text:
    In re Bonnie S. HAYES v. Larry Wayne HAYES. Ex parte Larry Wayne HAYES.
    Civ. 877.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1976.
    Sherman B. Powell, Jr., Decatur, for petitioner.
    Ralph E. Slate, Decatur, for respondent.
   BRADLEY, Judge.

This case is a companion to Hayes v. Hayes, Ala.Civ.App., 337 So.2d 770 (1976). The action was initiated when the petitioner’s former wife filed a petition in the Morgan County Court seeking arrear-age in child support payments. The petitioner, Larry Wayne Hayes, was adjudged in contempt of the Morgan County Court for failure to pay child support as previously ordered by that same court. The order provided that petitioner could purge himself of the contempt by posting a cash bond in the amount of $1,500 to assure that future court orders would be complied with and to pay the arrearage found to be due, court costs and an attorney’s fee of $300.

In seeking review of the Morgan County Court’s order, Hayes first applied for a writ of habeas corpus in the Circuit Court of Morgan County; that court denied the writ without reaching the merits of the case. The petitioner then filed his petition for the habeas corpus writ in this court and asked us for a stay of execution pending review. We ordered Hayes released from custody upon his posting bond in the amount of $1,500 with good and sufficient sureties and pending disposition of his request for the writ of habeas corpus.

The proper remedy for review of a contempt proceeding is by habeas corpus if the party is in jail, Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969). As Hayes was in jail at the time he sought review of his contempt order, he is properly before this court. See Title 13, § 111(3), Code of Alabama 1940 (Recomp. 1958) (Supp.1973).

Hayes’s contention here is that he does not have the present financial ability to comply with the trial court’s order and thereby purge himself of the contempt. He says he has no cash assets, except $100 he borrowed to go to court, and no bank accounts or other unencumbered personal or real property that would be worth enough to satisfy the court decree. Furthermore, he does not expect to have the financial ability to comply with the order in the future.

The evidence showed without dispute that Hayes, a truck driver, has gross earnings of $235 every ten days. Due to layovers in California and Florida he does not average more than two trips a month. Petitioner stated that after taxes and expenses incurred on his trips, his net income averages from $210 to $225 per month. His fixed expenses, consisting of a payment on a house trailer which was awarded to him in the divorce decree, rent for space to park the trailer, payment on a 1972 Volkswagen that has been refinanced, and utility payments, total $194 per month. In addition to ■these fixed expenses petitioner must pay income tax, FICA and Blue Cross-Blue Shield insurance premiums. When these amounts are deducted from petitioner’s gross income there is not enough money left to pay the amount ordered to be paid by the modified decree.

Furthermore, there is no evidence in this record to support a conclusion that Hayes’ income will substantially increase in the immediate future. In fact, the evidence is to the contrary. The record shows that petitioner earned three dollars an hour in his first job after being discharged from the army. In subsequent jobs, including his present one, he has earned approximately $235 every two weeks.

We said in Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. den. 287 Ala. 737, 247 So.2d 128 (1971), “that imprisonment for contempt should never be imposed by a judge where the failure to pay alimony, etc. is not from contumacy, but from inability to comply with the order.”

Based on the evidence set out above, we are convinced that petitioner was, at the time of his incarceration, unable financially to purge himself of contempt for failure to pay child support and is therefore entitled to be discharged from custody.

The trial court’s order incarcerating petitioner in the Morgan County jail is reversed, and he is ordered to be discharged from custody.

WRIT GRANTED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Martha Jean Hovey BEASLEY v. Michael Hayes BEASLEY.
    Civ. 912.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1976.
    Kenneth R. Cain, Ozark, for appellant.
    Pittman & Whittaker, Enterprise, for ap-pellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Coffee County’s action denying a motion to set aside a decree of divorce. The wife appeals and we affirm.

The parties were divorced in late August of 1975. The divorce was obtained on answer and waiver of the wife. In the divorce decree the wife was awarded custody of the children and support for them in the amount of $155 a month. In addition, the wife was awarded the use of the homeplace with the ownership to remain joint.

The wife’s motion filed in early December of 1975 to set aside the decree alleges that at the time of signing the answer and waiver she was “coaxed” into so signing by the husband. Specifically, she alleged that the husband promised that she would under the terms of the divorce decree receive the following:

“(a) That Plaintiff would take proper care of the 3 minor children of the parties by paying to Defendant the sum of $300.00 per month;
“(b) That Plaintiff would pay the light bills at the residence of Defendant and the minor children of the parties;
“(c) That Plaintiff would pay the telephone bills at the residence of Defendant and the minor children of the parties;

We take the wife’s motion to be a 60(b) ARCP motion.

An ore tenus hearing was had on the wife’s motion.

After such hearing, the trial court in its decree found as follows:

“That the judgment of divorce rendered August 28, 1975, remains unchanged for the court has not been reasonably satisfied from the evidence by defendant of the truth of her motion to set aside the judgment.”

Suffice it to say that the evidence was in conflict regarding the answer and waiver, the agreement concerning support, and when the wife knew she was divorced.

Decrees of the trial court rendered after hearing witnesses ore tenus will be given every favorable presumption and will not be disturbed unless palpably wrong. 2A Ala.Digest, Appeal and Error, <©=>934(1). Here, in this instance, with conflicting testimony the trier of facts was clearly not palpably wrong in refusing to set aside a prior decree. In fact, this court can find very little, if any, testimony to support the granting of a Rule 60(b) motion, under either (b)(1), (2), (3), (4), (5), or (6).

The case is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    TASK CONSULTANTS, INC. v. James J. FINERTY.
    Civ. 853.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1976.
    Butler & Potter, Huntsville, for appellant.
    Banks & Cartron, Huntsville, for appel-lee.
   BRADLEY, Judge.

This appeal is from a judgment of $6,948.57 plus $388.99 interest rendered against Task Consultants, Inc., the appellant here and defendant below, pursuant to a contract of employment, and from an order overruling a motion for new trial. We must decide whether the trial court erroneously construed the employment contract in granting recovery.

The facts show that plaintiff-appellee, James J. Finerty, on August 18, 1972 entered into an agreement with J. Thomas Swinea, who at that time was doing business as J. Thomas Swinea and Associates, to be employed at a salary of $23,000 annually plus travel expenses. Upon incorporation of the firm, Finerty was to be a twenty-five percent shareholder in the corporate ownership.

On March 1, 1973 J. Thomas Swinea and Associates incorporated as Task Consultants, Inc., and Finerty was elected a vice-president and given a twenty-five percent share in the ownership of the corporation. There were no other changes in the conditions of employment established in 1972. Finerty continued to perform the same functions for the corporation as had been performed for the original firm and to receive the same salary and travel reimbursement as before.

During the latter part of 1973 the financial condition of Task deteriorated to the point where Finerty and Swinea, who was the president of Task, orally agreed to defer their salaries and travel reimbursement until the cash flow into Task improved. As a result of this agreement, Finerty did not receive salary for the months of November and December of 1973 and January 1974 nor did he receive travel reimbursements for the period September 1973 through January 1974.

In February 1974 Finerty’s status with Task changed from one of officer of the corporation, i. e. vice-president, to one of employee. Finerty received a letter from Task dated February 14,1974 and signed by Swinea explaining the new relationship between Finerty and Task and accompanied by a written employment contract dated February 1, 1974 to be signed by Finerty. Finerty signed the contract and worked as an employee of Task until August 30, 1974 when he terminated his employment.

The February 14, 1974 letter in pertinent part is as follows:

“Dear Mr. Finerty:
“This will confirm our conversation and agreement of February 7,1974, regarding the status of your employment and compensation with Task Consultants, Inc.
“As we further agreed, Task Consultants will, at the earliest date it is financially capable, reimburse you for the expenses of travel which you have personally incurred and documented but, as of this date, have not received payment.
“As we agreed, the determination as to whether Task is financially capable to reimburse you for salary and travel expenses not paid will depend solely upon the income to the firm which your activities during the past 5 months or the next 11 months will generate.
“An employment agreement setting out, in full, the conditions of your employment is attached for your signature.”

Finerty claims $5,749.98 as unpaid salary for the months of November and December 1973 and January 1974 plus unreimbursed expenses of $1,198.59 for the period September 1973 through January 1974.

Task concedes that the cover letter dated February 14, 1974 reflects an obligation to Finerty with regard to past compensation and that Task agreed to pay its obligation upon the occurrence of certain conditions. Task maintains, however, that this prior obligation was extinguished by Section 8 of the February 1, 1974 employment contract. By signing the contract Finerty agreed to forego any unpaid claims for compensation at the time of his termination of employment. Section 8 is as follows:

“This contract, and the association created hereby, may be terminated by either party at any time on written notice given to the other at least 30 days prior to the effective date of such termination. Employee shall divest any and all rights to compensation which accrued prior to termination of this contract.”

