author: BRADLEY, Judge. HOLMES, Judge

text:
    Robert Frank GODEC v. Nancy Ann GODEC.
    Civ. 997.
    Court of Civil Appeals of Alabama.
    May 25, 1977.

      John L. Capell, for Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
    Maury D. Smith and Charles S. Coody, Montgomery, for appellee.
   BRADLEY, Judge.

This is an appeal by the husband from that portion of a divorce decree awarding alimony and child support to the wife.

The parties to this appeal were divorced by the Circuit Court of Montgomery County by a decree dated August 25, 1976 on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. The wife was awarded $500 per month periodic alimony, custody of a minor son, certain real and personal property, $150 per month as child support for the minor child, and $1,500 for an attorney’s fee. The decree also directed the husband to pay to the wife $150 per month as periodic alimony for one adult son and one son eighteen years old “for so long as [they] shall attend college,” and to “ . . . designate each child beneficiary of life insurance in a sum of not less than $15,000.00, and [to] continue the said policies in force until each of the said children shall have completed college if so enrolled and otherwise until they have attained the age of nineteen years.” The husband appeals from this decree. The facts of the case will be discussed as they relate to the issues.

The first issue the husband raises is the requirement that he pay to the wife as periodic alimony $150 per month for each of the two oldest sons “for so long as they shall attend college.” At the time of trial the oldest son, aged nineteen, was a student at the University of Virginia and had just completed his freshman year. To meet the son’s college expenses the father had contributed $150 per month, the mother had contributed from her savings, and the son had worked. The next oldest son, aged eighteen, had been accepted at Ohio State University and was planning to enroll there. The youngest son was still in high school.

The father concedes that a father can be required to contribute to a minor child’s college education, Ogle v. Ogle, 275 Ala. 483, 156 So.2d 345 (1963); Hopper v. Hopper, 54 Ala.App. 144, 306 So.2d 13 (1974). However, he vigorously argues, once that child reaches his or her majority the father ceases to have any legal responsibility for the child’s education. He says that the provision in the divorce decree awarding to the wife as periodic alimony $150 per month for each of the two sons “so long as they shall attend college” is an effort by the trial court to avoid this limitation on the father’s legal responsibilities to his offspring.

We agree with the father that his duty to contribute to his sons’ college education ceases when the boys reach majority. A father has a continuous legal obligation to support and maintain his minor children. Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967); Boswell v. Boswell, 280 Ala. 53, 189 So.2d 854 (1966). However, that responsibility ceases as each child reaches his or her majority, see Atkins v. Curtis, 259 Ala. 311, 66 So.2d 455 (1953). Furthermore the Ogle and Hopper decisions, supra, speak only in terms of a father’s obligation to his minor children and thereby limit their scope of application to minor children.

According to Title 27, Section 26, Code of Alabama 1940 (Recomp.1958) (Supp.1975), the age of majority in Alabama at the present time is nineteen years. Therefore, the father has no legal responsibility to contribute to the college education of his oldest son, who is nineteen years old. The father can be required to contribute to the college education of the eighteen year old son until he reaches majority; however, once the son becomes nineteen the father no longer is legally responsible. See Hopper v. Hopper, supra.

The next question that must be answered is whether this legal exoneration from support responsibility on the part of the father can be avoided by requiring him to pay the ex-wife certain sums as periodic alimony during the time an adult child is enrolled in college.

Periodic alimony for an ex-wife, as we understand the interpretation placed thereon by the supreme court in Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974), is solely for her current and continuous support and maintenance. It does not appear to us that the requirement that the husband pay to the wife as periodic alimony $150 per month for as long as the oldest son, who is an adult in Alabama, attends college is for the wife’s support and maintenance. What the wife needs for her maintenance is not dependent upon whether her son is in college, especially since the son is not living with her but is attending college in a distant city. We think the award obviously was intended as a contribution to the adult son’s college education. Consequently we conclude that the trial court erred in ordering the husband to pay $150 per month to the wife for the oldest son’s college education.

For the same reason we think the requirement that the father pay to the wife $150 per month as periodic alimony so long as the second oldest son is in college is also in error. This aspect of the decree must be corrected to show that the father is required to contribute $150 per month to the college education of the second oldest son during his minority, since the father cannot be required to contribute money to this child’s education once the child reaches his majority.

The husband also contends that he cannot be required to maintain in force and effect life insurance policies for the benefit of his adult children. We agree. We have already stated a father is not required to support children who are no longer minors. This court has upheld the requirement that a father maintain insurance policies for the benefit of minor children only, Romei v. Romei, 53 Ala.App. 391, 300 So.2d 834, cert. den. 293 Ala. 772, 300 So.2d 837 (1974). Hardy v. Hardy, 46 Ala.App. 253, 240 So.2d 601 (1970). See 59 A.L.R.3d 9, § 7. We therefore conclude that a father cannot be required to maintain in force insurance policies for the benefit of his adult children. That aspect of the decree requiring this of the father is reversed.

The next issue raised by the husband concerns the division of the parties’ property, both real and personal.

In Dickson v. Dickson, 57 Ala.App. 732, 734, 331 So.2d 740, 742 (1976), this court said:

“The division of property in a divorce proceeding does not have to be equal; it should be equitable, Pope v. Pope, 268 Ala. 513, 109 So.2d 521. The award lies within the sound judicial discretion of the trial judge, re viewable only for abuse, Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863. Where the trial judge sitting without a jury has heard the evidence ore tenus, as here, the findings are entitled to a favorable presumption, and should be set aside only where plainly and palpably erroneous, Body v. Body, 47 Ala.App. 443, 256 So.2d 184.”

In Hamaker v. Hamaker, 57 Ala.App. 333, 338, 328 So.2d 588-592 (1975), cert. den. 295 Ala. 404, 328 So.2d 594 (1976), we said:

“The factors to be considered in determining the property settlement include the earning capacity and future prospects of the parties, their ages, sex, health and station in life, how long they were married, whether there are children to support, and the conduct of the parties with reference to the cause of the divorce, Tyler v. Tyler, 52 Ala.App. 430, 293 So.2d 856.”

The parties were married for twenty-one years and had three sons who were nineteen, eighteen and fourteen years of age at the time of trial. The husband and father is a colonel in the United States Air Force with over twenty years of service. The wife and mother has been mainly a housewife but has during the marriage completed the requirements for a bachelor’s degree in business administration. The health of both parties is good except that the husband is a diabetic.

The marriage had been deteriorating over a period of years, due mainly to the conduct of the husband. The wife testified that the husband would come home drunk at all hours of the night and would become abusive. On several occasions he physically assaulted her. The evidence shows that he had a close relationship with other females during the last few months of the marriage.

The trial court ordered the husband to convey his interest in the parties’ jointly owned home in Virginia to the wife and directed the wife to assume payments on the mortgage. When the parties purchased the home the wife contributed $8,500 from her own funds and the husband contributed $1,900. The husband agreed at trial that if the house were sold, the sum contributed by the wife should be returned to her after satisfaction of the indebtedness and payment of costs of the sale and before a division of proceeds; under this circumstance it appeared only a nominal sum would remain to be divided between the two.

The trial court awarded to the husband a 1975 Oldsmobile and to the wife a 1972 Oldsmobile and a 1967 Volkswagen, used primarily by the sons. The wife was required to assume the outstanding indebtedness on the 1972 Oldsmobile. That car had been purchased with money borrowed against two insurance policies given to the wife by her father and owned solely by her.

The husband was given one hundred eighty-eight shares of stock which the parties had purchased during their marriage. The wife was given four hundred forty-one shares of stock, some of which she inherited from her mother and some of which had been purchased with earnings from the inherited stock. The wife also received ninety-six shares of stock given to her by her father during the parties’ marriage.

The husband was given the household furnishings which he took with him when he moved from the parties’ home. The wife was given the remainder.

The husband apparently thinks the trial court erred by not making a fifty-fifty division of property. However, as quoted above, such a division is clearly not required. It appears that the trial court primarily returned to the wife full ownership of that property given to her but which the parties jointly owned due to their marital status. The trial court did not err in its award.

We understand the husband’s final issue to be that he objects to the award of an attorneys’ fee for the wife’s counsel because there was no proof of the reasonable value of the services rendered by her attorneys. In support of this contention, the husband cites Jeter v. Jeter, 36 Ala. 391 (1860), and its holding that:

“The allowance of a solicitor’s fee stands upon a different footing. That must be restricted to the actual reasonable value of the services rendered, or to be rendered. The chancellor, therefore, erred in allowing the fees of the wife’s solicitors, without proof as to their proper amount, and without an inquiry through the register. The chancellor did not have before him the facts necessary to enable him to determine the amount of the fees. 2 Barb.Ch.Pr. 268.” 36 Ala. at 405.

The supreme court in Hodson v. Hodson, 276 Ala. 227, 232, 160 So.2d 637, 641 (1964), said:

“The holding in the Jeter case stating that solicitors’ fees in a divorce case cannot be allowed, ‘without proof as to their proper amount, and without an inquiry through the register’ is overruled.”

But it also said:

“We are not to be understood as intimating that proof of reasonableness is abolished. It is the right of either or both parties to present such proof, and it is the right of the trial court to call upon the parties to furnish such proof if he considers it necessary. But we will not reverse a decree merely because there was no proof of reasonableness of the amount awarded as attorneys’ fees.” 276 Ala. at 232, 160 So.2d at 641.

