub-paragraph (e)(5).

A “traffic infraction”, is defined as “any violation of a statute, ordinance or regulation relating to the operation or use of motor or other vehicles or use of streets and highways by pedestrians.”

Sub-paragraph (e)(5) of Section 4-106(e), Act No. 1205, supra, provides that “Schedules of fines to be imposed for traffic infractions shall be established by law or rule.”

Rule 19(B)(2)(a), supra, reads:

“(2) Schedule of fines.—
(a) Schedule of fines. — The following fines are prescribed for traffic infractions in district and municipal courts:”

and then lists one definite fine for each of seventeen traffic infractions.

The words, “establish” and “prescribe,” are often used as synonyms. Ex Parte Lothrop, 118 U.S. 113, 6 S.Ct. 984, 30 L.Ed. 108; Shell v. State, 2 Ala.App. 207, 56 So. 39 (1911).

The word, “prescribed,” has a well-defined legal meaning, denoting “to lay down authoritatively as a guide, direction or rule of action; to impose as a peremptory order.” City of New York v. Hexamer, 59 App.Div. 4, 69 N.Y.S. 198, 203 (1901); Mansfield v. People, 164 Ill. 611, 45 N.E. 976, 977 (1897); Philps v. Guy Drilling Co., 143 La. 951, 79 So. 549, 550 (1918); Jones v. Killingsworth, Tex.Civ.App., 379 S.W.2d 362, 366 (1964).

Rule 18, Alabama Rules of Judicial Administration, pertains to magistrates and their authority. The schedules of fines listed in Rule 18 are identical to the schedule of fines in Rule 19 and are listed under the statement:

“The following fines are prescribed for traffic infractions.”

The powers of the magistrate, among others, are limited to receiving of pleas of guilty in minor misdemeanors where a schedule of fine has been prescribed by rule. This is the same language used in Section 4-106(g)(2)(C) of Act 1205, supra.

The schedule of fines lists a definite fine for each traffic infraction. The judge in such a case has no discretion as he has in cases where there are maximum and minimum limits, as in the case of Lee v. State, 37 Ala.App. 321, 69 So.2d 467 (1953), cert. denied, 260 Ala. 698, 69 So.2d 470 (1954).

The following principles of law have been established for a long time in various courts of our country and should govern the question involved here. The sentence imposed must conform to the statute. Ex Parte Gilmore, 71 (Cope) Cal. 624, 12 P. 800 (1887). The fine cannot exceed the amount prescribed by law. State v. Thompson, 14 S.C. 12, 2 Strob. 12, 47 Am. Dec. 588 (1847).

Where the statute fixes the minimum amount of fine to be imposed, the court has no authority to impose a fine for an amount less than the minimum. 36A C.J.S. Fines § 5, p. 436; Graham v. State, 1 Ark. 171 (1838); Taff v. State, 39 Conn. 82 (1872); State v. Lawry, 4 Nev. 161 (1868); Taylor v. State, 35 Wis. 298 (1874).

Therefore, it is my opinion that the schedules of fines, together with the limitations, stated in Rule 18(II)(A)(4) are mandatory for the magistrates and the schedule of fines prescribed in Rule 19(B)(2)(a) is mandatory for judges.


text:
    OPINION OF THE CLERK, SUPREME COURT of Alabama.
    No. 5.
    Supreme Court of Alabama.
    June 13, 1977.
   SENTELL, Clerk.

RULE 26, ALABAMA RULES OF JUVENILE PROCEDURE UNCOLLECTED COURT COSTS

Mr. Charles Y. Cameron, Administrative Director of Courts, has submitted to me the following inquiry:

Rule 26 of the Alabama Rules of Juvenile Practice, Procedure and Administration provides, in part, that uncollected court costs may not be assessed as charges against the county. The legislative basis for such rule, Section 5-139 of Act No. 1205, supra, provides that costs and expenses, including the payment of attorney fees, shall be valid charges against the county. Our question is as follows:
Does the language of Rule 26, which provides that “uncollected court costs may not be assessed as charges against the county,” incorporate attorney fees?

My answer to this question is given pursuant to the authority conferred on the Clerk of the Supreme Court by Section 6-105, Act 1205, Acts of Alabama, 1975 Regular Session, 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 official or official of the State who shows a need for such opinion and requests the same.

Section 6-105, Act No. 1205, supra, states that “the legislature finds that it is within the scope of its authority to make rules of administration pertaining to . collection of unpaid court costs, fines and forfeitures . . . .”

It is, therefore, considered that Rule 26, Alabama Rules of Juvenile Procedure, is a rule of administration of which the Clerk of the Supreme Court may give his opinion in writing under the provisions of Section 6-105, Act No. 1205, supra.

It is my opinion that the language of Rule 26, Alabama Rules of Juvenile Procedure, which provides that “uncollected court costs may not be assessed as charges against the county” does not incorporate attorney fees.

Rule 26, supra, must be interpreted in connection with the language used in Section 5-139(a), Act 1205, supra, which, among other things, provides that “. court costs as provided by law and attorney fees shall be valid charges against the county • . . .”

The right to recover attorneys fees as a part of costs did not exist at common law. White v. State, 294 Ala. 502, 319 So.2d 247 (1975); Henry v. Murphy & Co., 54 Ala. 246 (1875); Jones v. Tarleton, 16 Ala.App. 95, 75 So. 643 (1917).

Generally, attorney fees are not recoverable as a part of the costs. Schillinger v. Leary, 201 Ala. 256, 77 So. 846 (1917); Lewis v. Railroad Retirement Board, 256 Ala. 430, 54 So.2d 777 (1951), Cert. denied, 343 U.S. 919, 72 S.Ct. 677, 96 L.Ed. 1333. See Cincinnati Insurance Company v. City of Talladega, Alabama, Ala., 342 So.2d 331 (1977).