Task says that the trial court, in awarding a judgment to Finerty for the amounts he claimed were due him, erroneously applied the law to the facts. It says that words used in contracts are to be given their natural and usual import. Canal Insurance Co. v. Stidham, 281 Ala. 493, 205 So.2d 516 (1968). Stressing the words “divest,” “accrued” and “prior” as used in the last sentence of Section 8, supra, Task argues that Finerty gave up his right to all compensation from Task which accrued pri- or to or subsequent to the February 1, 1974 agreement.

Finerty answers by saying that the cover letter is either part of the February 1, 1974 contract or a separate agreement, upon either of which he is entitled to recover, and urges that, in construing the contract, we give due regard to the interest of the parties and the conditions existing at the time of the agreement as well as considering the nature of the instrument itself. He cites in support thereof the case of Summers v. Ralston Purina Co., 260 Ala. 166, 69 So.2d 858 (1954).

As we conceive it, the issues presented to and decided by the trial court were (1) whether the cover letter of February 14, 1974 and contract dated February 1, 1974 were so connected as to form the complete agreement of the parties, and (2) if so, whether the letter either controls over Section 8 or contradicts Section 8 so that the trial court was free to interpret the contract and ascertain whether the parties intended Finerty’s right to the deferred salary and expenses to be divested upon the termination of his employment.

The controlling general principle of law is that two writings connected by reference one to the other, or made with respect to the same subject matter and proved to be parts of an entire transaction, constitute but a single contract as if embodied in one instrument. Moorer v. Tensaw Land & Timber Co., 246 Ala. 223, 20 So.2d 105 (1944) and cases there cited.

The supreme court in Weeden v. Asbury, 223 Ala. 687, 138 So. 267 (1931) said:

“It is familiar law that in the absence of anything to indicate a contrary intention, writings executed at the same time by the same parties for the same purpose, and in the course of the same transaction, are in the eye of the law one instrument, and will be received and construed together as constituting one contract and evidencing the intention of the parties.”

The first paragraph of the February 14, 1974 letter from Task to Finerty states:

“This will confirm our conversation and agreement of February 7,1974, regarding the status of your employment and compensation with Task Consultants, Inc.”

That language certainly suggests that an agreement was made by the parties on February 7, 1974 rather than when Finerty signed the employment contract. Finerty’s testimony was to that effect.

Past dealings between the parties also suggest that their agreement was reached prior to Finerty’s receiving the confirming letter and signing the contract. When Fin-erty was first employed by the predecessor of Task, J. Thomas Swinea & Associates, an informal agreement was made which later was confirmed in a letter.

We construe the February 14,1974 letter, as we believe the trial court did, to state that there was an agreement for employment beginning on the contract date and that the deferred compensation and expenses, which had accrued prior to the new employment date, would be paid provided certain conditions were met by Finerty. These conditions were then spelled out in the letter. There is evidence in the record to support a conclusion that the conditions were met.

Having decided that the letter and the employment contract together formed the complete agreement of the parties, the trial court was faced with the apparent contradiction between Section 8 of the employment contract, providing that all rights to prior accrued compensation and expenses shall be divested upon termination of employment, and the promise of Task, as set out in the letter, to pay specific prior accrued compensation and expenses. The trial court, in construing the language of Section 8 as it applied to specific promise to pay specific accrued compensation and expenses, could have reasonably interpreted the language of Section 8 to apply solely to compensation accruing after the commencement of the new agreement, which would have been after February 1, 1974. The sentence just preceding the divestiture sentence states: “This contract, and the association created hereby, . . . can be can-celled upon proper notice.” A not unreasonable interpretation would be that, in the absence of specification, the contract of February 1, 1974 only applied to occurrences after the contract date and had reference to compensation that might accrue after February 1, 1974.

Assuming, however, that the trial court did consider that the language of Section 8 was contradictory of the language in the letter, we do not think the trial court erred. The determination of whether or not a contract is ambiguous is the function of the court. If the court concludes that the contract is ambiguous, then it is for the jury to determine the true meaning of the contract. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). Here, since the court heard the case without a jury, the rule of ore tenus applies.

We are convinced that the evidence fully supports a conclusion that the trial court decided that the employment contract including Section 8 applied only to compensation accruing after February 1, 1974, and did not cut off Finerty’s right to receive the compensation and expenses that had admittedly accrued prior to February 1, 1974.

AFFIRMED.

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


author: CATES, Presiding Judge.

text:
    Harold FORD v. STATE.
    4 Div. 335.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

It appears from the judgment entry that appellant was born November 20, 1953. The offense was committed August 31, 1974.

The cause is remanded for a determination as to whether or not the appellant should be treated as a youthful offender. Michie’s Code T. 15, § 266(l)-(6).

The circuit court is asked to notify us promptly by sending us a copy of its proceedings to be filed as a supplement to the record already before us.

Remanded with directions.

All the Judges concur.

Decision after remand, Ala.Cr.App., 339 So.2d 90.

      . Act No. 77, July 22, 1975, lowers the age of majority. § 4 thereof expressly leaves the Youthful Offender Act unaffected.


text:
    Harold FORD v. STATE.
    4 Div. 335.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
   AFTER RETURN TO REMAND, Ala.Cr. App., 339 So.2d 90.

AFFIRMED, without opinion.

All the Judges concur.


author: TYSON, Judge.

text:
    Roderick Andre JETER, alias v. STATE.
    6 Div. 989.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.
    Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment in this cause (omitting formal parts) is as follows:

“The grand jury of said county charge that, before the finding of this indictment, RODERICK ANDRE JETER, alias RODERICK ANDREW JETER, whose name is to the grand jury otherwise unknown, did draw a check or cause or direct the drawing of a check with the intent to defraud on the Alabama Exchange Bank of Tuskegee, Alabama, which check was dated February 28,1974, and payable to Warren H. Brown in the amount of Six Thousand Dollars, the said RODERICK ANDRE JETER, alias RODERICK ANDREW JETER, whose name is to the grand jury otherwise unknown, knowing at the time of the drawing of such check that he did not have a checking account with the Alabama Exchange Bank of Tuskegee, Alabama, contrary to law and against the peace and dignity of the State of Alabama.
Earl C. Morgan (Signed)”

The appellant filed a motion to quash this indictment, which was duly overruled prior to trial. The appellant did not file a demurrer to this indictment.

The jury found the appellant guilty as charged and fixed punishment at a fine of “Four Thousand Dollars.”

The trial court then entered judgment in accordance with this verdict, and, in addition, sentenced the appellant to three years imprisonment. The appellant’s motion for a new trial was duly overruled following hearing.

Warren H. Brown, Jr. testified that he lived at 1816 Twenty-seventh Avenue, Southwest, in Jefferson County, Alabama. He stated his age at twenty-three, and said that he was a part owner of a dry cleaning business. He testified that he had two pri- or convictions for forgery. He testified that he had known the appellant, Roderick Jeter, for about two years, having met him while they were in college. He stated that in February, 1974, he saw the appellant on several occasions. He testified that he received a check in the amount of $6000.00, payable to Warren H. Brown, dated February 28, 1974, and drawn on the Alabama Exchange Bank at Tuskegee, Alabama. He testified that this check was signed by Roderick Jeter, the appellant.

Mr. Brown further testified that he maintained his personal account at the Central Bank of Birmingham, located at Fourth and Twentieth Street. He testified that he took the check, which he received from Mr. Jet-er, and deposited it to his account at Central Bank. He identified a deposit slip made out for this purpose. He also identified at trial the check which he received from the appellant, Mr. Jeter. He testified that the following day, after depositing Mr. Jeter’s check, he wrote out a check for $6000.00, drawn on his own account at Central Bank and delivered all of the proceeds, $6000.00, to the appellant.

On cross-examination, Mr. Brown testified that he had plead guilty in March, 1975, to a forgery case and had received a sentence of a year and one day for forgery of some checks drawn on the Birmingham Trust National Bank. He testified that his probation application was presently pending.

Mr. Brown further testified that he went by the home of Mr. Jeter in Birmingham in February, 1974, and picked up the check in question from the mailbox of the appellant when he was on his way to work. He testified that the appellant had told him the check would be there. He then deposited it later that same day to his own account at Central Bank.

Following cross-examination and redirect-examination, Mr. Brown testified that rather than paying Mr. Jeter by cash, he had given Mr. Jeter a cashier’s check for the $6000.00, which he had obtained at Central Bank.

Mr. Willie Smith, Assistant Operations Officer at Central Bank of Birmingham, testified that he was in charge of the bookkeeping department and deposit services. He testified that he reported directly to Mr. Hank Formby, Vice President of Operations. He testified that, as a part of his duties, he had examined the account of Warren H. Brown, Jr. in February and March, 1974, at Central Bank. He identified a statement of the bank on Mr. Brown’s account, and also a ledger card kept by Central Bank on this account.

