author: SHORES, Justice.

text:
    Lelia G. BROCATO et al. v. Frank V. BROCATO.
    SC 1142.
    Supreme Court of Alabama.
    May 21, 1976.
    William B. McCollough, Jr., George S. Brown, Birmingham, for appellants.
    Alex W. Newton, Birmingham, for ap-pellee.
   SHORES, Justice.

Frank V. Brocato and his brother, Joseph C. Brocato, as partners, operated a restaurant business under the name of “GG’s in the Park.” Joseph died February 6, 1972, leaving surviving his widow, Lelia G. Brocato, and Joseph C. Brocato, Jr., his only child. The partnership agreement between Frank and Joseph Brocato provided that the partnership would be dissolved upon the death of either partner, but would not terminate upon the death of either as long as a Small Business Administration loan was outstanding against the partnership.

After Joseph died, Frank initiated this proceeding against Lelia Brocato, as ad-ministratrix of Frank’s estate, and Joseph, Jr., his only child, asking the court to enter a declaratory judgment that: the partnership was dissolved upon the death of Joseph; that, except for the existence of the SBA loan, the partnership was due to be terminated upon Joseph’s death, and that Frank Brocato, as the sole surviving partner, was to make settlement of all of the affairs of the partnership and to divide the remaining funds between himself and the personal representative of Joseph’s estate; that, upon payment of the SBA loan and any other liabilities existing against the partnership or upon the assumption thereof by Frank Brocato and the release or indemnification of Joseph’s estate of all present and future partnership liabilities, Frank be allowed to terminate the partnership and pay the administratrix Joseph’s partnership share as of the date of his death; that Lelia and Joseph, Jr. be declared not entitled to share in the profits of the business after February 6, 1972, the date of Joseph’s death; and that Frank, after paying over to the administratrix Joseph’s share of the partnership funds as of February 6, 1972, and assuming the liabilities of the partnership, be allowed to continue to operate the business without further liability to Lelia and Joseph, Jr. The complaint also asked for an accounting.

Lelia filed an answer asserting that the partnership agreement provided that the death of a partner did not terminate the partnership during the term of the SBA loan, and that the partnership could not be terminated until May 27, 1978, the date the loan would be paid; that Frank had recognized Lelia as a general partner but had failed and refused to account for the profits of the partnership since Joseph’s death; and that she and Joseph, Jr. had been substituted as general partners. She and Joseph, Jr. also asked for an accounting and asked the court to order Frank to pay them one-half of the partnership profits.

The cause came to trial and testimony was put on for half of one day. During a recess in the proceedings, the attorneys for all parties, and the parties themselves, reached an agreed settlement of the case and signed a written settlement agreement. In the interim, between signing the settlement agreement and the entry of the court’s judgment pursuant to the agreement, Mrs. Brocato discharged her attorneys and retained present counsel. She and Joseph, Jr. appeal from the trial court’s judgment, which, admittedly, was entered pursuant to the agreement by all parties. The single issue is whether Mrs. Brocato is bound by the agreement. The trial judge, in entering the judgment, noted:

“I think that the parties knowingly and under good representation entered into a solemn agreement. I cannot accuse the lady of being whimsical or capricious, but I do feel that this case has gone as far as it ought to go. I think the decree ought to be entered. If the lady is dissatisfied with the ruling of the Court based upon the agreement that she signed, she acceded to, and that I am sure she understood, that she has come to a conclusion that her best interest has not been met, then there is a place where she can seek regrets, and she can do so in the Supreme Court of the State of Alabama. . . . but ... I am going to sign the decree in the form that was agreed upon.” The agreement is as follows:
“Birmingham, Ala.
December 9, 1974
185-794
“Corretti, Newsom & Rogers
“We hereby authorize you to settle the G.G. in the Park case on the following basis:
“(1) $7,500.00 to be paid 2,500.00 immediately, 2500.00 in 3 months, and balance of 2,500.00 in 6 months.
“(2) 150.00 week to Lelia G. Brocato for 5 yrs
“(3) Increase in Joey’s salary to 125.-00 per week, employment contract, increased responsibilities & salary to be comensurate [sic] with employment of like nature in comparable restaurant.
“(4) Train Joey in all phases of business.
/s/ Mrs. Lelia G. Brocato
/s/ Joseph C. Brocato, Jr.
“Approved:
/s/ Frank Brocato
/s/ Walter R. Byars
/s/ Donald L. Newsom”

We hold that the agreement and the judgment entered pursuant to it are binding on the appellants. This court has repeatedly held that agreements made in settlement of litigation are as binding on the parties thereto as any other contract. Ex parte Hayes, 92 Ala. 120, 9 So. 156 (1890). Title 46, § 46, Code, vests in an attorney— if indeed statutory authority is required— the rule probably exists independent of the statute, Wadsworth v. First National Bank of Montgomery, 124 Ala. 440, 27 So. 460 (1899), to bind his client in all matters which relate to the cause, including the right to settle by agreement all questions involved therein. In the instant case, there is no question that Mrs. Brocato and Joseph Jr. made the agreement set out above. The same was signed by them, by Mr. Frank Brocato, and by attorneys representing both sides of the controversy. The trial court found that Mrs. Brocato and Joseph, Jr. understood and approved the agreement. They cannot now complain. In B. F. Roden Grocery Co. v. McAfee, 160 Ala. 564, 49 So. 402 (1909), this court said, in a case involving an agreement made by the attorneys, not signed by the litigants, as is the case here:

“. . . Such agreements are not only authorized, but encouraged, to promote justice and fair dealing, and to terminate properly, or prevent, litigation. . . .” (160 Ala. at 568, 49 So. at 404)

More recently, in Sayre v. Dickerson, 278 Ala. 477, 179 So.2d 57 (1965), this court upheld a decree based upon a settlement agreement which the appellant denied making. There, the appellant set out four reasons for attempting to void the agreement, among them that he did not consent to it. This court reviewed the evidence adduced at the hearing to set aside the decree giving effect to the alleged agreement and said:

“The authorities cited support the principle that a party cannot be heard to complain of action of the court which was done with the party’s consent.” (278 Ala. at 484, 179 So.2d at 63)

The court also noted:

“ ‘ • . . The consent [to the settlement agreement] can not be withdrawn, and the judgments reversed at the instance of either party.’ . . .

“We hold that, because appellant consented to the settlement, her contention, that the decree should be reversed on the ground that she did not consent, is not well taken.” (278 Ala. at 487, 488, 179 So.2d at 67)

In the instant case, the appellants do not deny that they consented to the agreement nor that they knowingly signed the same. They simply assert that the agreement was repudiated “before any of the provisions were carried out.” This, however, is not the criteria for avoiding such agreements set out in our cases. “. . . Such agreements are as binding on the parties as any other contract into which they may enter, and will not be set aside except for fraud, collusion, accident, surprise or some ground of this nature.” Ex parte Hayes, supra; Wadsworth v. First National Bank of Montgomery, supra, 124 Ala. at 442, 27 So. at 461.

No contention has been made that the agreement made the basis of the court’s judgment was the product of fraud, collusion, accident or any other ground of like nature. The judgment is, therefore, affirmed.

AFFIRMED.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    ALABAMA STATE TENURE COMMISSION et al. v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al.
    Civ. 674.
    Court of Civil Appeals of Alabama.
    March 31, 1976.
    Rehearing Denied May 5, 1976.

      William J. Baxley, Atty. Gen., Joel E. Dillard and Carol Jean Smith, Asst. Attys. Gen., for appellants.
    Abram L. Philips, Jr., and Pillans, Reams, Tappan, Wood, Roberts & Volmer, Mobile, for appellees.
    Crawford & Blacksher, Mobile, for James E. Buskey, teacher, as amicus curiae.
   BRADLEY, Judge.

A regular meeting of the Mobile County Board of School Commissioners, appellees here, was held on June 26, 1974. At that meeting the Board entertained administrative recommendations submitted by the acting superintendent. Among these recommendations was the transfer of James E. Buskey from assistant principal at Baker High School to assistant principal at Williamson High School. This recommendation was approved by unanimous vote of the quorum present at the meeting.

On June 28, 1974 the following letter was mailed to Buskey by Edward L. White, assistant superintendent in charge of administration :

“Dear Mr. Buskey:
“This letter comes to you as a matter of information concerning your assignment for the 1974-75 school year. The division of Administration with staff consultation has recommended to the Superintendent of schools of Mobile County that you should be transferred from the assistant principalship of Baker High School to the assistant principalship of Williamson High School.
“The Board at its meeting on June 26, 1974 effected the transfer based on the Superintendent’s recommendation which was reported to the Board by the Acting Superintendent at that time.
“This recommendation for transfer to Williamson was made on the following bases:
“1. The projected enrollment for Baker High School for the 1974-75 school year is less than 1500, thereby negating under Board policy the position of a second assistant principal.
“2. The training which you had according to your attorney’s statement at the University of Colorado was in the area of Human Relations and inner-city schools. The said school is an inner-city school and, therefore, meets some of the stated concern about last year’s assignment.
“3. The fact that you did not function as assistant principal by working at Baker High School last year.
“4. The administration feels that you can serve in a satisfactory way at Williamson High School.
“I hope that you will find this move to be one which is satisfactory and fulfilling for this year.”

