author: BRADLEY, Judge.

text:
    UNIONMUTUAL STOCK LIFE INSURANCE COMPANY OF AMERICA v. Eugene L. WILKERSON, Jr.
    Civ. 1537.
    Court of Civil Appeals of Alabama.
    Dec. 20, 1978.
    Rehearing Denied Jan. 24, 1979.

      Coleman Yarbrough, Montgomery, for appellant.
    James W. Cameron of Cameron & Cameron, Montgomery, for appellee.
   BRADLEY, Judge.

Defendant, Unionmutual Stock Life Insurance Company of America, appeals from an adverse jury verdict and judgment rendered by the Circuit Court of Montgomery County. We affirm.

Plaintiff-insured, Eugene L. Wilkerson, Jr., filed an action against insurer claiming benefits due under a group long-term disability policy made available through plaintiff’s employer, Mendel Distributing Company. Plaintiff died during the pendency of the suit, and his wife, Vickie S. Wilkerson, as executrix of his estate, filed a motion to revive the action. This motion was never ruled on, but defendant declined to raise this issue at trial or on appeal.

Defendant’s motion for summary judgment in this cause was denied. Defendant’s motions for directed verdict at the close of plaintiff’s evidence, and all evidence, were also denied. The jury returned a verdict for plaintiff in the amount of $2,300.85 upon which judgment was entered. Defendant did not file a motion for new trial.

Defendant’s principal contentions on appeal are (1) that the trial court erred in not granting defendant’s motion for directed verdict because there was no evidence to support a verdict for plaintiff, and (2) that the judgment and verdict are contrary to the great weight and preponderance of the evidence. However, our case law makes it clear that our review in this case is limited to the former contention, and that defendant is precluded from raising on appeal the issue of the weight of the evidence.

It is settled in Alabama that in the absence of a motion for new trial the question of the weight or sufficiency of the evidence is not before this court for review where there has been a jury trial in the court below. State Farm Mut. Auto. Ins. Co. v. Key, 46 Ala.App. 303, 241 So.2d 332 (1970), and cases cited therein. The question to be considered is whether the evidence, or a reasonable inference therefrom, was sufficient to warrant the submission of the facts to the jury under the pleadings. Street v. Street, 246 Ala. 683, 22 So.2d 35 (1945).

In reviewing the refusal of affirmative instruction to defendant, the court must review the evidence in a light most favorable to plaintiff and affirm the trial court’s action if there is a scintilla to support the complaint. Ramos v. Fell, 272 Ala. 53, 128 So.2d 481 (1961). See also Mixon v. Whitman, 279 Ala. 249, 184 So.2d 332 (1966). We review this case with the foregoing principles in mind.

The insured, Eugene Wilkerson, was employed by Mendel Distributing Company. He had disability insurance through his employer’s group long-term disability insurer, Pilot Life Insurance Company. On October 21,1976 Mendel Distributing Company sent out letters to its employees advising them of an anticipated change in coverage from Pilot Life to defendant Unionmutual. The letter stated in pertinent part:

The only potential problem is that under the new program an employee would not be covered during the first year if he has received treatment for a medical condition during the three months prior to the effective date of the policy, which we presume would be November 1, 1976. [I]f you are being treated for a condition which could cause total disability, you can write me a confidential memo about this. [Emphasis theirs.]

Wilkerson made application for coverage with defendant on November 15, 1976. Question Three in the application asked, “Are you now in good health and free from physical impairment, sickness or disease to the best of your knowledge and belief?” Plaintiff checked the “Yes” block in answer to this question. Question Four asked the applicant to list “the injuries, sicknesses, diseases, disorders and operations which you have had within the last 5 years, dates and names of physicians consulted.” Wilkerson checked the “None” box in answer to this question. These questions are followed by the statement, “I agree that the statements contained herein are true and complete and shall form the basis for and constitute a part of the policy under which any certificate of insurance shall be issued.” Wilkerson’s signature appears at the bottom of the application.

About a month later, on December 16, 1976, Wilkerson saw a physician, Dr. Mra-cek, who referred him to a surgeon. Wilkerson’s surgeon, Dr. Dorrough, examined him on December 20th and scheduled him for a biopsy to determine the nature of two knots which had appeared on Wilkerson’s neck in March of 1975. The biopsy revealed that he had a form of thyroid cancer, for which he underwent surgery on January 6, 1977.

In March 1977 Wilkerson applied for disability benefits under the Unionmutual policy. In July 1977 defendant’s letter informed Wilkerson that his claim was being disallowed and his coverage voided. Relevant portions of that letter read as follows:

Dear Mr. Wilkerson:

As you are probably aware, we recently completed our files with additional medical information which now clearly indicates you did not give us full and complete medical history at the time you completed the medical questionnaire on November 15, 1976.
I am enclosing a photostat of the medical questionnaire and as you will note, you did not include any medical history and, in fact, replied in the negative that you were never seen for any injuries, sicknesses, diseases or disorders in the last five years.
Our recent investigation reveals the fact that you saw Dr. Richard E. Brown on reference from Dr. Harvey Farrior on April 10, 1973. At that time, you were diagnosed as having early posterior sub-capsular cataracts, and you were advised of this condition. Dr. Brown followed you up six months later on October 8, 1973 to determine whether or not there were any changes in your eyesight and you were advised to return when your vision became worse.
In addition, you were seen by Dr. Walter H. Pugh on two occasions in 1975 for various complaints and these visits were not included on your application.
It is important for you to understand that our Underwriters must be provided with complete medical history in order to properly assess a risk at the time of application. In this case, they were not given the opportunity to review your medical history since you omitted this information, and had they known of your cataract disorder, they would not have issued this coverage to you in any form.
Under the circumstances, we have no choice but to refund the premiums paid for your coverage from the date of issue. This action places all parties concerned in the position as though the policy had never been applied for or issued and the Certificate to you is void. [Emphasis supplied.]

Wilkerson filed an action to recover the benefits denied him, but in November 1977, while the suit was pending, he died of thyroid cancer at the approximate age of thirty-nine years. His executrix prosecuted this action.

Defendant’s answer to the complaint in this cause raised several affirmative defenses which, in essence, asserted that coverage under the disability insurance policy had been extended to Wilkerson on the basis of misrepresentations made in his insurance application. Specifically, defendant contended that contrary to the answers given by Wilkerson, he was not in good health nor free from physical impairment, sickness or disease to the best of his knowledge and belief, and that he had been treated by several physicians within the preceding five years; therefore defendant was entitled to rescind and void the policy.

Defendant argues that this case is controlled by Code of Alabama 1975, § 27-14-7, which reads in pertinent part:

(a) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by, or in behalf of, the insured or annuitant shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(1) Fraudulent;
(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract at the premium rate as applied for, or would not have issued a policy or contract in as large an amount or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

Defendant does not contend on appeal that the misrepresentations in the application for insurance were fraudulently made. It does contend, however, that Wilkerson’s misrepresentations in the application were material and increased the risk accepted by the insurer, and that, had it known Wilkerson’s true medical condition on the date of his application, it never would have issued a policy to him.

Unionmutual cites New York Life Insurance Co. v. Horton, 235 Ala. 626, 180 So. 277 (1938) for the proposition that the misrepresentation by the insured that he had not consulted a physician had the effect to increase the risk of loss. For reasons we shall discuss later in this opinion, we are not persuaded that this statement from Horton is controlling in this case. Rather, we think the general rule of law applicable to the case at bar is to be drawn by analogy to earlier cases decided by the Alabama Supreme Court involving life insurance policies. In those cases the court said that representations in applications for life insurance touching consultation with or treatment by a physician stand on the same footing as representations of good health. It must appear they relate to some serious ailment material to the question of life expectancy. Sovereign Camp, W.O.W. v. Moore, 237 Ala. 156, 186 So. 123 (1939); see also New York Life Insurance Co. v. Zivitz, 243 Ala. 379, 10 So.2d 276 (1942). Similarly, we think that in order for Unionmutual to avoid liability on the insurance policy, it must appear that the misrepresentations relate to some serious ailment material to the question of the potential disability of the insured.

Much of the evidence supporting the affirmative defenses raised by Unionmutual was supplied by Wilkerson’s deposition, portions of which were read into evidence. Wilkerson stated that at the time he filled out the application he knew he had cataracts, he knew he had severe periodic pain in his left arm, and he knew he had two knots in or about his neck. Although Wilkerson did not know it at the time of application, these knots later proved to be symptoms of a form of thyroid cancer.

Wilkerson’s statements tended to show that within the five years preceding the application he had been examined by doctors on numerous occasions; at least four times by one doctor, twice by another, and once by each of three other doctors. The last of these examinations occurred approximately five months prior to the time he applied for coverage with defendant.

Plaintiff testified that sometime during 1973 he had awakened with a tiny round red spot on his left eye. He consulted Dr. Farrior, who suspected the problem might be initial symptoms of cataracts and who suggested that a second opinion be obtained from Dr. Brown, an ophthalmologist. After an initial eye examination and a followup examination six months later, Dr. Brown indicated to plaintiff that the cataracts were the type that would not give him trouble for twenty to thirty years, and that plaintiff need not return for further treatment unless he starting having trouble. Dr. Brown testified in deposition that the odds were 99-to-l that plaintiff’s cataracts were “hereditary cataracts” (also referred to as “congenital cataracts”) which could have been present since birth without interfering with plaintiff’s 20/20 vision.