Mr. Willie Smith was then permitted to testify over objection that he had examined the account ledger card, which showed that there had been a “charge-back” for an item deposited but returned to Central Bank as unpaid. Mr. Smith then explained how the bank handled dishonored items which were returned to it through a clearing house. He stated that his record showed that a check for $6000.00, drawn on the Alabama Exchange Bank of Tuskegee, Alabama, payable to Warren H. Brown, had been returned as dishonored by the bank at Tuskegee.

Mr. Smith also identified a photograph which had been made of Mr. Brown at Central Bank by a security officer. Mr. Smith also identified a cashier’s check, drawn on the Central Bank of Birmingham’s main office, for $6000.00, on the account of Warren Brown, and that the payee of the cashier’s check was the appellant, Roderick Jeter.

Warren H. Brown, Jr., was then recalled to the witness stand and identified a check, marked State’s Exhibit 6, which he testified the appellant, Roderick Jeter, gave to him on February 25, 1974, by picking it up at the appellant’s home from his mailbox, and which was deposited by him to his own account at Central Bank. He also identified a cashier’s check, which he drew on his account at Central Bank, and made payable to Roderick Jetér. He stated that this was delivered by him to the appellant.

Mr. Brown admitted, on cross-examination, that he did not see the appellant personally when he picked up the check in question from the appellant’s mailbox. Brown further testified that he carried the cashier’s check to Mr. Jeter, and delivered it to him in the presence of Mr. Jeter’s wife at his apartment.

Mr. J. T. Daniel, Jr. testified that he was Vice President of 'the Alabama Exchange Bank in Tuskegee, Alabama. He stated that he was responsible for the operation of the bookkeeping department, and as such had supervision over various checking accounts. He stated that this bank kept signature cards, and as a part of his duties, he would examine various checks and compare them with the signature cards. He then identified a signature card, dated October 8, 1973, which bore the signature of the appellant, Roderick Jeter, and had Mr. Jeter’s Social Security No. [ XXX XX XXXX ] on it. He testified this signature card was kept in the bookkeeping department and was used by them to compare signatures when checks came in to various accounts.

Mr. Daniel then identified a statement, dated October 27, 1973, on the account of Roderick Jeter, the appellant. He testified that a copy of this statement had been mailed to the appellant at the address given the bank by Mr. Jeter. He stated that a copy of the statement was mailed to the customer holding the account on the next day, following the close of business.

Mr. Daniel also identified a statement, dated November 24,1973, on the account of Mr. Roderick Jeter, and a further statement, dated December 22, 1973, also on the account of Mr. Roderick Jeter, the appellant. He stated that the December statement showed an overdraft on Mr. Jeter’s account of $2.66. He further testified that, on December 31, 1973, the Alabama Exchange Bank closed Mr. Jeter's account by the bank’s deposit of $2.66 to cover the overdraft, and that a statement, dated January 7, 1974, was mailed by the Alabama Exchange Bank to the appellant, Mr. Jeter, showing that the account was closed. Mr. Daniel then identified the handwriting of Mrs. Vivian Segers, who was an employee under Mr. Daniel’s supervision, and who had written on the check, dated February 27, 1974, for $6000.00, that the account was closed. The check was signed by Roderick A. Jeter and returned to Central Bank with a notation “Account Closed.”

Mr. Daniel also testified that in comparing the signature on the signature card with that of the check, which was dated February 27, 1974, and which was dishonored, that the signatures of Roderick Andre Jeter appeared to be the same. He also stated that the appellant had maintained an account with his bank while he was a student at Tuskegee Institute, but had not had one there since mailing the notice to him on January 7, 1974, that his account was closed.

The appellant presented no testimony in his behalf at trial.

I

The appellant first asserts that the indictment in question is faulty in that it fails to establish the corporate status of the Alabama Exchange Bank of Tuskegee, and calls attention to his motion to quash.

As pointed out by Judge Harris, speaking for this Court in Flippo v. State, 49 Ala.App. 138, 269 So.2d 155, the proper way to attack an indictment is as follows:

“. . This defect does not render the indictment void. The constitutional requirement that the accused be made aware of the nature and cause of the charge against him was met. The proper way, however, to reach defects in an indictment is by demurrer and not by motion to quash. Duncan v. State, 278 Ala. 145, 176 So.2d 840; Boulo v. State, 49 Ala. 22; Daniel v. State, 149 Ala. 44, 43 So. 22.”

As previously noted, there was no demurrer filed in this cause by the appellant. Since we do not consider the question of whether or not the Alabama Exchange Bank was a corporation to be an essential element of the charge in the indictment, this issue is not properly before us for review.

Judge DeCarlo states the rule here applicable in Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162, in this way:

“A defect not associated with an essential element of the offense would not by its presence be fatal to a complaint, and is noticed by this court only when taken advantage of by demurrer in the lower court. Hornsby v. State, 94 Ala. 55, 10 So. 522.”

Since there was no demurrer filed in this cause, nor was the alleged corporate status of the Alabama Exchange Bank in any way raised in the trial court, such matter is not properly before this court for review. Cases herein cited.

II

Appellant next asserts that Mr. J. T. Daniel, Jr., Vice President of the Alabama Exchange Bank, was not properly qualified as a handwriting expert, and therefore should not have been permitted to testify as to the authenticity of the records pertaining to Mr. Jeter’s account at Alabama Exchange Bank.

Mr. Daniel testified that he was responsible for the day-to-day operations of the bookkeeping department of the bank in question. He further testified that for the past six years he had examined many items presented for payment and had compared them with signature cards kept at the bank.

We are of the opinion that the trial court properly permitted Mr. Daniel to identify and compare the records of Mr. Jeter’s account. Bridgeforth v. Sharpe, 220 Ala. 188, 124 So. 416; Glover v. Gentry, 104 Ala. 222, 16 So. 38.

III

Appellant asserts that he may not be convicted on the uncorroborated testimony of an accomplice, Mr. Warren H. Brown, Jr., and cites us to Title 15, Section 307, Code of Alabama 1940.

We have carefully examined this record, including the testimony of Mr. Willie Smith pertaining to the records at Central Bank, the check, and account statements of the Alabama Exchange Bank, together with the testimony of Mr. J. T. Daniel, Jr. It is clear that the State of Alabama here presented a prima facie case, and that Mr. Brown’s testimony was amply corroborated by these witnesses’ testimony. Tolbert v. State, 294 Ala. 738, 321 So.2d 227; Sorrell v. State, 249 Ala. 292, 31 So.2d 82.

IV

We also point out that our Supreme Court in Tolbert v. State, 294 Ala. 738, 321 So.2d 227, has held the Act under which this prosecution was instituted to be constitutional.

Justice Shores, speaking for the Court in Tolbert, stated:

. . The offense involved is theoretically complete when the check is drawn, with intent to defraud, the drawer knowing that there are insufficient funds to cover the same, or that the drawer has no account with the drawee, or that no such drawee exists. . . . ”

The effect of Tolbert, supra, after, as here, the State has presented a prima facie case, is to “shift to the drawer of the check the responsibility of explaining the transaction” when the State has established a dishonored check and notice to the drawer that the account was no longer in existence.

V

Appellant next asserts that the trial court erred in overruling his objection to the district attorney’s argument wherein he referred to the appellant as a “flim flam artist.”

We are of the opinion that this was a legitimate inference to be drawn from the evidence in this case, and therefore no error is shown. Gross v. State, 68 Ala. 476; Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, and authorities cited therein.

VI

Finally, appellant calls our attention to his exception to the oral charge of the court, which was as follows [R. P. 143]:

“In the trial of this case, as in all cases, if you can reasonably reconcile the testimony of the witnesses so as to make them all speak the truth you should do so; or if you can’t do that, then it is up tes-you to determine what testimony you find worthy of belief and what testimony you find to be untrue and, of course, consider only that testimony which you find to be true and disregard that which you find to be untrue.”

Appellant asserts that the above is invasive of the province of the jury inasmuch as the entire case was based upon the testimony of witnesses for the prosecution, and as such was also contrary to the appellant’s presumption of innocence.

We do not agree with this reading of the oral charge, as after considering the trial court’s entire charge, we believe the law to have been correctly stated, and we do not believe that the portion quoted above unduly emphasizes any one aspect of the evidence, nor does it take away from the appellant’s presumption of innocence. The appellant’s assertion takes the charge out of context. Wright v. State, 269 Ala. 131, 111 So.2d 596.

We have carefully examined this record and find same to be free of error. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

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

CATES, P. J., not sitting.


author: BLOOD WORTH, Justice.

text:
    In re Roderick Andre JETER, alias v. STATE. Ex parte Roderick Andre Jeter, alias Roderick Andrew Jeter.
    SC 2117.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Arthur Parker, Birmingham, for petitioner.
    None for the State.
   BLOOD WORTH, Justice.

Petition of Roderick Andre Jeter, alias for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jeter, alias v. State, Ala.Cr.App., 339 So.2d 91.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Henry BELL v. STATE.
    4 Div. 443.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 5, 1976.