In Ledyard v. Ledyard, 46 Ala.App. 27, 237 So.2d 511 (1970), the appellant complained that the trial court erred because it failed to award an attorney’s fee. We said there was no merit to the complaint because no proof had been offered to support an award of an attorney’s fee. We did cite the above set out portion of Jeter to support the conclusion that the trial court had not erred in refusing to award an attorney’s fee because there was no proof of the reasonable value of attorney’s services. However, in view of the supreme court’s holding in Hodson, Ledyard is not to be understood as requiring proof of the reasonable value of an attorney’s services in order to support an award of a fee. We find no error in the trial court’s award of an attorney’s fee.

For the errors hereinabove pointed out, the decree of the trial court is reversed and the cause remanded for the entry of a corrected decree in keeping with the principles enunciated in this opinion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.

HOLMES, Judge

(concurring specially).

The evidence would have sustained an award to the wife of monthly periodic alimony in an amount of $800. In fact, there was testimony supportive of an award in excess of $1,000. The decree specifically provides that $300 of the $800 is contingent upon the continued college attendance by two of the husband’s children, one who had attained majority at the time of the decree and one who would do so within one year thereafter. In light of the express language of the decree, the conclusion is inescapable that this $300, to the extent that it was to be paid to the wife after the sons were 19 years old, constitutes payments for the support of adult children. Under the circumstances of this case, the trial court was without authority to require such payments. Put another way, the trial court cannot accomplish its laudable objective by calling that which is child support periodic alimony. This is particularly true in this instance where the trial court specifically and graphically dictates what in fact it is doing.


source: Caselaw Access Project

license: Public Domain

text:
    Gary David SMITH v. STATE.
    7 Div. 393.
    Court of Criminal Appeals of Alabama.
    Jan. 19, 1976.
    Rehearing Denied Feb. 3, 1976.
   REVERSED AND REMANDED: no opinion.

Judgment reversed, Ala., 346 So.2d 464, on remand, Ala.Cr.App., 346 So.2d 465, writ denied, Ala., 346 So.2d 382.


author: MADDOX, Justice.

text:
    In re Gary David SMITH v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1696.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    Rehearing Denied Sept. 10, 1976.
    William J. Baxley, Atty. Gen., Joseph G. L. Marston, III, and William A. Davis, III, Asst. Attys. Gen., for petitioner.
    Guy Sparks, Anniston, for defendant.
   MADDOX, Justice.

The facts of this case are substantially the same as those in Ex Parte: State of Alabama ex rel. Attorney General, In re: Pope v. State, (Decided July 16, 1976) Ala., 345 So.2d 1385. The judgment of the Court of Criminal Appeals is reversed and remanded on authority of Pope, supra.

REVERSED AND REMANDED.

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

ON REHEARING

On application for rehearing, the defendant contends that this case is substantially different from Ex parte: State of Alabama ex rel. Attorney General, In re: Pope v. State, (Decided July 16, 1976) Ala., 345 So.2d 1385. We also note a substantial difference in the factual situation, but we are of the opinion that, upon remand, the Court of Criminal Appeals will be able to determine, by use of its supervisory powers, whether the defendant has been, or can be, afforded as adequate a review as a non-indigent. As we have pointed out further, on rehearing, in Pope, today, citing the recent decision of the Supreme Court of the United States, in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976):

“. . . Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.”

Our original reversal rested primarily on the erroneous legal determination by the Court of Criminal Appeals that “the law places no burden upon an indigent appellant” to see that a proper record is filed on time. Naturally, the state could not refuse to afford an indigent as adc guate an appellate review as a non-indigent, but the Court of Criminal Appeals can still determine whether the defendant here was afforded as adequate an appellate review.

The Court, on its own, noted that the original opinion, which reversed the judgment of the Court of Criminal Appeals, was not considered by the full Court. Therefore, on rehearing, the full Court did consider the original opinion and the additional matter written on application for rehearing, and concurs therein.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Gary David SMITH v. STATE.
    7 Div. 393.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearings Denied Nov. 16, Dec. 7, 1976.

      Guy Sparks, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, and William A. Davis, III, Asst. Attys. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years.

The transcript of the evidence was filed late. In addition there is some question as to the accuracy of the transcript. The Supreme Court has held that the appellant’s appeal must be dismissed for failure to timely file a transcript of the evidence unless failure to file said transcript was not the fault of the appellant. Ex parte State; In re: Smith v. State (1976), Ala., 346 So.2d 464. Also see Ex parte State; In re: Pope v. State (1976), Ala., 345 So.2d 1385.

On January 6, 1976, the Circuit Judge of Calhoun County, Honorable William C. Bibb, in extending the time allowed to file a transcript of the evidence made the following finding:

“The Court finds the failure to file is not the fault of any party or any attorney in this cause.”

Therefore pursuant to Pope v. State (1975), 58 Ala.App.-, 345 So.2d 1381, this cause is remanded with directions to the trial court to correct the record so as to include a correct transcript of the evidence. The transcript of the evidence should be filed with the Circuit Clerk below within sixty days from this date, unless that time be extended by the trial court for cause pursuant to statute. A complete record shall be filed with this Court by the Circuit Clerk, upon receipt of the court reporter’s transcript as provided by law. (Since this appeal was taken prior to December 1,1975, the new Alabama Rules of Appellate Procedure do not apply.)

As we pointed out in Pope, supra, either party may file objections to the transcript within ten days after the filing of the transcript with the Circuit Clerk. Title 7, § 827(la), Code of Alabama 1940, Recompiled 1958. If a correct transcript cannot be obtained, then the appellant must be allowed to prepare a succinct statement of the evidence in lieu of a transcript, pursuant to Title 7, § 827(3), Code of Alabama 1940, Recompiled 1958. See International Brotherhood of Teamsters, etc. v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971). The parties should also file briefs on the merits.

The appellant is an indigent. Due to the peculiar circumstances which surround the failure of the court reporter to prepare and file a proper transcript of the evidence in this case, we would remand this case with the exact same directions had the appellant been a non-indigent.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON REHEARING

Appellant contends on rehearing that we should reverse and remand for a new trial. In his brief, he states that: (1) there is a factual and legal difference between this case and Pope, supra; (2) the procedure set out hereinabove for establishing a statement in lieu of a transcript is a civil procedure and was not authorized by legislation for use in a criminal case; and (3) pursuant to facts stated in appellant’s brief, it is impossible to get either an accurate transcript or a statement in lieu thereof.

When we first determined that the record on appeal in this case did not contain an accurate transcript of the evidence, we then became legally unable to make a determination of the case on the facts presented. We cannot consider any legal or factual differences between this case and Pope on their merits. For purposes of this opinion, they are treated the same in that an accurate transcript was not furnished to either of the indigent appellants.

Through his brief on rehearing, appellant tells us that it is impossible to obtain an accurate transcript or a statement in lieu thereof. While we have no reason to doubt this, it is not a matter appearing of record. This Court cannot go outside the record. Allegations in appellant’s brief reciting matters not disclosed in the record cannot be considered. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971).

While we may agree with counsel’s contention that Title 7, 827(3) and International Brotherhood of Teamsters, etc. v. Hatas, supra, refer to civil rather than criminal procedure, nevertheless we were directed by the Alabama Supreme Court to consider that procedure on remandment in the Pope ease.

The trial court is the proper forum to determine whether or not the failure to file a transcript was the fault of the appellant. Likewise it is the proper forum for determining whether or not it is possible to provide an accurate transcript or á statement in lieu of a transcript. If appellant can present factual and legal matter to the trial court to support the allegations, as expressed in his brief on rehearing, the trial court should make a finding to that effect. The trial court is authorized to grant a new trial if its findings in this regard are favorable to appellant. Swanson v. State (1976), Ala.Cr.App.-, 346 So.2d 1162.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


author: PER CURIAM.

text:
    Ronnie BIGGS v. STATE.
    3 Div. 576.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.

      Piel, Lynn & Thiemonge, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appellant, Ronnie Biggs, was indicted on a charge of burglary in the first degree, found guilty as charged by a jury in the circuit court of Montgomery County, and sentenced to twenty years in the penitentiary, and appeals to this Court.

This appeal was submitted to this Court on briefs. The appellant was represented by counsel of his choice in all proceedings in the trial court, and is represented in this Court by the same counsel by court appointment.

The record filed in this Court on August 20,1976 did not contain a ruling by the trial court on a plea of former conviction of the appellant for an offense of rape committed on the same occasion of the burglary with which he is now charged. Upon motion of the appellee the record has been corrected, and now shows that the sufficiency of appellant’s plea of former conviction was argued at length, and submitted to the trial court, was by order of trial judge held insufficient, and the ruling of the trial court excepted to by the appellant. The question presented is this: Is a conviction of appellant for rape a defense to burglary committed by the appellant on the same occasion, and in the same transaction when he committed the offense of rape?

Burglary being an offense against property, and rape being an offense against person, we hold that they are separate and distinct offenses, and are completely unrelated. A conviction of one is no defense to the other. Alola v. State, 39 Ala.App. 215, 96 So.2d 816; State of Alabama v. Standifer et al., 5 Port. 523; Gunter v. State, 111 Ala. 23, 20 So. 632; Brown v. State, 236 Ala. 423, 183 So. 412; Jones v. State, 50 Ala.App. 174, 277 So.2d 920.

Appellant complains that the trial court did not have jurisdiction to try the case against him on the merits without first ruling on appellant’s motions to suppress. In the record before us we find two motions to suppress. One is a written motion to suppress all the evidence found and obtained as a direct and proximate result and consequence of statements of the appellant; the affidavit and warrant of arrest; and the affidavit and search warrant or warrants in this case. There was no request for a hearing, no hearing, no evidence in support of the motion, and no ruling on the motion by the court.