Plaintiff further testified that during a routine physical examination in 1975 he pointed out the two knots on his neck to Dr. Pugh. Dr. Pugh administered a blood test to determine if the knots might be a symptom of Hodgkin’s disease, but the test proved negative. Plaintiff again visited Dr. Pugh in December 1975 for treatment of the pain in his left arm and received muscle relaxants for this condition. The pain continued, however, and plaintiff consulted Dr. Mracek, a heart specialist, for the same problem in June 1976. Dr. Mracek administered an electrocardiogram which revealed no heart trouble. When plaintiff again pointed out the knots on his neck, this time to Dr. Mracek, an x-ray of plaintiff’s upper chest and neck was taken. Dr. Mracek indicated to plaintiff that the knots might be a “cervical rib” (bone spur), but did not recommend any further treatment for the knots.

Defendant’s second vice-president and regional underwriting manager, Dean N. Va-lentgas, testified that as a rule Unionmutual will not provide group disability coverage of the type here involved for any employee who has cataracts; that Unionmutual issued the policy to plaintiff in reliance on the statements made in the application; and that Unionmutual would not have undertaken to insure Wilkerson if it had known he had cataracts, nor would Union-mutual have insured him if it had known he had lumps on his neck and was having intermittent pain in his arm.

Evidence adduced on behalf of plaintiff tended to show that at the time of application, Wilkerson was “in good health as far as he knew.” He answered questions three and four in the application in the above-indicated manner because none of the doctors he had consulted up to the time of application had indicated that anything was wrong with him.

Wilkerson testified that if he had suspected he had any serious medical problems at the time he applied for coverage with defendant, he would “definitely have written [his] boss back and told him don’t change any of your insurance because I have got something seriously wrong with me.”

Wilkerson further testified that the first doctor to indicate that the knots on his neck presented a serious medical problem was his surgeon, Dr. Dorrough, who examined him approximately one month after he applied for insurance with defendant. The two or three doctors who had previously examined the knots on his neck had told him “not to worry” about them, or that the knots might be “cervical ribs” (bone spurs). None of these doctors had indicated the knots were a serious medical problem, nor had they recommended further treatment. Likewise, Wilkerson had no cause for apprehension about the pain in his arm. He had received muscle relaxants for this condition, but no doctor had recommended further treatment.

Plaintiff’s widow and executrix of his estate testified that Wilkerson had missed very little time from work because of illness in the five years preceding his death.

In construing the statutory predecessor to Code of Alabama 1975, § 27 — 14—7 (formerly Title 28, § 6, Code of Alabama, 1940), the Alabama Supreme Court said in Bankers Life & Casualty Co. v. Long, Ala., 345 So.2d 1321 (1977):

The rule in Alabama is that to defeat an insurance policy on the ground of misrepresentations in the application it must appear: (1) the misrepresentations were false, (2) . the matter misrepresented increased the risk of loss and (3) the insurer relied on them to its prejudice. [Citation omitted.]

We think the statute as currently worded embodies these same principles.

The case cited by defendant, New York Life Insurance Co. v. Horton, 235 Ala. 626, 180 So. 277 (1938), involved misrepresentations in an application for reinstatement of a life insurance policy. That application contained questions similar to the Questions Three and Four involved in this case. However, the misrepresentations in Horton were made at a time one month after two physicians had determined that Horton was afflicted with a fatal malady, Hodgkin’s disease, and after Horton had been advised by his physician that he needed further medical treatment. The court’s statement — that Horton’s misrepresentation that he had not consulted a physician had the effect to increase the risk of loss — was made after the court had concluded as a matter of law that Horton was afflicted with a disease which materially increased the risk of loss when he filed his application for reinstatement of the policy.

In the present case, however, it appears from defendant’s letter to Wilkerson that the insurer’s denial of coverage was based on insured’s failure to state in his application that he had been treated by two doctors for cataracts and had been seen by Dr. Pugh on two occasions in 1975. Hence, the questions presented in this case are (1) whether the misrepresentations concerning insured’s state of health at the time of application for coverage and his history of medical treatment up to that time were material to the risk of loss assumed by Unionmutual in insuring Wilkerson against disability, New York Life Insurance Co. v. Hoffman, 238 Ala. 648, 193 So. 104 (1939); New York Life Insurance Co. v. Zivitz, supra; and (2) whether Unionmutual relied upon the misrepresentations to its prejudice (or, stated differently as in § 27-14-7, whether the insurer would in good faith have not issued the policy). Bankers Life & Casualty Co. v. Long, supra.

The opinion of the Alabama Supreme Court in Sovereign Camp, W.O.W. v. Moore, supra, (a case involving misrepresentations in an application for life insurance) states that the risk of loss is increased if the matter misrepresented be so material to the question of life expectancy that an insurer may have reasonably declined to accept the risk if the truth had been revealed. That opinion further states:

As held in several cases some diseases are so serious as affecting the applicant as an insurance risk that, as matter of law, they are held to increase the risk of loss. Other ailments are so passing and temporary that they could not be material, and, as matter of law, not the basis of a defense of misrepresentation .
The disease disclosed by the foregoing evidence [hysteria-neurosis, an imbalance of the nervous system] cannot, as matter of law, be assigned to either of these classes.
Whether this disease increased the risk of loss was a jury question.

We think these same general principles are controlling within the context of this case involving a suit on a disability policy.

The record in this case indicates that, had Wilkerson responded truthfully and fully to Question Four of the application, Unionmu-tual would have been apprised of the following facts concerning Wilkerson’s medical history: that he had visited Dr. Pugh several times for routine physical examinations; that the cataracts diagnosed by Dr. Farrior and Dr. Brown were almost certainly the kind that would not require any treatment unless they started troubling him and such trouble was not expected until twenty or thirty years later; that after consulting Dr. Pugh and Dr. Mracek for treatment of the pain in his arm he had been prescribed muscle relaxants but had not been advised to seek further treatment; and that the two knots on his neck had been determined not to be symptoms of Hodgkin’s disease by one doctor, had been x-rayed and diagnosed as a possible “cervical rib” (bone spur) by another doctor, with neither doctor recommending further treatment.

Unlike the court in the Horton case, supra, we are not prepared to hold that, as a matter of law, the misrepresentations in this case materially increased the risk of loss assumed by Unionmutual. The record reveals a conflict in the testimony as to the materiality of the insured’s misrepresentations concerning his cataracts, the pain in his arm, and the knots in his neck. The testimony of Mr. Valentgas was to the effect that Unionmutual would have automatically excluded Wilkerson from coverage if it had known of the presence of any one or all of these ailments. On the other hand, Dr. Brown testified that he did not think Wilkerson’s cataracts were “of any significance” and that if he had, he would have advised further treatment. Wilkerson testified that at the time he applied for coverage no doctor had diagnosed either the knots or the arm pain as indicating any serious medical problem, nor had any doctor advised him to seek further treatment for these conditions. We think the jury was properly allowed to resolve this conflict in testimony.

Moreover, we think the trial court correctly submitted to the jury the issue of whether Unionmutual in good faith would not have extended coverage to the insured if it had been aware of the facts regarding the insured’s health at the time he applied for coverage.

In view of the presence of these jury questions we cannot say that the trial court erred in denying Unionmutual’s motion for directed verdict. New York Life Insurance Co. v. Hoffman, 238 Ala. 648, 193 So. 104 (1939); National Security Insurance Co. of Elba v. Tellis, 39 Ala.App. 455, 104 So.2d 483, cert. den. 267 Ala. 696, 104 So.2d 488 (1958). As discussed earlier in this opinion, Unionmutual’s failure to move for a new trial precludes any review of the question of the weight or sufficiency of the evidence. See New York Life Insurance Co. v. Zivitz, supra, and General Accident, Fire & Life Assurance Corp. v. Jordan, 230 Ala. 407, 161 So. 240 (1935), (cases involving misrepresentations in applications for insurance). In each of these cases the court concludes that although there was sufficient evidence to submit the case to the jury, the verdict for the insured was subject to review on the question of the weight of evidence upon insurer’s motion for new trial.

This judgment is affirmed.

AFFIRMED.

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

On Rehearing

In its original brief and in the brief filed in support of its application for rehearing Unionmutual relies, inter alia, on Liberty National Life Insurance Co. v. Trammell, 35 Ala.App. 300, 51 So.2d 167 (1949), cert. den. 255 Ala. 236, 51 So.2d 176 (1951) wherein the opinion states:

“Cancer is a disease which the courts judicially know increases the risk of loss and if existing at the time of the issuance of a policy containing a warranty as to sound health per se breaches such warranty.” [Emphasis supplied.]

The policy involved in the Trammell case contained a clause setting the effective date of the policy as the date of issue provided the insured is then alive and in sound health. The Trammell opinion notes that such a clause, under the then-governing statute, is a warranty. Under the present statute, Code of Alabama 1975, § 27-14-7 (and as provided for in Wilkerson’s policy with Unionmutual), such a clause is a representation and not a warranty. More importantly, no such “good health delivery clause” appears in the policy involved in the case at bar.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

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


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Re UNIONMUTUAL STOCK LIFE INSURANCE COMPANY OF AMERICA v. Eugene L. WILKERSON, Jr. Ex parte UNIONMUTUAL STOCK LIFE INSURANCE COMPANY OF AMERICA.
    78-272.
    Supreme Court of Alabama.
    Feb. 23, 1979.
    Coleman Yarbrough, Montgomery, for petitioner.
    No briefs for respondent.
   EMBRY, Justice.

We deny this writ because we agree with what the Court of Civil Appeals stated in its opinion, 367 So.2d 964: “ * * * we cannot say that the trial court erred in denying Unionmutual’s motion for directed verdict. * * * ”

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Hannah Lee BURNS v. CITY OF BIRMINGHAM.
    Civ. 1561.
    Court of Civil Appeals of Alabama.
    Feb. 21, 1979.
    Rose M. Sanders of Chestnut, Sanders & Sanders, Selma, for appellant.
    Thomas P. Anderson, Birmingham, for appellee.
   HOLMES, Judge.

