text:
    Anthony M. and Martha D. WILGER v. DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 987.
    Court of Civil Appeals of Alabama.
    March 9, 1977.

      Robert W. Dick for Perry & Dick, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

From a decree of the Circuit Court of Montgomery County awarding permanent custody of four children and temporary custody of two children to the Alabama Department of Pensions and Security, the natural parents of the six children take this appeal.

The parents and appellants, Mr. and Mrs. Anthony M. Wilger, contend that the award of custody of the children to the Depart-' ment of Pensions and Security is: (1) not supported by the evidence; and (2) to be reversed, since the statute under which the children were found to be “neglected or dependent” has subsequently been declared unconstitutional.

They also contend that the denial of counsel during in-court and out-of-court proceedings during the seven years preceding the court action from which this appeal is prosecuted constitutes a denial of due process inasmuch as the trial court placed a great deal of emphasis on the evidence and reports accumulated during this period.

As shown infra, the record indicates the filing of the appeal was untimely, thereby precluding consideration by this court of any of the above other than the contention regarding the constitutionality of the statute. With regard to that issue, we find no reversible error and, accordingly, affirm.

A review of the record before this court reveals that on April 7, 1976, the Circuit Court of Montgomery County found that the Wilger children who are the subject of this litigation were “neglected or dependent” within the meaning of Chapter 7 of Tit. 13 of Alabama Code of 1940. A decree was entered awarding permanent custody of four of these children to the Department of Pensions and Security. The decree also vested temporary custody of two other Wil-ger children in the Department of Pensions and Security.

On April 16, 1976, the Wilgers filed a Rule 59(a) ARCP motion for a new trial and a Rule 59(e) ARCP motion to alter judgment. By the latter motion the parents sought to have custody of their minor children returned to them. On June 21, 1976, these motions were denied by the trial court.

On July 21,1976, the Wilgers filed another motion in the Circuit Court of Montgomery County seeking to have that court:

“[Rjeconsider its order denying the motion for new trial or motion to alter or amend judgment heretofore entered

The basis asserted therefor was as follows:

“2. That since the denial of those motions [the Wilgers’ April 16 motions], Title 13, Sections 350 and 352 of the Alabama Code has been declared unconstitutional by a three-judge court convened pursuant to 28 U.S.C. § 2281 in Civil Actions No. 75-232-N, 75-233-N, and 75-457-N, Richard Roe, etc. vs. L. T. Conn, etc., Margaret Ann Wombles, etc., vs. L. T. Conn, etc., et a 1., and Richard Roe, etc., et al., vs. Cecil Coppage, et a 1.
“3. That in light of the aforementioned cases a constitutional question is now raised in the instant case as to the standards used in defining neglect and other pertinent parts of Title 13, Sections 350 and 352.”

On August 6, 1976, the circuit court entered its order denying the parents’ July 21, 1976, motion. On September 14, 1976, the parents filed notice of appeal and in brief argue those issues hereinabove set forth.

I

Rule 4(a)(1), ARAP, requires filing notice of appeal within 42 days of the entry of the judgment or order appealed from. Subsection (a)(3) of this rule further provides:

“The filing of a post-trial motion pursuant to Rules 50, 52 and 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal. . . .”

Thus, the parents’ 59(a) and 59(e) motions of April 16, 1976, suspended the running of the time for appeal.

Rule 4(a)(3), ARAP, also states that “. . . the full time fixed for filing a notice of appeal shall be computed from the date . . of an order granting or denying such motion.” The order denying the Wilgers’ 59(a) and 59(e) motions was entered on June 21, 1976. Thus, unless the July 21 motion suspended the running of the time for appeal, notice of which was filed on September 14, 1976, such appeal is untimely as it was filed more than 42 days subsequent to June 21, 1976.

The July 21 motion did not toll the running of the time for appeal.

“A motion to reconsider an order disposing of a motion of the kind enumerated in Rule 4(a) does not again terminate the running of the time for appeal. An initial motion to reconsider the judgment is a motion under Civil Rule 59(e) and does terminate the running of the time for appeal. But a motion to reconsider the reconsideration does not terminate the running of the time for appeal. The fair and obvious reading of Rule 4(a), as well as its rationale, compels such a result, and the courts are in accord.” (9 Moore’s Federal Practice, ¶ 204.12(1), 951-52) [Footnotes omitted.]

The rationale for the preceding statement is clear. A motion to reconsider a ruling on a Rule 59 motion is not a motion of the type encompassed within Rule 59. Therefore, its filing does not suspend the running of the time for appeal, as Rule 4(a)(3) specifically provides that only motions filed pursuant to Rule 59 (and other rules herein inapplicable) have that effect. Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952).