On July 9 Buskey’s lawyer wrote the president of the Board of School Commissioners informing him that the transfer was illegal. Among the objections raised in that letter was an allegation that the transfer was not in compliance with the procedural provisions found in Title 52, Sections 355 and 356, Code of Alabama 1940. These provisions require that the transfer of any teacher who has continuing service status cannot be accomplished without sending that teacher notice of intent to transfer. According to Buskey’s lawyer, this procedure was not satisfied by the letter notifying him that the transfer had already been effected. The letter concluded with a demand for a hearing before the Board pursuant to Section 356.

The demanded hearing was held on July 24, 1974. Buskey appeared through his lawyer, not in person. At the conclusion of the hearing, the Board approved and affirmed the transfer to Williamson High Schools. This action was appealed by Buskey to the Alabama State Tenure Commission, appellants here. On September 27, 1974 the Tenure Commission ruled solely on the issue that the Board had failed to comply with the Alabama Code’s procedural requirements by failing to notify Buskey of the intent to transfer. Holding that this failure constituted a denial of due process, the Tenure Commission ordered Buskey reinstated at his former position.

Pursuant to Title 52, Section 361, Code of Alabama 1940, the Board sought review of the Tenure Commission’s ruling by petition for mandamus in the Circuit Court of Mobile County. On August 18, 1975 the circuit court found the Tenure Commission’s action unjust and issued a peremptory writ directing the vacation of the order of September 27, 1974. It is from this writ that the appeal is taken.

As noted above, the Tenure Commission’s opinion addressed itself only to the matter of procedural due process. Our review must therefore necessarily confine itself to this subject matter. The amicus curiae briefs filed in this case suggest that events with serious ramifications have occurred since the transfer was originally ordered. Such events are not evidenced in the record before us, nor were they placed before the Tenure Commission or the circuit court in conjunction with matters which are of record. After careful consideration, this court has determined that this appeal is not an appropriate vehicle for the adjudication of legal interests affected by those events. The present appeal must be, and is, limited to a review of the action taken by the circuit court regarding the contents of the Tenure Commission’s order of September 27, 1974.

The circuit court’s peremptory writ of mandamus found that the overall record showed that Buskey had been afforded all the elements of due process by the Board, and that the Tenure Commission’s finding must be set aside. In their arguments on appeal the Commission disputes the finding that Buskey did receive due process at the hands of the Board, and thus insists that the September 27 ruling was correct. After consideration of all the arguments and the record, we affirm the circuit court.

It is the. Tenure Commission’s contention that the action of the School Board in its meeting of June 26, 1974 was in effect the completed act of transferring the teacher. Clearly that action took place before notice of any kind was sent to Bus-key. If the Tenure Commission is correct on this issue, then Buskey’s statutory due process rights were inherently violated.

The circuit court, however, held that the vote of June 26 was action in compliance with the statute because Section 356 implicitly requires the Board to arrive at and determine its intent before notice can be given. We concur.

To construe the statute otherwise is to say that notice of intent to transfer must be sent before the requisite intent is formulated. This proposition is untenable. Title 52, Section 356, provides that an intended transfer automatically becomes final fifteen days after receipt of notice, if the transferee does not request a hearing. By thus creating the possibility that any intended transfer might become final without further proceedings, the statute demands that the Board deliberate on any proposed transfer and commit itself to what it views as the best action for the school system prior to mailing any notice. That is what apparently occurred on June 26.

There is an uncertain line between the articulation of intent in compliance with the statute and impermissible finalization of transfer by a similar-appearing action. Whether the boundary of proper action has been transgressed in this case cannot be determined by examining only the meeting of June 26. The entire sequence of events must be reviewed. The letter of June 28, 1974 did not purport to be notice of intent to transfer Buskey; on its face it was notice for information pur-poses only that Buskey had been transferred. This letter does reinforce the inference that the Board considered its June 26 action final. Nevertheless, the inference, not rendered conclusive by the language of this letter, was effectively dispelled by subsequent events.

On July 9, 1974 Buskey requested through his attorney a hearing on the transfer. The Board granted the request, and the hearing was held on July 24.

In State ex rel. Zeanah v. Berger, 55 Ala.App. 246, 314 So.2d 700, this court held that the same type of defect in notice as that present here is waived by the teacher’s request for a hearing. Where the hearing is subsequently held without objection on the teacher’s part, the substantive and procedural requirements of Sections 355 and 356 are satisfied. The authority of Berger supports the circuit court in the instant case.

The brief for the Tenure Commission argues that the present case is distinguishable from Berger because here Buskey explicitly preserved his objection to the defect in notice while requesting the hearing. This argument is without merit.

The right to request a hearing before the employing Board is governed by statute. Section 356 provides for such a right only after receipt of a notice of intent to transfer. No similar hearing is provided if the Board sends out an illegal notice of final transfer, as occurred here. In such a case, Title 52, Section 357 provides for appeal of the improper final transfer decision directly to the Tenure Commission; no hearing before the employing Board is contemplated. Under the statutory scheme Buskey should have gone directly to the Commission.

However, Berger allows the teacher to waive this procedure, treat the defective notice as proper notice of intent to transfer, and request a hearing from the Board. It is absolutely essential to the basis of the right to go to the Board rather than to the Commission that the teacher has elected to treat the notice received as proper notice. The choice of forum, not mere formal expressions in a letter, constitutes the waiver.

There is one additional point which must be discussed before disposition of this case. The trial court’s peremptory writ recites several findings not supported by the record. These include inaccurate findings that Buskey was present at the July 24 hearing, that he offered testimony in his own behalf, and that his attorney examined and cross-examined witnesses. The correct facts are: the teacher was not present but appeared through his attorney; the attorney produced no witnesses but submitted documentary evidence; the attorney neither examined nor cross-examined anyone, although several persons who presented evidence in support of the Board were present and available for cross-examination; the attorney orally argued Buskey’s case.

Attorneys for the Tenure Commission argue that this factual inconsistency necessarily implies that the circuit court took oral testimony, or otherwise considered non-record evidence. If this is true the peremptory writ must be set aside, because a proceeding in mandamus under Title 52 must not be a trial de novo, Lamar County Board of Education v. Steedley, 45 Ala.App. 672, 236 So.2d 337; Greene v. Washington County Board of Education, 45 Ala.App. 216, 228 So.2d 829.

There is nothing presented to support the Commission’s position other than the’ faulty finding in the peremptory writ. The recital in the judgment that the findings were based entirely on consideration of pleadings, briefs of parties, and the administrative record before the Tenure Commission is conclusive, Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 175 So. 269.

We thus perceive the inaccuracy in factual finding below to be harmless error. The essential elements of due process are not that the teacher must personally appear, nor that teacher’s counsel must examine or cross-examine witnesses, but that the teacher be afforded opportunity to do these things, Board of Education of Choctaw County v. Kennedy, 256 Ala. 478, 55 So.2d 511. The record shows that Buskey was given this necessary, opportunity, and the inaccuracies in the circuit court’s holding are not inconsistent with any facts material to this determination; they merely reflect a mistake of fact in an area beyond what was necessary to reach the correct decision. Such error is not grounds for reversal.

There also exists a matter of appellate procedure to be resolved. On December 30, 1975 teacher Buskey was granted leave by this court to file an amicus curiae brief. The brief was filed on January 13, 1976. On February 18, 1976 appellee’s brief was filed. Thereafter, on February 27, 1976, Buskey filed a “Reply Brief of Amicus Curiae” without requesting further leave of this court to do so. Appellee has moved for an order striking that reply brief on the grounds that the Alabama Rules of Appellate Procedure (ARAP) do not authorize such a brief.

The Committee Comment to Rule 29, ARAP, indicates that in most cases the amicus curiae brief is a form of adversary intervention in support of one of the parties to the appeal. Under Rule 29, ARAP, this court’s grant of leave to file is made only after consideration of the reasons why such a brief is desirable. Any such consideration necessarily reflects upon the degree of identity between the amicus and the party on whose support the amicus curiae brief is offered. We therefore interpret our order granting leave to file an amicus curiae brief to mean that the amicus has leave to file those types of brief which the ARAP authorizes to be filed, in the same time and circumstances, by the party, if any, with whose position the amicus identifies.

Here the amicus curiae obviously identifies with the appellant. Under the circumstance that existed on February 27, 1976, appellant was entitled to file a reply brief, Rule 28(c), ARAP. Our order thus entitled Buskey as well to file a reply brief. The motion to strike is overruled.

In light of the above, the opinion of the circuit court is affirmed.

MOTION TO STRIKE OVERRULED.

AFFIRMED.