This is an appeal by the plaintiff from the trial court’s action denying plaintiff’s motion for a new trial because of inadequacy of the damages assessed. We affirm.

The plaintiff sued the defendant for its negligence in repairing a hole in the street. A jury returned a verdict for $3,000 in favor of the plaintiff and against the defendant. The plaintiff filed a motion for new trial. This motion was bottomed on the premise that the damages were inadequate. The trial court denied the plaintiff’s motion, hence this appeal.

We do not deem it necessary to set out the evidence in the instant appeal. Suffice it to say this court has carefully perused the entire record. Our perusal of the record reveals that there is very little evidence regarding the monetary amount of damages suffered by the plaintiff. Furthermore, we find no specific evidence that all the alleged damages incurred were incurred as a proximate result of the accident. We do find some evidence relating to lost wages; however, the amount thereof is not a paragon of clarity.

In any event, this court in Watts v. Pettway, 49 Ala.App. 324, 272 So.2d 251 (1973) (quoting from King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495 (1970)), attempts to state a detailed analysis of the “inadequate award” question. We refer interested parties to Watts. However, the following found in Watts is dispositive of the instant appeal:

“The basic law as applied to excessive or inadequate damages was set out by Bouldin, J., in Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447, as follows:
“ ‘In Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998, L.R.A.1915F, 491 Ann.Cas.1916B, 449, a case of personal injury, involving damages not measurable by any legal standard, and the question for review was inadequacy of the damages awarded, this court, after quoting and approving the opinion in Moseley v. Jamison, 68 Miss. 336, 8 So. 744, 745, declared: “In a case like this a trial court is by the law — which protects and provides for trials by jury — invested with no right to set aside such a verdict upon the ground of excessiveness or inadequacy alone unless the amount allowed by the verdict is so excessive or inadequate as to plainly indicate that the verdict was produced ‘by passion or prejudice or improper motive.’ ” ’ ” 49 Ala.App. at 327, 328, 272 So.2d at 253, 254.

In this instance, from our review of the record and briefs, we cannot say the verdict was produced “ ‘by passion or prejudice or improper motive.’ ”

The case is due to be affirmed.

AFFIRMED.

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


text:
    Benjamin M. HIGGINBOTHAM v. Betty W. HIGGINBOTHAM.
    Civ. 1694.
    Court of Civil Appeals of Alabama.
    Feb. 21, 1979.

      James G. Harrison and John H. Cooper, Huntsville, for appellant.
    Lynwood Smith, of Hornsby, Blankenship, Smith & Robinson, Huntsville, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The husband attempted to modify a prior decree of divorce. The trial court refused to modify and the husband appeals. We affirm.

The dispositive issue on appeal is whether the trial court erred in refusing to modify the decree of divorce. We find the trial court did not err to reversal.

The wife initiated contempt proceedings against the husband. The husband answered and filed a petition to modify certain provisions of a prior decree of divorce. Specifically, the husband attempted to change the following paragraphs of the parties’ agreement which was incorporated into the decree of divorce:

2. The Second Party shall pay to the First Party alimony at the rate of $400.00 per month for a period of two years following this decree, commencing on the first day of May, 1978, and continuing from month to month thereafter for 24 months.
6. The Second Party agrees that he shall make the First Party be irrevocable beneficiary of one-half of the life insurance in effect on his life and shall continue to pay the premiums thereon as the same become due and payable.

In essence, the husband, through able counsel who has favored this court with an excellent brief, argues that the above provisions are not alimony in gross or a property settlement and are therefore modifiable. The wife contends that the provisions provide for an award of alimony in gross and/or property settlement. We agree with the wife.

To this court, paragraph 6, as stated hereinabove, could be construed as part of the parties’ property settlement agreement. Put another way, the trial court did not commit reversible error in reaching a conclusion that paragraph 6 is a property settlement between the parties and therefore not modifiable. This is particularly true in this instance since the provision arises from an agreement. See 24 Am.Jur.2d Divorce and Separation § 932; and 59 A.L.R.3d 9.

As Judge Bradley stated in McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316, 319 (1977):

In contrast to an award of child support and periodic alimony, a provision for a property settlement in a decree of final divorce is not a continuous provision. After a lapse of thirty days from the date of rendition of the decree, a court of equity cannot modify a property settlement provision except to correct clerical errors. Kelley v. Kelley, 53 Ala.App. 608, 303 So.2d 108 (1974); Rule 59 ARCP. See also Cochran v. Cochran, 289 Ala. 615, 269 So.2d 897 (1972). . . .

We therefore find the trial court did not err in refusing to modify paragraph 6.

As to paragraph 2, it could be said that the trial court, in this instance, under the facts as presented to it, found this paragraph also concerns a property settlement. See DuValle v. DuValle, Ala.Civ.App., 348 So.2d 1067 (1977); 61 A.L.R.3d 520, for a discussion of the “integrated bargain” concept. However, clearly the trial court would not be in error in concluding that paragraph 2 is an award of alimony in gross. Again, in McEntire, supra, we find the following:

If not a portion of the property settlement, then the requirement of which the husband complains is alimony in gross. Under Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974), an award is alimony in gross when the amount of payment is fixed, the time of payment is certain, the award is clearly denominated as “alimony in gross,” and the trial court reserves no right in itself to later modify the provisions. . . . 345 So.2d at 319, 320.

The award in paragraph 2 meets all the requirements as stated in McEntire other than specifically designating the award as alimony in gross. In this instance, such designation is not mandatory nor does McEntire or other cases so hold.

We should not be understood as necessarily finding that the trial court was required to conclude that paragraph 2 involves an award of alimony in gross, only that in this instance he did not err in so concluding. This is particularly true when the entire agreement is considered.

We would further note that, in the instant appeal, Code of Alabama 1975, § 30-2-55, is not applicable. The husband contends that since the wife has remarried the statute has application to the instant case.

Section 30-2-55 is as follows:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.

It is clear to this court that this Code section only applies to awards of periodic alimony. As indicated above, we do not have such an award on this appeal.

The case is due to be affirmed.

AFFIRMED.

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


author: BOWEN, Judge.

text:
    Ethel Morgan WOODS v. STATE.
    5 Div. 393.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      Edward C. Greene, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was charged with murder in the second degree. A jury found her guilty of manslaughter in the first degree and fixed her punishment at five years imprisonment. On this appeal the only question presented for review is whether the constitutional prohibition against double jeopardy barred a second trial where the court discharged the jury in the first trial and granted the state’s motion for a mistrial on the basis of “juror conduct”.

The factual background for the argument on appeal is not complex. The appellant was brought to trial and members of the petit jury venire were qualified by the court and questioned on voir dire by the prosecution. The district attorney announced satisfied with the qualifications of the venire and a jury was selected, sworn and impaneled. The jury was not questioned as to whether anyone knew the accused or her family. The only inquiry in this regard was whether any of the prospective jurors were related by blood or marriage to the appellant.

After the testimony of the first witness for the state, the trial was recessed for lunch. The jurors were instructed that they would have to stay together during the recess and were warned not to “talk about the case”. When court reconvened, the district attorney informed the trial judge that as the jury returned to the courtroom he noticed one of the jurors, Mr. Doc Woodson, talking to the mother of the appellant. The trial judge placed Mr. Woodson under oath and discovered that the juror had known the appellant for practically all of her life. The district attorney requested a mistrial on the basis that some communication had been made between the juror and the mother of the appellant and because the juror admitted that he did know the appellant and her mother. The trial judge then made the following comment without further investigation.

“THE COURT: Well, let the record reflect that I did observe the communication between the lady in the courtroom and it was called to my attention that a communication was going on between the lady in the courtroom and the juror. I observed that communication, that it was in Court, and at this time I will direct that the case be mistried.
“A mistrial is granted to the District Attorney.
“It’s probably my fault that we have gotten to this point because it has wasted your time for the day and we have wasted the jury expenses for today.
“I hope that you will accept my apologies for this because I should have asked the question myself, even if the attorneys did not, if any of the jurors knew the family or knew the defendant.
“However, I want it to be entirely clear that — and I don’t mean, here I am young and this is my first time and my first day — I will not tolerate communication between jurors and parties at trial while the case is in session. And I’m not blaming you, Mr. Woodson, because I probably did not make that clear; but I will make sure that I make that clear tomorrow and I will take the blame for it.”

The minute entry of the trial court reflects that the mistrial was granted on motion of the state “due to conduct of juror”. No inquiry was made into the substance of the communication before the mistrial was granted.

When the state attempted to reprosecute the appellant one week later the defense filed a plea of former jeopardy alleging that a second trial would subject her to double jeopardy because the mistrial was granted for insufficient reason. In support of the plea the testimony of the juror, Mr. Woodson, and the appellant’s mother, Fanny Morgan, was offered. Mrs. Morgan testified that during the lunch recess the daughter of Mr. Woodson asked her to tell Mr. Woodson that, since his daughter had to go to work, he should catch a ride home from the courthouse with the Morgans. Mrs. Morgan relayed this message to Mr. Woodson in the courtroom as the jury returned from lunch. Mr. Woodson testified that Mrs. Morgan “called me and told me my wife told me to come back with them”.

Upon consideration of the argument of counsel and the testimony of these witnesses, the trial court denied the plea of former jeopardy and in doing so made the following comments.

“The granting of the mistrial was primarily based on the conversation between the defendant’s mother and the juror, when I had instructed them not to talk to anyone about the case. I observed, personally, the conversation between the lady and the juror, which the District Attorney called to my attention, and said, ‘you see what’s going on’ and I saw it, and called Mr. Woodson over before the bench and asked him the questions that would appear on record.”