Moreover, as stated by the United States Court of Appeals for the District of Columbia in Yates v. Behrend, 108 U.S.App.D.C. 56, 280 F.2d 64 (1960):

“There is nothing in the Rules to suggest that a second motion for reconsideration, made after the denial of a timely initial motion, has the effect of again terminating the running of the time to appeal from the judgment. Such a construction of the Rules would permit dilatory tactics destructive of the finality of the judgment. The proper construction is that the running of appeal time from the judgment is not suspended by merely making a second motion for reconsideration, ...” (280 F.2d at 65-66)

In similar circumstances other courts have reached the same conclusion we reach herein — that filing of a motion to reconsider an order denying a new trial or refusing to alter or amend a judgment does not suspend the running of the time for appeal. Ellis v. Richardson, 471 F.2d 720 (5th Cir. 1973); Dockery v. Travelers Co. of Hartford, Connecticut, 349 F.2d 1017 (5th Cir. 1965); Marten v. Hess, 176 F.2d 834 (6th Cir. 1949); Yates and Randolph, supra. The appeal having been untimely, this court is precluded from considering the Wilgers’ contentions with respect to the sufficiency of evidence and lack of representation of counsel.

II

The Wilgers’ appeal was filed on September 14, 1976, within 42 days after the August 6 entry of the order disposing of their July 21, 1976, motion. As shown from above, the motion was premised on the decision of a three judge federal court in the Middle District of Alabama holding pertinent provisions of Tit. 13, §§ 350, 352, Code of Alabama, unconstitutional. Although not reflected by the record, the decision of that federal court was rendered on July 6, 1976. Hence, the Wilgers could not have brought this matter to the attention of the trial court when they made their initial Rule 59 motions on April 16, 1976.

We have already indicated that the Rules contain no provision for making a motion to reconsider the overruling of a Rule 59 motion. Neither do they provide for taking appeals therefrom. Hence, this appeal could be dismissed in its entirety. Yates, supra.

However, a liberal interpretation of the July 21 motion allows it to be construed as a Rule 60(b) motion. Although a 60(b) motion does not suspend the running of the time for appeal, one may prosecute an appeal solely with respect to the trial court’s ruling on the 60(b) motion.

“An order denying a 60(b) motion is a final order and appealable as such. While the denial order brings up for review the matters pertinent thereto, it does not bring up the judgment for review.” (7 Moore’s Federal Practice, ¶ 60.-30[3], 430-31) [Footnotes omitted.]

Able counsel for appellant at oral argument concedes that the July 21 motion is a Rule 60(b) motion.

In furtherance of the objectives of promoting fairness and reaching the merits of as many of the litigants’ contentions as is legally permissible, this court considers the Wilgers’ July 21 motion as a Rule 60(b) motion. Cogent arguments can be advanced for entertaining the motion pursuant to either 60(b)(5) or 60(b)(6); and as already pointed out, such an interpretation permits this court to review the trial court’s August 6 order.

The determination of whether to grant or deny relief pursuant to Rule 60(b) is largely a matter within the judicial discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Bank of America Nat. Trust & Sav. Ass’n. v. Mamakos, 509 F.2d 1217 (9th Cir. 1975); and numerous cases cited in 7 Moore’s Federal Practice, ¶ 60.19, pp. 227-31. Here, we cannot say the trial court’s action falls within the category of conduct deemed arbitrary, thereby warranting reversal as an abuse of discretion.

The relevant statutory provision had not been declared unconstitutional on June 21, 1976, when the trial court disposed of the Wilgers’ Rule 59 motions. This June 21 order reinstated the finality of the April 7 judgment previously rendered by the Circuit Court of Montgomery County. Hence, granting the Wilgers’ July 21 60(b) motion would have necessitated retroactive application of the July 6 three judge federal court decision. The Supreme Court of the United States has stated the following with respect to the issue of whether a holding that a statute is unconstitutional is to be given retroactive effect:

“The actual existence of a statute, prior to such a determination [that it is unconstitutional], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. . . (Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329 [1940])

No erudite analysis is required to articulate the detrimental impact retroactive application of the three judge federal court decision would impose upon the lives of the many children who had become wards of the state and permanently cared for as the circumstances dictated. We deem the pitfalls of such a course of action to be patently obvious. The adverse consequences likely to befall numerous individuals who acted in reliance on the statute outweigh any merit to be derived through retroactive application of the three judge federal court decision declaring the statute unconstitutional. Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973); Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

“Where a decision of this court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity. . . .” (Cipriano, supra, at 706, 89 S.Ct. at 1900)

From what we have said above, it follows that the trial court did not abuse its discretion in denying the Wilgers’ 60(b) motion. Moreover, we would additionally note that this court is not bound by the decision of the three judge federal court with regard to the constitutionality of Tit. 13, §§ 350, 352, Code of Alabama. Smith v. State of Alabama, Dept. of Pensions and Security, Ala.Civ.App., 340 So.2d 34 (1976); Minniefield v. State, 47 Ala.App. 699, 260 So.2d 607 (1972).

The action of the Circuit Court of Montgomery County is due to be and is, accordingly, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Mose Frank COPELAND v. Robbie COPELAND.
    Civ. 1010.
    Court of Civil Appeals of Alabama.
    March 9, 1977.

      James E. Hedgspeth, Jr., Jack Floyd, Atty., Gadsden, for appellant.
    William W. Cardwell, Jr., Gadsden, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Etowah County’s action modifying a previous award of periodic alimony.

The husband appeals and through able counsel contends the trial court erred to reversal in increasing the amount of alimony from $200 per month to $300 per month. Specifically, the husband contends there has not been a material change of' circumstances since the divorce decree to justify the trial court’s action. We disagree and affirm.