We also find an oral motion to suppress evidence with reference to a police lineup. This motion was made in open court after the jury to try the case had been selected, and the witnesses put under the rule. No evidence was offered on the motion. The court, after hearing statements made by counsel, out of the presence of the jury, denied appellant’s motion, and informed counsel that he would rule on the matters when the time comes as to whether they are admissible or not.

We hold that as to the written motion to suppress there is nothing presented to this court for review. As to the oral motion, we hold that a pretrial motion to suppress is not necessary, and that objection to the introduction of illegally obtained evidence may be made for the first time when illegally obtained evidence is offered at the trial. The trial court did not commit error harmful to appellant in its ruling. Johnson v. State, 56 Ala.App. 627, 324 So.2d 341; Brown v. State of Alabama, 277 Ala. 108, 167 So.2d 291.

Appellant contends that the trial court erred to his prejudice in overruling his objection to the introduction of a picture of a lineup consisting of five persons: three police officers, unknown to the witness, who was also the injured party, the appellant and a friend of the appellant, who were known to the witness, and overruling his objection to the court’s allowing the witness to testify that she identified the appellant in the lineup. The appellant assigned two grounds for his objection. One that appellant was not represented by counsel at the lineup, and second that the lineup as conducted violated standards of justice and fair play. The record discloses that the burglary occurred around one o’clock, A. M. on March 6,1974. At that time the injured party observed appellant in her bedroom, called police who arrived at her home about one-thirty o’clock, A. M., she knew the appellant, and at that time gave the officers his name. At eleven o’clock, A. M. the appellant voluntarily came to police headquarters with a friend. A lineup of five persons was arranged consisting of three members of the police department, a friend of appellant, and the appellant. The injured party had talked by telephone to one of the police officers who was in the lineup, but did not know any of them by sight, but did know appellant, and his friend. She was escorted to the lineup room by an officer of the police department who had not discussed the burglary with any of the officers iri the lineup, or investigating the case except, that he was requested to escort the injured party into the lineup room. He had no discussion about the burglary with the injured party other than just before entering the lineup room he instructed her, as follows: To enter the lineup room, view the lineup, say nothing, make no gestures, and then when she gets ready, she walks out, and he would go out behind her. She is to say nothing. Nothing was said to her by anyone while in the lineup room. The lineup was conducted at about 12:35 P. M. on March 6,1974. The injured party identified appellant in the lineup. No warrant had been issued for appellant’s arrest; and no adversary judicial proceedings had been initiated against him. An indictment was returned against the appellant May 8, 1974. The injured party made an in-the-court identification of appellant. We have searched the record and do not find any evidence to indicate that any effort was made by any person to influence the results of the lineup. In fact, it appears that it was conducted in a fair and impartial manner, and as a precaution to protect the appellant against the possibility of a mistaken identification. We hold that the appellant has no absolute right to counsel at a lineup held before adversary judicial proceedings have been initiated against him. White v. State, 48 Ala.App. 334, 264 So.2d 565; Wright v. State, Ala.Cr.App.1976, 333 So.2d 218; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Gould v. State, Ala.Cr.App.1976, 332 So.2d 402.

Appellant next contends that the trial court erred in overruling his motion to exclude the state’s evidence, and give the affirmative charge for appellant. There is evidence in the record that the injured party lived by herself in an apartment in the City of Montgomery, Alabama; that about 10:00 P. M. on the night of March 5, 1974 she locked all doors, and closed all windows, entering her apartment.- went to bed and to sleep; was awakened about 1:00 A. M., found a man on top of her trying to have sexual relations with her; saw the appellant standing by her bed; found the glass broken out of kitchen door and scattered over kitchen floor; found her dog locked up in the bathroom; found the contents of her pocketbook strown all over the room, with about $135.00 in cash gone from it; found her car keys were missing from her pocketbook where she left them, and her car was gone from in front of her apartment where she had parked and locked it that night before she went to bed. The appellant offered no evidence. These facts, if believed by the jury, along with all the other evidence offered, are sufficient to sustain the jury’s verdict finding the appellant guilty as charged in the indictment.

The appellant complains that the trial court erred by overruling his objection to the introduction of State’s Exhibit 1. State’s Exhibit 1 purported to be photostatic copies of pages 9 and 10 of the original dispatch docket of Yellow Cab Company kept daily, the originals of which were lost and not available, and could not be found after diligent search. Exhibit I was identified as correct copies of the originals by an officer of the Yellow Cab Company, under whose supervision the dispatch dockets were made daily in the usual course of business, and kept on file. Also, exhibit 1 was identified as correct by the person who made these copies of the originals.

We hold that the trial court did not abuse its discretion by ruling that the preliminary proof as to the loss of the original document was sufficient to relax the best evidence rule, and allow the introduction of the photostatic copies of the originals. Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289; Sims v. Callahan, 269 Ala. 216, 112 So.2d 776.

We have examined carefully the entire record before us and find from such examination that there are no errors in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex Parte Ronnie BIGGS. In re Ronnie BIGGS v. STATE of Alabama.
    SC 2321.
    Supreme Court of Alabama.
    May 20, 1977.
    Frank L. Thiemonge, III, Montgomery, for petitioner.
    None for the State, respondent.
   TORBERT, Chief Justice.

Petition of Ronnie Biggs for Writ of Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Biggs v. State, Ala.App., 346 So.2d 467, is denied. In denying this writ this court does not wish to be understood as approving or disapproving all that was said in the opinion by the Court of Criminal Appeals.

WRIT DENIED.

MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.


text:
    Terry Sue GRAHAM v. STATE.
    1 Div. 731.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied April 19, 1977.
    W. Howard Donovan, III, Skinner & Large, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Pursuant to an indictment and a plea of not guilty thereto, a jury convicted appellant-defendant, an indigent here and below, of obtaining a bulk supply of gasoline by false pretense. A judgment duly followed and a sentence of imprisonment, imposed by the trial court, for three years duly followed. The court put her on probation for three years. This appeal was taken from that judgment.

The formal part of the indictment is as follows:

“The Grand Jury of said County charge that before the finding of this indictment Terry Sue Graham, whose name is otherwise unknown to the Grand Jury, did falsely pretend to Lorenzo Everett, a duly authorized agent of Murphy Oil Corporation, a corporation, with intent to defraud, that her husband, Samuel T. Graham, had mailed a cashier’s check, to-wit, cashier’s check # 43867 in the amount of $4,133.42, drawn on the Bank of Thomas-ville, Thomasville, Alabama, payable to Murphy Oil Corporation, to Murphy Oil Corporation, and by means of such false pretense, obtained from the said Lorenzo Everett 8,958 gallons of gasoline, of the value of, to-wit, $4,000.00, against the peace and dignity of the State of Alabama.”

It appears from the evidence that Samuel T. Graham purchased a gasoline filling station business from his brother and began operation.

Being short of operating funds he entered into a business arrangement with Murphy Oil Corporation, with a branch officer in Mobile, for a credit C.O.D. purchase of bulk gasoline. It was agreed that the first bulk supply would be delivered technically on a credit basis until the next load arrived at which time he was to pay for the preceding load. This arrangement of delayed payment was to continue for an indefinite period.

A supply of gasoline was delivered to the station on June 21, 1974. Another supply arrived by truck on July 1, 1974, at which time payment for the June 21, 1974, delivery was to be made.

The motor truck bearing the July delivery was driven by Lorenzo Everett, who owned the motor tractor but not the trailer, which was owned by Fleet Transportation Company, a licensed contract carrier. Fleet had a hauling agreement with Murphy, and pursuant to the agreement was transporting the gasoline to Samuel Graham’s filling station in Thomasville, Clarke County, Alabama.

When the July delivery arrived, appellant-defendant was in charge of the business. She was the wife of Samuel Graham, the owner.

The record here on file reflects that when Everett arrived with the truck of gasoline, the station was being tended by an attendant. Defendant came in later and informed Everett that she had mailed a cashier’s check for the gasoline delivered in June to Murphy Oil Company in Louisiana. Everett would not make delivery, but contacted his dispatcher in Mobile and advised him that he had not received a cashier’s check. Mrs. Graham talked to the dispatcher and told him about mailing the cashier’s check. Everett was called to the phone and he read to the dispatcher the receipt for the cashier’s check. It appears that the dispatcher, Platt, authorized the delivery of the gasoline after being informed that the cashier’s check was mailed to Murphy. So it appears that the dispatcher, after Mrs. Graham’s assuring that the check was mailed and after hearing the receipt read, took responsibility for the July delivery and not Everett, who was resolute in not delivering without a cashier’s check in hand as he was instructed.

It appears in the indictment that the July delivery was not effected by false pretense made to Everett. But Everett, in unloading the gasoline, did not rely on what defendant represented about this check. Such reliance is necessary. Primus v. State, 21 Ala.App. 630, 111 So. 194; Beaty v. State, 48 Ala.App. 699, 267 So.2d 490; Title 14, Section 213, Code of Alabama 1940. It appears that Platt was deceived and convinced and not Everett. There was a fatal variance between the allegations of the indictment and the proof.

The trial court erred in overruling the defendant’s motion to exclude the evidence. The judgment is reversed and the cause is remanded.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Retired Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as of the Court.

REVERSED AND REMANDED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2522.
    Supreme Court of Alabama.
    June 3, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Alfred ROBERTS v. STATE.
    1 Div. 656.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied April 19, 1977.