And thereafter during the argument of the attorneys the following occurred:

“MR. GREENE (Defense Counsel): I think that the record will bear out the fact that even though the defense counsel, at the time of the state’s motion, didn’t object per se, we did ask that the substance of the conversation be admitted, or that we be made known of what was said. And at that time the District Attorney pointed out that he did not inquire into the substance of the conversation, he just determined that the juror and the defendant and the defendant’s family were close friends, and that on those grounds, he moved for a mistrial. I think that the State is entitled to a fair trial, but I don’t think the State is entitled to two fair trials.
“MR. HARPER (Assistant District Attorney): I don’t think that was the basis for the request for mistrial, what Mr. Greene has just stated. It was not the fact that there was a close friendship there between the defendant and the juror. It was the fact that there was a communication in violation of the Court’s specific instructions to the jury.
“THE COURT: For clarification of the record, I did not grant it simply because they were friends.”

When a mistrial is declared by a trial court without the consent of the defendant, the double jeopardy clause of both the Alabama and United States constitutions permits retrial of the accused only if there was a manifest necessity for the mistrial or if the ends of public justice would otherwise be defeated. Section 9, Alabama Constitution of 1901; Amendment V, Constitution of the United States; United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). Section 9 of the Alabama Constitution provides that “courts may, for reasons fixed by law, discharge juries from the consideration of any case.” The reasons fixed by law for discharge are set forth in § 12-16-233, Code of Alabama 1975. •

“The court or presiding judge in all cases of jury trial may discharge the jury without giving a verdict, with the consent of all parties to the trial or without the consent of the parties, when, in the opinion of the court or judge, there is a manifest necessity for the discharge or when the ends of justice would otherwise be defeated. In all cases in which the jury is discharged without a verdict, a mistrial shall be entered upon the minutes of the court, assigning the reason or cause for the mistrial, and no person shall gain any advantage by reason of such discharge of the jury.”

This section fixes the reasons for a discharge and leaves it to the opinion of the trial judge to determine whether or not the reason, as fixed by law for the discharge, really exists. Andrews v. State, 174 Ala. 11, 56 So. 998 (1911); Brewer v. State, 24 Ala.App. 410, 137 So. 454 (1931).

Time and time again the courts have refused to formulate rigid or mechanical rules governing the circumstances under which a trial judge could declare a mistrial without giving rise to a defense of double jeopardy. United States v. Perez, supra, 22 U.S. at 850, 6 L.Ed. at 165; Wade v. Hunter, 336 U.S. 684, 690, 69 S.Ct. 834, 837-838, 93 L.Ed. 974 (1949); Illinois v. Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973). The very vagueness of the manifest necessity and ends of justice formulation, while maintaining the verity of the test, necessarily makes application imprecise. United States v. Grasso, 552 F.2d 46, 51 (2nd Cir. 1977). “Virtually all (double jeopardy) cases turn on the particular facts . . .” Illinois v. Somerville, supra, 410 U.S. 458, 464, 93 S.Ct. 1066, 1070.

A mistrial only springs into being upon a manifest or pressing necessity or when the ends of justice would otherwise be defeated. Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312 (1974). Examples of proper manifest necessity may be found in Parham v. State, 47 Ala.App. 76, 79, 250 So.2d 613 (1971) and Hawes v. State, 88 Ala. 37, 62, 7 So. 302 (1889). In legal effect a mistrial is the equivalent of no trial at all and should only be granted because of some circumstances indicating that justice may not be done if the trial continues. Long v. City of Opelika, 37 Ala.App. 200, 66 So.2d 126 (1953). A motion for a mistrial implies a miscarriage of justice if the trial continues. The word is not ordinarily used to indicate a mere erroneous ruling of law but specifies such fundamental error in a trial as would vitiate the result. Hallman v. State, 36 Ala.App. 592, 61 So.2d 857 (1952). The entry of a mistrial is not lightly to be undertaken and should only be ordered as a last resort. Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501 (1967).

Where there is no legal necessity for abandoning the trial and declaring a mistrial, the discharge of the jury operates as an acquittal of the accused and will sustain a plea of former jeopardy and bar a second trial of the accused. Ned v. State, 7 Port. 187 (1838); McCauley v. State, 26 Ala. 135 (1855); Spelce v. State, 20 Ala.App. 412, 103 So. 694, cert. denied, 212 Ala. 559, 103 So. 705 (1924).

It is often stated that the granting of a mistrial is within the sound discretion of the trial judge. 7 Alabama Digest, Criminal Law, <®=>1155. However the exercise of the power to discharge a jury is not a matter of unbridled discretion and the exercise of that power is always open to review on appeal. Hawes v. State, supra, 88 Ala. 62. “The judge must determine the existence of the facts, but when they are ascertained, the law determines whether they constitute a case of necessity.” Ned v. State, supra, 7 Port. 210.

In Alabama the trial judge is required to state the reason or cause for the mistrial. Section 12-16-233, Code 1975; Spelce v. State, supra, 20 Ala.App. 416, 103 So. 694. Here, the minute entry states that the mistrial was granted due to “conduct of juror”. However the record reflects that the discharge was ordered because of an unauthorized communication between a jur- or and the mother of the accused. Apparently an additional reason was the fact that the juror was discovered to be a friend of the accused and her mother. To these reasons we will apply the legal principles set forth above and determine whether in the light of all the circumstances the trial court exercised sound discretion in discharging the jury and whether a mistrial was warranted by manifest necessity or by the ends of justice.

The mere fact that some unauthorized communication between a juror and another is had does not constitute grounds for mistrial. Only the prejudicial nature or substance of such a conversation will justify a discharge of the jury, Bascom v. State, Ala.Cr.App., 344 So.2d 218, 222 (1977); Ballard v. State, 28 Ala.App. 346, 184 So. 259, reversed on other grounds, 236 Ala. 541, 184 So. 260 (1938), in the absence of a finding and determination by the trial judge of possible juror bias or that the mistrial is necessary to preserve the impartiality or even the appearance of impartiality of the jury. United States v. Hewitt, 517 F.2d 993, 996 (3rd Cir. 1975); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). A mistrial is not required because of an innocent conversation between a juror and another during the trial. United States v. Love, 535 F.2d 1152 (9th Cir. 1976); United States v. Henderson, 404 F.2d 832 (9th Cir. 1968); Bacino v. United States, 316 F.2d 11 (10th Cir. 1963); United States v. Lubrano, 529 F.2d 633 (2nd Cir. 1975).

The trial judge should consider the alleged misconduct on the basis of how it might affect or influence men of ordinary impressionability. Williams v. State, 36 Ala.App. 26, 58 So.2d 646 (1951). Therefore the mere determination that some unauthorized communication occurred without some additional finding by the trial judge will not constitute legal grounds for the granting of a mistrial. See 9 A.L.R.3d 1275, Annotation: Prejudicial effect, in criminal case, of communications between witnesses and jurors; 62 A.L.R.2d 298, Annotation: Contact or communication between juror and party or counsel during trial of civil case as ground for mistrial, new trial, or reversal; 86 A.L.R. 928, Annotation: Misconduct of juror which will authorize or require withdrawal of juror. The substance of the unauthorized communication as later disclosed reveals that the case was not discussed and the state was not prejudiced by such communication. Wright v. State, 57 Ala.App. 401, 328 So.2d 650 (1976); see also 7 Alabama Digest, Criminal Law, <&=>956(12).

Additionally the fact that a juror is a “friend” of the accused and her family will not disqualify that juror or justify his discharge unless, of course, it be determined by the trial judge that the juror might be prejudiced, biased or interested. The rule is clearly stated in 50 C.J.S. Juries § 228, 974-975.

“In general a juror is incompetent if he admits a friendship for one of the parties, or for members of the family of a party, which, other things being equal, would influence his verdict, or would cause him to believe such party unless contradicted by witnesses with whom the juror was personally acquainted, or where he admits a feeling of gratitude and obligation for services rendered him by one of the parties; and where it appears that the relations between a juror and one of the parties are of such an intimate character as would be reasonably calculated to influence his verdict, it is proper to exclude him. * * * A person is not incompetent as a juror merely because he knows, or is a neighbor, or an intimate acquaintance, of, or on friendly relations with, one of the parties, or members of his family, or with an officer of defendant corporation, or with one of the principal witnesses; nor is a juror incompetent because in a personal injury case he offered assistance to the injured person.”

See also Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); State v. Brazile, 229 La. 600, 86 So.2d 208 (1956); United States v. Fricks, 409 F.2d 19 (5th Cir. 1969).

Thus neither of the reasons assigned by the trial court for the granting of the mistrial was sufficient to justify the discharge of the jury. The comments of the trial judge reveal no more than the fact that an unauthorized communication was had and that the juror was a friend of the accused. These facts do not authorize a finding by this court of bias or prejudice on the part of the juror. This was a finding to be made by the trial judge and absent his declaration of even reasonable suspicion or bias it would be mere fiction and speculation to assume that such existed. See State of Arizona v. Washington, 546 F.2d 829 (9th Cir. 1977).

The appellant argues that it was an abuse of discretion on the part of the trial judge because he did not inquire into the substance of the conversation before granting the mistrial. Lest the import of this decision be misconstrued we feel compelled to address that point.

Where a trial judge discovers facts during a trial which indicate that one or more members of the jury might be biased against the state or the defendant it becomes his duty to discharge the jury and direct "a retrial. A defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designated to end in just judgments. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct 834, 837, 93 L.Ed. 974 (1949).