An exception is where the statute expressly authorizes the court “to tax as a part of the costs in such suit or proceeding such reasonable attorney’s fee,” as in Title 46, Sec. 63, Code of 1940.

The conclusion is that the term, “court costs,” by itself, does not include “attorneys’ fees.”

Rule 26, Rules of Juvenile Procedure, reads as follows:

Court Costs
Court costs of juvenile cases shall be assessed at $25.00 to be distributed as docket fees for civil cases in the district court are distributed. Uncollected court costs may not be assessed as charges against the county.

In my opinion, the term, “court costs,” in the first sentence of Rule 26 has reference to the “court costs as provided by law” in Section 5-139(a), Act No. 1205, supra. The term, “uncollected court costs,” in the second sentence of the rule has reference to the “court costs of juvenile cases” as assessed according to the first sentence of the rule.

Therefore, “uncollected court costs” do not include “attorney fees.”


author: WRIGHT, Presiding Judge.

text:
    CARROLL CONSTRUCTION COMPANY, INC. v. A. D. HUTCHESON.
    Civ. 1126.
    Court of Civil Appeals of Alabama.
    June 15, 1977.

      Abner R. Powell, Jr., of Powell & Sikes, Andalusia, for appellant.
    W. Sidney Fuller of Tipler & Fuller, Andalusia, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case. On January 20, 1976, plaintiff A. D. Hutcheson filed a claim for permanent total disability benefits arising from an injury occurring on October 28, 1974. Defendant Carroll answered with admissions that Hutcheson had been its employee at the time of the injury, that it had received notice of the injury, that it had paid medical expenses and substantial amounts of workmen’s compensation benefits; but it denied liability for further compensation benefits and denied Hutcheson was totally and permanently disabled.

The case proceeded to trial before the court sitting without a jury. The court found Hutcheson, a 56-year-old man, had been injured in the line 'and scope of his employment, that Carroll had paid $75 per week as workmen’s compensation for 48 weeks and also $5,095.01 as medical expenses, that Hutcheson had unpaid doctor bills of $30.60 and unpaid drug bills of $86.29 for which Carroll was liable, that Hutcheson was suffering from total and permanent disability and was entitled to further compensation at $75 per week for the 54 weeks since the last payment ($4,050) and an additional 448 weeks “unless compensation for the full 550 weeks exceeds the total amount allowed by statute at the time of plaintiff’s injury.” On November 8, 1976, the court entered judgment in accordance with those findings. Its motion for new trial being denied, Carroll appealed.

The parties stipulated that Hutcheson’s average weekly wages at the time of the accident were $280, that under the workmen’s compensation laws of Alabama he would be entitled to the maximum benefit of $75 per week, and that Carroll’s insurer had paid Hutcheson $75 for 48 weeks along with all medical bills received in connection with the accident ($5,095.01).

The evidence tended to show the following: Hutcheson was 56 years old and had been employed by Carroll as a carpenter for two months on work at a Gantt steam plant when injured on October 28, 1975. While helping others put in a cement pipe, Hutcheson was hit under the shoulder blades by a backhoe, knocked several feet forward into an eight-foot ditch where he landed on the cement pipe, rock and mud. He was taken immediately to a doctor who prescribed medication. Hutcheson returned to the job the same day and continued to work for about a month. He stated he worked in much pain in order to assist a new carpenter complete work he had begun prior to his injury. During this period of work, Hutcheson complained of soreness and fell several times. In November he entered a Pensacola hospital for treatment of an ulcer which he had had since 1951. The ulcer had been inactive since 1964 but was reactivated by indocin, a medicine prescribed for pain after the October injury. At the same time Hutcheson was found to be suffering from a mild case of hypertension, mild chemical diabetes, and to have degenerative arthritis of the left knee. (In February of 1974 when Hutcheson had a hemorrhoidectomy, X-rays had revealed degenerative osteoarthritis of the cervical vertebra; medication, traction of the neck and physical therapy had been prescribed and applied.) In January of 1975 X-rays revealed degenerative arthritis in the right knee, which his orthopedist stated was not connected with the October accident. An arthrotomy was performed on the right knee. Floating pieces of cartilage were removed. Hutcheson had suffered a hairline fracture of the left knee in a 1967 fall at a construction site and had been involved in an auto accident around 1969 without any known injuries. Since February of 1974 his left hand has been numb and since the accident he has been unable to grasp and hold tools with his right hand. He has a ninth grade education. He has not been trained for any work other than that of carpenter. At one time he farmed but does not have enough money to do so now.

The orthopedist assessed his disability as 10% permanent partial to the neck as a result of the accident aggravating the existing arthritis, 10% permanent partial of the right knee, or 5% disability to the body as a whole. He admitted it would be difficult for Hutcheson to climb and squat with such a condition but did not take the type of employment into consideration in fixing the amount of disability. Another physician declined to state a percentage of disability but did feel Hutcheson could supervise or .do some carpentry work but could not do any climbing. Several carpenters, construction workers and neighbors of Hutcheson testified that he was physically unable to do the work of a carpenter because of the need to kneel, stoop and climb in that occupation.

Appellant contends the trial court .erred in requiring it to pay the unpaid medical and drug bills in the absence of proof that they were reasonable. The record reveals that these bills were never introduced into evidence. They were only mentioned by appellee’s attorney when he sought to have the amount stipulated. Appellant denied liability and appellee’s attorney then stated he was going to show what they were for, but he never did. Where there is no evidence that a medical charge is reasonable, there is no basis for awarding judgment on the charge because it is not a matter of common knowledge. Mitchell Motor Co. v. Burrow, 37 Ala.App. 222, 66 So.2d 198 (1953); Tit. 26, § 293, Code of Alabama (1940) (Recomp.1958) (Supp.1973). But appellant did not allege this as error in the motion for new trial. This error cannot come under the ground alleging excessive compensation because payments by the employer for medical treatment and medicine are not considered compensation. Liberty Mut. Ins. Co. v. Manasco, 271 Ala. 124, 123 So.2d 527 (1960); Tit. 26, § 293. Grounds of a motion for new trial must specify the precise error alleged to have occurred for the matter to be subject to review on appeal. Surber v. Mann, 46 Ala.App. 700, 248 So.2d 740 (1971). We thus have nothing to review as no error has been preserved.