Reviewing the record before this court with the attendant presumptions in favor of the trial court, we find the following pertinent facts.

The parties were married for over thirty years. They were divorced in 1969 and the husband was ordered to pay $200 per month periodic alimony. In 1976, both parties filed petitions to modify the amount of alimony. The husband requested a decrease in the amount, and the wife requested an increase.

An ore terms hearing was held; the only witnesses were the husband and the wife. Their testimony revealed that at the time of the divorce the husband was earning approximately $1,200 per month; he now earns approximately $960 per month which includes rental income. Additionally, since the divorce the husband has acquired more real estate.

The wife testified that since the divorce, she has become disabled. Specifically, the wife testified as follows:

“A Well, I’ve had to fight — I’ve had to fight to keep well and I tried working after he wanted his divorce and I worked there a while, you know, in Birmingham.
“Q At the present time are you permanently and totally disabled?
“A Yes, sir. You have my doctors?
“Q Who is your doctor?
“A Dr. Roy Stanton.
“Q Your disability has come about since the divorce, is that right?
“A Yes, sir, . . .”

In addition to the wife’s testimony, her doctor’s statement, apparently without objection, was introduced. This statement was dated March 29, 1976, and reads as follows:

“I certify that the above patient is under my professional care and that she is totally and permanently disabled from carrying on her usual work.”

There was testimony that the wife had been employed for a period of time after the decree of divorce. The tendency of the wife’s testimony further showed that her expenses for food, utilities, and medical care had increased since the divorce.

The trial court can, in its discretion, modify an original award of alimony or support in a divorce decree on proof of changed circumstances of parties, one or both, but unless this discretion is abused, an order so modifying will not be reversed on appeal. Mockridge v. Mockridge, 278 Ala. 79, 175 So.2d 772 (1965); 8 Ala. Digest Divorce «=»245(2). For a recent discussion of “changed circumstances” see O’Dell v. O’Dell, 57 Ala.App. 185, 826 So.2d 747 (1976).

In this instance, where there is testimony that the wife has since the divorce decree become disabled, and is unable to work, and further, that her expenses have increased, we cannot say that the trial court erred to reversal in increasing the amount of alimony from $200 per month to $300 per month. This is true even though the testimony shows that the husband’s income has decreased from $1,200 to $960. For this court to hold otherwise, we would have to substitute our judgment for that of the trial judge and this the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

Finding no palpable error or abuse in the trial court’s decree, the case is due to be and is, accordingly, affirmed.

AFFIRMED.

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


text:
    STATE of Alabama, DEPARTMENT OF REVENUE v. Aubrey J. LINDSEY, d/b/a A. J. Lindsey Wholesale Produce Company.
    Civ. 1015.
    Court of Civil Appeals of Alabama.
    March 9, 1977.

      William J. Baxley, Atty. Gen. of Ala., Willard W. Livingston and Philip C. Davis, Asst. Counsels, Dept, of Revenue, and Asst. Atty. Gen. of Ala., for appellants.
    W. M. Beck of Beck & Beck, Fort Payne, for appellee.
   HOLMES, Judge.

From a decree of the Circuit Court of DeKalb County finding that the State Department of Revenue’s assessment of taxes upon Aubrey J. Lindsey, d/b/a A. J. Lindsey Wholesale Produce Company, was barred by the statute of limitations, the State appeals.

The sole issue before this court is whether Tit. 51, § 786(17)(b), Code of Alabama (1973 Cum.Supp.), which became effective October 1, 1965, allows assessment by the State on December 10, 1968, of a sales tax on sales made by the taxpayer from January 1, 1963, through August 31, 1965. We hold that it does and reverse and remand.

The record discloses the following:

Taxpayer operates a wholesale produce business and sells produce and other food items to stores, restaurants, schools, individuals, and other entities. These sales were sales for consumption and as such were subject to the Alabama sales tax. Tit. 51, § 786(2) et seq., Code of Alabama (1973 Cum.Supp.). Taxpayer failed to collect the sales tax upon these sales and did not file returns with the State Department of Revenue as required by the Code.

From January 1, 1963, until October 1, 1965, the law provided:

“(b) No assessment shall be made by the department of revenue against any person, firm or corporation for any tax which became due from such person, firm, or corporation under the provisions of this Act more than three years prior to the date the department commenced an audit of the books or records of such person, firm, or corporation to ascertain the amount due, or, if no audit is made, prior to the date the department mailed written demand for the amount claimed to be due from such person, firm or corporation.” [Emphasis supplied.] (Act No. 100, § 16(b), 1 Acts of Alabama 307 (1959)).

Effective October 1, 1965, the preceding provision was amended to read as follows:'

“Any notice, . . . of an amount due under this article shall be given or any action in court for the collection of such amount shall be begun within three years of the due date of such amount. Provided, however, in the case of . a failure to file a return, the tax may be assessed or a proceeding in court for the collection of such tax may be begun at any time. . . . ” [Emphasis supplied.] (Tit. 51, § 786(17), Code of Alabama (1973 Cum.Supp.)).

Although not disclosed by the record, apparently the State Department of Revenue commenced its audit of taxpayer on September 1, 1968.