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

ON REHEARING

The Tenure Commission asks this court to reconsider a portion of our holding, based on State ex rel. Zeanah v. Berger, 55 Ala.App. 246, 314 So.2d 700. The Commission questions whether we were correct when we stated that teacher Buskey’s appearance through counsel at a hearing of the School Board, after a request for same explicitly preserving objection to notice defects, waives the objection. This question deserves an answer in light of the Commission’s citation to Whittington v. Barbour County Board of Education, 250 Ala. 692, 36 So.2d 83.

We feel that there are three cogent reasons why the cited case does not invalidate our main opinion.

First, the Whittington decision dealt with cancellation of a teacher’s contract under Title 52, Section 359 (previously numbered Section 357). The present case deals with a transfer, not a cancellation, and is governed by Sections 356 and 357, which contain distinct procedural provisions.

Second, there have been major substantive changes in Title 52 since the Whit-tington decision was rendered. Most important of these is the very creation of the State Tenure Commission, which took place in 1959. At the time of the Whitting-ton case in 1948, there was no Commission, and thus no choice of alternative forums available to a teacher such as exists now. It is the existence of such a choice which allows the election of one alternative over the other by means of waiver.

Third, even if the two important distinctions noted above are overlooked, it is impossible to deny that Whittington is in-apposite to the case before us. In the cited case, a teacher achieved continuing service status on May 22, 1948. Prior to that date, on April 29, 1948, proceedings to cancel her contract were commenced by mailing her a letter of notice. The sequence of events which followed included the teacher’s requests for hearing, for a statement of charges, and for a continuance of hearing until May 23. All aspects of the school board’s proceedings against the teacher conformed precisely to the requirements of the applicable Code provision, except that the proceedings were commenced before the teacher achieved continuing service status. On May 23, one day after achieving such status and before the hearing, the teacher objected to further proceedings. The supreme court held that the teacher’s previous requests had not waived any procedural defects.

In deciding that case the supreme court did not hold, as appellant argues, that formal defects in notice cannot be waived. Indeed, the notice given in that case was formally correct, thus presenting no question as to the effect of formal defects. What that case did say was that a teacher whose statutory procedural rights accrued on a given date could not waive those rights by taking part in proceedings held prior to the date the rights accrued. Stated in that manner, the holding is unquestionably a wise one.

The facts in the present case allow no room for application of the Whittington decision. Here, the teacher has been on continuing service status from the outset of the case, and for sometime prior thereto. Nothing in Whittington leaves the present waiver ineffectual.

Another matter presented for our consideration is the identity of the exact provision of Title 52 upon which we, in our main opinion, base the statement that the teacher could have appealed directly to the Tenure Commission, rather than request a hearing from the School Board. Both parties are in apparent agreement that this court was relying on Section 361(9), and that our citation to Section 357 was a clerical error.

Section 357 is the correct citation. That section provides for the teacher’s right to appeal final school board action to the Tenure Commission. The letter mailed to Buskey on June 28, 1974, standing alone, gives the appearance of final action, as noted in the main opinion. Without requesting a hearing from the Board, Buskey could have treated this as the “decision of the employing board” for purposes of Section 357. Appeal to the Tenure Commission from that decision is clearly provided for in Section 357. The Commission could then decide immediately whether or not the decision had been made in compliance with Title 52, Section 356.

If, on the other hand, Buskey had requested a hearing from the employing Board, and this request had been denied, Title 52, Section 361(9) would be applicable.

Neither of those scenarios occurred. Rather than going directly to the Tenure Commission when the opportunity presented itself, Buskey went instead before his employing Board, which granted his request for hearing. The result of this is adequately reviewed in our main opinion.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: FAULKNER, Justice.

text:
    In re ALABAMA STATE TENURE COMMISSION et al. v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, Alabama. Ex parte ALABAMA STATE TENURE COMMISSION ex rel. ATTORNEY GENERAL.
    SC 1857.
    Supreme Court of Alabama.
    June 11, 1976.
    William J. Baxley, Atty. Gen., and Carol Jean Smith and Joel E. Dillard, Asst. Attys. Gen. for the State.
    Crawford, Blacksher, Figures & Brown, Mobile, amicus curiae for James E. Buskey in Support of Petition for Writ of Certio-rari.
    None for respondent.
   FAULKNER, Justice.

Petition of The Alabama State Tenure Commission, by the Attorney General for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Alabama State Tenure Commission et al. v. Board of School Commissioners of Mobile County et al., 57 Ala.App. —, 332 So.2d 724.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Keith McPHEETERS v. C. Charner HEARD.
    Civ. 572.
    Court of Civil Appeals of Alabama.
    April 7, 1976.
    Rehearing Denied May 19, 1976.
    Samford, Denson & Horsley, Opelika, for appellant.
    John Percy Oliver II, Dadeville, for ap-pellee.
   WRIGHT, Presiding Judge.

Defendant appeals from a verdict and judgment in favor of plaintiff for $8,000.-00. Reversed.

Defendant is Dean of the School of Architecture at Auburn University and a licensed architect.

Plaintiff is a physician practicing in Dadeville, Alabama. In June, 1971, he contacted defendant about designing a house. After preliminary discussion concerning the proposed structure a formal agreement for defendant’s services was executed on June 14, 1971. Plans and specifications were prepared and approved. Invitations for bids were sent out to contractors in the area. Only one contractor submitted a bid. The bid was accepted by plaintiff and a contract for construction of the home was let on October 28, 1971.

Plaintiff and his family moved into the house September 20, 1972. At this point there was a good deal of unfinished or, in in plaintiff’s opinion, inferior work to be corrected.

On October 27, 1972, after living in the house for over a month, plaintiff at the direction of defendant prepared a list of defects and deficiencies in the construction. This list was presented to the contractor by defendant with a request for correction. Little was done toward correction by the contractor. Defendant subsequently recommended to plaintiff that the contractor be dismissed and another be obtained to complete the construction. Plaintiff did not accept that recommendation and continued to work with the contractor.

In February 1973, after contractor had submitted his final request for payment, plaintifff and defendant, working together, went over the house noting matters which were unacceptable for final payment. At that time there remained unpaid on the contract price the sum of $7,616.21. Defendant submitted to plaintiff his architect’s certification for final payment recommending withholding the sum of $2,506.-18 for deficiencies. Plaintiff, after study, refused the certificate and instructed defendants as to the amounts that he would pay and withhold. Defendant prepared another certificate as directed by plaintiff, withholding $2,674.81. Plaintiff paid the contractor according to the revised certificate. Defendant then submitted his final statement for his services. After making a deduction, plaintiff paid defendant.

In the summer of 1973, the evidence indicates that plaintiff noticed a large quantity of water in the heating and air conditioning duct in the living room. The ducts serving the first floor had been placed in the concrete slab upon which the house was constructed as required by the plans. This was necessary because portions of the first floor had exposed beams and no ceilings.

After the water appeared, plaintiff investigated and determined that drain tile had not been installed around the foundation as required in the plans and specifications. Without further contact, plaintiff filed suit against defendant on September 11, 1973, charging him with negligence in the performance of his contractual duties of inspection and supervision of construction.

At trial before a jury there was extensive testimony as to the defects in the house, their cause and the cost of correction. Expert testimony by architects, contractors, craftsmen and real estate appraisers was produced by both plaintiff and defendant. The contracts between plaintiff and defendant and between plaintiff and the contractor were introduced. Defendant testified as to the number of inspections he made during construction and his methods. There was conflicting testimony as to the existence of certain alleged defects and the acceptability of the construction in specific instances and in general. There was testimony as to the correction of the alleged defects and the costs thereof. There was testimony by appraisers as to the fair market value of the house if properly constructed, and the value of it in its defective condition.

With the testimony referred to, there can be no question that a jury question was presented as to whether defendant was negligent in performing his duties as an architect and whether such negligence proximately caused the defective construction or a part of it.

Defendant presented the defenses of the general issue, waiver through acceptance, and accord and satisfaction through payment.

The jury returned a verdict in favor of plaintiff for $8,000.00. Motion for judgment notwithstanding the verdict and for new trial was overruled.

Defendant on appeal has made multiple assignments of error.

The first error charged is that the court erred in denying defendant’s motion to dismiss two claims added by amendment to the complaint. These claims charged negligence by defendant in drawing plans and specifications and negligence in accepting an incompetent contractor. Defendant moved to dismiss those counts because they were barred by the statute of limitation of one year.

Whether the failure to grant the motion to dismiss the added claims was error is not necessary to be determined. The court in its oral charge directed the jury that no verdict could be returned against defendant on those counts. Such direction removed the injurious effect of error, if any, in failure to dismiss. Rule 45 ARAP.

However, immediately subsequent to directing the jury that a verdict could not be returned in favor of plaintiff for negligent preparation of plans and specifications, the court proceeded to give additional charges, apparently requested by plaintiff, upon the responsibility, degree of skill and duty required of an architect in drawing plans and specifications. One of such charges was plaintiff’s charge No. 8, duly objected to by defendant. These charges directly conflict with the direction immediately preceeding. The verdict was general. There is no'way of determining of what negligence defendant was found by the jury to be guilty. The charges of negligence as to drawing of plans and specifications and in securing a contract were taken away and immediately returned in the charge. Such conflict must be presumed to have so prejudiciously confused the jury as to require a reversal. South Highlands Infirmary v. Galloway, 233 Ala. 276, 171 So. 250.