Appellant also contends that Hutcheson failed to sustain the allegation that he was totally and permanently disabled. While the testimony of the two doctors would support appellant’s position, the court heard conflicting evidence from various lay witnesses and from claimant to the effect that Hutcheson was totally and permanently disabled from performing as a carpenter, the only work for which he is trained. Expert medical opinion as to the nature, extent and permanency of a disability in a workmen’s compensation case is not conclusive on the trier of fact even if the testimony is uncontroverted. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Benson-Jackson-Mathers Post No. 5106 v. Donaldson, 267 Ala. 60, 99 So.2d 688 (1958); Warrior Stone & Contracting Co. v. DeFoor, 241 Ala. 227, 2 So.2d 430 (1941); Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973).

The medical testimony professedly did not take into consideration the definition of total disability as did the lay testimony. Total disability does not mean absolute helplessness or entire physical disability, but means inability to perform the work of one’s trade or inability to obtain reasonably gainful employment. Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958); B. F. Goodrich Co. v. Butler, 56 Ala.App. 635, 342 So.2d 776 (1975) cert. quashed 295 Ala. 401, 324 So.2d 788 (1976); Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370 (1973). Total permanent disability under Tit. 26, § 279(E)3 may occur without loss of specific members of the body; in that case the court considers the education and training of the individual and the effect of the injury on his earning ability. Brunson Milling Co. v. Grimes, supra. We will not disturb the finding of the trial court because there was legal evidence to support its conclusion of total and permanent disability. Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 (1969); Woodward Iron Co. v. Jones, 217 Ala. 361, 116 So. 425 (1928); Mobile Paint Mfg. Co. v. Crowley, 56 Ala.App. 673, 325 So.2d 182 (1975). The weight of the evidence before the trial court is not before this court on appeal in a workmen’s compensation ease. Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453 (1964).

Appellant’s final contention is that the trial court misapplied the law to the facts by awarding benefits of 550 weeks which is in excess of the maximum permitted by statute. Tit. 26, § 279(E)3, Code of Alabama (1940) (Recomp.1958) (Supp.1973) indicates the maximum for permanent total disability which is not covered by § 279(E) is 500 weeks. The overall maximum benefits were $37,500 at the time Hutcheson was injured. Tit. 26, § 289, Code of Alabama (1940) (Recomp.1958) (Supp.1973). The trial court thus erred in awarding benefits of $75 for 550 weeks. The clause indicating that the award was limited to that amount allowed by statute did not prevent error. Neither does it require reversal because an appeals court may modify and change the error in an award of workmen’s compensation benefits. Rowell v. Doss, 284 Ala. 500, 226 So.2d 157 (1969); Wilson & Co. v. Curry, 259 Ala. 685, 68 So.2d 548 (1953). We thus modify the judgment so that Hutcheson now may recover additional compensation for only 398 weeks rather than 448 weeks.

AFFIRMED AS MODIFIED.

BRADLEY and HOLMES, JJ„ concur.


author: PER CURIAM.

text:
    BOARD OF ADJUSTMENT, CITY OF MONTGOMERY, Alabama v. Mrs. Jean Lewis PRIESTER.
    Civ. 1109.
    Court of Civil Appeals of Alabama.
    June 22, 1977.

      Randall C. Morgan, Montgomery, for appellant.
    Philip S. Gidiere, Montgomery, for appel-lee.
   PER CURIAM.

The Board of Adjustment for the City of Montgomery appeals from a decision of the Circuit Court of Montgomery County granting a variance to appellee-Priester.

The dispositive issue before this court is whether the case is now moot. We find that it is and dismiss the appeal.

The record reveals the following pertinent facts: Priester applied to the Board of Adjustment for the City of Montgomery for a variance from a zoning ordinance of the City. The purpose of the variance was to permit Priester to have three or more mobile homes or trailers on a tract of land she owned. In July of 1976, the Board of Adjustment denied Priester’s request for a variance. The Board stated “that this should be rezoned to the proper district for a mobile home dwelling park.”

Thereafter, Priester filed notice of appeal pursuant to Tit. 37, § 783, Code of Alabama. In January of 1977, the circuit court held a de novo ore tenus hearing and granted the variance. In February of 1977, the Board of Adjustment, through able counsel, filed notice of appeal with this court.

Subsequent to the Board of Adjustment’s perfection of this appeal, Priester requested a rehearing before the Board. She stated that one of the mobile homes which were the subject of the litigation had been removed from her property, and she requested a temporary permit of one year for the two remaining mobile homes. The Board of Adjustment granted her request in May of 1977.

Appellee-Priester correctly contends this appeal is moot and therefore warrants dismissal.

“The general rule is that an appeal is subject to dismissal if, pending the appeal, an event occurs which makes a determination of the appeal unnecessary .” Moore v. Cooke, 264 Ala. 97, 100, 84 So.2d 748, 749-50 (1956).

Accord Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285, cert. denied 291 Ala. 458, 282 So.2d 291 (1973). See Shelton v. Shelton, 248 Ala. 48, 26 So.2d 553 (1946); Coleman v. Mange, 238 Ala. 141, 189 So. 749 (1939); 2A Ala. Digest Appeal & Error @=781(1), (4). For this court to decide an appeal, a justiciable controversy must exist at the time the matter is under submission to this court. City of Mobile v. Scott, 278 Ala. 388, 178 So.2d 545 (1965). While it is clear that a justiciable controversy existed when notice of appeal was perfected by the Board of Adjustment, no such controversy now exists.