On December 10, 1968, the department entered a sales tax assessment against taxpayer for $1,821.62 plus $308.37 interest, for a total assessment of $2,129.89. The taxes assessed were for a period extending from January 1, 1963, through June 30, 1968.

The taxpayer appealed within the time provided by law, and on September 24, 1976, the learned trial judge rendered a final judgment wherein it held the taxpayer liable to the State for taxes and interest thereon for taxes accruing from September 1, 1965, through June 30, 1968, a sum of $1,753.10.

The court specifically found that the taxes sought to be recovered for the period from January 1, 1963, to September 1, 1965, were barred by the statute of limitations, i.e., Act 100 as set forth, supra. It is from this ruling that the State prosecutes this appeal.

I

The pertinent portion of the Code, as set forth supra, discloses that had Act 100 been in effect on September 1, 1968, when the State commenced its audit of taxpayer’s records, the State would have been allowed to assess taxes accruing only from Septem-. ber 1, 1965, three years prior to the time it commenced its audit. However, Act 100 was not in effect on September 1, 1968. Rather, Tit. 51, § 786(17), Code of Alabama (1973 Cum.Supp.), which became effective October 1, 1965, was the applicable statutory provision. It provided that in cases where, as here, the taxpayer failed to file a return, the State could assess a tax at any time.

The State contends that the 1965 amendment (Tit. 51, § 786(17)) authorizes it to make assessments at any time for taxes accruing three years prior to the effective date of the amendment in those instances where the taxpayer has failed to file a return. Put another way, the State contends that since the taxes attempted to be assessed in this instance (from January 1, 1963, through August 30, 1965) were not barred by Act 100, § 16(b), when the 1965 amendment which extended the period for assessment became effective, they are governed by § 786(17)’s provisions and are properly levied. The State is correct in its contention/

Statutes of limitation are of two types. In one, the limitation is so inextricably bound up in the statute creating the right that it is deemed a portion of the substantive right itself. In the other, the limitation is deemed to affect only the remedy and does not constitute part of the substantive right. By affecting the remedy, it is meant that the statute establishes the time frame in which a party may seek to enforce his claim. The running of the latter type of statute of limitation does not extinguish a party’s right, but merely precludes his judicial assertion of that right. 51 Am.Jur.2d Limitation of Actions §§ 8, 15, 22.

Alabama decisions state that a statute of limitations, unless the act specifically declares otherwise, is construed as affecting the remedy only. Webster v. Talley, 251 Ala. 336, 37 So.2d 190 (1948); Odom v. Averett, 248 Ala. 289, 27 So.2d 479 (1946). Here, there is no express declaration otherwise. Hence, the limitation of Tit. 51, § 786(17), must be interpreted to affect only the State’s remedy.

The law with respect to statutes of limitation of this category is well established.

“Amendments extending statutes of limitations apply to pre-existing claims not already barred, unless the amendato-ry act expressly provides otherwise. ...” (79 A.L.R.2d 1080, 1090)

In In re McClure Co., 21 F.2d 538, 540 (N.D.Ga.1927), under circumstances similar to those herein, the court stated:

“It is elementary that . . . limitations of time may be freely made and altered, provided that one having a right is not substantially deprived of all remedy. No man has a vested right not to pay a tax or other obligation which he really owes. So that an extension of the time within which the obligation may be enforced, or the entire abolition of the limitation, is within rightful legislative power.”

Numerous cases have held that amendments extending the statute of limitations with regard to tax liability apply to pre-ex-isting tax obligations not already barred on the effective date of the new legislation. 79 A.L.R.2d 1080, 1096-98.

Taxpayer seeks to avoid the import of these decisions by contending that the legislation is ex post facto and, accordingly, forbidden by the Constitution. Other courts have rejected such a contention.

“It cannot be held that the section . is violative of [the section of the Constitution] prohibiting the passing of laws retrospective in their operation. This, because the retrospective laws forbidden by that instrument are laws impairing existing vested civil rights. The law must take away such vested right, or it must create a new obligation, impose a new duty, or attach a new disability in respect to gone-by transactions, in order to be retrospective and under the constitutional ban.” (Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40, 43 (1909))

Accord State v. Elliott, 246 Ala. 439, 21 So.2d 310 (1945).

As previously stated, taxpayer here had no vested right not to pay taxes. Neither did he have any new obligation thrust upon him. The legislature merely lengthened the time in which the state might assess taxes against those taxpayers who have failed to file returns. The assessment of taxes from January 1963, through August 30, 1965, should have been allowed.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


text:
    Nathaniel PEARSON v. STATE.
    2 Div. 179.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      Booker T. Forte, Jr., Eutaw, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of burglary in the second degree and sentenced to imprisonment for six years.

According to the testimony of Willie Alford and Darby Scarbrough, who also were charged by separate indictments with the same alleged crime, defendant actively participated with them in the burglary of the uninhabited dwelling of Marie Morrow for the purpose of stealing furniture therein, which they accomplished. They removed two television sets therefrom, as well as some other items of personal property. Alford testified that about two weeks after the burglary he and appellant-defendant took one of the sets to the home of Walter Morgan, with whom Alford had lived as a child, and sold it to Morgan for the sum of forty dollars. Appellant kept twenty dollars of the money and the other twenty was divided equally between Alford and Scar-brough.