We further find that under the evidence the court erroneously charged the jury as to the measure of damages as follows:

“If, however, the defects are so basic or extensive that they cannot be remedied at a reasonable expense or without tearing down and replacing, rebuilding the structure then the proper measure of damages is the difference between the value of the building as it is and the value it would have been if the workmanship had, some of the workmanship had not been defective.”

Defendant duly excepted to the charge, assigning as ground that there was no evidence that any of the defects were beyond repair and that there was testimony as to the reasonable cost of repair for each.

We have carefully studied the evidence and can find no testimony that the defects in the house are so basic and extensive as to be incapable of remedy at a reasonable expense. There was, in fact, testimony from plaintiff’s witness as to the cost of remedying the defects complained of. The total figure given was $8,221.00 without deduction for the $2,674.81 withheld by the plaintiff. Therefore, by the highest estimate of plaintiff’s testimony the defects could be corrected for $5,546.19 added to what plaintiff withheld from the contract price.

It is the opinion of the court that under the evidence the above instruction was improperly given. 525 Main St. Corp. v. Eagle Roofing Co., 34 N.J. 251, 168 A.2d 33; Gray v. Mattingly, 399 S.W.2d 301 (Ky); 5 Am.Jur.2d, Architects § 24.

The defendant contends that the court erred in failing to give his requested directed verdict on the ground that waiver of the defects had been established by proof of plaintiff’s occupation of the house and payment for the work after deducting for defects.

We cannot agree that the court erred in refusing to direct a verdict in favor of defendant on that ground. We find that the evidence as to waiver presented questions for the jury. Aubrey v. Helton, 276 Ala. 134, 159 So.2d 837.

As we hold the judgment is to be reversed for error previously discussed, we pretermit consideration of other errors assigned and argued in brief.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Judge.

text:
    Michael S. KILLOUGH v. STATE.
    8 Div. 614.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied April 20, 1976.
    William C. McCain, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with the robbery of cash and checks of a combined value of $2,585.00, the property of Bolton and Goins Grocery, from the person of Elsie Bolton. The jury found the appellant guilty as charged and fixed punishment at ten years imprisonment. The trial court then sentenced the appellant in accordance with the verdict.

The appellant presented no evidence in his behalf at trial. The pertinent facts are set out in the brief of the State as follows:

“On April 26, 1974, at 5:40 a. m. two individuals robbed Mrs. Elsie Bolton, the operator of the Bolton and Goins Grocery, which is located in the Frankfort Community, Franklin County, Alabama. The robbers were masked and gloved; one was armed with a rifle. The robbery was perpetrated with particular brutality. Mrs. Bolton’s husband was manhandled out of a chair and onto the floor. The perpetrators seemed familiar with the premises and knew exactly where the money was kept in a chest of drawers in a private part of the store. At one point Mrs.
Bolton procured a firearm. Seeing this, one of the perpetrators cried out. From their voices the two perpetrators were identified as a man and a woman. Shooting then broke out with the male perpetrator being wounded in the hand, and Mrs. Bolton being wounded in the arm. The perpetrators left the store in a green Pontiac with loot approximately $3970.00 in cash and checks.
“At 6:08 a. m. Franklin County Sheriff Swanson Hindman received a call to investigate the robbery. He arrived at the store at 6:35 a. m. and, after conversing with Mr. Bolton briefly, proceeded north. At 6:50 a. m. Sheriff Hindman found the get-away car abandoned at an old gravel pit north of the Crooked Oak community in Colbert County. Shortly thereafter, Deputy Jim Ricketts and Investigator Jim Rochester arrived at the gravel pit. The automobile’s hood and grill were still warm indicating recent abandonment. Several items of physical evidence were found at the scene.
“At about the time Jim Rochester arrived at the scene, State Trooper Harold Carson arrived and examined the abandoned vehicle. After leaving the scene Trooper Carson patroled toward the northeast. From the top of Wheeler Mountain Trooper Carson observed an automobile stopped below. As he approached, a young woman came out of the woods and got into the automobile, which then drove away. Trooper Carson stopped the automobile and advised the occupants that he was investigating a robbery and wanted to see their identifications. After noting the identifications of the persons and observing them, Trooper Carson let them go. The two occupants of the automobile were Dianne Michael and the Appellant, Michael Killough.
“Trooper Carson then returned to the place where he had seen Miss Michael come out of the woods. He found some of the -clothes and the masks which were used in the robbery a short distance from the road. Hairs found in one of these masks were identical to Dianne Michael’s.
“Trooper Carson then put out a pick-up order for the Appellant and Miss Michael.
“At the time of his arrest Mr. Killough’s hand was bandaged and the bandage was soaked with blood. Deputy Ricketts changed the bandage and in the process observed a penetration wound in Mr. Kil-lough’s hand.
“Mr. Killough was interviewed three times after his arrest. Each time he was advised of his constitutional rights and voluntarily waived his rights and made voluntary statements.
“The first statement was made to Franklin County Investigator James Rochester on April 26, 1974. On that occasion Mr. Rochester advised Mr. Killough of his Constitutional Rights, which Mr. Killough voluntarily waived. (R. p. 56) Mr. Kil-lough then made a voluntary statement in which he denied the robbery but admitted being in the area at the time of the robbery. (R. pp. 55-62)
“Mr. Killough’s second statement was made to Dexter Haney of the A.B.I. Division of the Department of Public Safety on April 28, 1974. Incident to this interview Mr. Killough was again advised of his Constitutional Rights and again waived them. (R. pp. 96-97) On this occasion Mr. Killough again denied participation in the robbery but stated that he had been present when Dianne Michael had hidden in two places the loot taken in the robbery. A subsequent examination of the places described by Mr. Kil-lough produced the loot. (R. pp. 95-98)
“Finally, on April 29, 1974, Mr. Killough admitted his participation in the robbery and told Detective Haney exactly how the robbery ‘went down.’ Again Mr. Killough was advised of his Constitutional rights and voluntarily waived them. (R. pp. 98-99) Then Mr. Killough voluntarily made a statement to Detective Haney. In Haney’s words:
“ ‘A He [Mr. Killough] said on the night before the Robbery that he and Dianne Michael went to a place and got a GTO Pontiac that Dianne knew where it was for the purpose of using in the Robbery, that he was working at the Little Bear Creek Dam and he had to go to work at 11:00 o’clock and they went to this place in this Chrysler or in the Chrysler he was driving and Dianne was driving the Chrysler and he got the Pontiac and they drove back to near Bolton’s Store and he went on to work in the Chrysler and Dianne stayed in the Pontiac until he got off work the next morning and they got back up there and then they left the Chrysler where she had spent the night in the Pontiac and went to Bolton’s Store and committed the Robbery and then went back to where the Chrysler was and left the Pontiac and got in the Chrysler and left. He said1 the reason they pulled this Robbery was to get money to hire a lawyer for Dianne on a Drug Charge that she had in Lauder-dale County.
***** *
‘“[H]e [Mr. Killough] said that he shot Mrs. Bolton, but he said that if he had wanted to have killed her, he sure could have because he was an expert shot with a pistol and he said he had no intention of killing her. I asked him about the guns and he said he wouldn’t tell me where the guns were, said they were gone, they would never be found.’ (R. p. 101)
(R. pp. 97-101)”

I

The only point argued on appeal in this cause is that the provisions of Title 30, § 63, Code of Alabama 1940, were not complied with inasmuch as the appellant was not served with a copy of a special venire at least one day before trial, citing McCaghren v. State, 292 Ala. 378, 294 So.2d 766. The appellant also calls our attention to the recent opinion of the Alabama Supreme Court in Ex parte Bynum v. State, 294 Ala. 78, 312 So.2d 52.

This Court in Fisher v. State, (1976), 57 Ala.App. 310, 328 So.2d 311, cert. denied March 5, 1976, speaking through Judge Bookout stated the following in dealing with this problem as posed by the Bynum, supra, opinion:

“. . . There the Court held that ‘capital offenses’ still exist in Alabama stating, ‘. . . The only effect of Furman [Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346] was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.’
“Contrary to the broad language employed by the Supreme Court in Bynum, we are of the opinion that the Court was addressing itself solely to the question of bail. The purpose for a special venire in ‘capital cases’ was to give a defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Act No. 532, supra, and Title 30, § 63, Code of Alabama 1940, were enacted, the only distinction between ‘capital’ and ‘non-capital’ cases was the possible imposition of the death penalty. Since the imposition of the death penalty has been suspended, there is no rational justification for a special venire in a case formerly classified as ‘capital’ where the maximum punishment is now the same as in a ‘non-capital’ case.
“Should the legislature ever enact a death penalty statute which meets all the constitutional tests for validity, then such special venire statutes would again become applicable, in our opinion. We do not believe the Alabama Supreme Court intended that its reasoning in the Bynum decision should be extended to require a special venire in cases where the death penalty cannot be imposed.”