      Ian F. Gaston, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for rape in Mobile County, Alabama. In accordance with the verdict and punishment fixed by the jury, the trial court entered judgment and sentenced the appellant to ten years in the penitentiary.

We should, perhaps, begin the recitation of the facts with the phrase “once upon a time” so bizarre and unique is the testimony in this case. According to the testimony presented by the State, Clarissa Roberts, the prosecutrix, and her two sisters, Gloria Ann and Bonnie Jean, along with two male companions, were in the Club Debonaire in Mobile County on the night and early morning hours of March 29-30, 1976.

The appellant and Gloria Ann had been going together but had broken up about two weeks prior to this incident. While the three sisters were in the club, the appellant came in and argued with Gloria Ann. Following this confrontation, everyone left.

Clarissa and her two sisters were waiting outside the club for their dates to bring the car. The appellant approached them and placed a gun against the head of Gloria Ann. Immediately, Clarissa and Bonnie Jean attacked the appellant. Gloria Ann managed to escape the appellant’s grasp and ran. As she escaped, the appellant shot her in the shoulder. During this struggle, Bonnie Jean was shot through the nose with the appellant’s pistol.

After knocking Clarissa to the ground, the appellant ran toward the club. Two shots were'fired from the front porch of a house next door to the club by an unnamed assailant. One of these shots pierced the right buttock of the appellant. The appellant then ran into either the hallway or vestibule in front of the bathrooms, the women’s bathroom, or the men’s bathroom in the rear of the club depending upon which witness is testifying and what part of their testimony is being considered.

Clarissa followed the appellant. When she tried to enter the bathroom (or the hallway in front of the bathrooms) she was struck in the head by the appellant with his pistol. A struggle for the pistol ensued. Overcome, Clarissa fell to the floor in the hallway by the ladies’ bathroom. The appellant placed his pistol to her head and ordered her to perform fellatio on him. When she refused, he knocked her unconscious. When Clarissa awoke, the appellant was on top of her, having sexual intercourse with her, after having removed her shoes, panty hose, panties and panty girdle.

Clarissa began struggling again only to be hit once more by the appellant who then ordered her to dress. The appellant told her he would kill her if she said anything about this incident.

While the appellant and Clarissa were still in the hallway or a bathroom, the police arrived. Officer Willie Allen of the Mobile Police Department testified that he saw the appellant and Clarissa sitting on the floor facing each other in the hallway or vestibule in front of the bathrooms. Officer Allen talked the appellant into surrendering after twenty-five or thirty minutes. The officer testified that the appellant “made this old TV remark that he was going to kill himself and shoot us and shoot because he had a couple of bullets left”.

After surrendering, the appellant did not appear inebriated to Officer Allen. Although his rear was covered with blood, as if he had been sitting in it, the appellant did not appear to be in great pain and only complained of “something stinging in his buttocks”.

When Clarissa was placed in the police car she was upset and hollering. She complained of having been raped. Both she and the appellant were taken to the hospital for treatment.

At the hospital, Dr. Walter L. Hogan examined Clarissa. He found “hemorrhage (similar to bruises), scratches about the left side of her face, by her head and upper neck”. Seminal fluid was found inside the vault of the vagina. Clarissa was “emotionally distraught” and “upset generally”. Dr. Hogan’s clinical impression was that “traumatic sexual penetration had occurred”. Dr. Hogan defined “traumatic” as associated with other evidence of physical violence. Clarissa told him that she was forced into a washroom and raped under threat of death.

In her testimony, Clarissa stated that she did not complain of having been raped to any policeman and denied making any statement of complaint to Dr. Hogan.

The appellant’s version of the events of that fateful night is somewhat different. Testifying in his own behalf, the appellant stated that he had talked with his former girlfriend, Gloria Ann, at the club on the night in question. After leaving the club, he sat on an automobile with a friend and talked. When the appellant headed for his car to leave he passed Gloria Ann who, along with her two sisters, was standing in front of the club. Gloria Ann called the appellant an “M.F.” and the appellant heard a shot. He turned and Clarissa and Bonnie Jean were upon him, Bonnie choking him and Clarissa grabbing his arm. The appellant, despite such obvious obstacles, saw Gloria Ann running down the street putting a gun back into her purse. He then pulled his own gun, fired and saw her go down. When the appellant tried to break away from Clarissa and Bonnie, his gun accidentally went off hitting Bonnie Jean in the nose.

The appellant ran back into the club and into the men’s bathroom. Upon entering the bathroom, he turned and saw that Clarissa had followed him so he hit her with his pistol. A struggle ensued. The fight came to a standstill. The appellant was sitting on the floor, “bleeding all over the place” and Clarissa was sitting on the toilet. The appellant checked his body to see where he had been shot. He unzipped his pants and looked behind him and saw the blood. By this time, the whole floor of the men’s room was covered with blood. The remainder of this tale is best related in the appellant’s own words:

“Well, Rita (Clarissa) started saying, you know, don’t get — when I saw the blood, I started panicking again, I started getting where I thought I was bleeding to death, you know, and she picked up some tissue, you know, and wiped it off and she said, ‘Hey, you are going to be all right, don’t, you know, don’t get excited, don’t do nothing else’. That is about the time I started — I said, T will just go on and kill myself because I hurt, you know, these two people, you know, and she just kept on telling me, ‘Be calm, be calm’.
‡ $ ‡ * *
“Well, I was sitting on the floor and I started wiping this blood up and by this time I am half out. Rita was sitting up on the toilet and she started talking and she said, ‘Hey, you know, you didn’t hurt my sister and them and you be calm’. She said, T want to do something to calm you down’, and by this time she sat up there, she took off her clothes and put them on the top of the toilet and sat on top of me.”

Sitting on the bathroom floor the appellant engaged in sexual intercourse with Clarissa.

I

Prior to trial, the appellant filed a motion to produce seeking an order from the trial court directing the Mobile Police Department or the Office of the District Attorney to produce the trousers worn by the appellant at the time of his arrest. The trial court issued the order and directed the state to produce the trousers or “to show cause why not on trial date”. The asserted significance of the trousers is that if the testimony of the prosecutrix is true and the appellant raped her while she was lying on the bathroom floor, the knees of the trousers should have been covered with blood. The appellant contends that the fact that the front of the trousers was not bloody would tend to support his version that the prosecutrix willingly had intercourse with him while sitting in his lap.

At trial, the trousers were not produced nor did the state produce any explanation as to their location or the reason for their failure to produce them.

During the course of the trial, the state’s witness, Willie Allen, a police officer for the city of Mobile, testified that there was blood on the right rear pocket area of the appellant’s trousers and “partially over the rest of his back side”; “It appeared to me like someone was sitting in blood”. Officer Allen further testified that he took the appellant to the Docket Room and did not know what happened to the trousers.

The appellant testified that while he was confined in the Mobile city jail, he changed his clothes in the Docket Room. His trousers, along with his other clothes, were placed in a brown paper grocery bag which was tied with a white string and a name tag bearing his name. The appellant testified, in effect, that that was the last time he saw his trousers. The trial court sustained the state’s objection and would not allow defense counsel to inquire further as to the whereabouts of the trousers or if the appellant had made any attempt to locate them.

The appellant further testified that the bathroom floor was covered with blood and that the back of his trousers were bloody.

“Q. Was there any blood on the front of your pants?
“A. The right leg where I got shot at, it was soaked with blood too, at the back of them.
“Q. All right. How about the left leg? “A. It didn’t have any blood on it, you know, just a little, splotched on it or something.”

In closing argument, defense counsel addressed the jury as follows:

“Where are the pants? I will submit to you that we don’t have them. I will submit to you that if we had them here, the knees would be clean, and I would submit to you that the only way those knees could be clean . . . ”

At that point objection by the state was sustained.

At the outset it is important to note that every party has the right to be heard in person or by counsel. Alabama Constitution 1901, § 6; Gibbs v. State, 22 Ala.App. 345, 115 So. 693; Jackson v. State, 239 Ala. 38, 193 So. 417. All evidence admitted is subject to comment by counsel. B. R. &. E. Co. v. Wildman, 119 Ala. 547, 24 So. 548.

In Alabama, liberal rules are allowed counsel in drawing inferences from the evidence in their arguments to the jury. Mitchell v. State, 57 Ala.App. 601, 329 So.2d 658, cert. denied, Ala., 329 So.2d 663 (1976); Binion v. State, 57 Ala.App. 234, 327 So.2d 729, cert. denied, 295 Ala. 391, 327 So.2d 732 (1976). Counsel has a right to argue any reasonable inference from the evidence or lack of evidence. Davis v. State, 49 Ala.App. 587, 274 So.2d 360, cert. denied, 290 Ala. 364, 274 So.2d 363 (1972) and to draw conclusions from the evidence based on their own reasoning. Carter v. State, 56 Ala.App. 450, 322 So.2d 741 (1975); Cazalas v. State, 43 Ala.App. 6, 78 So.2d 562, cert. denied, 278 Ala. 708, 178 So.2d 565 (1964).

An inference is merely a deduction from proven facts. It is a permissible deduction from the evidence which the jury may accept or reject or give such probative value as it wishes. Williams Alabama Evidence, § 35, p. 72.

Trial judges ordinarily are loath to limit inferential argument which has any connection with the evidence even though far-fetched. Hobbs v. State, 74 Ala. 39 (1883); Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 113 So. 403 (1927).