The subject matter of this litigation involves appellee-Priester’s right to retain certain mobile homes on her property without making the improvements necessary to comply with the provisions of the zoning ordinance of the City of Montgomery regarding trailer parks. The Board of Adjustment originally denied Priester’s request for a variance to allow the mobile homes to remain on her premises. However, subsequent to the entry of the judgment by the Circuit Court of Montgomery County, Priester and the Board of Adjustment reached agreement concerning the disposition of the mobile homes. Priester, contrary to continuing to seek a permanent variance for three mobile homes as granted by the judgment of the Circuit Court of Montgomery County, sought temporary permits for two. Such permits were granted by the Board of Adjustment. Hence, there is no longer a conflict or controversy between the parties.

We do not perceive, nor have the parties informed us of any “collateral rights” which are dependent upon and would be left undetermined by dismissal of this appeal. See Grant v. City of Mobile, supra. Accordingly, the appeal is to be dismissed.

APPEAL DISMISSED.

All the Judges concur.


author: PAUL, Retired Circuit Judge.

text:
    W. B. HEADLEY, d/b/a W. B. Headley and Sons v. HOUSING AUTHORITY OF PRATTVILLE, Alabama, et al.
    Civ. 1100.
    Court of Civil Appeals of Alabama.
    June 29, 1977.

      George P. Walthall, Jr., Prattville, for appellant.
    Theron 0. McDowell, Jr., and J. Myron Smith, Prattville, for appellees.
   PAUL, Retired Circuit Judge.

This appeal involves the dismissal of a claim against appellee Housing Authority for negligence in failing to require a bond from a contractor under Tit. 50, § 16, Code of Alabama (1940) (Recomp.1958).

In the complaint filed December 12,1975, appellant Headley alleged that it was engaged in the building supply business; that it had supplied roofing materials to Robert G. Rhodes Roofing Company; that these materials were used by Rhodes on a roofing project for appellee under a contract executed on September 6, 1974; that Rhodes obtained the materials by agreeing he would have the proceeds made payable to appellant and himself; that the roofing project was completed on December 13, 1974, when appellee paid Rhodes in full; that Rhodes failed to pay appellant $8,659.08 due for the materials supplied; that appellant had recovered $960 of this amount; that appellee had failed to obtain a bond from Rhodes as required by Tit. 50, § 16; and that the negligence of appellee in failing to require the bond had resulted in the loss of $7,599.08.-

Appellee moved to dismiss on December 22, 1975, because all plaintiffs were not parties as required by Rule 17, ARCP. Ap-pellee on January 7, 1976, moved to dismiss under Rule 12(b)(6), ARCP, for failure to state a claim upon which relief can be granted in that appellee was immune from a negligence suit (for failure to require bond) because engaged in “municipal activities.” On March 2 both these motions were denied. Appellee answered and alleged as a defense that the claim did not accrue within six months of its commencement under Tit. 37, § 476, Code of Alabama (1940) (Recomp.1958). A third party complaint against Rhodes was filed by appellee on April 13. On October 5 appellant made the following requests for admissions: that ap-pellee did enter into a roofing contract with Rhodes, that appellee failed to comply with Tit. 50, § 16 as to the contracting and payment of contracts, and that appellee failed to obtain a bond from Rhodes. Under Rule 36(a), ARCP, these matters are deemed admitted since appellee made no response. Appellee amended its answer by adding as a defense under Rule 8(c), ARCP, that the claim was barred by the statute of limitations prior to the commencement of suit.

The trial court dismissed appellant’s claim on December 9, 1976, after finding that work commenced on September 9, 1974, and that the complaint was filed more than one year from the time the claim accrued. Headley filed notice of appeal on January 19, 1977.

Before discussing the issue raised by appellant, we will dispose of appellee’s cross-appeal. The issue raised by appellee is whether prior to the decision of Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), did a municipal housing authority have sovereign immunity, or, alternatively, whether a municipal housing authority is liable to a material supplier for failure to require a contractor’s bond under Tit. 50, § 16. The only evidence of an intent to appeal by appellee is in a letter of April 20, 1977, to the clerk of this court in which appellee seeks an extension of time to file its brief under Rule 31, ARAP. We find no notice of appeal by appellee in the record. An appeal is properly taken by filing a notice of appeal within 42 days of judgment. Rules 3(a)(1), 4(a)(1), ARAP. Rule 4(a)(2) of the Alabama Rules of Appellate Procedure is as follows:

“If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days (2 weeks) of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.”

The questions raised by appellee in brief relating to sovereign immunity are not before this court because the Alabama Rules of Appellate Procedure do not allow an appellee to cross-assign errors without taking an appeal. See 9 Moore’s Federal Practice, ¶ 204.11(1). Section 746 of Title 7 of the Code of Alabama which allowed cross-errors, has been superseded by Rule 4(a)(2) of the Alabama Rules of Appellate Procedure. Mutual Savings Life Ins. Co. v. Montgomery et al., Ala., 347 So.2d 1327 (1977).

Appellant’s issue for review is whether the statute of limitations in a negligence action by a supplier against a municipal housing authority for failure to comply with Tit. 50, § 16 begins to run after awarding the contract and “before commencing such work” or after the job has been completed, a final settlement had, and actual damages done.

As relevant for our consideration here Tit. 50, § 16 states:

“Any person, firm or corporation entering into a contract with the state or any county or municipal corporation or subdivision thereof in this state for the repair, construction or prosecution of any public buildings or public work, highways or bridges, shall be required, before commencing such work, to execute a performance bond, with penalty equal to fifty percent of the amount of the contract price, and in addition thereto, another bond with good and sufficient surety, payable to the state, county or municipal corporation or subdivision, letting the contract, in an amount not less than fifty percent of the contract price, with the obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor, materials, feed-stuffs or supplies for or in the protection of the work provided for in such contract, and for the payment of reasonable attorneys’ fees, incurred by successful claimants or plaintiffs in suits on said bond; and any person, firm or corporation that has furnished labor, materials, feed-stuffs, or supplies for or in the prosecution or repair of any public building or public work, highways or bridges, and payment for which has not been made, shall be authorized to institute an action upon said bond in his or their name or names and to have their rights and claims adjudicated in such action and judgment rendered thereon; provided, however, that no suit shall be instituted on said bond until after forty-five days’ written notice to the surety thereon of the amount claimed to be due and of the nature of the claim. Such suit shall be commenced not later than one year from the date of final settlement of said contract. .
“The contractor shall immediately after the completion of the contract give notice of said completion by an advertisement in some newspaper of general circulation published within the city or county wherein the work has been done for a period of four successive weeks. In no instance shall a final settlement be made upon the contract until the expiration of thirty days after the completion of same.