      Richard W. Whittaker and Warren Rowe, Enterprise, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

The appellant was indicted, tried and convicted for the murder of Billy Ray Jones. The appellant pled self-defense. He now contends on appeal that the jury’s verdict was against the great weight of the evidence.

In reaching its verdict, the jury could have reasonably found the following facts, which are set out in a light most favorable to the State, to be true. On the night of October 11, 1975, the appellant visited a night spot in Enterprise called the Club Casino. While there, he was accosted by the deceased who was the manager of the club. The deceased slapped the appellant, presumably because the appellant appeared to be sneaking liquor into the establishment, which in fact was not the case.

Upon being slapped, the appellant left the club and returned to his home. He had a shotgun in his car, but the only shells he had contained birdshot. His purpose in returning home was to obtain shells containing buckshot. After loading his gun with buckshot, he returned to the Club Casino in the early morning of October 12, 1975.

Upon his return, the appellant engaged in a conversation with the deceased in the parking lot of the club. The appellant then walked to his car and removed the shotgun. Appellant yelled to his brother, who was standing by the deceased, to move. Appellant then fatally shot the deceased.

The deceased was known to habitually carry a pistol, and he was carrying a pistol on this occasion. When confronted by the shotgun brandishing appellant, the deceased attempted to draw his pistol. From the physical evidence, it was probable that the deceased pulled his pistol and had it pointed in the appellant’s direction when the appellant fired.

Although it is not an indispensably crucial point, the jury could have reasonably concluded that the deceased never fired his pistol. An expert witness, Dale Carter; testified that the deceased’s pistol had been damaged and that the cylinder had been jammed shut. The damage was caused by projectiles which were consistent with those recovered from the body of the deceased. Carter testified that the pistol would not fire and that it was fully loaded when he received it. He also testified that in his opinion the pistol had not been opened nor reloaded because of the way in which it was jammed. It took Mr. Carter, working under ideal conditions, from twenty to thirty minutes to unjam the pistol in order to remove the bullets.

The appellant put on evidence which, if believed by the jury, controverted, denied and conflicted with the evidence as set out above.

I

It is not our function to examine the record in order to satisfy ourselves that the appellant is guilty beyond a reasonable doubt. Our function, where sufficiency of the evidence is before us, is to examine the record and determine if the State put on sufficient evidence from which a jury might have found the accused guilty. We must allow all reasonable presumptions for the correctness of the verdict, bearing in mind that conflicting testimony presents a- question for the jury. Only when the preponderance of the evidence against the verdict is so decided as to convince this Court that it was wrong and unjust will the verdict be overturned. Morton v. State, 58 Ala.App. -, 338 So.2d 423 (1976).

The jury in this case had evidence before it from which it could reasonably conclude that the appellant did not act in self-defense. The jury would have been justified in believing that the appellant could have safely driven away from the scene instead of getting his gun and shooting the deceased. In addition, it is obvious that there was sufficient evidence from which the jury could conclude that the appellant was not free from fault in initiating the shootout.

II

The appellant contends that the trial judge erred in admitting the deceased’s pistol into evidence because there was an alleged break in the chain of evidence relating to the pistol. In order to admit the pistol or testimony relating to the pistol, it must be shown that the pistol was in substantially the same condition as at the time of the shooting. Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953).

There is only one point at which the appellant could reasonably argue that the chain of custody of the pistol was broken. When the police arrived at the scene, a large crowd had gathered. There was fear on the part of the police that the evidence might be disturbed. An Officer Braum was told to pick up the pistol and put it in the trunk of his car. He proceeded towards his car and returned in, at most, two minutes. The investigating officer, J. D. McDaniels, arrived during this period and accompanied Braum to Braum’s car where Braum unlocked the trunk and handed McDaniels a pistol. McDaniels received the pistol a maximum of five minutes after Braum removed it from the scene. As Braum was with his wife, who was hospitalized in Montgomery at the time of the trial, he did not testify.

The purpose in establishing a chain of custody is to show a reasonable probability that the pistol was not tampered with. 22A C.J.S. Criminal Law § 709. Such a reasonable probability was certainly established in the present case. It is obvious that the damage done to the pistol resulted from it being struck by shotgun pellets. There is not an iota of evidence that Braum damaged the pistol after picking it up. In order to support the appellant’s contention, it should be shown that Braum had both a motive and opportunity to tamper with the pistol. Neither was shown. There is no evidence concerning a motive and all the evidence concerning opportunity is in the State’s favor. Braum would have had two minutes in which to pry open the pistol, then load it, and then pry it shut again. The State’s expert testified that in his opinion this could not be done and in fact, it took the expert at least twenty minutes to open the pistol.

The appellant sets great store in accounts by his witnesses that they saw the deceased fire. The trial judge, in his discretion, could have chosen to disbelieve the appellant’s witnesses on this point. He also could have concluded that the witnesses saw a flash of light come from the deceased’s pistol which might have appeared to the witnesses to be the result of the pistol being fired. The trial judge could have decided such a state of facts was consistent with a flash which resulted from shotgun pellets striking the pistol, especially since the overwhelming evidence indicated the pistol had not been fired.

While the better practice would have been to have had Officer Braum testify, there was sufficient independent evidence to support the trial court’s ruling. We thus hold that the trial judge did not abuse his discretion in admitting evidence concerning the pistol. From the evidence, it appears that there was a reasonable probability that the pistol was not tampered with.

Ill

The State introduced the results of an atomic absorption test to show that the deceased had not fired a pistol on the morning in question. Concerning such a test, see Chatom v. State, 1 Div. 688 (Ms. August 31, 1976) Ala.App.

In the instant case, no error resulted from the admission of the results of the test for three reasons. First, the appellant’s counsel effectively elicited from the State’s expert that the results of the test did not prove that the deceased had not fired the pistol. Secondly, there was overwhelming independent evidence from which the jury could conclude that the deceased had not fired the pistol. Finally, the introduction of the results of the test was not objected to at trial nor on appeal.

AFFIRMED.

All the Judges concur.


text:
    Robert Wayne CANNON v. STATE.
    4 Div. 464.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Nov. 2, 1976.
    Charles T. Morris, Opp, for appellant.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Burglary 2d degree and Grand Larceny; sentence, ten years. See Wildman v. State, 42 Ala.App. 357, 165 So.2d 396.

The State’s proof was that certain tools used in a burglary resembled those bought by Cannon, and in one instance by a friend at his behest, from a hardware store at or near Opp. Also, after being accused, appellant fled. He testified this was to avoid a marijuana prosecution.

At trial appellant tendered the following charge:

“9. I charge you, members of the Jury, that the evidence against the Defendant is partly circumstantial and his innocence must be presumed by the Jury, until the case against him is proved in all its material circumstances beyond a reasonable doubt; to find him guilty as charged, the evidence must be strong and cogent, and unless it is so strong and cogent as to show his guilt to a moral certainty, the Jury must find him not guilty.”

Nothing in the oral charge covered circumstantial evidence.

The refusal thereof was error. Gilmore v. State, 99 Ala. 154, 13 So. 536, (Charge 6) and Fowler v. State, 155 Ala. 21, 45 So. 913 (Charge 18). Rule 45 does not apply because of the omission of any charge covering the principles of law as to circumstantial evidence.

The judgment below is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re Robert Wayne CANNON v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2184.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    William J. Baxley, Atty. Gen., Jane Le-Croy Robbins, Asst. Atty. Gen., for petitioner, the State.
    None for respondent.
   BLOODWORTH, Justice.

Petition of the State, by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cannon v. State, Ala.Cr.App., 339 So.2d 99.

WRIT DENIED.

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


author: PER CURIAM. DeCARLO, Judge

text:
    David Brian ROBERSON v. STATE.
    6 Div. 192.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.

      Mike McCormick, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.
   PER CURIAM.

On February 4, 1976, the defendant was convicted of robbery. He was sentenced to imprisonment in the State penitentiary for ten years. Motion for new trial was denied on April 9, 1976. Defendant appeals. McDonald’s, Central Park, Birmingham, Jefferson County, Alabama, was deprived of $94.00 or $96.00, on the night of February 4, 1975, in the following manner:

Dewey Wayne Salters and a juvenile entered on foot. One of them handed Miss Kennedy, the cashier, a note on which was printed perpendicularly, “Give me all your money or else”. Mr. Salters had a Miller’s beer bottle in his coat pocket with his hand on it. He pointed the beer bottle through the cloth at Miss Kennedy, who handed over the money; and the two ran out with it. A robbery was thus committed — People v. Gutkowsky, 100 Cal.App.2d 635, 224 P.2d 95. The evidence for the State furnished by Salters and the juvenile, tended to show that defendant David Brian Roberson instigated and was implicated in the crime.