“The presiding judge, as a rule, will best determine when discussion is legitimate, and when it degenerates into abuse and undue license. While he should not permit wanton abuse of adversary or witness, he would occupy questionable ground if he arrested counsel in his attempt to educe inferential facts or intents from testimony in proof. Argument is but an aid to the jury, to enable that body to arrive at correct conclusions; and it would be dangerous to accord to the presiding judge the right and power to intervene, and declare authoritatively when an inference of counsel is or is not legitimately drawn. This is for the jury to determine, if there is any testimony on which to base it.” Cross v. State, 68 Ala. 476 (1881).

So long as counsel does not travel out of his case and confines statements to reasonable inferences deducible from the evidence, he should not be controlled. Edwards v. State, 56 Ala.App. 405, 321 So.2d 744 (1975); Bullard v. State, 40 Ala.App. 641, 120 So.2d 580 (1960); Lindsey v. State, 17 Ala.App. 670, 88 So. 189 (1921).

Here the appellant was entitled to have his trousers admitted into evidence had they been available. Huggins v. State, 271 Ala. 428, 123 So.2d 911 (1960); Smith v. State, 41 Ala.App. 528, 138 So.2d 474 (1962); Gould v. State, Ala.App., 332 So.2d 402 (1976). The trousers tended to either disprove or corroborate and certainly would illustrate or elucidate the manner in which the sexual intercourse or rape occurred. As such, they were relevant. Gaskin v. State, 53 Ala.App. 64, 297 So.2d 388, cert. denied, 292 Ala. 721, 297 So.2d 391 (1974); Hunter v. State, 38 Ala.App. 351, 83 So.2d 737 (1956). Additionally they were material to a fact in issue (consent and credibility). Therefore, the trousers, if available, could have been properly admitted into evidence. Barbour v. State, 262 Ala. 297, 78 So.2d 328 (1954); Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968).

Testimony describing the condition and appearance of the trousers was properly before the jury. As stated above, it is within the range of legitimate argument for counsel to discuss inferences that may be drawn from the evidence, and to state such inferences. Here, the action of the trial judge precluded defense counsel from arguing reasonable inferences to be drawn from physical evidence which had been described to the jury but was not available for inspection. This was in direct contravention of the rules set forth above and constitutes error prejudicial to the appellant. Willingham v. State, 27 Ala.App. 363, 172 So. 471 (1937); Kabase v. State, 31 Ala.App. 77, 12 So.2d 758 (1943).

II

During the trial, three of the state’s witnesses were shown to have given prior inconsistent statements at a preliminary hearing. The trial court refused the following requested charge:

“Members of the jury I charge you that you may consider the contradictory statements made at preliminary hearing by the witnesses Gloria Ann Roberts, Bonnie Roberts, and Clarissa Roberts, in determining the weight to be given by you to the testimony of such witnesses.”

This was prejudicial error. Bennett v. State, 160 Ala. 25, 49 So. 296 (1909); Burton v. State, 115 Ala. 1, 22 So. 585 (1896); Local 204 of Textile Workers Union of America, et al. v. Richardson, 245 Ala. 37, 15 So.2d 578 (1943); Birmingham Railway Light and Power Company v. Glenn, 179 Ala. 263, 60 So. 111 (1912); Reynolds v. State, 196 Ala. 586, 72 So. 20 (1916).

The oral charge of the trial court on the credibility of witnesses covered the following principles: that all witnesses are presumed to have spoken the truth; that the testimony of each witness must be reconciled and in doing so the jury may consider the relationship, demeanor, bias and prejudice of the witness; that a witness’s testimony may be disregarded if found to be falsely given in an effort to wilfully deceive the jury. Thus the particular charge requested, being a distinct principle of law, was not covered in the court’s oral charge.

In view of the above findings of error, this court finds it unnecessary to discuss the additional issues raised by counsel for the appellant.

REVERSED AND REMANDED.

All Judges concur.


author: JONES, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2525.
    Supreme Court of Alabama.
    May 27, 1977.
    William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State, petitioner.
    No brief for respondent.
   JONES, Justice.

In denying this writ, we do not reach the question in Part II of the opinion of the Court of Criminal Appeals, 346 So.2d 473.

WRIT DENIED.

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


text:
    Willie KNIGHT v. STATE.
    4 Div. 501.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied May 3, 1977.

      John C. Dowling for Hollis & Dowling, Enterprise, James H. Weatherford for Lindsey & Weatherford, Enterprise, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the robbery of one hundred and ninety-nine dollars from the person of Otis Carroll, owner and operator of Neal’s Fried Chicken in Enterprise, Alabama. In accordance with the verdict and punishment fixed by the jury, the trial court entered judgment and sentenced the appellant to seventeen years in the penitentiary. At trial, the appellant was represented by two court appointed attorneys. These same counsel have been appointed to represent the appellant on this appeal.

With one additional ground, the appellant cites as error the same identical grounds raised in his motion for new trial. However from his argument in brief, it appears that the heart of all alleged error is the unlawful arrest and subsequent search of the appellant.

Otis O’Neal Carroll, owner and operator of Neal’s Fried Chicken in Enterprise, Alabama, testified that he was robbed by a black male at gunpoint between 8:15 and 8:30 P.M. on March 12, 1976, as he was preparing to leave his place of business. The police were notified and Carroll described the robber to them. That night, the police presented some suspects to Carroll for possible identification but none was made. The next night, about 10:00 or 10:30, Carroll went to the police station and picked out a photograph of the accused in a mug book. This identification, and the in-court identification by Carroll, was positive and unequivocal.

On March 13, 1976, the day following the robbery, Dozier Johnson came to the police station about 6:30 P.M. and told Officer Eddie Diggs that he had information that the appellant robbed Neal’s Fried Chicken and was going to rob White’s Grocery that night. Johnson, who had known the appellant for three weeks, told Officer Diggs that the appellant had not worked since he had been in Enterprise, had made the statement that he didn’t have anything, and never did give anything to the church but had been seen spending a lot of money. Johnson also told Officer Diggs that the appellant had spent some of the money at Ford’s Beauty Parlor getting his hair fixed. Other than this Officer Diggs did not know on what Johnson based his information or where he got it. Prior to this time Officer Diggs had never personally used any information given by Johnson in making an arrest.

On cross examination as a witness for the state, Officer Diggs did testify that he had relied on Johnson’s information several times before. However when called as a defense witness, Diggs testified that he could recall no specific occasion when he had obtained information from Johnson, that Johnson told him of an incident, that information from Johnson had been used in making an arrest but that Officer Diggs did not make the arrest, and that Johnson never gave him any information before this time.

Around 9:30 on the night following the robbery, Officer Diggs went to the residence of Jim White. He identified himself to the appellant and told him that he needed to talk to him downtown and would explain what he wanted to talk about when they got downtown.

The appellant did not resist but went back into his room and got his billfold. Outside the house the appellant allowed Officer Diggs to pat him down for a weapon. Officer Diggs did not tell the appellant he was under arrest at this time.

Lt. Rainey and Lt. Cooper met Officer Diggs and the appellant before they reached the police station and learned that the appellant had not been placed under arrest. They told Officer Diggs to go ahead and arrest him. They said that they had other information. Officer Diggs stated that this information was:

“Similar to what I had already got, but said they had gotten other information that the young man was intending to rob White’s Grocery and that they had been to White’s Grocery and a relative of his was there at the time and told Mr. White that this gentleman was going to rob him.”

Office Diggs then arrested the appellant and took him to the police station. Before taking the appellant back to the jail, Officer Diggs counted the money the appellant had on him. Diggs counted $177.00.

Lt. Rainey testified that he searched the appellant after his arrest and found $177.00 in the appellant’s wallet.

Prior to trial, the appellant filed a motion to suppress evidence based on the illegal arrest and subsequent search of the appellant. This motion was renewed immediately prior to trial and throughout the course of the trial. When the state rested its case, the appellant moved to exclude the evidence and made a motion to dismiss for lack of probable cause.

All the evidence for the defense went to showing the alleged illegality of the arrest and the failure of the state to prove the reliability of the informer. The testimony of Officer Diggs has already been summarized.

Dozier Johnson, the informant, testified, as Officer Diggs admitted, that he had never given Diggs any information that would lead him to make an arrest in a case other than the one in question. In substance, Johnson testified that several people up and down the street had said that the appellant robbed Neal’s Fried Chicken. Marie Bell told him that she had given the appellant a permanent hair do and the appellant had paid for it with a twenty dollar bill. Ms. Bell told Johnson that she was afraid that the appellant would come back and rob her also. Ms. Bell said that customers had told her that the appellant had robbed Neal’s Fried Chicken.

I

By authority of Title 15, § 154, Code of Alabama 1940, a law enforcement officer may arrest any person for a felony, although not committed in his presence, if he has reasonable or probable cause to believe that the person arrested committed the offense. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968); Reed v. State, 48 Ala.App. 120, 262 So.2d 321 (1972). Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he has reasonable trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Yaeger v. State, 281 Ala. 651, 207 So.2d 125 (1967); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Mere suspicion or good faith on the part of the arresting officer is not sufficient to constitute probable cause for an arrest, Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); common rumor or report, suspicion, or even “strong reason to suspect” is not adequate, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Shipman v. State, 51 Ala.App. 80, 282 So.2d 696 (1973); more than a good faith suspicion is required. Fennell v. State, 51 Ala.App. 23, 282 So.2d 373, cert. denied, 291 Ala. 778, 282 So.2d 379 (1973).