The statute is patterned after the Miller Act, 40 U.S.C. §§ 270a-270d, and was enacted for the same purposes. State ex rel. Wadsworth v. Southern Sur. Co., 221 Ala. 113, 127 So. 805 (1930); Price v. H. L. Coble Const. Co., 317 F.2d 312 (5th Cir. 1963). The purpose of the act is to provide security for those who furnish labor and material in performance of government contracts as a substitute for unavailable lien rights, and is liberally construed to accomplish this purpose. Warrior Constructors, Inc. v. Harders, Inc., 387 F.2d 727 (5th Cir. 1967).

It appears to be the theory of appellant that since the statute of limitations would not start to run under Title 50, § 16 where there is a bond until the date of final settlement, that the statute of limitations in the present suit should run from the date of final settlement. In this case payment to Rhodes, the contractor, was made on December 13, 1974, and under the pleadings it must be assumed that final settlement was on that date. We are unable to agree that the limitations of time within which suit could be brought on a bond would govern the present suit for negligence in failure to require bond as required by the statute.

The trial court found the claim accrued, in the words of the statute, “before commencing said work,” and further found that the work commenced on September 9,1974, and that the complaint was filed December 12,1975, more than one year from the time the cause of action commenced.

The one year statute of limitations, Tit. 7, § 26, Code of Alabama (1940) (Recomp. 1958), governs in this cause, but the question presented is when does the time of limitation begin to run? In Brotherhood of Locomotive Firemen & Enginemen v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962), the plaintiff brought suit for damages incurred by his dismissal from employment with the railroad as a proximate consequence of wrongful interference by the engineers’ union. The defendant contended that the action complained of had taken place more than one year prior to filing of the suit and was barred. The supreme court said:

“Under the rule of the one-year statute, the time of limitation begins to run when the injury happens or damage accrues, and not from the date of the act causing the injury or damage. Corona Coal Company v. Hendon, 213 Ala. 323, 325, 104 So. 799. In the case at bar, plaintiff was not taken off the payroll of the L. & N. until June 1, 1956. He suffered no loss of employment prior to June 1, 1956, and, for one year thereafter, was not barred from maintaining an action to recover for damage resulting from such loss of employment. The instant action was commenced within that year and appellant’s contention with respect to the statute of limitations is without merit.” 273 Ala. at 401, 140 So.2d at 835.

In Plant v. R. L. Reid, Inc., 294 Ala. 155, 313 So.2d 518 (1975), the supreme court had before it the constitutionality of Act No. 788, Acts of Alabama 1969, fixing a four-year limitation on time for bringing actions against persons who design improvements on real or personal property. After declaring the four-year limitation unconstitutional, the court held the two-year death statute operative. Justice Shores said:

“These statutes are unlike traditional statutes of limitations in that, by the very nature of the traditional statute, it bars a cause of action solely because the plaintiff had slept on his rights and has not asserted a claim during a period when it could be successfully maintained. In tort cases, the date from which the traditional statute of limitations begins to run is the date upon which the cause of action accrues, normally the date the injury occurs. Brotherhood of Locomotive Firemen & Eng. v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962).”
“A party has a right to bring an action in contract when the other party breaches the agreement. In tort actions, the breach of duty does not produce a cause of action until such breach, proximately results in injury or damage. The statute of limitations begins to run from the time of injury in tort cases.” 294 Ala. at 159-160, 313 So.2d at 521-522.

In Plant the defective work complained of was completed on or before October 31, 1965; Plant received injuries causing his death on November 25, 1972; and suit was filed November 15, 1973. The Supreme Court of Alabama held the suit was timely filed.

We conclude, therefore, that the trial court was in error in holding that the cause of action was barred one year from the time work was commenced on September 9, 1974, the time fixed by Title 50, § 16 for filing the bond required. Plaintiff had suffered no damage until the materials were furnished and final payment was made to the contractor, Rhodes, by the housing authority. That date was December 13, 1974. Suit was filed on December 12, 1975, within one year.

It follows that the judgment appealed from must be reversed and remanded.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . Sitting by order of the Chief Justice pursuant to § 6.10 of the Judicial Article, Amendment No. 328 of the Constitution.


author: TYSON, Presiding Judge.

text:
    Dennis Gary HOLT v. STATE.
    8 Div. 792.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.
    Holt, McKenzie, Holt & Patterson, Florence, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The appellant, Dennis Gary Holt, was indicted for the first degree murder of one Teddy Morris. A jury found the appellant guilty of second degree murder and fixed his punishment at ten years in the penitentiary. The trial court entered judgment in accordance with this verdict. The appellant applied for probation, which was denied following a hearing thereon. The appellant’s motion for new trial was also denied.