Reviewing courts have been predisposed to allow retrial whenever the judge has declared a mistrial because of suspicion that a juror has been contaminated. See Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894); United States v. Chase, 372 F.2d 453 (4th Cir. 1967); United States v. Smith, 390 F.2d 420 (4th Cir. 1968). In each of these cases, after the trial judge had ascertained that a juror had received an improper communication which rendered suspect the ability of one or more of the jurors to reach an impartial verdict, the reviewing court did not require the judge to determine whether the communication had in fact prejudiced the juror. Discovery of the harmful communication in itself afforded grounds for mistrial. Whitfield v. Warden, 486 F.2d 1118 (4th Cir. 1973); Smith v. Mississippi, 478 F.2d 88 (5th Cir. 1973).

“As the cases dealing with the problem of juror disqualification indicate, a trial judge need not explore whether the extraneous communication has in fact prejudiced the juror. When a judge concludes that on the basis of facts and reasonable inferences to be drawn from the facts that a juror has been exposed to information that might taint his verdict, he may withdraw the juror in the exercise of his sound discretion without unconstitutionally subjecting the defendant to double jeopardy.” Whitfield, supra, 486 F.2d 1123.

Thus it is said that the granting of a mistrial in cases of private communications between jurors and third persons is largely within the discretion of the trial judge, and his decision is subject to reversal only where that discretion has been abused. Tillman v. United States, 406 F.2d 930 (5th Cir. 1969); Green v. State, 252 Ala. 513, 41 So.2d 566 (1949).

This discretion of the trial court to grant a mistrial includes the discretion to determine the extent and type of investigation requisite to a ruling on the motion. United States v. Flynn, 216 F.2d 354, 372 (2nd Cir. 1954); Lewis v. United States, 295 F. 441 (1st Cir. 1924); Tillman, supra; Killilea v. United States, 287 F.2d 212 (1st Cir. 1961); United States v. Khoury, 539 F.2d 441 (5th Cir. 1976). A full evidentiary hearing at which witnesses and jurors can be examined and cross examined is not required. Tillman, supra, 406 F.2d 938. The trial judge need not examine the juror to determine if that juror admits to being prejudiced before granting a mistrial. Even if the testimony adduced concerning the improper communication reveals that the substance of the remarks is innocent or “mundane” and allegedly totally unrelated to the trial, the judge may reject such testimony and declare a mistrial based upon his assessment of the possible prejudice to the juror. United States v. Pridgeon, 462 F.2d 1094 (5th Cir. 1972); Smith v. Mississippi, 478 F.2d 88 (5th Cir. 1973); see also United States v. McCunn, 36 F.2d 52 (D.C.N.Y. 1929). The trial judge may grant a mistrial in order to secure respect for the verdict of the jury and to uphold the appearance of fairness of the judicial process.

These rules, cited without an examination of the supporting factual circumstances, would appear to support the position of the state contending that the trial judge did not abuse his authority. Yet we have examined a number of cases in which the discretion of the judge in declaring a mistrial on the basis of an improper communication was upheld and in each case the harmful substance of the communication was discovered or it was determined by the trial judge that, while the pending ease may not have been discussed with the juror, the mistrial was due to be granted because the appearance of impropriety would necessarily have infected public respect for the verdict. United States v. Hewitt, 517 F.2d 993, 996 (3rd Cir. 1975); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). Here there was no such determination and the mistrial was ordered primarily because of the improper contact in and of itself without regard to the effect upon the juror or jury. Both Hewitt and Turner are distinguishable from the “brief encounter” situation presented here. In this case there was no showing of intimate or continuous association throughout the trial or inherent prejudice. There was no indication or finding by the trial judge that the mistrial was necessary to prevent the defeat of justice.

In reviewing this case we are sensitive to the admonition contained in United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 558, 27 L.Ed.2d 543 (1971), that in the absence of a motion for a mistrial by the accused, the Perez doctrine of manifest necessity stands “as a command to trial judges not to foreclose the defendant’s option (to continue with the jury as selected) until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” It has been noted that “(i)n most cases where the possibility of jury bias arises, the prudent course may well be for the trial judge to examine the jurors and cautiously consider alternatives to discharging the jury.” Hewitt, supra, 517 F.2d 996. Yet each case must stand on its own merits and such an examination is not required under all circumstances.

“We are not prepared to say that this ‘scrupulous exercise of discretion’ mandated by Jorn requires in every instance a thorough examination of the jurors and consideration of the alternatives to discharge, such as continuance. We believe that the exercise of discretion by the trial judge may in fact be based, in particularly compelling cases, solely on a commonsense assessment of the possibility that a certain factual situation may jeopardize ‘the ends of public justice.’ ” Hewitt, supra, 517 F.2d 996.

The present factual situation is not of the character of the “particularly compelling” cases which would warrant a summary declaration of mistrial. “In all but the clearest cases, explicit findings are the best way for a trial judge to avoid the perils of the double jeopardy clause.” United States v. Grasso, 552 F.2d 46, 53 (2nd Cir. 1977).

We are well aware that there must be a great deal of discretion reserved to the trial judge who, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. Robinson v. State, 37 Ala.App. 403, 71 So.2d 843, cert. denied, 260 Ala. 700, 71 So.2d 846 (1953); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967). We are equally aware of the right of a defendant to have his fate determined by the jury first impaneled. However the record itself reveals nothing that would require the granting of a mistrial. Were the situation reversed and the juror a friend of the prosecutor who had conversed with the prosecutor about a matter unrelated to the case on trial, there can be little doubt that we would affirm the action of the trial judge in not granting the request of the defendant for a mistrial. The reasons cited by the trial judge do not constitute a legal necessity for declaring a mistrial and affirmatively disclose that no consideration was given to the effect of the misconduct upon the juror.

It is regrettable that the action of declaring a mistrial should have to be the basis for the ultimate release of the appellant. However her right to be tried by the jury first chosen and sworn to try the case is inviolable except where necessary to discharge that jury in the interest of the proper administration of public justice. No such necessity existed here.

We have carefully examined the entire record and are of the opinion that this judgment is due to be reversed and the cause rendered.

REVERSED AND RENDERED.

All Judges concur.

      . In Hewitt, the court held that where the father-in-law of the defendant was employed as a tipstaff to attend the needs of the jury panel, and had been doing to for over a week, the potential for prejudice was so great that, despite the absence of any concrete proof of bias, the ends of public justice dictated discharge of the jury.
      In Turner, the trial jury had been, for the three-day duration of the trial, in the custody of two deputy sheriffs who were the principal witnesses for the prosecution. Although the trial judge had conducted a hearing on the issue of prejudice and concluded, on the basis of testimony by the deputies, that there was none, the United States Supreme Court held that the judge’s refusal to grant a mistrial was error because of “the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution.” The court made a distinction between a “brief encounter” and a “continuous and intimate association.”


text:
    In re Ethel Morgan WOODS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-373.
    Supreme Court of Alabama.
    Sept. 8, 1978.
    Rehearing Denied Nov. 17, 1978.

      William J. Baxley, Atty. Gen., State of Ala., and Linda C. Breland, Asst. Atty. Gen., State of Ala., for petitioner.
    Edward C. Greene, Mobile, for respondent.
   EMBRY, Justice.

We granted the writ of certiorari in this case to review the decision of the Court of Criminal Appeals in this case that reversed the trial court for denying the plea of former jeopardy of Ethel Morgan Woods. Her plea was filed on the occasion of her being brought to trial for the second time; a mistrial had been declared during the course of her first trial.

During her first trial the district attorney called to the attention of the trial judge a conversation between her mother and a jur- or. The judge, who also observed the conversation, placed the juror under oath and discovered the juror had known Ethel Woods for practically all of her life. Upon motion of the district attorney, there being no objection by her counsel, a mistrial was declared. Pursuant to § 12 — 16—233, Code 1975, the reason for mistrial entered upon the minutes was: “due to conduct of juror.”

On the occasion of retrial, she filed a plea of former jeopardy. It was denied and she was convicted of manslaughter in the first degree.

The full detailed facts are reported in the opinion of the appellate court. See Woods v. State, 367 So.2d 974 (1978).

The sole issue before this court is whether there was a manifest necessity for the discharge of the jury without a verdict or whether the ends of justice would be defeated if the jury had not been discharged. § 12-16-233, Code 1975.

Resolution of that issue determines whether Ethel Woods’ plea of former jeopardy was erroneously denied in violation of Art. 1, § 9, Const, of Ala., 1901 and Amend. V, Const, of United States.

Whether being placed on trial after a mistrial is declared constitutes double jeopardy depends upon the circumstances surrounding the mistrial. Manifest necessity must be demonstrated before a mistrial is declared over the objection of the defendant. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). In this case there was no objection. However, we need not address the effect of the failure to object since we find that a manifest necessity was demonstrated sufficient to permit the trial judge, in the exercise of his broad discretion, to declare the mistrial and discharge the jury without a verdict.

There is no constitutional requirement that a mistrial be absolutely necessary. Only a high degree of necessity need be demonstrated. A trial judge is allowed the exercise of broad discretion in deciding whether that high degree of necessity is present. Neither is there any constitutional requirement that the finding of manifest necessity be explicit. Arizona v. Washington, supra. See also Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967).

Section 12-16-233, Code 1975, requires the trial judge to assign the reason or cause for the mistrial upon the minutes of the court. In this case the minute entry reflects the mistrial was declared “due to conduct of juror.” That conduct was the conversation between the juror and defendant’s mother. The opinion of the appellate court also reveals the juror had known defendant for practically all of her life. In the discretion of the trial court these facts made necessary the declaration of mistrial. We will not interfere with the exercise of that discretion unless there is clear abuse of it; here there was not. Shadle, supra. Manifest necessity for a mistrial is not determined by whether in fact the event precipitating the mistrial did influence the jur- or, but whether it might have unlawfully influenced the juror. Oliver v. State, 232 Ala. 5, 166 So. 615 (1936). The fact that a juror who knew the defendant was seen by the court conversing with the defendant’s mother was sufficient to raise a presumption of vitiating influence; a presumption unrebutted by the defense.