One does not have probable cause unless he has information which, if submitted to a magistrate, would require the issuance of an arrest warrant. Thomas v. State, 50 Ala.App. 227, 278 So.2d 280 (1973); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Wong Sun, supra; Beck, supra. Thus if probable cause is to be based solely upon the informant’s information, two requirements are necessary: (1) The underlying circumstances must show the officer’s reason to believe that the informant is a credible person or that the information is reliable, and (2) the circumstances must show the basis of the conclusions reached by the informer, or, in other words, how the informer acquired his knowledge. Thomas, supra; Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); 3 Alabama Digest, Arrest § 63-4(7)(8); 6A C.J.S. Arrest § 29, p. 69.

If the underlying circumstances concerning the informer’s credibility, the source of his information, or even both are not disclosed or are found inadequate under Aguilar, the informer’s tip may nonetheless be considered in determining the existence of probable cause if the tip is corroborated by the officer’s own knowledge or observation. Spinelli v. United States, 393 U.S. 410, 98 S.Ct. 584, 21 L.Ed.2d 637 (1969); Cook v. State, 56 Ala.App. 250, 320 So.2d 764 (1975). Thus where the initial impetus for the arrest is on informer’s tip, information gathered by the arresting officers can be used to sustain a finding of probable cause; however the additional information acquired at the time of the arrest must be corroborative of the informer’s tip. Payton, supra; Shaneyfelt v. State, 48 Ala.App. 26, 261 So.2d 445, cert. denied, 288 Ala. 750, 261 So.2d 447 (1972).

Additionally,

“Knowledge of another police officer maybe imputed to the arresting officer, who need not have probable cause on the basis of his own personal knowledge, since knowledge of each officer working in coordination with others to solve a crime is knowledge of all for the purpose of establishing probable cause.” 6A C.J.S. Arrest § 32, p. 77.

Yet, under such circumstances, the officer initiating the chain of communication directing the arrest must have probable cause upon which to make an arrest. Cook v. State, 56 Ala.App. 250, 320 So.2d 764 (1975); Spurlin v. State, 46 Ala.App. 485, 243 So.2d 758, writ denied, 286 Ala. 738, 243 So.2d 763 (1909).

Looking to the facts in this particular case we find that the information available to Officer Diggs at the time of the arrest was:

1. The report of Dozier Johnson that the appellant had committed the robbery of Neal’s Pried Chicken.
2. The fact that Lt. Rainey and Lt. Cooper had obtained information similar to that which Johnson had given Officer Diggs.
3. And “other information that the appellant was intending to rob White’s Grocery”.

After having carefully examined the entire testimony of Officer Diggs, we find that Johnson told him that he had information that the appellant had robbed Neal’s Fried Chicken and that he had intended to rob another business; that the appellant had not worked since he had been living in Enterprise and that he had been spending a lot of money; and that the appellant spent money getting his hair fixed at Mrs. Ford’s beauty parlor. Officer Diggs testified on several occasions that he never learned where Johnson got his information. Thus, the state failed to show how the informer acquired his knowledge: one of the two elements necessary to establish the existence of probable cause where an arrest without a warrant is made on the basis of an informer’s tip.

The second prong of the test, the credibility of the informer, is in issue. While Officer Diggs testified that he had relied on Johnson’s information before, he also stated that Johnson never gave him any information before this one time. At best the evidence given by Officer Diggs on this issue is conflicting. Under these circumstances, it cannot be said that the state met its burden of showing that the arrest was lawful. Knox v. State, 42 Ala.App. 578, 172 So.2d 787 (1964); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); White v. State, 45 Ala.App. 1, 221 So.2d 117 (1969).

Additionally the testimony of the informer, Dozier Johnson, was to the effect that he never gave Officer Diggs any information on a prior occasion that led him to make an arrest.

When asked where he got the information that the appellant robbed Neal’s Fried Chicken, Johnson stated that:

“There were several of them talking. Several of them talking. So I happened to hear it. So I went by Marie Bell’s and she stopped me. And, this is what she told me. She said, ‘Do you know that young man’. I said, ‘No, I do not know him’. She said, ‘He is your wife’s kin people’. I said, ‘I don’t know him’. I said, ‘I have seen him’. This is what she told me. She said, T give him a permanent hair do’. She said, ‘He paid me off in a twenty dollar bill’. This is the way she said it. She said, T am scared of that man’.”
******
“and said she had heard about he had robbed this chicken place out there.”

She heard this from

“People coming in there to get their hair do.”
******
“. . . They’s several people’s up and down that street said he robbed that place that night.”

The record therefore positively and affirmatively discloses that the state utterly failed in its burden of proving a lawful arrest. Testimony from the witnesses for the state and the defense reveal that the arresting officer (1) had no reason to believe that the informer was reliable and (2) had no knowledge of how the informer obtained his information — whether it was by direct observation, fair conclusion drawn from circumstantial evidence, or information given by another who was reliable and in a position to know.

Despite this, Johnson’s information may still have been used to establish the existence of probable cause if corroborated by additional information. The only source of such corroboration in this case was whatever information Officer Diggs obtained from Lt. Rainey and Lt. Cooper. Regardless of what that information was, the record is silent as to where or from whom it was obtained. Certainly, from the record, it cannot be said that those two officers had probable cause to arrest the appellant on any charge. The information that the appellant had intended to rob White’s Grocery bore no legal or logical relationship or connection to the robbery of Neal’s Fried Chicken. Had there been proper objection, this evidence should have been excluded.

The arrest, in this case, was based on pure rumor, on gossip, and suspicion. There is not one thread of evidence which would allow us to even assume that the arresting officer had a description of the robber. Although he very well could have, it would be mere speculation on our part to find that he did. The victim did not identify the appellant and single out his picture in a photographic display (mug books) until approximately thirty minutes to an hour after the appellant had been arrested.

We do not question the good faith of the arresting officer. Indeed, we commend him for his candor and honesty on the witness stand. However, the subjective good faith of the arresting officer, even though it subsequently appears that the person ar--ested is guilty of an offense, will not establish probable cause where the elements discussed above are lacking. Beck, supra.

The responsibility for setting aside any conviction is a heavy responsibility to bear. It is one that must be approached with caution and due proportion. While perfect procedure is not required, proper regard must be given to basic fundamental rights. Arrest on mere suspicion or rumor collides violently with the basic human right of liberty. Henry, supra, at 80 S.Ct. 170-171. Under the facts of this case and the laws of the land, this court is constrained and required to reverse.

For the reasons stated above this case is due to be and is hereby

REVERSED AND REMANDED.

All Judges concur.


author: EMBRY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2577.
    Supreme Court of Alabama.
    June 10, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Christopher A. BURNS v. STATE.
    4 Div. 497.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied April 19, 1977.
    David L. Hirsch, Columbus, Ga., Roderick Beddow, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the offense of bribery to commit a felony and he was sentenced to five years imprisonment in the penitentiary. Prior to arraignment appellant was found to be indigent and the Court appointed counsel to represent him at arraignment and trial. He interposed a plea of not guilty. After conviction he gave notice of appeal and was furnished a free transcript. New counsel represents appellant on this appeal.

Omitting the formal parts the indictment reads as follows:

“Christopher A. Burns did corruptly give, offer, or promise one Willie L. Peterman a certain gift, gratuity, or thing of value, to-wit: two hundred fifty dollars, with intent to induce or influence the said Willie L. Peterman to commit a certain crime or offense punishable as a felony, to-wit: the offense of murder by unlawfully and with malice aforethought killing Patricia W. Burns, against the peace and dignity of the State of Alabama.”

This is one of the most baffling and perplexing cases to reach this Court in a long time. It is the State’s theory that appellant let a “contract” on the life of his ex-wife so that he could gain full custody of his eighteen-month old son. The genesis of this case began with an unfortunate marriage between appellant and his intended victim on whom he allegedly let a “contract” to kill her for five hundred dollars. It has been most difficult to piece together the tangled web of circumstances revealed by the record in this case which eventually led to the arrest and conviction of appellant. This is due largely to the fact that this case is so unreal and shocking that it staggers the rational thinking of legal or even lay minds that any man would hire a “hit” man to kill the mother of his child. He had nothing to gain except the possible custody of his young son. We say possible custody for the simple reason that if his ex-wife had been murdered, and his involvement had come to light, no court in the land would have awarded the care, custody and control of the young boy born of this union to appellant.

The marriage of the parties here involved was doomed from the beginning. It was a stormy marriage beset with arguments, quarrels and violence. There were charges and counter charges, recriminations heaped upon recriminations, and hovering above and over this union were dark clouds of tempestuous winds of unabated force which propelled them straight to a divorce court. They entered into a separation agreement in which the wife and mother was awarded sole custody of the child with rights of visitation given to appellant at reasonable times when agreed to by the mother. In addition to settling their property rights, debts and obligations, it was agreed that appellant would pay the sum of $50.00 on the first and fifteenth of each and every month until the child reached his majority. The final decree of divorce was signed on February 7, 1975, and the separation agreement was merged into and became a part of the divorce decree as if fully set out therein. According to the mother appellant was considerably in arrears in support payments at the time she learned that her life was in danger.

Mrs. Burns testified that during her marriage to appellant she had given him a wallet-sized photograph of herself which was made at the time she graduated from high school. She stated that he carried this photograph in his wallet but he had access to all of her photographs. This wallet-size photograph was to play a prominent and major role in the plot on her life. Reference to this photograph will be made later in this opinion.