Defendant knew a girl named Renee Owens. He claimed to have lived in the home of her mother, Susanne Owens, at a time when Mrs. Owens was an employee of McDonald’s. He was then, “running around” with her daughter.

Dewey Wayne Salters testified that, on the night of the crime, and just before it, when defendant and his wife and Salters and Teresa Uptain, and the juvenile were riding around together, defendant “asked if I wanted to rob someplace _ he talked me and (the juvenile) into it.” He further testified that they took Teresa home and defendant sent him into her house to get pen and paper to write a note so that they would not have to speak; that they started to rob a Buzz Oil Company Station, but there was a drinking establishment next door with so many people coming in and out that they could not get in; that defendant looked across the street to McDonald’s and said;

“Let’s rob McDonald’s because they ain’t allowed to carry no guns and shoot anybody when they go in to rob them.”

That Roberson drove them through McDonald’s and behind it onto a road there and parked with his wife, while Salters and the juvenile went in.

It was a jury question whether or not Teresa Uptain knowingly furnished pen and paper for a robbery. It was, therefore, a jury question whether she was or was not an accomplice.

The evidence relied on by The State from' witnesses other than the admitted accomplices and Miss Uptain to implicate the defendant included testimony that the robbers were white and that they were in a “light blue Chevrolet_kinda old”_that she (Lorraine Kennedy) could not tell the difference between light blue and a primer coat, or color that night; that defendant David Roberson was seen to get out of a 1957 Chevrolet shortly after the robbery and was arrested; that the known accomplices were in the car; that defendant Roberson was parked in front of the apartment building where Renee Owens lived, about three blocks from McDonald’s just after the time when the robbery was said to have been committed; that he was driving a ’57 Chevrolet, primer gray in color; that Renee Owens saw Roberson then and there, and he told her, “that they had just robbed McDonald’s”; that “David kinda laughed and said we have just robbed McDonald’s and they had stopped there to count the money”; that Renee Owens went in the house and called McDonald’s.

Renee Owens had lived in the Camellia Apartments from August of 1974 until December 12, 1974. On the occasion when she was moving to the Ensley Apartments, there was a beer party at which defendant Roberson and one Thomas Tracey were present. In response to questions by the State and over objections of the Defendant, Tracey, a witness for the State, testified that then and there defendant Roberson asked the witness Tracey, “If I wanted to go with him on a robbery on a McDonald’s, and I told him no.”

The statement was voluntary and not in response to any question. The State’s theory was that that testimony tended to show that the defendant was planning the robbery that he was convicted of. Defendant objected that it was voluntary, and The Court admonished the witness. Defendant later objected that the place was not shown. The Court overruled. The witness again stated the place and again volunteered the conversation. The Court then, ex mero motu, intervened to learn, if possible, the time of the conversation.

Defendant then moved for a mistrial on grounds: That the statement had been admitted over objection; That it was made some months and days prior to the alleged offense on February 4, 1975; That there was no connecting evidence prior to the admission of the statement; That it is hearsay; That the statement was so damaging of itself_; That it has no relevance; and its admission is prejudicial.

The motion was denied and defendant excepted. The Court then instructed the jury, in effect, that the statement was admitted and that the jury should determine whether or not the statement tended to connect the defendant to the robbery for which he was being tried.

All planning for the robbery of Buzz Oil Company and McDonald’s at Central Park, according to the State’s witnesses, took place in defendant’s car on February 4, 1975. The question said to have been asked of Mr. Tracey was asked in Renee Owen’s apartment on December 12, 1974, of someone other than the conspirators. It did not refer to any particular McDonald’s but only to “a McDonald’s.”

At that point in the trial defendant had not testified.

If such a generalized, prior statement could prove, or tend to prove anything, it could only be that defendant was planning a different robbery, or that, without specific plans, he was making fruitless overtures for a partner, or that he entertained thoughts of robbery or was willing to commit robbery; the jury would not be authorized to infer from such testimony that on December 12, 1974, defendant intended to commit the robbery of which he was convicted, although proof of statements tending to show such specific intent would be admissible. Morton v. State, Ala.Cr.App., 338 So.2d 423, 1976.

Since the statement is not susceptible of such construction, Brindley v. State, 193 Ala. 43, 69 So. 536; Johnson v. State, 87 Ala. 39, 6 So. 400, cannot justify its admission, or the instruction to the jury that it was admitted and that they, and not the judge, must determine its materiality or relevance.

Viewed in any light, the statement quoted by Mr. Tracey was hurtful to the defendant. Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396, involved evidence of the purchase of a license to buy dynamite 20 months before the crime charged (dynamiting fish). The court held the evidence too remote in point of time. The court therein quoted Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216:

“As a general rule, facts are deemed relevant which logically tend to prove or disprove the fact in issue, or which afford a reasonable inference, or shed light upon the matter contested; and facts bearing so remotely upon or collateral to the issue that they afford merely conjectural inference concerning the facts in issue should not be admitted in evidence.”

By way of dictum, the Court of Appeals stated in Lackner v. State, 15 Ala.App. 31, 72 So. 506, in discussing a conviction of vagrancy for keeping a disorderly house:

“ . . . [T]he Court permitted one of the State’s witnesses to testify . against the objection of the defendant, to the effect that she had admitted to him, about a year before the time when the defendant was charged with having committed the offense . . . that a per-
son named by her had been the cause of her downfall, and that respectable persons refused to associate with her. No criminating fact or circumstances had been proven against the defendant authorizing a conviction, and the declaration was too remote in point of time to make it admissible in evidence for any other purpose than possibly to show the bad character of the defendant, which was not properly before the Court . . . ”

In Roberson v. State, 23 Ala.App. 26, 119 So. 863, the statement admitted over objection was: “There goes the nigger.” The court said: “This was an hour before the fatal shooting, was not part of the res ges-tae, and was inadmissible.”

In Hadnot v. State, 3 Ala.App. 102, 57 So. 383, where dogs had been used to track the defendant, on cross-examination their trainer was asked, “ . . .if these dogs were ever known to quit the trail and hunt rabbits.” Objection was sustained. The court stated: “Evidence may be excluded when it is such as to furnish a basis for nothing more than mere conjectures or remote inferences in reference to the transaction under investigation.” Citing, Wells Amusement Co. v. Means, 2 Ala.App. 574, 56 So. 594. Cases indicating that remoteness of time, vel non is largely in the trial court’s discretion are reviewed and summarized in McDade v. State, 49 Ala.App. 533, 274 So.2d 89. It must be emphasized, however, that this court there quoted with approval from Smitherman, supra:

“Of course it can be said with certainty that the tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main event. Notwithstanding evidence may be logically relevant, its admissibility does not follow unless it has some probative value to the inquiry of instant concern.”

Holly v. State, 46 Ala.App. 676, 248 So.2d 284, sheds no new light on the legal issue, especially since no objection was made to testimony that defendant had twice, some ten months earlier, paid fines for assault and battery upon deceased.

Pace v. State, 284 Ala. 585, 226 So.2d 645, is authority for “the general rule that matters resting in the sound discretion of the Trial Court will not be disturbed on appeal unless there has been a clear abuse of discretion.”

None of the cases cited militates against the conclusion that the Trial Court is without discretion to admit a statement that is so remote as to time or circumstance that its relevance or materiality must rest in conjecture or speculation. On the authority of Smitherman, supra, and Sorrell, supra, we hold that the case must be reversed.

The judgment below is hereby

REVERSED AND REMANDED.

CATES, P. J., and TYSON and BOOK-OUT, JJ., concur.

HARRIS, J., concurs in result.

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

I do not believe the testimony criticized here was so remote in point of time as to be without logical relation to the offense committed.

Remoteness affects the weight and probative value of the evidence, not the admissibility. Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396; McDade v. State, 49 Ala.App. 533, 274 So.2d 89.


author: EMBRY, Justice.

text:
    In re David Brian ROBERSON v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2123.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State, petitioner.
    None for the respondent.
   EMBRY, Justice.

Petition of the State by its Atty. Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Roberson v. State, Ala.Cr.App., 339 So.2d 100.

WRIT DENIED.

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


author: PER CURIAM.

text:
    Paul MARS v. STATE.
    7 Div. 460.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.

      Terry T. Bush, Rainsville, for appellant.
    William J. Baxley, Atty. Gen., and Jackson P. Burwell, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted of transporting prohibited liquor in quantities of five gallons or more pursuant to Title 29, § 187, Code of Alabama 1940. He was sentenced to three years imprisonment.

DeKalb County Chief Deputy Sheriff George Minor was in Gadsden, Etowah County, observing a State liquor store. He spotted the appellant coming from the store and loading into his ear trunk two cardboard liquor cases bearing the label, “Sea-grams Seven.” He sent out over his police radio a code number which was assigned to the appellant. He stated that all suspected bootleggers in the county were assigned code numbers. He started trailing the appellant, but lost him for approximately five or ten minutes, and then proceeded to the interstate highway leading toward DeKalb County. Within a few minutes, appellant passed Deputy Minor, traveling in excess of 90 m. p. h. Being unable to catch the appellant, Minor then sent out a radio dispatch giving the make of car, tag number and the identity of the driver.