We have carefully examined this record as required by law and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.

      “1- It was proven that Mr. Killough had been in the store previously and had been present when money was taken from the chest of drawers to cash his checks.


text:
    In re Michael S. KILLOUGH v. STATE. Ex parte Michael S. Killough.
    SC 1832.
    Supreme Court of Alabama.
    June 11, 1976.
    J. D. Quinlivan, Jr., and Warren L. Finch, Mobile, for petitioner.
    None for the State.
   FAULKNER, Justice.

Petition of Michael S. Killough for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Killough v. State, 57 Ala.App. —, 332 So.2d 736.

WRIT DENIED.

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


text:
    Turner Lee ROGERS v. STATE.
    8 Div. 782.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Rehearing Denied April 20, 1976.

      Patton, Latham & Legge, Athens, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with forcibly ravishing Martha Jean Johnson. The jury found the appellant guilty as charged and set punishment at life imprisonment. The trial court entered judgment in accordance with this verdict. The appellant’s motion for a new trial was duly overruled after a hearing thereon.

The appellant through counsel filed a petition to be treated as a youthful offender averring his age to be twenty years, and following a hearing thereon on August 11, 1975, this petition was denied.

Earl King testified that he was eighteen years of age and had been arrested on the late evening of March 9-10, 1975. He testified that he had been riding in an automobile with the appellant, Turner Lee Rogers, and one Billy Wayne Baker, who was the driver of the 1966 Ford automobile. King testified that the automobile in question belonged to him and that the three men were driving toward Huntsville, Alabama, on Highway 72 when they saw one Martha Jean Johnson and another girl walking along the side of the highway near the Hickory House Restaurant. King testified he was sitting on the back seat of the car that Baker was driving and that the appellant was sitting on the right hand front seat. He testified that they pulled up beside where the two girls were walking and that they were headed in the direction of Athens, Alabama. He testified that it was the appellant, Rogers, who had asked the driver to turn the car around and see if the girls wanted a ride. He stated that Rogers asked the girls if they wanted a ride and they answered no, that they were just going up the road a little piece. He stated that a few moments thereafter Rogers jumped out of the car as the girls started to run and pulled one of them inside the car on his lap and that she was screaming and trying to pull loose. He testified that the other girl leaned down and threw a rock which struck Rogers and that the other girl ran away. He testified that Rogers pulled the Johnson girl into the car with her feet hanging out of the door and told Baker to drive off. He testified that the girl’s feet were dragging the pavement and that she screamed, “stop, my feet is dragging the ground,” and that they slowed down and Rogers pulled her into the car.

King testified that they then drove the car down a dirt road and turned into a field off Lindsey Lane Road. At this point, Baker stopped the car, and the appellant, Rogers, got into the back seat with the girl. He testified that Rogers was a big man, weighing over 200 lbs. and that there was a struggle and that the girl said to please not hurt her as she had two children at home. He testified that Rogers had intercourse with her and that after he finished, he, King, then had intercourse with her as did Baker, the driver of the car. He testified that she asked each of them not to hurt her as she had two children at home. King testified that the appellant, Rogers, had pulled the Johnson girl’s blue jeans from her and pulled off her underclothes before and that he was the first one to have intercourse. He testified that he had plead guilty in this case and that he was eighteen years of age and had been sentenced to ten years imprisonment. He testified that when they finished, they were driving down a road in the general direction of Pete’s Corner when another car began chasing them and that they ran off into a field and that they were doing 80 or 90 m. p. h. and that the appellant, Rogers, had said, “the cops are after us.” He said that after the car wrecked, the men told them to lay on their stomachs, which they did, and they were later handcuffed and taken to jail.

Brenda McGee testified that she and Martha Jean Johnson had been over to Huntsville, Alabama, and had stopped in a couple of beer joints and had a beer or two. She testified they were driving back toward Athens, Alabama, near the Hickory House Restaurant when they ran out of gas. She testified they began walking in the direction of Athens when a blue Ford with three colored men in it pulled up and asked them if they wanted a ride and they replied no.

Brenda McGee further testified that they started walking faster when the largest of the three men, she identified in court as the appellant, jumped out of the car and grabbed Miss Johnson and pulled her toward the car. She stated that she picked up a rock and threw it at him and then began to run. She stated that she saw Miss Johnson struggle and heard her scream and that the three men took off in the car pulling her into it, that she saw Miss Johnson’s foot dragging. She stated that after running, she finally came across one Bobby Joe Knox who was a friend of her brother and that he took her to the Sheriff’s office in Athens where she reported what happened. She testified that when she last saw Miss Johnson her foot was dragging the pavement and that she did not see her again until late that evening in the hospital in Limestone County.

On cross examination, Miss McGee testified that she and Miss Johnson had a couple of beers at the Peppermint Lounge in Huntsville before they started back toward Athens. She testified she had not seen any of the three colored boys before the night of March 9, 1975.

Doctor E. G. Norwood testified that he was a physician at the Athens-Limestone County Hospital and was a licensed medical doctor practicing as an internist. He testified that on the night of March 9 or early morning of March 10, he examined Martha Jean Johnson at the emergency room of the hospital. He testified she had a deep abrasion on the top of her right foot and right knee and had some scratch marks on her hands and lower part of her chest and stomach, that there was a cut inside her lower lip and that she had a severe bruise on her head and a bad bump. He said that he made an internal examination of Miss Johnson with her permission and that her “perineum was abnormally red.” He said there was a large amount of vaginal secretion and that this was consistent with recent intercourse within the last thirty minutes to an hour. He said that his findings were that this would be consistent with intercourse with three men and that the longest period of time that it could have been would be perhaps twelve hours. Doctor Norwood testified that a smear was taken of the secretion and sent to Barbara Morgan, the laboratory technician.

Doctor Norwood further testified that he administered some penicillin and several shots which were to prevent venereal diseases and also to prevent conception. He testified that that same evening, he also examined the appellant, Turner Lee Rogers, who was complaining mostly of a severe headache and chest pains, that the appellant appeared to be dazed and that he examined him and made a skull X-Ray but that his vital signs were normal, and that he told him of being in an automobile accident that night. He testified that the appellant and the other two men were black and that Miss Johnson was white.

On cross-examination, the doctor stated that the lacerations about Miss Johnson’s face and head were consistent with being in an automobile accident, but that the abrasions on her knee and foot were consistent with being dragged on the pavement.

During the cross-examination of Doctor Norwood, the trial court ruled that the appellant could see the medical records of the victim Miss Johnson for the period of thirty days prior to the examination of Doctor Norwood at the hospital and all medical records subsequent to March 9, 1975, but would not permit appellant’s counsel to obtain medical records more than thirty days ■ prior to the incident.

Steve Brooks testified that he was riding with Mark Lucas and Ernest Johnson when they heard a police radio dispatch about a girl being kidnapped by three colored boys driving a blue Fairlane Ford over their C.B. radio. After driving a few minutes out Highway 72, they drove down Lindsey Lane and got a flashlight. He testified that sometime thereafter, a blue Fairlane Ford came past them, and they turned around and began pursuing and radioed that they were in pursuit of the automobile. Brooks testified that at times the speedometer indicated that they were doing over 100 m. p. h. and that Lindsey Lane made a dead end with an intersection known as Pete’s Corner, and they slowed down as the car they were pursuing made that turn. He stated that they stayed in pursuit for about five miles when the car ran off the road and out into a field and wrecked. He stated that none of the men were armed, that they jumped out with flashlights and told the men to halt and to lay down on their stomachs, that they then called for the Sheriff’s deputies.

Brooks further stated that the wreck occurred about a quarter of a mile west of Pete’s Corner and that when they pulled up, the Johnson girl was in a state of shock and was trying to get out of the automobile and was saying, “Don’t hurt me. Don’t do it anymore.” He testified that they stayed there and within a few minutes, two car loads of officers came up and arrested the three men. Brooks’ testimony was corroborated by Lonnie Merren.

Deputy Bobby Smith, of the Limestone County Sheriff’s Department, testified that on the night of March 9, 1975, he received information over the radio dispatch that some men had been in pursuit of a 1966 blue Fairlane which had wrecked about 200 yards west of Mooresville Road on the Huntsville-Brown’s Ferry Road, that this was shortly before 11:00 o’clock that night. He testified that when he arrived, three black males were lying on the ground and that Miss Johnson was getting out of the automobile. . He testified that he handcuffed Earl King and went to see about Miss Johnson. He testified that Officer Daly handcuffed the appellant, Rogers. Smith testified that Miss Johnson was crying and blood was coming from her mouth and scratches were on her face.

Smith further testified that he found the barrel of a .410 gauge shotgun on the back seat of the wrecked car. He testified that he and the other officers took the three men to the Limestone County Jail and then to the hospital that evening. This testimony was corroborated by that of other officers.

The pap smear made on the night of March 9, 1975, at the emergency room of Limestone County Hospital which showed “many sperm present” was stipulated into evidence.