On August 3, 1975, around 12:00 midnight, the appellant, Dennis Gary Holt, and his father-in-law, Richard Craig, went to the apartment of the appellant’s ex-wife, Debra Holt (daughter of Richard Craig), for the purpose to see if Debra was “shacking up” with the now deceased, Teddy Morris, in the presence of the appellant’s four-year-old child whom Debra had retained custody of following her divorce from the appellant. Upon their arrival at the apartment, Mr. Craig went to the front door and knocked, while the appellant positioned himself outside the apartment’s rear window. A few moments later, the deceased, as anticipated by appellant, began his exit from Mrs. Holt’s apartment via the rear window where the appellant commanded, “Wait a minute boy.” The appellant stated that his .25 caliber pistol was in his back pocket at this time, and that the deceased, Morris, was armed, gun-in-hand. A push-pull struggle then began while the deceased was half-way out of the window, and their fight continued inside Mrs. Holt’s apartment, after the appellant either crawled or was pulled into the rear bedroom. The evidence indicates that their heated encounter continued for several minutes throughout the apartment; that at one point the appellant unsuccessfully attempted to unlock the front door and let his father-in-law, Mr. Craig, inside; that Mr. Craig finally kicked in the door and broke the fight up by taking the gun away from the appellant at which time Teddy Morris fell to the floor fatally wounded. According to the appellant’s testimony, he only struck blows with his gun; that his gun, which he never heard fire during the altercation, must have done so accidently when the deceased and his wife, Debra, who had come to the aid of the deceased during the fight, had him pinned against the television; that the first time he realized that the deceased had been shot was after his father-in-law had broken up the fight and the deceased had fallen to the floor.

Rick Thompson, an investigator for the Lauderdale County District Attorney, was the first person on the scene subsequent to the shooting incident. After making a determination that Teddy Morris was in fact dead, Mr. Thompson immediately went outside where the appellant, his father-in-law (Mr. Craig), and several others were standing. There Mr. Craig handed a gun to Mr. Thompson, and the appellant stated to Mr. Thompson, “It’s my gun and it shot him.” Mr. Thompson stopped the appellant from saying anything further, then had an Officer Curtis place the appellant under arrest and advise him of his Miranda rights. The appellant stated further in his testimony at trial that he did not notice Morris’ gun again, once their fight began, until his wife, Debra, picked it up off the living room floor and carried it into her bedroom about the time his father-in-law broke up the fight.

Debra Holt, who subsequently remarried the appellant seventeen days after the incident in question, claimed her privilege under Title 15, Section 311, Code of Alabama 1940, not to testify as a witness on behalf of, or adverse to, her husband-appellant when called by him during the presentation of his defense.

I

Outside the apartment, wherein the shooting occurred, a conversation took place between Debra Holt and the District Attorney’s investigator, Rick Thompson, during which Debra Holt allegedly stated to Mr. Thompson that just after Teddy Morris had fallen on the floor fatally wounded, the appellant kicked Morris in the head and exclaimed, “Was it worth it you son-of-a-bitch.” This alleged conduct of the appellant clearly bore on a fundamental part of the State’s case against the appellant, and the State unable to call appellant’s wife, Debra Holt, to establish what was done and said by the appellant moments after his encounter with Teddy Morris, sought to introduce her hearsay statement made to Mr. Thompson in this regard. The record reflects that the following transpired during the cross-examination of the appellant:

“Q. Isn’t it a fact that after you had shot him and he was lying there in the floor, I will ask you if you didn’t go over and kick him in the head and say ‘You son-of-a-bitch, is it worth it?’ [Emphasis supplied]
“A. No, I did not.
“Q. You say that didn’t happen?
“A. No, it didn’t happen.
“Q. Well, you heard your wife accuse you of saying that didn’t you?
“A. No.
“AN OBJECTION IS NOTED BY THE DEFENDANT ON THE GROUNDS IT’S ILLEGAL, IRRELEVANT AND IMMATERIAL, IT’S PREJUDICIAL, THERE IS NO EVIDENCE TO SUPPORT THAT AND DEFENDANT MOVES FOR A MISTRIAL BECAUSE OF SUCH PREJUDICIAL QUESTION ASKED IN THE PRESENCE OF THE JURY WHEN THE DISTRICT ATTORNEY KNOWS NO SUCH THING HAPPENED.
“THE COURT:
“We will sustain the objection ladies and gentlemen, and ask you not to consider in your deliberation that question or any import that question might have. The District Attorney is entitled to cross-examine this witness of course as to his recollection of the facts that concurred on this occasion, but we do instruct you specifically not to take into consideration that question.
“Mr. Holt:
“I would like to be heard on my motion for a mistrial.”

Upon overruling the appellant’s motion for mistrial, the trial court allowed the cross-examination to continue as follows:

“Q. The question I ask you now, Mr. Holt, is, after the shooting had occurred and you were placed under arrest, do you remember who placed you under arrest? “A. I believe it was Officer Curtis.
“Q. There were several of you standing around out in the yard wasn’t there?
“A. When I was placed under arrest, I was standing by the door.
“Q. The front door here?
“A. Right.
“Q. And your ex-wife was there to?
“A. I don’t know where she was.
“Q. You never did see her out there?
“A. No, not after she went out the door I didn’t.
“Q. You never did hear her talking to the police officers right here in your presence, right at the front door in front of the building?
“A. I didn’t see her talking to no police officers, no, I didn’t.
“Q. You never did see her any more, is that correct, after she left the building?
“A. Yeah. I saw her.
“Q. Where was she?
“A. She come out of another apartment and I was still in the patrol car.
“Q. You were already in the patrol car after you saw her?
“A. When I saw her last I was.
“Q. Isn’t it a fact Mr. Holt, that while you were standing right here (indicating), already under arrest, in front of Officer Womble, Officer Thompson and several other people, she sat there and told the officers about you kicking him in the head and calling him a son-of-a-bitch? [Emphasis supplied]
“A. No, She did not.
“Q. And said, ‘Was it worth it?’
“A. No.
“Q. You didn’t hear her say that?
“A. No, I didn’t.
“Q. And isn’t it a fact that when the officers led you off to go to the car, she screamed at you and said, ‘Now, is it worth it to you, you son-of-a-bitch?’
“A. No, I didn’t hear her say that.
“Q. You didn’t hear her call you that?
“A. No, I didn’t.
“Q. You say that didn’t happen?
“A. I said I didn’t hear her say that.”