John Thomas Moses, Assistant Police Chief of Rainesville, after hearing the radio alert, stopped the appellant’s automobile in DeKalb County. Jerry Bethune, Chief Investigator for DeKalb County, arrived on the scene, “in less than a minute.” The appellant refused to open his car trunk, saying he did not have a key to the trunk. Bethune pried the . trunk open with a tire tool and found two cases of Seagrams Seven whiskey amounting to six gallons. The officers did not have a warrant.

I

Appellant challenges the warrantless search of his automobile.

It is our opinion that the above facts fall within the exception to the search warrant requirement; where exigent circumstances exist coincidental with probable cause. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). The facts in the instant case are very similar to the fact situation in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925).

The mobility of the automobile here, capable of exceeding 90 m. p. h., provides us with the exigent circumstances. Probable cause is supplied by the information received over police radio from Deputy Minor, an eyewitness to the loading of the liquor in the car. Crane v. State, 55 Ala.App. 619, 318 So.2d 315 (1975).

Certainly, the Deputy Sheriff witnessing the appellant coming from a liquor store, pushing a loader containing two cardboard boxes clearly labeled “Seagrams Seven,” and seeing the appellant load them in his car and drive away, were sufficient circumstances to lead an ordinary, prudent and reasonable man to believe that the appellant had in fact loaded liquor into his car. That, coupled with the fact that the appellant passed Deputy Minor on the interstate to DeKalb County at a high rate of speed and Deputy Minor followed him into De-Kalb County, supplies sufficient facts from which probable cause springs forth. In the light of these circumstances, to say that Deputy Minor did not have probable cause to believe the appellant was transporting two cases of liquor in DeKalb County, would be to deny the obvious.

II

Appellant contends that the trial court committed reversible error by overruling his motion for a continuance.

When the instant case was set for trial, a Birmingham attorney supposedly retained by the appellant was not present. However, appellant’s appointed counsel on appeal, who had originally been appointed to represent appellant and' who did so at arraignment, was present and made known to the court that the appellant was under the impression that he was to be represented by retained counsel from Birmingham.

In pertinent part, the following transpired:

“COURT: I now call the case of the State of Alabama versus Paul Mars. Mrs. Bush, you told me this morning that you had had trouble getting in touch with your client, Mr. Mars.
“MRS. BUSH: Mr. Winegar informed me that Mr. Winegar was representing Mr. Mars.
* * * 5{! Sfc
“COURT: Mr. Winegar, an attorney in Birmingham, told you that he represented this man?
“MRS. BUSH: Sent me a letter.
* * * * * *
“MRS. BUSH: I called him several times and left word for him to return my call and finally I talked with his secretary. “COURT: Did you leave word that the case was set for today?
“MRS. BUSH: Yes sir I told her that the case was set for the 23rd and that Mr. Winegar should file an appearance with the clerk and should check with the District Attorney’s office to see when the case would actually be heard, because I did not know which day the case would be tried, and she said that she would tell Mr. Winegar that. Now, I have been in and out of my office and he has not tried to contact me any more since then. Now, Mr. Mars came by the office and picked up a copy of the docket so Mr. Winegar also had a copy of the docket.
* * # * * *
“MRS. BUSH: Well, his secretary knew it was set for the 23rd and I told her to have him contact Mr. Black, if he had any conflicts or anything like that.
* * * * * *
“COURT: Has he contacted you Mr. Black?
“MR. BLACK: No, sir, my secretary called him this morning right before lunch and he said that he had not been paid and that he did not represent him.
“DEFENDANT: He was supposed to come here this afternoon.
“MRS. BUSH: He said when Mildred talked to him that he was coming but that he did not represent Mr. Mars, and that I had never contacted him, that he did not know anything about the case or anything, and that he was coming up here merely to get everything, straightened out.
“COURT: Well, Mr. Mars, we had an arraignment day and one of the main purposes of arraignment is to make sure that you had counsel. Now, you have not stayed in touch with this little lady so that she could summon witnesses and make preparations. That is what you told me?
“MRS. BUSH: Yes sir. We did not have a list of witnesses or anything.
“COURT: No list was furnished to you?
“MRS. BUSH: No sir. We advised him to furnish us with a list and I told him if I should be away in civil court to leave it with my secretary, but now, Mr. Mars was under the impression that he was being represented by Mr. Winegar.
“COURT: Well, I have not heard from him and the clerk tells me that he has not heard from him and the District Attorney tells me that his office called.
“MR. BLACK: Yes, sir, about ten till twelve right before lunch.
“COURT: Well, do you want to act as your own counsel in the case?
“DEFENDANT: No sir.
“COURT: Well, what do you expect me to do?
“DEFENDANT: Well, he is supposed to be here in a little while is all I know. “COURT: He was supposed to have been here at 9:00 o’clock. Mrs. Bush, would you do this, would you sit over there and see that his rights are protected and see that he gets two strikes to the State’s one and various and sundry other things that he is entitled to. I am not asking you to represent him, to defend him, but just to see that he is accorded all of the rights that he is guaranteed under the Constitution, under the statutes and under the case law. I intend to try and see that he gets them myself, but I would like for you to sit there.
“MRS. BUSH: Yes sir, I feel like he thought that Mr. Winegar was going to be here. I think as far as I am concerned he is guilty in not contacting me but we were both under the impression that Mr. Winegar was going to represent him.
* * * * sic *
“COURT: Are you ready to strike?
“MRS. BUSH: I need to talk to his witnesses before or after we strike, whichever.
“COURT: I tell you what we are going to do. We are going to strike this jury and put twelve in the box, and when they strike this jury and get the twelve selected I am going to excuse all of the other jurors until 9:00 o’clock in the morning. When we strike the jury, before we start taking any testimony, I am going to give Mrs. Bush an opportunity to see who the witnesses are and so forth so, if you are ready to go ahead and strike.
“COURT: . . We have some preliminary matters to take up so I will think I will just wait about this other so you will not have to be kept together and if you want to get a Coke you are free to do it. It will be about twenty-five minutes before we start.”

From the record it appears that Mrs. Bush, whether formally appointed or not, gave full representation to the appellant during the course of the trial. After the jury was sworn, she made a motion for a continuance on the grounds that other cases appeared on the docket ahead of the instant case and that the appellant’s retained counsel had informed the District Attorney’s office that he would appear in court that afternoon. The District Attorney in answer, stated that the retained counsel had stated on the telephone that he did not represent Mr. Mars, that he had not been employed and had not been paid by Mr. Mars. The District Attorney further stated that Mrs. Bush, then present, had appeared at arraignment for Mr. Mars. Mrs. Bush then replied that, “. . . Mr. Mars would show, that the counsel that represented him at arraignment has withdrawn from the case, and that he has been informed by Mr. Winegar that he would represent him in this matter, that he would appear in the DeKalb County Circuit Court on Monday, February 23.”

The court replied that the instant case was the thirteenth case on the printed docket sheet and that all of them had been disposed of on guilty, pleas except two. Of the two remaining, one defendant was in jail for contempt and the State was not ready to present the other case at that time. The court overruled the motion for a continuance, and the State put on its case in chief, after which the appellant testified in his own behalf.

The appellant stated that he purchased the liquor in question from a State store in Gadsden and that it was carried out and put in the trunk of his car without him touching it. He said he left the liquor store and went to eat supper which consumed some thirty or forty minutes. Appellant testified that he went through Collinsville, where he was stopped, without ever being on the interstate highway.

He said that after Officer Moses stopped him, he was requested to allow the officer to look in the trunk, but he requested a search warrant. He said that within two or three minutes Bob Huntington and then Gerald Bethune arrived at the scene. Appellant testified that after Bethune broke into his trunk, he was placed under arrest. On cross-examination, the appellant freely admitted that he purchased the whiskey at the State store in Gadsden and transported it into DeKalb County, and that it consisted of six gallons.

Counsel for appellant called Robert E. Huntington as a witness for the defense. He testified that he was Chief of Police of Fyffe, Alabama, on the night in question. He recalled hearing the radio dispatch to watch for a car coming up the mountain, but the dispatch did not say what kind of car to look for. He estimated that he arrived at the scene of the arrest about five minutes later and was told that the appellant had two cases of liquor in his car. He did not participate in the arrest and did not see the liquor. On cross-examination, he stated that he did not hear Deputy Minor giving information over the radio, that they were on different radio frequencies and that he only heard the call from the dispatcher.

The granting or denying of a motion for continuance on the ground that counsel had insufficient time to prepare for trial normally rests within the sound discretion of the trial judge, and his decision will not be reviewed except in cases of gross abuse of discretion. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968).