Walter Morgan testified for the State and positively identified appellant as having been one of those who sold him the television set.

Marie Morrow testified as to her living at the residence where the burglary occurred, the physical facts as to the breaking and entry and as to the property taken therefrom. She was unable to connect defendant or either of the other two with the burglary.

Appellant takes the position that there was no evidence of his guilt other than that found in the testimony of accomplices, which, if true, requires a reversal of his conviction as one based on the uncorroborated testimony of accomplices, forbidden by Code of Alabama 1940, Tit. 15, § 307. There seems to be no basic disagreement between the parties as to the law on the subject. Their disagreement is whether Walter Morgan was an accomplice.

If Morgan could have been indicted and convicted of the offense charged, either as principal or accessory, he was an accomplice; otherwise, he was not an accomplice. Logan v. State, 291 Ala. 497, 282 So.2d 898; Miller v. State, 290 Ala. 248, 275 So.2d 675; Doss v. State, 220 Ala. 30, 123 So. 231; Leonard v. State, 43 Ala.App. 454, 192 So.2d 461; Strange v. State, 43 Ala. App. 599, 197 So.2d 437.

Appellant argues that Morgan knew, or had reason to believe, that the television set was stolen. Even so, he was not an accomplice. It was held in Childs v. State, 43 Ala.App. 529, 194 So.2d 861, that evidence conclusively establishing that witnesses had knowingly received and concealed stolen property is not sufficient to show guilt of a burglary that resulted in the larceny of the property. Furthermore, we do not agree with appellant in his contention that there was some evidence of criminal conduct on the part of Morgan. However gullible or unwary he might have been, there is no evidence whatever that he was guilty of any crime, particularly burglary of which defendant was convicted.

Appellant’s only other insistence as to error is in connection with the overruling by the court of defendant’s motion for a mistrial, which was made at the beginning of court the morning after the first day’s trial of the case. The record in its entirety as to the motion is as follows:

“MR. CHESTNUT: Your Honor, I would like to make a Motion before the Jury is brought back into court.
“THE COURT: Alright.
“MR. CHESTNUT: The defendant comes now and states to the Court that in qualifying the jury yesterday, the specific question was asked by defense counsel, of the venire, whether any persons there were employed by the county government. Only two persons responded in the affirmative and these people were Joyce Barnes and Samuel Williams. It has now been discovered that one Evelyn Roebuck is employed by the county government, as an employee of the county hospital. Now, it is obvious that the defendant had specific reasons for making these inquiries of the venire. It is further discovered that this particular juror knows the defendant as they both have worked for this county institution and that they have had some misunderstanding and she does not like the defendant and we are prepared to prove it by testimony. We now move, on the basis of what we have just said, for a mistrial.
“THE COURT: Let the record show that the defendant and his attorney had ample opportunity to raise these matters in voir dire examination to ask any question of the venire and he was given an opportunity to ask these questions that they wanted to ask of the venire. The court finds that the fact that one of the jurors may not have responded that she worked at the . . . as an employee of the Greene County Hospital is not grounds for a mistrial and the court denies the motion.
“MR. CHESTNUT: Let me just raise to the court, for the sake of the record, that there was no way to pursue this matter on voir dire without the initial acknowl-edgement by the members of the venire that they were so employed. The defendant operated on the presumption that nobody there, except those who made it known, worked for any unit in the county government, infact, the record will reflect that each time the defense counsel stated to the venire that he took it by their silence that the answers to his questions were in the negative.
“THE COURT: I fail to see . . . the court fails to see any possible relationship, the fact whether someone works for the hospital as to their qualifications for sitting on the trial of a criminal case. “MR. CHESTNUT: We take an exception to the ruling.
“THE COURT: Alright, let’s get started.”

During the process of the interrogation and selection of the jury for the trial of the case, a pertinent part of the proceedings was as follows:

“THE COURT: Alright, Mr. Chestnut, do you have any questions that you would like to ask of this panel?
“MR. CHESTNUT: Yes, your Honor, I’d like to know if anybody here is employed either by the City of Eutaw or by the county of Greene?
“(Whereupon, one juror responded)
“MR. CHESTNUT: What is your name, please?
“JUROR: Samuel Edgar Williams.
“MR. CHESTNUT: Is there anybody else?
“JUROR: Joyce Barnes.
“MR. CHESTNUT: Is that everybody?
“(Whereupon, on one else responded)”

Appellant relies for this particular assertion of error upon the following:

“In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest,, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.” Code of Alabama, Tit. 30, § 52.

A party is entitled to truthful answers from jurors to questions propounded to them during the exercise of the right of a party to interrogate the jurors under the provisions of the quoted section of the Code of Alabama. Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247. Morris v. Zac Smith Stationery Co., 274 Ala. 467, 149 So.2d 810; Parkinson v. Hudson, 265 Ala. 4, 88 So.2d 793; Leach v. State, 31 Ala.App. 390, 18 So.2d 285, cert. denied 45 Ala. 539, 18 So.2d 289.