After the appellant rested his case, the State, in rebuttal, offered the testimony of Rick Thompson, the investigator for the District Attorney. Again, quoting from the record:

“Q. State whether or not Debra Holt said in your presence and in this defendant’s hearing and presence _ . _ Mr.
Holt:
“Now, excuse me for interrupting but I object to him asking a leading question such as is being asked in the presence and hearing of the jury. I object to it as being—
“THE COURT:
“Well, as I understand it, the predicate has been laid and I will allow him to ask it either way, either as he framed it the first time or either as he is framing it the second time. I overrule the objection. (The defendant excepts to the Court’s ruling).
“Mr. Johnson continues:
“Q. State whether or not Mrs. Holt said in your presence and in this defendant’s hearing and presence, that after Mr. Morris was shot and had fallen to the floor, this defendant went over and kicked him in the head and said, ‘Was it worth it you son-of-a-bitch?’ [Emphasis supplied] “AN OBJECTION IS NOTED BY THE DEFENDANT ON THE GROUNDS IT’S ILLEGAL, IRRELEVANT AND IMMATERIAL, IT’S PREJUDICIAL, IT CALLS FOR A CONCLUSION, IT’S HEARSAY AND INVADES THE PROVINCE OF THE JURY IN THAT HE ASKED WAS IT IN THE HEARING OF THIS DEFENDANT AND FURTHER, IT’S PREJUDICIAL AND IS ASKED SOLELY FOR THE PURPOSE OF PREJUDICING THIS JURY AGAINST THE DEFENDANT AND INFLAMING THEIR MINDS AGAINST THE DEFENDANT. OBJECTION OVERRULED BY THE COURT.
“A. Yes, she did.”

The appellant contends that the admission of Mr. Rick Thompson’s rebuttal testimony concerning the alleged statement made to him by his wife was prejudicial error which necessitates a reversal of his cause. The State insists that Debra Holt’s statement, although facially hearsay, was admissible since it was not offered for the truth of the matter asserted therein, but rather to impeach the prior testimony of the appellant.

We note on the outset that if Debra Holt had testified in the appellant’s cause, and her proffered testimony concerning the alleged conduct of her husband moments after Teddy Morris had been fatally wounded, materially varied from this prior statement given by her to Mr. Thompson, then this statement may be offered in evidence, not for the truth of the matter asserted therein, but to impeach her credibility as a witness by pointing out to the jury that on a previous occasion Debra Holt told her story differently. As Professor McCormick explains:

“The theory of attack by prior inconsistent statements is not based on the assumption that the present testimony is false and the former statement is true, but rather upon the notion that talking one way on the stand and another way previously is blowing hot and cold, and raises a doubt as to the truthfulness of both statements.” See McCormick, Evidence, Section 34 at 68 (Second Edition 1972).”

However, we fail to see what aspect of the appellant’s testimony is under attack through this alleged extra-judicial statement made by Debra Holt other than the fact that the appellant stated he did not hear this or any statement made to Mr. Thompson subsequent to the shooting incident. The appellant’s ability to hear is not material to this case, and to allow the introduction of this hearsay statement, the content of which was highly incriminatory to the appellant, under the guise of impeachment was erroneous. The net effect of the statement’s admission was to set up its subject matter as direct evidence against the appellant in a form which effectively precluded the cross-examination and confrontation of its declarant, Debra Holt. Thus, the appellant was denied his right to confront and cross-examine witnesses as assured under the Sixth Amendment to the United States Constitution. Douglas v. Al abama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); See Allison v. State, Ala.Cr.App., 331 So.2d 748, cert. denied, Ala., 331 So.2d 751; Shockley v. State, Ala.Cr.App., 335 So.2d 659, affirmed, Ala., 335 So.2d 663; Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337.

Obviously, because Debra Holt was not subject to confrontation and cross-examination at trial, since she had declined to testify, the truth or falsity of the alleged statement could not be scrutinized. If the alleged statement was offered as direct evidence against the appellant, then clearly such constituted prejudicial error because there was no right of cross-examination.

Inasmuch as there was no effective way to test whether or not Debra Holt’s statement was the result of emotion, such as anger, the same should not have been admitted.

It should be noted in passing that Debra Holt was neither a co-conspirator with the appellant, nor is she a co-defendant in this cause.

We therefore conclude that the admission into evidence of this statement was erroneous.

For the error shown the judgment is therefore reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur except HARRIS, J., who concurs in result only.


author: FAULKNER, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2318.
    Supreme Court of Alabama.
    July 8, 1977.
   FAULKNER, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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


text:
    Maxon HENDERSON, alias v. STATE.
    5 Div. 372.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.

      Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged the appellant with the unlawful possession of Marijuana after a previous conviction, also of possession of Marijuana. The jury found the appellant “guilty as charged,” but declined to assess a fine. The trial court then entered judgment, setting sentence at thirteen years imprisonment.

The appellant’s motion for new trial, challenging the weight and sufficiency of the evidence, was overruled following a hearing.

Ray Plant testified he was an Auburn Police Detective assigned to the Narcotics Division on March 5,1976. He indicated he had known the appellant for more than five years and knew that he resided at 420 Bird Street in Auburn, Alabama. He testified that after obtaining a search warrant from Judge G. H. Wright, Jr., he went to the appellant’s residence, accompanied by Lee County Sheriff’s Investigator Paul Dennis and State ABC Agents Dan Hill and Paul Bottoms. He stated that Investigator Dennis went to the front door and he went to the back door and knocked. The door was opened by a woman, but upon seeing the search warrant she slammed the door. Investigator Dennis then entered through the front door, opened the back door, and the search warrant was served on the female occupant.

Officer Plant stated that in the kitchen on the freezer was approximately a quarter of a pound of Marijuana in a clear plastic bag, which was commonly termed a “nickel bag.” He stated these bags usually sell for $5.00. He stated that another “nickel bag” was on top of the dresser in the back bedroom.