This Court reversed the denial of a petition for writ of error coram nobis in a case which was similar to the instant case, in Browning v. State, 57 Ala.App. 217, 326 So.2d 778 (1975), cert. denied Ala., 326 So.2d 783. In that case, Browning was under the misimpression that he had retained counsel from Atlanta, Georgia, to represent him in Alabama, but learned that before trial that such attorney would not be present. He then paid an initial fee of $200.00 to a Gadsden attorney to represent him, but due to some conflict, that attorney was unable to be present. The trial court then appointed a prominent Gadsden attorney to represent Browning on arraignment only. On the date of the trial, the retained counsel did not appear, at which time the court appointed the same attorney who represented Browning at arraignment to represent him at trial. The court gave the attorney only fifteen minutes to consult with his client before trial.

In Browning, this Court after having affirmed the original appeal reversed the trial court on appeal from denial of coram nobis, based on evidence not heard in the original trial, but presented in the post conviction proceedings.

Browning differs somewhat from the instant case in that Browning, “was faced with efforts to contact the alibi witnesses in Georgia, with whom he was not acquainted, and try to persuade them voluntarily to come to court; process for such appearance was unavailable under Alabama law.

In the instant case, there was no mention of an attempt to secure witnesses on the part of the defense. During the colloquy between the appointed counsel for appellant and the court, it appears that the appellant had been notified to leave a list of witnesses with the appointed counsel, which he failed to do.

In the instant case, appellant’s appointed attorney represented him only at arraignment and then withdrew from the case, only to be “requested” by the trial judge to sit with the appellant and see that his rights were observed during the trial. In Browning, the appellant’s appointed counsel represented him only at arraignment and likewise was under the impression that retained counsel had taken over the case after arraignment. There, on the date of the trial when the retained counsel did not appear, the trial judge actually appointed the attorney used at arraignment to represent the appellant. Thus, the facts of the instant case and the Browning case are only distinguishable concerning the difficulty of obtaining witnesses from Georgia, with which Browning’s attorney was faced, but which is absent from the instant case. Otherwise, the cases are almost identical.

The Browning opinion cites Kearley v. State, 52 Ala.App. 405, 293 So.2d 322 (1974) as authority. There, the appellant moved for a continuance because he was notified in the penitentiary in Atlanta on a Friday that he was to be tried the following Monday, and he was not able to confer with his attorney, who was appointed on the date of the trial, or obtain material witnesses.

In Kearley, this Court stated:

“We think that such a hurried trial after appointment of counsel (on the same day) converted the appointment of counsel into a sham, and was nothing more than a formal compliance with the constitutional requirement that the indigent defendant be given the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. This guarantee of assistance of counsel as mandated by Wainwright and the constitution cannot be satisfied by a mere formal appointment. The appointment of counsel on the same date of trial did not give them reasonable time to plan and prepare the defense of their client and to see if they could obtain the defendant’s witnesses in person or their evidence as provided by law. Powell v. Alabama, 287 U.S. 45(4)(5), 53 S.Ct. 55, 77 L.Ed. 158.”

Applying the concurring opinion of Cates, P. J., in the Browning case tilts the scales more in favor of the appellant’s position. Mrs. Bush, having been appointed for the arraignment and then having withdrawn from the case, was thereafter under no duty to the appellant Mars. As Judge Cates pointed out, under the Canons of Ethics, the attorney could run afoul of prohibitions against “officiously intermeddling in the defense of a case in which another lawyer was already ostensibly employed.”

Neither does this case fall within the purview of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In the instant case, when the attorney whom Mars claims to have retained failed to appear in court, the trial judge asked the appellant if he wanted to defend himself. The appellant’s reply was that he did not. Had the appellant’s reply been in the affirmative, the decision we reach may have been different. The refusal of counsel by the defendant in Baggett v. State, 41 Ala.App. 342, 133 So.2d 33, cert. denied 272 Ala. 699, 133 So.2d 37, cert. denied 369 U.S. 830, 82 S.Ct. 848, 7 L.Ed.2d 795 (1961), distinguishes it from the instant case.

In Rogers v. State, 36 Ala.App. 602, 61 So.2d 249 (1952), the trial court’s denial of a continuance was affirmed. There, counsel for Rogers moved for a continuance based on the fact that he was employed on the date of the trial and had not had adequate time to prepare for the defense. The trial court, in its order denying the motion noted that the defendant made bond after his arrest on September 15 and had ample opportunity to employ counsel before trial on November 5 of the same year. In the instant case, we note that Mars was indicted on January 15, 1976, and made bond on January 20, and the trial commenced more than a month later, on February 23.

In Rogers, the appellant had sufficient time while out on bond to employ counsel, but neglected to do so until the date of the trial. In the instant case, as well as in Browning, the appellant, after arraignment, had ostensibly retained counsel who, for whatever reasons, did not appear on the date of the trial. In both instances, counsel were given only a few minutes to converse with the defendant prior to trial, which amounted to a denial of effective assistance of counsel. See also a very strong opinion by Justice Harwood in Davis v. State, 292 Ala. 210, 291 So.2d 346 (1974).

We are not unmindful of the needs of the trial courts to expedite their dockets and proceed in an orderly manner, unabated by unnecessary continuances. However, we do note the absence of any great urgency in the instant case making it imperative to put this defendant to trial with the assistance of an unappointed attorney with only twenty-five minutes allowed for preparation of a defense. In this regard, we specifically note that the ease set on the docket ahead of the instant case was continued for the prosecutor in a simple matter-of-fact manner. In the trial judge’s own words, “In the other case, the State tells me there is some little matter they are not quite ready in it.” The District Attorney stated, “We are trying to find a search warrant in the clerk’s office and we cannot locate it and maybe they will find it after a while.”

Such were the circumstances that brought the instant case up on the docket next. While the trial court, no doubt, properly exercised its discretion in continuing the prior case because the prosecution was unprepared due to misplacing a warrant, we think the trial court abused its discretion in the instant case by forcing the appellant to trial under the circumstances hereinabove outlined. The appellant is therefore entitled to a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: JONES, Justice.

text:
    In re Paul MARS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2129.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    William J. Baxley, Atty. Gen. and Jack P. Burwell, Asst. Atty. Gen., for the State, petitioner.
    None for respondent.
   JONES, Justice.

Petition of the State by its Atty. Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Mars v. State, Ala.Cr.App., 339 So.2d 104.

WRIT DENIED.

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


author: CHARLES R. CROWDER, Circuit Judge.

text:
    Margaret Frances GRAHAM v. STATE.
    3 Div. 505.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 2, 1976.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   CHARLES R. CROWDER, Circuit Judge.

The appellant was indicted by the grand jury of Montgomery County in its July term, 1975. The indictment stated that Margaret Frances Graham, “ . . . unlawfully and with malice aforethought killed Linda Sankey by shooting her with a pistol, against the peace and dignity of the State of Alabama.”

Appellant filed a plea of not guilty and waiver of arraignment on July 12, 1975. She was tried by jury on August 14, 1975 and found guilty of murder in the first degree and sentenced to life imprisonment in the State penitentiary. On August 15, 1975, sentence was pronounced and appellant gave notice of appeal. Appellant filed a motion for a new trial on August 27,1975, which was denied on September 26, 1975. Appellant was allowed to proceed on appeal in forma pauperis, a free transcript was provided and counsel appointed to represent appellant on appeal.

This case is one which is often seen as the result of marital difficulties exasperated by that three-sided figure known as the “triangle.”

On May 31, 1975, one Linda Sankey was shot and killed by appellant, Margaret Frances Graham, with a pistol. The events leading up to this unfortunate occurrence were substantially as follows.

On Monday, May 26, 1975, the appellant and her husband, Willie Graham, had an argument over several telephone calls that he was receiving which caused suspicion to the appellant. The appellant, subsequent to these arguments, moved out of the apartment where she and Willie Graham were living as husband and wife and moved in with her mother, Alvis Taylor. The address located at 529-A Clayton Court is where the Grahams lived.

On Wednesday, May 28, 1975, following the departure of his wife from their domicile, Willie Graham went to a bar or “Shot House” on the Mobile Road in Montgomery, Alabama, and began drinking. While there he was approached by Linda Sankey, the deceased, and she asked him if he would take her home. Willie Graham eagerly accepted the offer and then proceeded to escort the victim out dancing and drinking over the period of the next two days, to various dance halls in Lowndes County, Alabama. On Friday, May 30, 1975, the day before the killing, Willie Graham and the deceased stayed out drinking and dancing until the early morning hours of Saturday, May 31, 1975. They apparently agreed to spend the night with each other and arrived at his apartment at 529-A Clayton Court approximately 4:00 A.M. on the 31st and spent the remainder of the night there. Approximately 9:00 Saturday morning, May 31,1975, Willie Graham got up and went to work, leaving Linda Sankey alone at the apartment.