The record relative to defendant’s motion for a mistrial fails to convince us that there was a complete meeting of the minds of the trial court and defendant’s counsel on the matter. Appellant’s counsel on appeal now makes it clear that his contention is that the particular juror, an employee of the Greene County Hospital, by her silence, did not truthfully answer the question whether she was an employee of Greene County. Apparently the court did not understand that to be his contention in asserting and arguing his motion for a mistrial. Whether the trial court would have ruled differently if counsel for defendant had more definitely made the point he makes now, we are unable to state, but we think that it was counsel’s duty to do so.

We are of the opinion also that appellant has not shown an untruthful answer to a definite question. We can understand that probably most employees of a county would know that they are employed by the county. On the other hand, we are mindful that the ramifications of governmental agencies today are such that at times some employees of such agencies or instrumentalities are not cognizant of an employer-employee relationship with the particular government, whether national or state, or any subsidiary of either. We can understand that generally persons working under officials of a county government would be expected to know that they are employees of the particular county. But this same knowledge is hardly chargeable to every employee of a county hospital. The chances are that as to the first kind of employees, if one is asked by whom he is employed, he would respond that he is employed by the particular county. On the other hand, it can be seen that if a nurse in a county hospital is asked by whom she is employed, she could well be expected to answer differently from the other class, that is, that she is employed by the hospital, perhaps, the county hospital giving the name of the county. In this connection, we note that as to county hospitals, the general law on the subject is found in Code of Alabama, Recompiled 1958, Tit. 22, §§ 204(18)-204(30), in which provision is made for the incorporation of such hospitals, and in which it is stated:

“. . . All debts created and securities issued by the corporation shall be solely and exclusively an obligation of the corporation and shall not create an obligation or debt of the state of Alabama or of any county or municipality.” § 204(25)

Irrespective of whether the Greene County Hospital was organized and is governed by the general statutory law on the subject, or by special or local legislation, we are not persuaded that the particular juror is chargeable with falsity or with any fault-in not affirmatively answering the question whether she was employed by Greene County-

If any mistake was made in failing to answer affirmatively the question whether she was employed by Greene County, it is attributable to the failure to clarify the question in such a way as to show that it covered employees of the Greene County Hospital. A failure to answer a question on voir dire furnishes no basis for complaint, if the question as applied to a particular juror does not clearly call for an express response. Parkinson v. Hudson, supra; Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 130 So.2d 178; Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181.

A careful analysis of the record as to defendant’s motion for a mistrial fails to disclose definitely the basis for any prejudice to defendant in the failure of the juror to respond affirmatively to the mentioned question. In attempting to show some prejudice, counsel stated that both defendant and the juror had worked at the county hospital and “that they have had some misunderstanding and she does not like the defendant and we are prepared to prove it by testimony.” This indicates at least, without any indication to the contrary, that defendant knew at the time the jury was selected that the particular juror had worked at the county hospital. Otherwise, there was no connection between jurors working at the county hospital and the misunderstanding between the two. Two jurors responded in the affirmative to the particular question. The record shows that no further questions were asked them on the same subject. If juror Roebuck had answered the question affirmatively, there is no reason to assume that she would have been asked any further questions on the subject. On the basis of the showing made by defendant, the trial court was not required to grant a mistrial or to open an extensive inquiry as to the basis for defendant’s dissatisfaction with the juror. Although it was proper for the matter to be brought to the attention of the court at the time it was presented, any possibility of substantial injury to defendant could have been more clearly shown by a motion for new trial with supporting affidavits or testimony. No motion for new trial was ever filed. No testimony was presented by defendant on the trial of the case. Any verdict different from the one rendered would have been contrary to the undisputed evidence.

We have searched the record for error prejudicial to defendant and have found none. The judgment should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945. The judgment below is hereby

AFFIRMED.

All Judges concur.


author: BOWEN, Judge.

text:
    Winfred H. KIMMONS, Jr. v. STATE.
    4 Div. 509.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      J. Fletcher Jones, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Winston D. Durant, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was charged and convicted of burglary in the second degree and grand larceny. The trial Judge fixed his punishment at ten years in the penitentiary. After conviction, the appellant was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The facts are not in dispute. The appellant did not testify nor offer any evidence in his defense.

After the State had completed its case, the defense made a motion to exclude the State’s evidence on the ground that the only evidence tending to connect the appellant with the charged crimes was the testimony of accomplices. Defense counsel also requested the affirmative charge and made a motion for a new trial raising the sufficiency of the evidence to sustain the judgment of conviction. We will therefore recite the evidence in the light most favorable to the State.

Larry Presley is the owner of Clemmons Drug Store. In the early morning hours of Tuesday, May 11,1976, he was notified that there had been a break-in of the building adjoining his store. Presley went to his store and found that a drawer near his cash register was missing. He checked the narcotic drawer in the pharmacy department of the store and found that it was locked but was empty. The key, which was kept in another location in the store, had been used to open the drawer. Presley made a list of the missing narcotic pills and tablets, which he testified were valued at $135.00. The night latch on a door leading to a storage room was torn off. This storage room opened into the adjoining building, which was occupied by an optometrist.

Jerry Brannon was the Chief of Police of Opp, Alabama. He investigated the burglary on Tuesday morning. He went to Mon-roeville and questioned four or five subjects. He also brought some subjects back to Opp, but could not remember- the names of any of them.