It is the trial court’s duty to preserve the impartiality of the jury. Even the appearance of impropriety may infect public respect for the verdict. United States v. Hewitt, 517 F.2d 993 (3rd Cir. 1975). In this instance defendant’s valued right to have her first trial completed must be subordinated to the public’s interest in fair trials designed to end in just results. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

The trial court did not abuse its discretion in declaring the mistrial, and defendant was not placed in double jeopardy. Therefore, the judgment of the Court of Criminal Appeals must be, and is hereby, reversed and the case remanded to that court.

REVERSED AND REMANDED.

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


text:
    Ethel Morgan WOODS v. STATE.
    5 Div. 393.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.
   BOWEN, Judge.

This cause is due to be and is hereby affirmed on authority of Ex parte Woods (In re: Woods v. State of Alabama), Ala., 367 So.2d 982, (1978).

AFFIRMED.

All Judges concur.

Writ denied, Ala., 367 So.2d 985.


author: JONES, Justice.

text:
    Ex parte Ethel Morgan WOODS.
    78-261.
    Supreme Court of Alabama.
    March 2, 1979.
   JONES, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Eddie MURRY v. STATE.
    2 Div. 222.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.
    Frank L. Thiemonge, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen. for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Dallas County, Alabama, for perjury. The indictment, omitting the formal parts, states that:

“COUNT I
“The Grand Jury of said County charge that before the finding of this indictment Eddie Murry, whose name is unknown to the Grand Jury other than as stated, did on his examination as a witness, duly sworn to testify on the trial of Will Travis, Jr., in the criminal court of Dallas County, Alabama, under a prosecution upon a charge of Forgery, which said Court had authority to administer said oath, falsely swore that the statement hereto attached is not true and correct. The said Eddie Murry further swore that the hereto attached statement is not true and correct, the matter so sworn to being material, and the testimony of the said Eddie Murry being willfully and corruptly false, against the peace and dignity of the State of Alabama.
“COUNT II
“The Grand Jury of said County charge that before the finding of this indictment, Eddie Murry, whose name is unknown to the Grand Jury other than as stated, on his examination as a witness, duly sworn to testify, on the trial of One, Will Travis, Junior, in the Circuit Court of Dallas County, under an indictment for Forgery of a check, which said court had authority to administer such oath, falsely swore that he and the said Will Travis did not discuss cheeks stolen from the City Produce Company of Selma, nor the availability of said checks ‘to be passed’, nor did Will Travis deliver him a check for the purpose of being passed, nor did Will Travis, in any manner, encourage him to pass said check, nor did Will Travis drive him to the business known as Clay’s Casino for the purpose of passing a forged check, nor did he discuss with the said Will Travis division of the monies to be received from the passing of the said check, the matters so sworn to being material, and the testimony of the said Eddie Murry being wilfully and corruptly false, against the peace and dignity of the State of Alabama.”

The statement referred to in Count I of the indictment is set out below:

Date “December 2.1976 Page No. 1
“STATEMENT OF: Eddie James Murry aka
Ronnie Murry, 307 Maxey St.,
Selma, Alabama
“My name is Eddie James Murry aka Ronnie Murry and I am 22 years old. I have been advised of my rights by Det. Capt. B. M. Bobo of the Selma Police Department and I have signed a waiver of my rights and make the following statement of my own free will.
“On November 30, 1976, about 10:00 P.M. I was over at Will Travis’s house located at the Barbecue Spot on Minter Avenue and Travis told me about William Smiley having some checks on the City Produce Company and that I could probably get one of them from Smiley, get it cashed and give Travis part of the money. Both Travis and I went to Smiley’s house on Philpot Avenue and Smiley gave Travis one of the checks on the City Produce Company that was dated November 30, 1976, made payable to James Sanders in the amount of $85.00 signed M. R. Carson. Will and I then got into Will’s car and drove to Church’s Chicken on Broad Street and Travis waited in the car while I went over to Clay’s Casino and tried to get Mr. Clay to cash the check for me. Mr. Clay told me that he did not have enough money up front and that he would have to go into the house and get enough money to cash the check. He also told me that he didn’t cash checks for people who didn’t buy anything from him. I told him that I would take $1.50 worth of baloney. I was waiting on Mr. Clay to cash the check and cut the baloney for me when the police arrived and arrested me for forgery. They brought me to the Selma Police Dept, and I signed a waiver of my rights on December 1, 1976, at 7:50 A.M. but at that time I told Capt. Bobo that I had not tried to cash my check. On December 2, 1976, Capt. Bobo again advised me of my rights after I had sent a message to him that I wanted to talk with him and I signed this waiver of rights on December 2, 1976, at 2:12 P.M. I had decided at this time to tell the truth.
“This is a true and correct statement to the best of my knowledge.
“Witnesses /s/ Capt. B. M. Bobo /a/ Eddie J. Murry
Capt. B. M. Bobo Eddie James Murry”

Subsequently, appellant was duly arraigned, in the presence of counsel, and he entered a plea of not guilty to the charge against him. Appellant received a trial by jury and was found guilty “as charged in the indictment,” appellant having made no motion that the State elect which count should go to the jury. The trial court in accord with the jury’s verdict adjudged appellant guilty and sentenced him to five years of imprisonment in the penitentiary. Appellant having been found indigent by the trial court is before this Court with appointed counsel and a free transcript.

A summary of the evidence follows, appellant preserving the question of sufficiency of the evidence through a motion to exclude and motion for new trial.

Sarah M. Greenhaw testified that she was employed as an Assistant Attorney General. On August 9,1977, Mrs. Greenhaw tried the case of State versus Will Travis, CC — 77-42, in Dallas County, on a charge of forgery. Appellant was a duly sworn witness in that trial. During the course of that trial the court allowed Mrs. Greenhaw to treat appellant as a hostile witness due to surprise. Prior to the trial, appellant had gone over a statement, which he had given to a detective, with Mrs. Greenhaw, affirming the truthfulness and correctness of it. In pretrial interviews, appellant implicated Will Travis in a forgery; however, at trial, appellant testified that Travis was not involved in the forgery at all. Appellant testified, in response to Mrs. Greenhaw’s questions, that he had lied in his prior statement and had lied in pre-trial interviews.

Mrs. Greenhaw identified a statement by appellant, given to a Captain Bobo, as the one which appellant repudiated at the Travis trial.

Neal Clingan testified that he was employed by the Dallas County Circuit Court as a Court Reporter. Clingan identified a transcription of appellant’s testimony at the Travis forgery trial and testified that he reported and transcribed the testimony in that case. Clingan certified the transcription as true and correct and it was introduced into evidence without objection. Clingan then read appellant’s previous testimony to the jury. In that testimony, appellant repudiated every material element of his statement to Captain Bobo, which has been previously set out.

Will Travis, Jr., testified that he was tried for forgery in August of 1977, and that appellant was a witness in the case. Travis further testified that he had entered a guilty plea to the forgery charge.

William M. Bobo testified that he was Captain of Detectives for the Selma Police Department. Bobo identified a waiver of rights form and a statement, both signed by appellant on December 2, 1976. The statement is set out above, following the indictment. These two documents were placed in evidence over appellant’s objection.

Bobo further testified that appellant made this statement after his arrest at Clay’s Casino for forgery. Appellant’s and Travis’s fingerprints were on the check which was taken by police at the Casino. Bobo then read the statement to the jury.

On cross-examination, Bobo testified that, prior to giving the above mentioned statement, appellant told him that Travis had nothing to do with the forgery. Appellant implicated Travis after he spoke with his uncle.

George Jeff coat testified that he was the State Parole and Probation Supervisor in Dallas County and that he was appellant’s supervisor in August, 1977, on a probationary sentence involving forgery. On August 10, 1977, Jeff coat had a conversation with appellant at the Dallas County Jail.

On voir dire examination, Jeff coat testified that he had issued an authorization of arrest for appellant because of probation violation. From the record:

. .1 went to the jail to ask him about the charge of perjury. I asked him if he had in fact perjured himself in the trial of Will Travis and he explained to me in detail the circumstances of his testimony. And he stated that he had perjured himself because he had been pressured by members of Will Travis’ family to do so.”

Jeffcoat further testified that he did not advise appellant of his Miranda rights at any time prior to obtaining this statement. Nor did appellant have an attorney present until after this conversation occurred. Jeffcoat only told appellant that no action would be taken against him concerning probation unless he was found guilty of perjury-

Back in the presence of the jury, Jeffcoat repeated the conversation set out above. Appellant entered no objection to any of this testimony.

At this point, the State rested its case and appellant made the following motions which were denied by the trial court.