That same morning the appellant, Margaret Frances Graham, made a call to her apartment at 529-A Clayton Court, obviously wishing to get in touch with her husband, and a woman, whom the appellant did not know, answered the telephone. The woman was Linda Sankey. Upon hanging up the telephone, the appellant and her mother proceeded to the apartment in a taxicab. During the cab ride the appellant asked her mother if she had her “thing,” obviously referring to a pistol. In response to that question her mother answered, “yes.” The appellant then requested that the pistol be given to her and her mother complied with this request.

Upon arriving at the apartment the appellant testified that she entered her apartment and encountered Linda Sankey. The appellant stated that she asked Linda who she was and Linda responded by asking appellant who she was. Thereupon, the appellant stated that Linda pulled a knife from her pocketbook at which point the appellant pulled out the gun from her purse, that had been supplied by her mother in the taxicab, and fired two shots in rapid succession. The appellant stated that she then requested her mother to call the “law.” However, Mrs. Taylor took the gun and placed it in a closet and then the appellant called the police.

The State placed into evidence through a neighbor, one J. D. Duncan, the testimony that he observed appellant and her mother approach the apartment building. He testified that the appellant went in the front door entrance and her mother went around to the rear of the apartment. The witness, Duncan, testified that subsequent to the appellant entering the apartment he immediately heard what he thought to be a gunshot and then, about ten seconds later, he heard another gunshot.

The defense put on substantially the same evidence as to that point, but the mother testified that the reason she went around to the rear was to buy a heater from a man who lived behind the apartment building. However, in her statement to the police, which was admitted into evidence, the appellant stated that her mother told her that she was going around to the back because she was afraid that Linda Sankey would “run from us.” Also, the appellant and her mother testified that the shots were fired in rapid succession.

There was also evidence that the knife found on Linda Sankey’s body was “like” one that the appellant owned and used as a steak knife.

I

The appellant contends that the State failed to make out a prima facie case of murder in the first degree and that directed verdict of acquittal should have been given because the State failed to disprove that the killing was done in self-defense.

Murder in the first degree is the willful, malicious, premeditated and deliberate killing of one human being by another. In this ease there is undisputed evidence that the appellant left her mother’s apartment and went by way of a taxi to the apartment which she had moved out of, with a pistol that she had borrowed from her mother, knowing that there would be a confrontation between her and a strange woman. It is undisputed that appellant shot the deceased twice, killing her. Here, the appellant’s use of a deadly weapon and all the surrounding circumstances were sufficient evidence from which the jury could have inferred the presence of all the elements required in murder in the first degree. All the evidence and its conflicts presented a question for the jury to determine and the evidence was sufficient, if believed by the jury, under the required rule to support the verdict in this case. Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Rogers v. State, 49 Ala.App. 78, 268 So.2d 859; Williams v. State, 51 Ala.App. 694, 288 So.2d 753.

Must the State disprove the defense of self-defense in order to convict a defendant of murder? While the burden of proving the defense of self-defense never shifts to the defendant, self-defense, like alibi testimony and all other conflicting evidence in a criminal prosecution is an issue to be determined by the jury. Our cases state the rule to be that if all the evidence raises in the minds of the jury a reasonable doubt as to whether the defendant acted in self-defense, the defendant should be acquitted. Lester v. State, 270 Ala. 631, 121 So.2d 110; Pounders v. State, 282 Ala. 551, 213 So.2d 394.

While it has been stated that the plea of self-defense is not an affirmative plea of confession and avoidance on which the defendant carried the burden, Vaughn v. State, 293 Ala. 365, 304 So.2d 6, it is unquestionably the law that once the State adduces sufficient evidence to make out a prima case of homicide, in order for the defendant to be entitled to an acquittal on a plea of self-defense he must offer evidence which, when considered with all the other evidence, will produce in the minds of the jury, a reasonable doubt as to his guilt. Key v. State, 47 Ala.App. 692, 260 So.2d 422; Vaughn, supra.

In the instant case the jury obviously did not entertain a reasonable doubt that the killing was done in self-defense. There was ample testimony to which the jury could infer that the appellant went to the apartment to kill with intent to kill whomever she found.

The charge to the jury adequately covered all the points of law, at the conclusion of which the appellant’s attorney stated that he was satisfied with said charge. Accordingly, this point is without merit.

II

The appellant filed a motion for a new trial in which it was contended that a State’s witness improperly spoke with one or more of the jurors during a recess of the trial. At the hearing, Alvis Taylor, the mother of the appellant, testified that she observed State’s witness, J. D. Duncan, talking with jurors in the hall during a recess. Appellant cites: Mosley v. State, 54 Ala.App. 59, 304 So.2d 613, to support reversal on this point.

While it is generally true that the jury must be kept apart from others during a trial and no communications should be allowed to be made to them from the beginning of the trial to the end, where the trial judge makes a full and fair determination of the circumstances surrounding the issues of a juror talking to a witness, and he determines that there is no merit to the controversy and the complaint is totally groundless as to prejudice, his overruling of defendant’s motion for a new trial will not be disturbed on appeal.

In the instant case a hearing was held on this point and several witnesses testified, including the juror involved. The trial judge overruled appellant’s motion based upon each and all of the testimony given at said hearing. From the transcript of the hearing there is no evidence that the trial judge abused his discretion in this matter in his finding that any contention of prejudice arising out of this incident was totally without merit.

The foregoing opinion was prepared by Honorable CHARLES R. CROWDER, Circuit Judge, temporarily on duty on the Court of Criminal Appeals pursuant to subsection (4) of § 38, T. 13, Code of Alabama 1940, recompiled 1958; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


author: ALMON, Justice.

text:
    In re Margaret Frances GRAHAM v. STATE. Ex parte Margaret Frances Graham.
    SC 2151.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Elno A. Smith, Jr., Montgomery, for petitioner.
    None for the State.
   ALMON, Justice.

Petition of Margaret Frances Graham for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Graham v. State, Ala.Cr.App., 339 So.2d 110.

WRIT DENIED.

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


author: JOHN B. TALLY, Circuit Judge.

text:
    Peter Dennis REILING, a/k/a Dennis Riley, Dennis Reiling v. STATE.
    4 Div. 444.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.
    Jerry E. Stokes, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   JOHN B. TALLY, Circuit Judge.

The issue here is whether, in a criminal case, a carbon copy of a waiver of rights and a photocopy of a confession may be received in evidence, the originals being lost.

Peter Dennis Reiling and two companions were indicted in Covington County Circuit Court for burglary and grand larceny resulting from an April 9, 1974, nighttime breakin at the Andalusia Pharmacy in Andalusia, Alabama.

Leon Riley Cason, one of the three, was arrested near the pharmacy. The other two, James D. Cason and the appellant, escaped to Crestview, Florida, but returned to Andalusia on April 10th where the three were interrogated by police.

The defendant signed an original and carbon copies of a statement of his so-called “Miranda rights” and afterwards he and Leon Riley Cason signed a confession, in affirmation of its truth, that had been first written and signed by James D. Cason. Chief Farrell Newby of the Andalusia Police Department testified that the original statement of rights and the original confession had been lost, that a search for the documents had been made of the offices and files of the Andalusia Police Department, other police officers had been questioned about the two missing documents, and neither could be located. This officer testified that the carbon copy of the statement of rights was signed by the defendant and it appears that the corner of the carbon paper was turned back so that the defendant’s surname did not print on the copy offered in evidence. In addition, the officer testified that he orally explained to the defendant his rights under the constitution before he was questioned about his complicity in the breakin. He also testified that the appellant’s confession was voluntary, that no rewards were promised or any threats made.

Secondary evidence of the contents of a written instrument may be received after the establishment of proof of the instrument’s loss or destruction, Thomas v. State, 37 Ala.App. 118, 66 So.2d 103, certiorari denied, 259 Ala. 212, 66 So.2d 105 (1953); Crawford v. State, 44 Ala.App. 393, 210 So.2d 685, certiorari denied, 282 Ala. 725, 210 So.2d 688, certiorari denied, 393 U.S. 1099, 89 S.Ct. 895, 21 L.Ed.2d 791; and the question whether the loss of the original has been satisfactorily established is to be resolved by the trial court in the exercise of sound discretion, McCormick on Evidence, 2d Ed., section 237 (1972).

In Gordon v. State, 252 Ala. 492, 41 So.2d 610, it was held that, except for failure to account for the absence of the original a copy of a confession would have been admissible.

Under the evidence in this case, we think the trial court properly admitted the carbon copy of the defendant’s statement.of his understanding of, and waiver of, his Miranda rights and it also properly admitted the photocopy of defendant’s signed confession, the loss of these documents being established to the satisfaction of the trial court. [Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974)].

No other contention is argued in appellant’s brief and careful examination of the entire record does not reveal error, hence the judgment of the trial court is affirmed.

The foregoing opinion was prepared by Honorable John B. Tally, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur except CATES, P. J., not sitting.