Covington County Deputy Sheriff Howard Easley also went to Monroeville in connection with the burglary and larceny of Clemmons' Drug Store. He talked with several people, including some Monroe County Sheriff’s deputies about this matter. He took three pictures of a blue Chevrolet with a Florida license tag registered to the appellant. He obtained some labels from drugs which the Monroe County Sheriff’s Department had found. Deputy Easley returned the appellant from the Monroe County jail where he was booked under the name of Mike Phillips.

Lenwood Sager, Sheriff of Monroe County, testified that he received information relative to an alleged burglary of a drug store and doctor’s office in Opp. He was informed a blue car was involved. Some deputies from Covington County gave him several boys’ descriptions, the source of which was never identified. As a result of this information, Sheriff Sager staked out an old abandoned house. Hiding in a room of that house, the Sheriff saw Kevin Morrison enter the house and pick up a “gang of pills” from under some hay. Morrison was arrested and given his constitutional rights. Several days later, Morrison took the Sheriff to a wooded area about three or four miles from his house trailer and showed him “a bunch of labels and bottles (that) had been busted and burnt, that was buried in stump holes in the woods”. Morrison identified these labels and bottles as coming from the drug store in Opp. The Sheriff gave these labels to “the tall Deputy” from Covington County. Deputy Easley subsequently identified the labels as being the ones he had received from Sheriff Sager. These labels were also identified as naming the same type of drugs and narcotics that Mr. Presley inventoried as missing from his store following the burglary. Mr. Presley could not state that the labels positively came from his drug store.

Estel Hubert Stokes, Jr. (Chippy) was indicted and pleaded guilty to the burglary and larceny of Clemmons Drug Store. He testified that on the afternoon of Monday, May 10, 1976, he went to Kevin Morrison’s trailer in Monroeville. The appellant and a boy named Brian Baustert (Zombie) were there. The appellant’s nickname was Whimpy. About three or four that afternoon, they all went to get some beer. Stokes was driving. After they got the beer they went riding and ended up in Opp, just after the sun went down. While riding, all four passengers in the car drank the beer and smoked marijuana. Somewhere along the way, the appellant and Morrison started a conversation about “hitting a drug store”. Everyone got into the conversation. On arriving in Opp, they drove up to a drug store which Morrison pointed out, then went and parked in front of the recreation center (Rec Center) across the street from the drug store. They played some pool and foosball at the Rec Center for “a pretty good while”. During the time they were there, Stokes testified that he and the appellant went to check out the drug store and see if there was a way to get in. Stokes stood lookout while the appellant checked the back door. After that, they went back to the Rec Center and played some more pool and foosball. Then they left in the appellant’s car and drove down a little road in back of the parking lot behind the drug store. Stokes, Morrison, and the appellant went to the back of the drug store and the appellant and Morrison, using the crowbar which the appellant had brought with him, pryed open the back door enough so that the appellant could scoot through, take the bar off the inside of the door, and let the others in. While Morrison served as a lookout, Stokes and the appellant went inside and through another door which the appellant opened with a nail. This door led into the drug store where they found the key to the narcotics drawer and got the drugs and placed them in a box. While in the store, the appellant gave Stokes some money.

Stokes and the appellant took the box on leaving the store and all four of them drove back to Monroeville, where they all went to Morrison’s trailer. Stokes took some of the drugs and left.

Brian Baustert (Zombie) was also charged and had pleaded guilty to the burglary and grand larceny of Clemmons Drug Store. In May of 1976, he ran into Morrison in a pool hall in Monroeville. Together they went to Morrison’s house trailer finding Morrison’s wife, Danny Briggs and his brother, and the appellant present when they arrived. Baustert, Stokes, Morrison, and the appellant left the trailer in the appellant’s automobile, a blue Chevrolet with a Florida license tag. Before leaving, Stokes and the appellant mentioned something about going and trying to break into a drug store. They stopped and got some beer and continued riding, ending up in Opp about dark. In Opp, they went to the Ree Center across the street from Clemmons Drug Store and parked the car in front of the center. They stayed about one hour and one half during which time Stokes and the appellant left for about twenty minutes. When Stokes and the appellant returned, they stayed about ten to twenty minutes and then all four people left. They rode behind the drug store parking lot and parked on a back street. Stokes and the appellant then walked across the parking lot toward the drug store, which could not be seen from the car. About fifteen minutes later, the two returned and said they could not get in; Morrison went to help them. Twenty or thirty minutes later, Stokes and the appellant returned to the car, Morrison having returned earlier. All four then drove over to the parking lot, picked up a box and put it in the back seat of the appellant’s car. After going down some back roads, they stopped and placed the box in the trunk of the car. They returned to Monroeville where they went to Morrison’s trailer and divided up the pills taken from the drug store.

Baustert testified that he never went inside the drug store and could not see the store from the ear. He denied being a lookout for the others, asserting that he “was just with them when it happened”. He admitted that he went with the others although they said they were going to Opp to try to break in a drug store.