“MR. THIEMONGE: Your Honor, at this time we would move to exclude the State’s evidence in that they have failed to prove a prima facie case.
“MR. GREENE: We think we have met the elements of the crime that is set out, Your Honor.
“THE COURT: Okay. Do you want to elaborate on that or do you want to just leave it at that?
“MR. THIEMONGE: We’ll leave it at that.
“THE COURT: Okay. It’s overruled.
“MR. THIEMONGE: We further move at this time to have this case dismissed in that the indictment in count one and count two say ‘Eddie Murry, whose name is unknown to the Grand Jury other than as stated,’ when the statement that is in here, Captain Bobo read in to the record, says Eddie James Murry, aka Ronnie Murry. And the Grand Jury did know two other names and I feel that he should not be put to trial under this indictment. I think that is a fatal variance.
“THE COURT: Well, if he’s not properly named in the indictment I think you should have challenged by demure (sic) of the indictment. I’ll overrule that. Anything else?
“MR. GREENE: Judge, could I say something to that?
“THE COURT: Sure.
“MR. GREENE: I think there’s a margin in our case law that the middle name be totally immaterial.
“MR. THIEMONGE: That may be true, Mr. Greene, but if you will notice here it says ‘aka Ronnie Murry’ and the Grand Jury I’m sure did have this at that time since it was attached to their indictment.
“MR. GREENE: I don’t want to belabor the point, I just want to make that one comment and I think it stands for itself.
“MR. THIEMONGE: I have nothing further.
“THE COURT: Okay. Your motion is overruled.”

Appellant testified that he had a conversation with Captain Bobo after having been arrested for forgery. At first appellant denied having attempted to cash the check and he also told Bobo that Travis had nothing to do with the check. Appellant implicated Travis in the offense only after his brother-in-law, not his uncle, told him that he, appellant, would not get out of jail on bond unless he implicated Travis.

Appellant further testified that he had gone over the statement with Mrs. Green-haw. However, he was not under oath then, and he was not under oath at the time he gave the statement to Captain Bobo. Finally, appellant testified that his testimony in the Travis case, which was read to the jury by Clingan, was correct. Appellant plead guilty in that forgery case and he testified that he was guilty of that charge.

On cross-examination, appellant testified that Will Travis had lied on the stand and that Jeffcoat had also. Appellant denied having told Jeffcoat that he had perjured himself in the Travis trial.

First appellant contends that his confession to George Jeffcoat should have been excluded from evidence, since he did not waive his rights and his admission was involuntary. Discussion of this issue is pre-termitted in that appellant has not preserved the question for review, having failed to object to the evidence at trial. Daniels v. State, 53 Ala.App. 666, 303 So.2d 166; Barnes v. State, 45 Ala.App. 6, 221 So.2d 399, cert. denied, 284 Ala. 727, 221 So.2d 404; 7 Alabama Digest, Criminal Law, 1036.1(5).

Next appellant urges that the trial court erred in denying his motion to exclude on the basis of a fatal variance, which had been set out above. Here there was not error. It is well established that the law recognizes but one Christian name. Wheaton v. State, 29 Ala.App. 231, 194 So. 712. The omission from the indictment of appellant’s middle name is immaterial. Pace v. State, 69 Ala. 231, 44 Am.Rep. 513; Higginbotham v. State, 262 Ala. 236, 78 So.2d 637; Robinson v. State, 8 Ala.App. 435, 62 So. 372; Blackmon v. State, 46 Ala.App. 274, 240 So.2d 696, cert. denied, 286 Ala. 733, 240 So.2d 699; James v. State, 246 Ala. 617, 21 So.2d 847.

Finally we turn to the sufficiency of the evidence to sustain appellant’s conviction for perjury. Section 13-5-110, Code of Alabama, 1975, provides:

“Any person who wilfully and corruptly swears or affirms falsely or corruptly procures another to so swear or affirm, in regard to any material matter or thing on the trial of any person under an indictment for felony, shall, on conviction, be imprisoned in the penitentiary for not less than three nor more than 20 years.”

To constitute perjury, the matter falsely sworn to must be material to the issue in controversy. McDaniel v. State, 13 Ala.App. 318, 69 So. 351. And the material matter sworn to must be false or it is not the subject of legal perjury. Winchester v. State, 20 Ala.App. 431, 102 So. 595. In meeting the burden of proof to sustain a conviction for perjury, the State must prove the falsity of the testimony of defendant by more than one witness or by . one witness and strong corroboration from surrounding circumstances. Capps v. State, 29 Ala.App. 192, 194 So. 689; Knight v. State, 30 Ala.App. 97, 1 So.2d 668.

Oglesby v. State, Ala., 337 So.2d 381, defines a witness to the corpus delicti of perjury as one,

“ . . . who has independent knowledge of the facts to which the defendant has sworn and who testifies, based on that independent knowledge, that the defendant has perjured himself.”

In the case at bar, the evidence is sufficient to sustain appellant’s conviction for perjury. First, appellant, in the forgery trial of Will Travis, swore that Travis was not involved in passing a forged check at Clay’s Casino, recanting a prior inconsistent statement to Captain Bobo and conversations with Mrs. Greenhaw. The falsity of this material allegation is shown through the testimony of Will Travis, a witness to the “corpus delicti” of perjury, in which Travis testified that he was guilty of the forgery. This witness’s testimony is strongly corroborated by George Jeff coat, who testified that appellant had confessed to him that he had perjured himself upon the Travis trial.

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

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Eddie MURRY.
    78-241.
    Supreme Court of Alabama.
    March 2, 1979.
   MADDOX, Justice.

WRIT DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jene Anthony WILLIAMS v. STATE.
    3 Div. 911.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Solomon S. Seay, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The only issue expressly presented for review by appellant is whether the evidence was sufficient to support a verdict and judgment finding appellant-defendant guilty of robbery as charged in the indictment.

Pamela Sue Henderson testified that on November 23, 1977, she was employed at the Seven-Eleven Store on Buckingham Drive, in Montgomery; that at about nine P.M. two black males came into the store; one was tall, about six feet two, weighing one hundred sixty pounds; the other had a gun; the one with a gun was shorter than the first man; the man with the gun pointed it at the witness and asked for all the money in the register; she showed him where the safe was and he took the change out of the safe.

The witness further testified that as the man with the gun was taking the change out of the safe, the other man told him, “We have got company, man.” It developed that a customer was attempting to enter the store. The man with the gun went to the door and told the prospective customer the store was closed. The man with the gun proceeded to take all of the currency out of the cash register. The man without the gun was standing at the cash register at the time. The man with the gun took some change out of the safe. He placed the money in a paper bag. Another potential customer came to the store, and the man with the gun told him that the store was closed.

After obtaining about ninety dollars and placing it in a paper bag, the man with the gun told the witness that she knew too much and that she would have to go with them. She then started screaming, at which time, a sister of the witness and her boy friend who were in another room of the store, came out of the room and the two men left together. The witness stated that she saw them walking together after they left the store.

At the conclusion of the direct examination of Pamela Sue Henderson, she said:

“Q Now, I will ask you if you will, please, to look at the man seated here with his attorney; the Defendant, Jene Anthony Williams, I will ask you if you see the man who came in that store?
“A Yes, it is.
“Q Is there any doubt in your mind?
“A No.”

The preceding part of her testimony shows that she was referring to the man without the gun.

The evidence narrated above constitutes substantial evidence of defendant’s guilt. It consists of direct evidence of a robbery and strong circumstantial evidence of participation therein by appellant. We are not required to pass upon the question of the sufficiency of the evidence to satisfy the jury beyond a reasonable doubt of defendant’s guilt. There is nothing in the evidence narrated or in any of the other evidence to indicate that the jury was not satisfied beyond a reasonable doubt of defendant’s guilt.

There was considerable evidence, in addition to the testimony of Pamela Sue Henderson, from a large number of witnesses, including the testimony of defendant, who positively denied his presence at the time and place of the robbery. Some of the other evidence was favorable to defendant, some favorable to the State. Some of it may have a tendency to weaken testimony of Pamela, but it is not in whole or in part sufficient to vitiate the testimony of Pamela that defendant was a participant in the robbery.

We have reviewed the record for error prejudicial to appellant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article, (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    James HIGDON v. STATE.
    6 Div. 566.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.

      James S. Garrett of Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was convicted of second degree murder by striking Lettie Coleman with a U — Haul truck. Sentence was fixed at twenty years’ imprisonment. Because errors occurring during the course of the trial effectively denied the appellant a fair trial this case is reversed.

I

The trial court erred to a reversal in sustaining the State’s objection to the question propounded by defense counsel to the daughter of the deceased as to how much she had paid a special prosecutor to prosecute the appellant.

“In a long line of criminal cases, in this Court and in the Court of Appeals, it has been held competent for defendant to show the amount paid or promised to a special prosecutor employed by a witness to prosecute defendant because it directly relates to the question of the witness’ bias or interest. The refusal to allow such question has been held to be reversible error. Dickey v. State, 197 Ala. 610, 73 So. 72 (1916); Ham v. State, 21 Ala.App. 103, 105 So. 390 (1925); Hembree v. State, 20 Ala.App. 181, 101 So. 221 (1924); Davidson v. State, 19 Ala.App. 77, 95 So. 54 (1923).” Hunter v. State, 293 Ala. 226, 229, 301 So.2d 541 (1974).

See also Koger v. State, 38 Ala.App. 476, 87 So.2d 552 (1956) (recognizing rule); Brogden v. State, 33 Ala.App. 132, 134, 31 So.2d 144, cert. denied, 249 Ala. 348, 31 So.2d 146 (1947); Tyson v. State, 29 Ala.App. 220, 194 So. 699 (1940); Williams v. State, 21 Ala.App. 227, 229, 107 So. 37 (1926).

II

The refusal to instruct the jury that reasonable doubt as to the guilt of the appellant might grow out of any part of the evidence is reversible error where such a charge is requested in writing and the proposition is not covered in the court’s oral charge or in any of the given requested charges. Tillman v. State, 360 So.2d 1074 (Ala.Cr.App.), cert. denied, 360 So.2d 1075 (Ala.1978).

III

At trial State’s witness Darrie Zeigler claimed his Fifth Amendment privilege against self-incrimination. Based on the recommendation and request of the Assistant District Attorney, the trial court granted this witness “complete immunity” from the acts that occurred on the night of November 16, 1975, and “any act growing out of that incident at that point”. Before Zeigler testified the court changed its ruling.