The victim, Martha Jean Johnson, testified that she was twenty-four years of age on the night of March 9, 1975. She testified that she and Brenda McGee had driven over to Huntsville and gone to a beer joint and had a couple of beers and were driving back toward Athens when they ran out of gas. She testified that she had never been out with any black men in her life, but that on one occasion she and Brenda had gone into a beer joint with their dates in which some other black men were, that neither of them danced or had any contact with any black men.

Miss Johnson testified that on the night of March 9, she and Brenda were walking down the highway toward the Hickory House Restaurant when a 1966 Ford pulled up and three colored men were in it. She testified that the appellant asked, “Do you want a ride,” and that she told them, “No.” She testified that the appellant opened the door and grabbed her and when she tried to pull away, he drug her toward the car and as he did, she saw Brenda throw a rock which hit appellant. The appellant then jerked her into the automobile, and she was laying over his lap with her legs dragging out of the car, that she had on a sandal with rubber sole and that she was wearing blue jeans and a white shirt. She testified that she begged him that her legs were dragging and they slowed down and pulled her into the car.

Miss Johnson testified that after getting in the car, they drove down near a field and that her foot and knee had been scraped and cut. She further testified that the appellant put her in the back seat of the car and got in with her and removed her blue jeans and underclothes, that she fought and struggled and that he forcibly had intercourse with her and that she told him she had two children at home and not to hurt her. She testified that the other two men then also forcibly had intercourse with her.

Miss Johnson stated that they were driving back toward the road and the men were talking about what to do with her when another car began to follow them, and they began driving at a high rate of speed and the car wrecked. She said her lip was cut and her head bruised when she was found, but officers helped her get out of the car. Miss Johnson testified that she gave a statement to the officers describing the incident and was taken to the Limestone County Hospital for examination that night.

The appellant, Turner Lee Rogers, testified that he was twenty years of age on March 9, 1975. He testified that he was driving around with Earl King and that Billy Wayne Baker was driving the car. Rogers said that as they were driving out Highway 72, they saw two girls hitchhiking and that they slowed down and that Miss Johnson asked them to give them a ride and that as they slowed down, another car was coming and the other girl said it was her boyfriend and started running off. He said Miss Johnson got in the car and smoked a cigarette and had a beer with them.

Rogers further testified that they drove down a graveled road near a field and that Miss Johnson then got in the back seat and removed her clothes and that at no time did she protest, but that he did have intercourse with her. He testified at no time did he threaten her, neither did his companions and that each of the other two men also had intercourse with her.

Rogers testified that they were driving back from Lindsey Lane when they noticed another car was following them and they began driving at a high rate of speed. He testified that the car ran off into a field and that he had a severe lick on the head and was dazed. He denied that Miss Johnson’s foot or knee were dragging when she got in the car and that he did not grab her or pull her into the car. Rogers denied that Miss Johnson ever cried or protested and that the intercourse was at her consent.

Appellant also presented the character testimony of several witnesses who stated his character was good. Following the conclusion of the character testimony, the trial court after each side had rested permitted the State to reopen the case and present some rebuttal testimony which consisted of that of Deputy Sheriff Duey Bryant who found Miss Johnson’s key to her apartment on the person of the appellant when he examined the pockets at the Limestone County Jail and the testimony of Deputy Bobby Smith. Deputy Bryant also identified a pair of blue jeans, a pair of shoes, a white T-shirt, a bra and a pair of ladies pants which he testified were turned over to him by Miss Johnson the next day at her apartment and that he had to get her to get these out of the trash can.

Deputy Smith testified that he had found a .410 shotgun barrel on the back seat of the wrecked car on the night of March 9-10, 1975. This barrel was admitted into evidence.

The appellant then took the stand and denied that he had removed any items from Miss Johnson’s purse and that he only had about $4.00 and some change on him at the time of the accident.

I

The appellant first contends that as raised in his motion for new trial, the appellant was not arraigned in this cause and that the conviction is due to be reversed. Article 1, § 6, Constitution of Alabama 1901, in pertinent part reads as follows:

“That in all criminal prosecutions the accused has the right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; and to have a copy thereof....”

On hearing the motion for new trial, the State presented the Bench Notes as set forth in the minute entry which indicate that the appellant first appeared with counsel on August 4, 1975, and had his rights explained to him in open court, that on this date, he filed a youthful offender petition which was set for hearing August 11, 1975. On August 11, 1975, the minute entry in pertinent part indicates the following:

“ . . . After hearing Y. O. Pet. the same is denied. Parties announce ready for trial. On arraignment def. pleads not guilty. Trial of case proceeds.

After other notations indicating the ruling on certain motions to produce, the minute entry is signed, “Newton B. Powell, Judge.”

Mr. David Patton, as counsel for the appellant, testified that while he was not present on August 4, 1975, his partner Mr. Legge was present. He has specific recollection that the appellant was not arraigned on the morning of August 11, 1975, nor was the indictment read, nor did the trial court ask how did they plead.

Deputy District Attorney Jerry Knight testified that he was present on both August 4, 1975 and August 11, 1975, before the Honorable Newton B. Powell. He testified that according to his notes which were made on arraignment day that defense counsel had waived the formal reading of the indictment and entered a plea of not guilty. He testified that according to his recollection and notes, Mr. Legge waived the reading of the indictment and entered a not guilty plea and that subsequently either Mr. Legge or Mr. Patton came over to the counsel table and asked for a youthful offender form, which he supplied then and that it was filled out and filed. Following the testimony, we find the following ruling by the trial court:

“THE COURT: All right, is there anything else either one of you have to offer? We will give you an opportunity to put this in the record. As I have stated — I am stating this for the record. I was the Trial Judge. Memories play tricks on everybody, but I am sure that in the opening statements that were made by the State and the indictment having been read, that the defendant entered his plea of not guilty and it’s on the record and the record will stand like it is. I remember it. The record shows that it was that way and it will stand — I am going to leave it open. I will let you all see the rest of this stenographic record, but there is no question in my mind, as the Trial Judge, that a plea of not guilty was entered.
“MR. PATTON: Thank you.
“THE COURT: Anything else?
“MR. PATTON: That’s all, Your Honor.
“THE COURT: All right.”

In Headley v. State, 51 Ala.App. 148, 283 So.2d 458, this court indicated:

“The common law formalities attendant on arraignment are no longer required. Boyd v. State, 41 Ala.App. 507, 138 So.2d 60. Its only purpose is to obtain from the accused his answer or plea to the indictment. Howard v. State, 146 Ala. 149, 41 So. 301.
“Our Supreme Court in Fernandez v. State, 7 Ala. 511 stated:
“ ‘. . . . It is not indispensable to the regularity of the conviction, that the accused should be formally arraigned. If he is advised of the offense with which he is charged, and is prepared without hearing the indictment read, to answer it, he may plead.’
“The appellant was represented by able counsel, he was aware of the charge of murder against him and he entered a plea of not guilty. We cannot see any injury to the rights of the appellant. Paris v. State, 36 Ala. 232.”

We have carefully reviewed our opinion in Ludlum v. State, 52 Ala.App. 631, 296 So.2d 254, and the various authorities therein cited. In the instant case, however, the record supports the position of the trial court that in fact the appellant was arraigned in open court and entered a plea of not guilty. The fact that he may not have insisted upon a formal reading of the indictment is not fatal. Headley, supra.

The overruling of the appellant’s motion for new trial which challenged the arraignment was correct.

II

The appellant next cites as error the refusal of the trial court to grant his motion to produce the medical records of Miss Johnson more than thirty days prior to the incident in question which occurred on March 9, 1975. The appellant’s theory is that Miss Johnson may have received treatment as a result of other “affairs” and that she admitted that on cross-examination the two children were by different men and that she was not married to either.

However, there is no showing in this record that Miss Johnson had ever seen or been out with the appellant or either of his companions at any time prior to the incident in question which occurred on March 9, 1975.

Mr. Justice Harwood, then Harwood, P. J., of the former Court of Appeals, in Mabry v. State, 40 Ala.App. 129, 110 So.2d 250, cert. dismissed 268 Ala. 660, 110 So.2d 260, indicated:

“Perhaps the answer is best summarized in a statement by Cardozo, C. J., in People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 85, 52 A.L.R. 200, wherein he observed:
“ ‘Documents are not the subject to inspection for the mere reason that they will be useful in supplying a clew whereby evidence can be gathered. Documents to be subject to inspection must be evidence themselves.’ ”

We are clear to the conclusion that the medical records sought in the case at bar were not relevant to any reasonably conceived issue to be tried, and the trial court’s ruling in this regard was proper. Davidson v. State, 48 Ala.App. 446, 265 So.2d 888, cert. denied 289 Ala. 741, 265 So.2d 897; Smith v. State, 282 Ala. 268, 210 So.2d 826; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666.

Ill

Finally the appellant contends the trial court erred in allowing the case at bar to be reopened and rebuttal testimony presented by the State. We have carefully examined this record and determined that in accordance with Scott v. State, 246 Ala. 545, 21 So.2d 703, and authorities therein cited, that the trial court in its discretion properly allowed the State to reopen and present rebuttal testimony.