Upon looking around the house, the officers found between seventy-five and eighty small Marijuana plants in ceramic pots. These plants were between two and three inches tall.

These items were seized and turned over to Lieutenant Holder of the Auburn Police Department.

Also during the search of the premises the officers found some personalized can-celled checks with the appellant’s name, Maxon Henderson, Jr., the address, 420 Bird Street, Auburn, Alabama, and the phone number 887-9413. These checks were drawn on the Farmers National Bank.

Also found in the premises was an envelope addressed to Mr. Maxon Henderson, Jr., at this same address.

Officer Plant also testified that the woman who was at the premises was one Mae Moore, and it was she who first opened the back door and then slammed it when he first attempted to enter and present the search warrant. He testified that the bags of Marijuana and the Marijuana plants were subsequently turned over to the State Department of Toxicology for examination. He testified that to his knowledge the appellant was employed at the Uniroyal plant in Opelika.

On redirect examination Officer Plant testified that on December 24, 1974, he had gone to the same premises with a search warrant and found a small amount of Marijuana, and that a case had been made in the City Court of Auburn, Alabama, and on February 19, 1975, the appellant was found guilty.

Billy G. Holder testified that as an Auburn Police Officer assigned to the Narcotics Division, he went to 420 Bird Street in Auburn on March 5,1976. He testified that he obtained from the officers there three manilla envelopes which contained plastic bags of vegetable matter that appeared , to be Marijuana. He stated that the envelopes were sealed, initialed, and that he personally delivered these envelopes to Dr. Taylor Noggle of the State Department of Toxicology.

State Toxicologist Taylor Noggle testified that he received three manilla envelopes from Police Lieutenant Holder on March 8, 1976. He testified that he examined the contents and found that they contained Marijuana. He stated that Marijuana comes from a plant known as Cannabis Sativa L., the horticultural name.

June Sistrunk testified she was clerk of the City Court of Auburn, Alabama, and as such she was the official custodian of the records. She testified that on February 19, 1975, the appellant had been found guilty of possession of Marijuana. She identified an official minute entry to this effect, and said that this was the “final judgment.”

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

The appellant presented evidence of good character through two friends.

Owetia Robinson testified that she lived at 741 Clark Avenue in Auburn and that the appellant was “[M]y old man. He stay with me, so I say he’s my old man but we’re not married.” She further stated that over the past six months there were only fifteen or twenty nights that the appellant did not stay with her. She stated that he did have clothing at her home.

Mary Henderson testified that she was the mother of the appellant. She stated that she rented a house at 420 Bird Street to one Mary Rosie Moore who lived there with her five children, all young. She stated that she lived at 737 Stubbs Avenue in Auburn, and that her son, the appellant, ate and slept there, and received his mail there. She stated that her son worked the third or 11:00 to 7:00 shift at the Uniroyal plant in Opelika.

Maxon Henderson, Jr., testified that he lived part of the time at 741 Clark Avenue and part of the time at his mother’s home at 737 Stubbs Avenue. He testified that he kept some old clothes at 420 Bird Street because he raised dogs in the back yard there. He stated that each day he went to the house on Bird Street to feed and water his dogs, that this was why he kept some clothes at this house. He testified that otherwise he lived over with one Owetia Robinson at 741 Clark Avenue and kept his clothes at her house. He testified that as to the envelope addressed to him at Bird Street this was where he mailed his church dues from, but that he had not lived there for some time.

Mae Moore testified that she lived at 420 Bird Street in Auburn with her five children, the oldest being fourteen years of age. She stated that the appellant came by her home each day to feed his dogs that he kept in her back yard, and he kept a few clothes there to use when he fed them. She stated that the officers came to her house about 2:30 in the afternoon, that they found a pack of Marijuana on the dresser and some plants which belonged to her. She stated that someone had brought the Marijuana to her house for her brother and that Maxon Henderson did not know it was there.

On cross-examination Mae Moore testified that she had lived on Bird Street for the past three and one-half years, and that on a prior occasion the police had found some Marijuana butts in a drinking can at her house. After being questioned further concerning appellant’s clothing at her house, she stated the following:

“Q. He changes clothes?
“A. Yeah.
“Q. Does he water the lawn?
“A. Well, the kids, they do that.
“Q. Who waters the marijuana plants?
“A. Well, the kids was watering the flowers, so if they was in the pots, I guess, you know, they got watered when they watered the flowers.
“Q. Is Maxon Henderson your boyfriend?
“A. Well, we was girlfriend and boyfriend, but we’s not up tight now.
“Q. You’re not up tight now?
“A. No.
“Q. You’re still willing to try and take the rap for him, aren’t you?
“A. I’m not taking the rap for him.”

Officer Ray Plant was then recalled and testified that he observed no female clothing in the bedroom where he found the packet of Marijuana, nor did he see any children’s clothing in this bedroom.

I

The issue presented by this record is whether or not the State presented a prima facie case of possession of the prohibited substance.

Knowledge of the presence of the prohibited substance may be established by circumstantial evidence, and guilt does not depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169.

The offense of possession of illegal drugs is susceptible of joint commission. Green v. State, 30 Ala.App. 94, 2 So.2d 324.

Where, as here, the presence of the accused at the scene is established through both direct and circumstantial evidence, and the evidence of the accused’s knowledge of the presence of the prohibited substance is shown together with other incriminating evidence, then the issue of the appellant’s guilt should be submitted to the jury. Radke v. State, 292 Ala. 290, 293 So.2d 314; Fields v. State, Ala.Cr.App., 333 So.2d 861.

We are of the opinion the State here presented a prima facie case, and the trial court therefore properly submitted this cause to the jury for their determination.

After careful examination we find this record to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


text:
    Ex parte Maxon HENDERSON.
    SC 2487.
    Supreme Court of Alabama.
    July 8, 1977.
   FAULKNER, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and BLOODWORTH, MADDOX, SHORES, EMBRY and BEAT-TY, JJ., concur.