Mrs. Burns further testified that during her marriage to appellant they had a great deal of difficulty. She stated appellant had often threatened her and had inflicted physical violence on her. That on one occasion he struck her and a friend had to call the police. She stated that on another occasion they had a heated argument when she was four and a half months pregnant and he told her he was going to see that she didn’t get any rest or sleep that night. That she laid on the couch for a while and then got in bed. Appellant came into the bedroom and pulled the mattress off the bed and threw her on the floor.

Mrs. Burns further testified that after their marriage they lived in Phenix City for a few months and then moved to Montgomery where appellant went to work for a local funeral home. He worked there for about six months and then got a job with the State for another six months. They got the divorce while they were living in Montgomery. After the divorce she moved to Columbus, Georgia, and got a position with the Barrington Ford Company. She lived with her son at 1033 Quincey Drive in Columbus which was on the East end of town off Buena Vista Road. That Barrington Ford had two locations in Columbus and she worked at the one located on Box Road which was off the Lindsey Creek Bypass and Macon Road. That in January, 1976, she owned a white 1975 Ford Mustang automobile.

Mrs. Burns stated that in early January of 1976 she received a telephone call from a man who asked her if she was the same Pat Burns that he went to school with at Central High School and she told him no, that she graduated from Kendrick High School in 1970. She said the man identified himself to her but she could only recall the name “Willie” and she could not remember the man’s last name. She later learned his full name when she got a call from two detectives from the Phenix City Police Department who told her they wanted to come to the place where she was working to discuss a matter with her relative to her safety. She agreed to see them and the next day Captain Clark and Lieutenant Banks came to the place where she was employed and informed her that her life was in danger. She identified an eight-by-eleven photograph of her which was taken where she graduated from high school and also a wallet size of the same photograph which was like the same photograph she had seen in her husband’s wallet. Both of the photographs were admitted into evidence without objections.

Willie L. Peterman was called by the State as a witness and testified that he first met appellant through a mutual friend named John Golden in August of 1975; that John Golden was a friend of his and he had known him for about eight years. He further stated that he promised John Golden that he would help him move his furniture from the mini-storage place to a trailer home and that they met at Lakeview Funeral Home where he was introduced to appellant. He stated that they rode out to the mini-storage place in a van used by the funeral home to transport flowers in connection with funerals. The mini-storage place was locked and John Golden drove to some place to use the telephone to see if he could get a key to the storage place but was unable to do so.

He stated that while John Golden was out of the vehicle appellant said to him that he had somebody that he wanted killed. Peterman thought he was joking and said he would do it for $150, that nothing else was said at that time by appellant as to whom he wanted killed. The next time he saw appellant was just before Christmas at the Safari Club between Phenix City and Opelika when he stopped by to pay a bar bill. He said that John Golden was working at the bar of this club and told him he did not have time to look for his bar bill, whereupon Peterman asked appellant to see if he could find it. Appellant looked in the cash register and said he could not find it and Peterman left the Safari Club, stating he was there only about fifteen minutes.

Peterman further testified that the next time he heard from appellant was while he was working at the Five Points Texaco Service Station in Phenix City when he received a telephone call from appellant; that appellant said, “Bill, this is Chris,” and Peterman then recognized appellant’s voice and appellant said, “The price has gone up to $500.” Peterman told appellant to come to the station and talk to him about it; that he came to the station and Peterman told him that he wanted the $500 at one time. Appellant said he would not pay him $500 at one time, that he would pay him $250 and then when the job was done, he would pay him the other $250. In this same conversation appellant told Peterman the reason he would not pay him the $500 at one time was that he had paid it one time before and had gotten ripped off. According the Peterman appellant said he wanted his wife killed because he wanted to get the baby and Peterman said, “The court probably won’t rule on the baby if she was to get killed and there wasn’t no sense in killing her,” to which appellant replied, “Just go ahead and do it, that it wasn’t any of my business why he wanted it done.” According to the testimony of Peterman they talked further about the matter and appellant said he would be at the station the next morning with $250, that appellant came to the service station the next morning with $250 and it was all twenty-dollar bills except one ten-dollar bill, and that he also had a five-by-seven card with the description of his ex-wife and where she lived and what kind of car she drove and that she lived with her child who was a year and a half old at the time. There was a further description of his ex-wife showing what she weighed and how tall she was, being 5'7" and weighing 135 pounds and she had bleached-out blond hair; also that she was driving a 1975 Mustang automobile and on the card was the address showing that she lived at 1033 Quincey Drive which was off Buena Vista Road in Columbus, Georgia, and that she worked at Barrington Ford Motor Company. He stated that at this time appellant gave him a wallet-sized photograph of his ex-wife.

Peterman further stated that there was no one present when appellant gave him the five-by-seven card with all the information above described on it and a photograph of his ex-wife: that they were sitting in a vehicle that appellant drove to the service station in and that he was there only about fifteen minutes.

Peterman took the envelope containing the money, the card giving the description of appellant’s ex-wife and other information and photograph and walked back into the service station where he showed them to the man who was working with him, Harley Waddell, and he told Waddell what appellant had employed him to do.

According to the testimony of Peterman he considered the whole thing a joke and never intended to kill Mrs. Burns or anyone else. He stated that he spent the money on bar bills and playing pool and other things. He further stated that he ran into appellant again at the Jocopa Club and he told appellant that he could not do what he wanted done and he tried to reason with him, but he could not reason with appellant; that on this occasion appellant told him, “I am still going to try to get it done, one way or the other.” He said that later on he received a telephone call from appellant in which he told him again that he could not do it and in this conversation appellant threatened him and asked him if her life meant more to him than his own life and that Peterman said, “What are you going to do? Put somebody on me like you put on her?” The appellant replied, “yes.”

He stated that he called up the Barring-ton Ford Company and asked to speak to Mrs. Burns and when she was connected to the call, he asked her if she was the same Patricia Burns he had gone to Central High School with and she told him no. He said after he found out she was still alive he tore up the card containing the information as to where Mrs. Burns lived, how to get to her home on Quincey and the other information contained on the card. He also tore up the wallet-size photograph that appellant had given him and put the fragments in a Dempsey Dumpster behind the service station. After doing this he called Officer Kenneth Alsobrooks of the Phenix City Police Department who came to the store where he made the call and he told the officer everything that had transpired up to that moment.

The next day Captain Clark and Lieutenant Banks came to the service station and told him that they were following up on the report that Officer Alsobrooks had filed with the Police Department and they asked him if he could find the card and photograph allegedly turned over to him by appellant. He said he went to the trash bin and found fragments of the photograph and the card and turned them over to the officers. He did not at that time find all of the pieces of the photograph and the card, and the officers got a call to go on another investigation. He stated he then dug further into the trash bin and found most of the other fragments of the photograph and the card that appellant had turned over to him at the same time appellant had given him the $250 in cash which was in a white envelope.

A warrant was issued for appellant and also for Peterman on a charge of conspiracy to commit murder and Peterman stated that after he got out of jail he went to see a lawyer in Phenix City and turned over to the lawyer the other fragments of the map and photograph that he had found in the trash bin and that this lawyer went to one of the Assistant District Attorneys where a deal was made in exchange for Peterman’s testimony. Peterman stated that his lawyer gave back to him the other fragments of the map and photograph and he turned them over to a detective who was working with the District Attorney’s Office. He stated that the case against him was dismissed.

Mr. Lamar Miller, a Criminologist with the State Department of Toxicology, testified that the fragments of the map and the photograph which Peterman had recovered from the trash bin were turned over to him for examination. He compared the photograph with another photograph that Mrs. Burns turned over to the District Attorney’s Office. The Criminologist was positive in his testimony that the fragments of the photograph that were found by Peter-man were a duplicate of the photograph of Mrs. Burns which was taken at her graduation from high school. The reconstructed portion of the photograph was introduced into evidence without objection.

Mr. Harley Waddell testified that he worked with Willie Peterman at the service station and that he recalled during the month of January, 1976, that appellant came to the service station and pulled to the side and parked; that Peterman went to appellant’s car and ten or fifteen minutes later he came back into the service station with an envelope containing money, a map, and a girl’s photograph. His testimony was in conflict with that of Peterman’s as to the denominations of the money. He described the money as containing fives, tens, and twenties, whereas Peterman said all the denominations were twenties except for one ten-dollar bill.

The defendant offered witnesses who testified to his good character and reputation in the community in which he lived prior to the fifth or sixth of January, 1976, when he was charged with the crime of bribery to commit a felony. Each of them said that his character and reputation were good.

Appellant testified in his own behalf and denied ever asking Peterman to kill his ex-wife or anyone else. He did admit that he delivered some money to Peterman at the service station but that it was only $150 and this was a loan that Peterman had asked him to let him have for a few days. He further denied delivering to Peterman any map or photograph or any other information concerning his ex-wife.

John Golden testified in behalf of appellant and contradicted the testimony of Pe-terman in every respect. He stated that Peterman and appellant helped him move his furniture from the mini-storage to the trailer home he was going to live in and that Peterman and appellant were never alone together for any length of time or even out of his sight. He further testified that Mrs. Burns loaned them a layette and in the layette were several photographs of Mrs. Burns taken at the time she graduated from high school but after Peterman helped him move his furniture these photographs were missing and he did not see them again.

The testimony in this case was conflicting in the extreme. It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting testimony and a verdict rendered thereon will not be disturbed on appeal. Snipes v. State, 50 Ala.App. 139, 277 So.2d 413; Pugh v. State, 51 Ala.App. 164, 283 So.2d 616; Waters v. State, 55 Ala.App. 646, 318 So.2d 342.