The rebuttal testimony consisted of the key to the victim’s apartment, found on the person of the appellant by the officers who charged him following the arrest, and of the clothing worn by the victim on the night of the incident in question. We believe the admission of this evidence to have been within the discretion of the trial court and in this cause entirely proper. Goldin v. State, 271 Ala. 678, 127 So.2d 375; Green v. State, 51 Ala.App. 654, 288 So.2d 191; Burt v. State, 54 Ala.App. 1, 304 So.2d 243, cert. denied 293 Ala. 749, 304 So.2d 246.

We have carefully examined the record as required by law and find no error therein. The judgment of the trial court is therefore affirmed.

AFFIRMED.

All the Judges concur, except CATES, P. J., concurs in the result.


text:
    In re Turner Lee ROGERS v. STATE of Alabama. Ex parte Turner Lee Rogers.
    SC 1829.
    Supreme Court of Alabama.
    June 4, 1976.
    Patton, Latham & Legge, Athens, for petitioner.
    No appearance for the State.
   SHORES, Justice.

Petition of Turner Lee Rogers for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Rogers v. State, 57 Ala.App. —, 332 So.2d 739.

WRIT DENIED.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


author: HARRIS, Judge.

text:
    Daniel COLEMAN v. STATE.
    1 Div. 639.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.

      Robert T. Cunningham, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the offense of robbery and sentenced to ten years imprisonment in the penitentiary. Prior to arraignment he was found to be indigent and counsel was appointed to represent him at arraignment and throughout the trial in chief. He pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. New counsel was appointed to represent him on appeal.

The facts presented by the State are not in dispute. Appellant did not testify nor did he offer any evidence in his behalf.

Near midnight on January 30, 1975, the Thrift Store located at 871 South Broad Street in the city of Mobile, Alabama, was robbed by two young black males who entered the store wearing handkerchiefs partly covering their faces. A customer who had just entered the bakery, William A. Orrell, testified that just as he walked into the bakery two black boys burst in the door behind him and hollered, “Don’t anybody move, it’s a stickup.” That one of the robbers pointed a pistol directly in his face and said, “Don’t move.” As appellant held the pistol in his face, Mr. Orrell was close enough to see that the pistol was fully loaded. The other robber instructed Sadie Mae Crumb, an employee of the store, to open the cash register and fill a bag with money. Mr. Orrell identified appellant as the man with the pistol despite the fact that his face was concealed from the nose down. This witness further testified that after holding the pistol on him to make sure he didn’t move appellant went to the cash register where the other man was and both of them got the money. After getting the money, the robber got a padlock from the store and as they left the store they padlocked it.

Sadie Mae Crumb testified to essentially the same facts as Mr. Orrell. She stated that the amount of money taken was $101.00. She also testified that the man with the pistol was the appellant and pointed him out in the courtroom. She further identified the weapon used by appellant in the robbery.

On cross-examination she testified that she was positive in her identification of appellant as the robber because she got a good look at him when he was pointing the pistol in her face. She stated that the handkerchief did not cover his entire face. That his hair was bushy on top and his eyes were big. She made a positive in-court identification of appellant as the robber with the pistol.

Officer Walter Pidgeon of the Mobile Police Department who was on patrol duty in the vicinity of the robbery testified that he responded to a holdup alarm at the Thrift Bake Shop on South Broad Street. During his investigation he got a tip that two black males were seen running from the Thrift Shop and entering a rooming house on South Carolina Street. The description fit the robbers given the officer by the people at the scene of the robbery. Officer Pidgeon and the other officers who had responded to the robbery report entered the rooming house and were informed to go to room number nine. In room nine the officers found appellant with a revolver in his hand. The other suspect was found in another room in this house and both men were arrested and carried to the station house. At the station house appellant was searched and $59.-00 together with a handkerchief were found in his pockets.

This witness further testified that appellant’s name was Daniel Coleman and he lived at 1010 Baltimore Street in Mobile, Alabama, which was several blocks from the rooming house where he took refuge in less than ten minutes after the robbery. This witness identified the pistol that appellant had in his hand in room nine of the rooming house as a .22 caliber revolver and it was introduced into evidence along with the handkerchief removed from appellant’s pocket when he was searched at the station house. This officer further stated that the $59.00 was in one of appellant’s shoes.

Appellant moved to exclude the State’s evidence on the ground the State had failed to make out a prima facie case against appellant. The motion was overruled and denied.

Appellant urges this Court to reverse this case because of the failure of the trial court to orally charge the jury as to the elements involved in the offense of robbery.

In Cox v. State, 280 Ala. 318, 193 So.2d 759, the Supreme Court said:

“Defendant takes the position in his brief that he cannot waive the right to have the jury correctly charged. We disagree. The orderly conduct of a trial requires some sort of rule of procedure. The rule should afford the party a fair opportunity to take exception to the charge if the party desire to do so. To aid the administration of justice, the exception should be taken at a time when the court may correct the error in the charge.
“In the instant case, defendant and his counsel were present in court. They heard the oral charge. Defendant then had the burden and the opportunity to state defendant’s objections to the court before the jury retired to determine their verdict. So far as we are advised, that rule has always been followed in this state. To allow defendant to complain of error in the charge at a later time would give him the opportunity to be aware of the court’s error, but to remain silent, speculate on a favorable verdict, and in the event of an unfavorable verdict to obtain reversal on a ground which defendant deliberately chose not to raise by exception taken at the appointed time.
“When a party has been given fair opportunity to exercise a right and fails to do so, we do not think it can be truly said that the party was denied that right. Because defendant did not except to the oral charge, the trial court will not be reversed for the alleged error in that charge.”

Numerous cases decided by the Supreme Court and this Court establish the rule to be that, in the absence of an exception to the Court’s oral charge, nothing is presented for review. Pryor v. State, 186 Ala. 27, 65 So. 331; Parker v. State, 266 Ala. 63, 94 So.2d 209; Shiver v. State, 49 Ala.App. 615, 274 So.2d 644; Cannon v. State, 53 Ala.App. 509, 301 So.2d 272; Vernon v. State, 55 Ala.App. 341, 315 So.2d 137.

Appellant could have requested a written charge to correct the omission in the oral charge. This he failed to do.

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


author: SUGG, Justice:

text:
    CITY OF BILOXI, Mississippi v. James O. CAWLEY et al.
    No. 48635.
    Supreme Court of Mississippi.
    May 25, 1976.
    Watkins, Pyle, Ludlam, Winter & Stennis, Jackson, Pringle & Pringle, Biloxi, Mize, Thompson & Blass, Gulfport, for appellant.
    Kelly McKoin, Louis Hengen, Biloxi, Greaves, Terry & Hunter, Gulfport, for appellees.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   SUGG, Justice:

This appeal is from a decree of the Chancery Court of the Second Judicial District of Harrison County holding that the ordinance of the City of Biloxi proposing to annex additional territory was not reasonable.

The City first contends that the chancellor should have recused himself from hearing the case and further, following the entry of the final decree, should have set the decree aside when the City filed a motion for that purpose. This contention is based on a statement contained in the affidavit of one of the attorneys for the City attached to the motion to set aside the decree wherein it is alleged that the chancellor made the following statement:

I agree that the people in the territory proposed to be annexed should have the right to vote on. the question of their being taken into the municipality through an annexation proceeding. However, the present statutes of the State of Mississippi do not provide for such an election and this Court can’t change the statutes.

In Yazoo & Mississippi Valley R. R. v. Kirk, 102 Miss. 41, 58 So. 710 (1912), the circuit judge hearing the case was disqualified under Section 165 of the Constitution of 1890 because he was related to the plaintiff’s attorney. The Court held that in such case the disqualification of the judge may be waived by the consent of the parties and the judge, and his judgment is not void per se but only voidable, hence his disqualification must be timely suggested or it will be considered waived. The Court also held that, when defendant’s attorneys did not learn of the facts disqualifying the judge until after a verdict in the case, an objection was timely if made on a motion for a new trial.

In other cases we have held that a party desiring to suggest the disqualification of a judge must do so before the trial of the case or as soon as counsel knows of the facts of disqualification. McCune v. Commercial Pub. Co., 148 Miss. 164, 114 So. 268 (1927), and Shireman v. Wildberger, 125 Miss. 499, 87 So. 657 (1921). In McCune the Court stated:

Courts are not to be trifled with in such matters. Judges do not have any desire to sit in cases where they are disqualified for any reason, and it is only fair that notice be given the judge of any such disqualification before he hears the case so that he may recuse himself. Any other rule might result in an unfair advantage being taken in a case where an attorney, who moves against a judge, might wait until after he could ascertain whether the decision would be for or against him; and, if against him, he would file a motion to recuse, but if for him, he would accept it without complaint. (148 Miss. at 172, 114 So. at 269).