“MR. PARKER (Defense Counsel): I understood the Court to say that he was granting him immunity.
“THE COURT: If the Court has any such authority. I don’t know. But I accept the D.A.’s authority, and Mr. Zeig-ler will now be required to testify.
“MR. PARKER: And I object and I except, and I assign the same grounds.” * * * * * *
“THE COURT: I will change that to the extent that I don’t know of the Court’s authority. So, I am going to withdraw that. But I do recognize the District Attorney’s authority, as Mr. Blocker has expressed here today.
“So, Mr. Zeigler will be required to testify.”

This was error. In this State there is no general constitutional nor statutory provision authorizing the District Attorney to extend immunity to a witness and thereby compel his testimony notwithstanding its incriminating character. In the absence of such a grant of power no such authority exists. Gipson v. State, (Ala.Cr.App. Ms. October 3, 1978, 8 Div. 38). The general rule is that there is no inherent power in the prosecuting attorney to extend immunity to a witness against self-incrimination. 13 A.L.R.2d 1439, 1441 (1950).

IV

When witness Darrie Zeigler’s memory could not be revived or refreshed by his looking at a portion of his transcribed testimony before the grand jury, the State was allowed to place in evidence, over objection, portions of his grand jury testimony.

In laying the predicate for the admission of this testimony the State, after failing in its attempt to refresh the recollection of the witness, showed that the witness “recalled” testifying before the grand jury, that he answered the questions before the grand jury “to the best of my ability, the best that I remembered”; that he “did not knowingly tell a falsehood”; that he personally knew the facts on which he was examined; and that the events were fresh in his mind. The court reporter for the grand jury testified that the witness’s testimony before the grand jury was recorded and that the recording device had been used prior to that occasion and was accurate. Another witness testified that she typed Zeigler’s grand jury testimony; that “everything was typed as it was said”; that nothing was added; and she identified a true and correct copy of his testimony.

The predicate for the admission of a document representing a witness’s past recollection recorded is stated in C. Gamble, McElroy’s Alabama Evidence § 116.03 (3rd ed. 1977).

“A writing exhibited to a witness while he is on the witness stand and which purports to be a statement of a past event is admissible as evidence of the truth of the matter stated if the witness testifies that he now knows, or testifies to facts showing that he now knows, the following:
“(1) That he personally observed the event or facts referred to in the writing and that the writing was made or seen by the witness either contemporaneously with the event or when his recollection of the event was fairly fresh.
“It is not essential, to benefit from past recollection recorded, that the witness himself shall have made the writing. The writing may have been made by another person if the witness saw it when the event recorded was fairly fresh in his memory and he then knew the statements in the writing to be correct.
“(2) That he then knew the contents of the writing and knew such contents to be true and correct.
“Where the witness testifies that the writing is in his own handwriting, he may testify further that he knows from his general practice in making writings of that kind that what he wrote was true.
“(3) That he has no present recollection of the event other than his testimony to the matters stated in 1 and 2 above.”

The State did not run afoul of this rule. The testimony of a witness before a grand jury may properly be used to refresh or revive his memory upon the laying of a proper predicate. Thompson v. State, 99 Ala. 173, 175, 13 So. 753 (1892). The requirement that the witness know the correctness of the memorandum was satisfied when testimony was presented from different witnesses that Zeigler’s testimony was truthful, that his testimony was accurately recorded and accurately transcribed. See Moundville Lumber Co. v. Warren, 203 Ala. 488, 83 So. 479 (1919); Murray & Peppers v. Dickens, 149 Ala. 240, 244, 42 So. 1031 (1906); J. Wigmore, 3 Evidence § 751(3) (Chadbourn Revision 1970).

“As to the third exception, while it is true that the expression is found in the authorities that the person making the entry must have knowledge of the correctness of the item, yet it will be found that in those cases there was no proof by any one else of the correctness of the item, and it would seem, on reason, that if one party testifies that he knew of the correctness of the item and gave it correctly to the other, and the other testifies that he entered it as it was given to him, that that would amount to the same thing as if the party who made the entry should swear that he knew of the correctness of the item.”

Dickens, 149 Ala. at 244, 42 So. at 1038.

V

The appellant contends that the trial court erred by not prefacing the giving of his requested charges in strict compliance with statutory requirements.

In pertinent part, § 12-16-13, Code of Alabama 1975, provides:

“The court shall, after the conclusion of his charge to the jury, read such written charges as he has given for the parties in a clear and audible voice, saying to the jury, ‘these are instructions given you by the court at the request of the plaintiff or defendant, as the case may be, and are correct statements of the law to be taken by you in connection with what has already been said to you’.”

While the better practice is to use the identical language of the statute, Jordan v. State, 17 Ala.App. 575, 577, 87 So. 433 (1920), the court need not precisely follow the language of this section in reading the given charges to the jury.

“Our judgment is that the form laid out in the section is nothing but a form, and that, when the trial court instructs the jury in every essential particular as the statute prescribes, no error results.”
Ritter v. Gibson, 217 Ala. 304, 307, 116 So. 158, 160 (1928).

Here the trial judge prefaced the giving of the requested charges with these remarks:

“The Defendant’s attorney has given me these charges which I will read and which state the law and should be accepted along with the oral charge I have just given you.”

These remarks substantially comply with the statutory requirements. Therefore we find no error.

VI

The appellant objected to the following portion of the court’s oral charge as being an erroneous statement of the law:

“A jury may or may not infer malice from the type of the killing unless the evidence which proves the killing shows also that it was perpetrated without malice.”

The appellant recognizes that malice may be inferred from the use of a deadly weapon, Hadley v. State, 55 Ala. 31 (1876), Hardin v. State, 344 So.2d 234 (Ala.Cr.App. 1977), but alleges that malice may not be inferred from the type of killing.

Malice may be inferred from the character of the assault, that is, the facts and circumstances surrounding the offense. Kirkland v. State, 21 Ala.App. 348, 108 So. 262 (1926). It was held in Diamond v. State, 219 Ala. 674, 676, 123 So. 55, 57 (1929), that

“when a person enters into combat with another, intending no more serious injury than an ordinary battery, and no weapon is used, and death ensues, the person thus causing death, if his acts were wrongful or unlawful, and nothing more appears, would be guilty of no higher grade of homicide than manslaughter in the first degree. . . . Still, if the force used is excessive and the assault brutal, malice may be inferred which would raise the grade of the offense to murder.” (Emphasis added)

In Clarke v. State, 117 Ala. 1, 23 So. 671 (1898), involving an intentional beating of a pregnant mother resulting in the death of her infant after its birth, it was determined that malice could be implied from “an act malum in se”.

Therefore, the portion of the oral charge treated above is not an erroneous statement of law.

VII

The appellant also contends that the trial court committed reversible error in refusing to allow defense counsel to introduce testimony concerning the functioning of the grand jury and by overruling objection to a portion of the prosecutor’s argument. We have carefully examined each instance of alleged error and find that the rulings were within the sound discretion of the trial judge. Finding no patent abuse of that judgment we find no error.

Because of any of the several errors occurring during the course of the trial, this case must be reversed and remanded.

REVERSED AND REMANDED.

All Judges concur.


text:
    Robert N. HAMNER, alias v. STATE.
    6 Div. 905.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.

      Michael C. Cornwell, Asst. Public Defender, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant was indicted for having a pistol in his possession after having been convicted of committing crimes of violence, to-wit: grand larceny and assault with intent to murder. Section 13-6-152, Code of Ala. 1975. The trial court fixed and imposed punishment at five years imprisonment. Judgment was entered. This appeal followed therefrom.

Appellant belatedly, but with implied approval of the court, filed a plea autrefois convict. The plea asserted that defendant had been theretofore convicted in the City Court of Tuscaloosa County of violating the “Uniform Firearms Act” on March 9, 1978.

Appearing in the appendix of the record here filed is a certified copy of a judgment of the City of Tuscaloosa, Alabama, against appellant on Count I of an information that was filed. This count charged appellant with violating the “Uniform Firearms Act.” The judgment was pronounced by the city recorder.

Appellant’s only contention of reversible error is that the trial court after a hearing erred in overruling the plea of autrefois convict.

The term “Uniform Firearms Act” refers to Act No. 82, Acts of Ala. 1936, Ex. Sess., approved April 6, 1936, and carried forward in the 1940 Code in Title 14, §§ 172 through 186, now §§ 13-6-150 through 13 — 6—164, Code of Ala. 1975.

The judgment entry from the municipal court specifying that the appellant was convicted of violating the “Uniform Firearms Act” does not apprise this court of which of the several provisions of that act the appellant was convicted. Some of the crimes enumerated in the “Uniform Firearms Act” concern committing a crime while armed with a pistol; possessing a pistol after having been convicted of a crime of violence; ownership of a pistol by a person who is a drug addict or habitual drunkard; carrying an unlicensed pistol in a vehicle or concealed about one’s person; and other various prohibitions.

In the instant case, the appellant was convicted of possessing a pistol after having been convicted of committing crimes of violence pursuant to § 13-16-152, Code of Ala. 1975, which is only one of the several crimes set out in the “Uniform Firearms Act.” His plea of autrefois convict, therefore, does not show that his prior conviction in the municipal court was for the same crime in fact and in law as the one for which he now stands convicted in the circuit court. Brown v. State, Ala.Cr.App., 367 So.2d 557 (1978).

We hold the trial was free of error and the judgment is due to be affirmed. It is so ordered.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a Retired Circuit Judge, serving as a judge of this court, under the provisions of § 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.