Appellant contends that this case should be reversed because of the action of the trial court in denying a mistrial because of the conduct of the District Attorney in cross-examining appellant as to previous convictions of offenses committed while he was a Youthful Offender in a Federal Court. There were no objections to two of the questions posed to appellant but appellant answered' them in the negative anyway. The District Attorney then asked appellant if he knew a probation officer in Columbus, Georgia, and he responded affirmatively. Appellant insists that none of the offenses inquired about involved moral turpitude.

The law is clear that a negative answer to an improper question does not constitute reversible error. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Stephens v. State, 250 Ala. 123, 33 So.2d 245.

The District Attorney then asked appellant if he had pleaded guilty to the illegal possession of a federal check and if he had just completed a two-year probation period. This question was not answered but appellant’s counsel claimed that this matter involved Youthful Offender treatment and moved for a mistrial. At this point the jury was excused and in the absence of the jury, appellant’s counsel told the Court that these matters involved Youthful Offender treatment in the federal court and appellant and his mother would verify this as correct. At this point the District Attorney apologized to the Court and requested the Court to poll the jury to ascertain if they could erase these matters from their minds.

Thereupon the trial judge asked the jurors, separately and severally, if they could remove from their minds anything about a conviction, parole or anything else and give the defendant a fair and impartial trial. Each juror responded in the affirmative. We think the action of the trial court was proper and effectively cured any possible error committed by the District Attorney in posing such questions. Mott v. State, 40 Ala.App. 144, 109 So.2d 309; Dufresne v. State, 40 Ala.App. 476, 116 So.2d 385; Coe v. State, 53 Ala.App. 457, 301 So.2d 223; Gavin v. State, 52 Ala.App. 469, 294 So.2d 169; Pelham v. State, 23 Ala.App. 359, 125 So. 688.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Christopher A. BURNS.
    SC 2529.
    Supreme Court of Alabama.
    June 3, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


author: CLARK, Supernumerary Circuit Judge.

text:
    John W. HALE v. STATE.
    4 Div. 508.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied May 3, 1977.

      Jerry E. Stokes, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State, appellee.
   CLARK, Supernumerary Circuit Judge.

This appeal is from the denial of a petition for writ of error coram nobis.

In January, 1976, appellant was confined in Covington County jail on a warrant returnable to The Intermediate Court of Cov-ington County. On February 17, 1976, pursuant to Code of Alabama, Tit. 15, § 260, he made known to the Circuit Court of Coving-ton County, by written petition, that he desired to plead guilty. In accordance with § 261-262, the court ordered the District Attorney to prefer and file an information against defendant for the criminal offense for which he was being held, and appointed counsel to represent defendant. An information was brought and verified by the District Attorney, and on February 24, a hearing in open court, attended by defendant, his counsel and counsel for the State, was conducted on the information and defendant’s plea of guilty, and a colloquy ensued between the court and defendant wherein the requirements of Boykin appear to have been met. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Defendant was found guilty by the court and sentenced to imprisonment for six years.

Defendant duly appealed from his conviction and sentence. Such appeal has been dismissed by this Court pursuant to Code Tit. 15, § 266, which provides, “Such defendant shall not have the right of appeal from the action of the court” in cases governed by Tit. 15, §§ 260-266. Rogers v. State, 44 Ala.App. 331, 208 So.2d 240.

After the dismissal of his appeal from the judgment of conviction and sentence, appellant commenced his coram nobis proceeding that resulted in the adverse action of the trial court that constitutes the basis of this appeal.

Appellant urges that the judgment of the trial court should be reversed for three separate alleged reasons:

1. The information was defective in that it constituted a variance or departure from the affidavit that furnished a basis for the warrant upon which defendant was held;
2. Defendant did not receive effective assistance of counsel prior to entering his guilty plea, and
3. Appellant’s decision to plead guilty was unduly influenced by promises and hints of reprisal by law enforcement officers.

Appellee joins issue with appellant as to his contentions and, in addition, urges that relief should not be granted via coram no-bis, unless petitioner alleges and proves that he had a valid defense to the original charge for which he now stands convicted. Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917, cert. den. 291 Ala. 800, 277 So.2d 919; Clements v. State, 52 Ala.App. 294, 291 So.2d 748; Burden v. State, 52 Ala.App. 348, 292 So.2d 463.

The petition does not allege, and the evidence does not show, that defendant had any defense to the charge of obtaining personal property of the value of twenty-five dollars or more under false pretense, in that he “did intentionally, unlawfully and falsely pretend . . . with the intent to defraud, that he had a current and valid Gulf credit card.”

Although the petition is treated by all concerned as one for a writ of error coram nobis, the petition moves in the alternative for “other appropriate post-trial relief.”

The appellant’s contentions as herein-above narrated are substantially the same as those made by him in his petition and on the hearing thereof. The State’s contentions were to the contrary, and its answer consisted only of denials of the allegations contained in the petition. The ruling of the trial court was with reference to the issues joined between the parties on the hearing.

The affidavit that furnished the basis for the warrant for defendant’s arrest charged that defendant “with intent to defraud Gulf Oil Corporation, . . . used for the purpose of obtaining” listed items of personal property “a credit card of another which he knew to have been mislaid, stolen or delivered . . ..”

The language of the information was unquestionably clearer and more definite than that of the affidavit. Title 15, § 261 requires that it “shall accuse the defendant, with the same certainty as an indictment, of the criminal offense for which he is being held.” Although different in language and inartfulness, there was no material variance between the information and the affidavit. Both refer to the same transaction, the same parties and the same property, except that the information did not contain all of the items listed in the affidavit, and it alleges that the items listed in the information were of a total value of, to-wit $75.00.

As to appellant’s second complaint that he was not furnished effective assistance of counsel, the record shows that an able attorney, with forty years experience at the local bar, was appointed to represent defendant on the hearing of his plea of guilt. The petitioner on the hearing of the coram nobis proceeding testified that his attorney did not talk with him over ten minutes. This is not specifically denied by the attorney in his testimony on the hearing of the coram nobis proceeding. Nevertheless, the attorney testified to a comprehensive conversation between him and defendant relative to the charges against defendant, the determination of defendant to plead guilty, the circumstances indicating his guilt, and the probable consequences of a judgment finding defendant guilty. Furthermore, the record shows that before the court accepted defendant’s guilty plea, the following occurred in the presence of defendant’s attorney:

“THE COURT: Have you talked to him [defendant’s attorney] today?
“MR. HALE: Yes, sir.
“THE COURT: Have you had plenty of time to talk to him?
“MR. HALE: Yes, sir.
“THE COURT: Do you want the Court to continue this cause to another day in order that you can talk to him on more than one occasion?
“MR. HALE: No, sir.
“THE COURT: Do you need any more time to talk to him before we proceed any further?
“MR. HALE: No, sir.”

Notwithstanding the short time of the conference between defendant and his counsel, we doubt not that much greater time employed in such conversation would not have been of any benefit to defendant. In this connection, it is to be observed that defendant himself initiated a petition to plead guilty, that he was 54-55 years of age at the time, that he had had two years of college education, but that he was a repeater, having been previously convicted of grand larceny of an automobile and sentenced to two years in prison, convicted of burglary and sentenced to two years and fifteen months, and sentenced to ten years imprisonment for having set off explosive dynamite.

Appellant’s third contention that he was unduly influenced by promises and hints of reprisal by law enforcement officers is not sustained by the evidence. At the best for defendant, he may have had reason to imagine that as other members of his family may have been subject to a charge that they were involved in the fraud committed by defendant, they too, or one of them, would have been prosecuted unless defendant pleaded guilty; there is no substantial evidence to support any belief that such reprisal would occur in the event defendant did not plead guilty. There was some testimony by petitioner on the coram nobis proceeding that the sheriff or his deputy informed him that he did not think defendant would receive more than a year and a day in prison, but petitioner in his testimony expressly disclaimed any contention that any promise or assurance to that effect was made. There is no testimony that whatever may have been said to defendant as to possible punishment of the offense was said by anyone cognizant of his prior criminal record.

We feel that we should note that on the hearing of defendant’s plea of guilt, there was no compliance with all of the procedure prescribed by § 264 of Tit. 15 of the Code, as follows:

“Court to hear witnesses; conviction; sentence. — Upon the date fixed for the formal plea of guilty by the defendant, the court shall proceed to hear the testimony of any witnesses who may be summoned or offered either by the state or by the defendant, or whom the court may direct to be summoned, and must hear also the testimony of the defendant; and, if, after hearing such testimony, the court believes beyond a reasonable doubt that the defendant is guilty, in manner and form, of the offense charged against him in the information provided for in this article, the court shall thereupon receive and enter the plea of guilty of said defendant and shall enter judgment of conviction thereon and sentence said defendant to such term in the penitentiary as is prescribed by law, any other provisions of the law to the contrary notwithstanding.”

This point, however, has never been raised by appellant. Whether it materially affects the judgment and sentence against him, we do not here attempt to decide. If it does, it should first be presented to the trial court by some appropriate proceeding.

The trial court was correct in ruling as it did on the issues presented to it. Its judgment should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

HARRIS, DeCARLO, BOOKOUT and BOWEN, JJ., and SIMMONS, Supernu-mary Circuit Judge, by designation concur.

TYSON, P. J., recuses himself as he was counsel for the State of Alabama in a prior case involving the appellant.


author: ALMON, Justice.

text:
    Ex parte John W. HALE.
    SC 2581.
    Supreme Court of Alabama.
    June 10, 1977.
   ALMON, Justice.

WRIT DENIED.

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