The statement attributed to the chancellor was made before the case was tried but the City did not file a motion suggesting that he recuse himself until after the final decree was entered. The motion to set aside the decree on the ground that the chancellor was biased is not well taken for two reasons: first, the City elected to proceed with the trial without suggesting that the chancellor recuse himself and is bound by its election; second, the statement of the chancellor does not reflect any bias or prejudice and the fact that the City was not successful in its lawsuit does not give credence to its argument that the chancellor was biased. It is not uncommon for judges to be called on to apply law with which they may not personally agree, but this they must do because it is implicit in our judicial system that judges follow the law. The statement of the chancellor amounted to no more than his personal opinion that he thought people should have the right to vote on the question of annexation, but he was careful to note that his personal belief was not the law and he could not change the statutory law on the subject.

The City next argues that since the chancellor in an annexation case is limited to the question of whether the annexation ordinance is reasonable, the rule concerning reversal of finding of facts by the chancellor should not be applied as rigidly as in those cases where the chancellor is not limited to the determination of one question. This was answered adversely to the argument of the City in City of Picayune v. Quick & Grice, Inc., 238 Miss. 429, 117 So.2d 718 (1960), in which we held:

[I]t is a well-settled rule in our jurisprudence that the decision of a chancellor on an issue of fact where the testimony is conflicting will not be disturbed unless we are able to say that from all the evidence he was manifestly wrong, or that his decree was clearly against the overwhelming weight of the evidence. (238 Miss. at 434, 117 So.2d at 720).

Accord, In re The Enlargement of The Municipal Boundaries of The City of Forest, 247 Miss. 340, 153 So.2d 688 (1963), in which we stated:

The burden of proof was on the city to establish that the enlargement of its boundaries was reasonable, and if the chancellor’s finding of reasonableness or unreasonableness was supported by substantial evidence, then this Court will not disturb the chancellor’s findings. Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319. (247 Miss. at 342, 153 So.2d at 689).

It is true that the chancellor in an annexation case is limited to a determination of the question of whether the proposed annexation is reasonable; however, in deciding this issue the chancellor acts with the same authority as in any other chancery matter. We will not disturb his finding of facts unless we are able to say from all the evidence that the decree was manifestly wrong or clearly against the overwhelming weight of the evidence.

We have carefully reviewed the evidence and are unable to say that the decree of the chancellor is manifestly wrong or clearly against the overwhelming weight of the evidence.

Biloxi is located on a peninsula and is separated from the mainland territory proposed to be annexed by a navigable body of water varying from 1700 feet to 7,000 feet in width. In Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683 (1965), this Court stated:

The City of Biloxi cannot expand in any direction except to the west and the area proposed to be annexed is the only area into which the City can expand, being bounded by water in all other directions. (253 Miss. at 819, 178 So.2d at 685).
As already pointed out the City of Biloxi can expand in only one direction, the area included in the annexation ordinance lying to the west of the present city limits. (253 Miss. at 821, 178 So.2d at 686).

The City’s brief in Bridges cited several reasons for affirming the chancellor’s decree allowing annexation of territory to the west, one of which follows:

Second, because of the fact that Biloxi is situated upon a peninsula as re-fleeted by the evidence, it cannot reasonably be contended that there is any other direction for the city to expand other than that proposed by the Ordinance ratified by the court below.

Since the peninsula on which Biloxi is located is separated from the territory proposed to be annexed, it is apparent from a review of the evidence that grave problems do indeed exist in attempting to expand across this body of navigable water. Annexation of the territory north of Biloxi Bay would necessitate some duplication of facilities and personnel in order to render the services proposed by the ordinance of annexation. We do not hold as a matter of law that a city cannot expand across a natural barrier such as a navigable stream or bay, but it must prove that expansion across such natural barrier is reasonable.

In his opinion the chancellor set forth some of the evidentiary matters considered by him in holding that the ordinance was not reasonable, one being: “The municipal facilities and services lacking to the citizens of the present City of Biloxi, the time element (nine years and still incomplete) for providing water and sewage in the previously annexed West Biloxi area.” The chancellor properly considered the past performance of the City in providing services proposed under a previous ordinance as an indicia of whether it could or would furnish the services proposed in the ordinance under consideration in this case within a reasonable time.

Since the chancellor reached the conclusion that the proposed annexation was not reasonable, he dismissed the suit, and we are unable to say, after studying the voluminous record, that he was manifestly wrong in his conclusion. We therefore affirm the decree appealed from.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Glenn DEMOURELLE.
    No. 57324.
    Supreme Court of Louisiana.
    May 17, 1976.
    Rehearing Denied June 18, 1976.
    John J. Dolan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Glenn Demourelle was charged by bill of information filed on March 6, 1975 with the armed robbery of Sheldon Prevou on September 12, 1974. At a jury trial held on June 4, 1975, Demourelle was convicted and sentenced as a multiple offender to serve fifty years at hard labor. Two bills of exceptions are relied upon in this appeal.

BILL 1.

This bill was reserved when defense counsel moved for a mistrial and the motion was denied.

The victim of this robbery, Prevou, testified for the State on direct examination. He said that about 11:20 on the night of September 12, 1974 five Negroes came into his bar on Dauphine Street in the City of New Orleans. They entered separately and all were masked and armed — two with knives, two with hand guns and one with a shotgun.

On cross-examination by defense counsel this exchange occurred:

“Q. The man who had a shotgun, who is he? Did you see him in Court today ?
A. No, sir.
Q. He is not in Court ?
A. He has been convicted already.”

At that time defense counsel moved for a mistrial on the basis of the witness’ last answer. The trial judge instructed the jury to disregard the witness’ last statement and denied the motion for a mistrial.

Defense counsel relies upon Article 770 of the Code of Criminal Procedure. This article does not support his contention. It makes a mistrial mandatory when a prejudicial remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument. This did not occur here. The response to the defense question was by the victim of the robbery, a State witness on cross-examination by defense counsel.

In addition, the remark is not a reference to another crime committed or alleged to have been committed by the defendant as to which evidence was not admissible. Instead, the remark refers to a crime committed by one of the defendant’s accomplices. Prevou’s remark, therefore, was completely outside the scope of Article 770. Consequently the remark forms no basis for a mistrial.

The rule is well established in this State and elsewhere that testimony for which the State is not responsible provides no ground for upsetting a criminal conviction. State v. Johnson, 261 La. 620, 260 So.2d 645 (1972), cert. denied, 409 U.S. 1085, 93 S.Ct. 691, 34 L.Ed.2d 672 (1972); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971).

BILL 2.

This bill relates to the denial of the motion to suppress a confession made by defendant. It is the defense contention that the confession was not voluntary for it was obtained through force and intimidation in violation of constitutional rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

On the night of the robbery defendant was brought to the detective bureau. He was advised of his rights and signed the rights of arrestee form. He was advised that he had a right to call an attorney. He remained at the detective bureau until 3 o’clock the next morning, during which time, he testified, he was beaten and brutalized by the police officers and, for this reason, made the statement in question.

In response to a request by defense attorney, all of the officers who had any contact whatsoever with the defendant during the time period in question were brought into the courtroom for viewing by defendant. At first defendant identified Officer Ward and Sergeant Martin as the officers who mistreated him. Later, however, he changed his story and indicated a shorter policeman had beaten him.

All of the police officers who had contact with the defendant testified and categorically denied that defendant had been brutalized, had complained of mistreatment or bore any signs of injury. They testified, to the contrary, that defendant desired to make a statement in the hope that it would help him even though no promises were made by them.

Defendant contacted an attorney who saw him on September 14 and who was with him when he was brought before the magistrate on September 16. Neither mentioned the mistreatment, and there were no signs of injury at the time. There is no evidence to support defendant’s claims of mistreatment and no evidence except defendant’s uncorroborated, and contradicted, testimony is before the Court.

Before a confession or inculpa-tory statement can be introduced into evidence in a criminal trial in Louisiana, the State must affirmatively show that the confession or statement was voluntarily given, and was not obtained through fear, duress, intimidation, menaces, threats, inducements or promises. La.Const. art. I, § 11 (1921); La.R.S. 15:451-15:452; La. Code Crim.Pro. art. 703. In addition, since the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the State must establish that prior to any custodial interrogation the accused was informed that he had the right to remain silent, that anything he might say would be used against him, that he had the right to an attorney and if he could not afford an attorney one would be appointed free of charge.

Other principles relevant here recognize that the question of the admissibility in evidence of a confession is for the trial judge; its weight is for the jury; and the conclusion of the trial judge regarding the voluntariness of a confession is a question of fact which will not be overturned on appeal unless it is not supported by the evidence. State v. Whatley, 320 So.2d 123 (La.1975); State v. Sims, 310 So.2d 587 (La.1975); State v. Vessel, 260 La. 301, 256 So.2d 96 (1971); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971).

Upon these principles, we hold that defendant’s Bill 2 has no merit.

For the reasons assigned, the conviction and sentence are affirmed.

      . La.Code Crim.Pro. art. 770 provides:
      Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1)Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense; or
      (4) The refusal of the judge to direct a verdict.
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.