Witness Johnny Mack testified that he ran Johnny’s Arcade, the Ree Center, in Opp, Alabama. He recalled that' on the night the drug store was broken in, four strangers came into the Rec Center about 8:00 or 8:30 p. m., arriving in a dark blue Chevrolet with a Florida license tag. He identified a picture of the appellant’s car as being that same automobile. They played pool and foosball for about one hour and a half. During this time two of the four left, but returned about twenty minutes later. All four left about 10:00 p. m. While they were there, he noticed that one of the four had a package of cigarettes bearing a Monroe County tax stamp. He identified the appellant as being one of the four strangers and testified that he heard them call each other Zombie, Chip, and Whimpy.

The State rested; defense counsel moved to exclude and motion being denied, rested its case.

In charging the jury, the trial Court included the following instructions:

“Now, in this case there was testimony of two accomplices and that was for your consideration. You will determine what weight you will give to the testimony of those accomplices just as you will what weight you will give to the testimony of all other persons. But before you can return a verdict of guilty against this Defendant based upon the testimony of those accomplices, it must be corroborated. And our courts have said that the corroboration must be by a material fact which shows the Defendant’s participation in the commission of the crime. And the mere fact that a crime has been committed in and of itself is not sufficient to corroborate the testimony of an accomplice. So you will determine if there is any material fact in this case which corroborates the testimony of the accomplices and what weight you will give the testimony of the accomplices.”

The appellant urges that, in the absence of any substantial evidence corroborating the testimony of the two accomplices, the trial court was in error in not excluding the State’s evidence on the motion of the defendant, in failing to give the affirmative charge to the jury as requested, and in failing to grant the appellant a new trial. The question of whether the evidence sufficiently corroborated the accomplice has properly been presented to this court for review. Alexander v. State, 44 Ala.App. 143, 204 So.2d 486, cert. denied, 281 Ala. 451, 204 So.2d 488 (1967); Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966). We are therefore compelled to reverse the appellant’s conviction, there being no evidence to corroborate the testimony of the two accomplices. We note that the State, both in its brief on appeal and in oral argument before this court, has failed to point out one single circumstance which serves to sufficiently corroborate its case. In Alabama, an accused may not be convicted on the uncorroborated testimony of his accomplice. Code of Alabama, 1940, Title 15, § 307.

As the learned Mr. Justice Robert Tennent Simpson said in Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947),

“The principle controlling is well understood and of almost universal application.”
“The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused. It is not sufficient if it is equivocal or uncertain in character and must be such that legitimately tends to connect the defendant with the crime. It must be of a substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt.”

See also Evans v. State, 42 Ala.App. 587, 172 So.2d 796 (1965); Money v. State, 43 Ala.App. 273, 188 So.2d 772, rehearing denied, 43 Ala.App. 378, 190 So.2d 922, cert. denied, 280 Ala. 716, 190 So.2d 924, cert. denied, 386 U.S. 985, 87 S.Ct. 1292, 18 L.Ed.2d 234 (1966); House v. State, Ala.Cr. App., 342 So.2d 461 (1977); 6 Alabama Digest, Criminal Law, ©=>510 et seq.

The process of analyzing the evidence to determine if there has been sufficient corroboration of an accomplice (or accomplices) is one of subtraction. That is, the trial court, on proper motion, as a matter of law is required to take away the evidence of the accomplice(s) and determine whether the rest of the testimony is sufficient to tend to connect the defendant with the commission of the offense. Dobbins v. State, 45 Ala.App. 190, 227 So.2d 820 (1969); Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). By filing an oral motion to exclude the State’s evidence, a written request for the affirmative charge, and by a timely filed and presented motion for a new trial asserting lack of corroboration as a ground of the motion, the appellant properly placed the burden on the trial court to apply this test. Alexander, supra; Leonard, supra.

The two accomplices testifying in this case were Stokes and Baustert. Both had previously entered a guilty plea to the same crimes for which the appellant was convicted. Therefore, both were accomplices in contemplation of law, and the charge against appellant being a felony, no conviction of the appellant could be had upon the testimony of these witnesses, unless their testimony was corroborated by independent evidence tending to connect the defendant with the commission of the offense. Davis v. State, 283 Ala. 686, 220 So.2d 860 (1969).

In applying the test of Sorrell, we must first eliminate the testimony of the two accomplices and then examine the remaining evidence. . By doing so, we find that the only evidence presented which may be argued as corroborating that of Stokes and Baustert was the testimony of the witness Mack, the manager of the Rec Center. Mack’s testimony as pertinent to corroboration was that he saw the appellant with Stokes and Baustert on the night of the burglary at his Rec Center, which was located across the street from the drug store. Mack further stated that all four individuals drove up in a blue Chevrolet with a Florida license tag. Such an automobile was registered to the appellant. Mack testified that the appellant and his friends arrived about 8:00 or 8:30 p. m. and left about 10:30 p. m. He did not observe them do anything out of the ordinary. Thus all we have to corroborate the testimony of the accomplices is the fact that the appellant was seen with the admitted criminals at a public place shortly before the commission of the crime. Here, evidence independent of the accomplices, reveals that the crime was committed sometime after the drug store was closed (although we do not know what time that was) and before 12:30 a. m. when the store owner was contacted by the police. We may also include in these corroborating circumstances the fact that the accomplices arrived in the appellant’s automobile and the fact that Opp is in a different county than Monroeville.

Being in the company of an accomplice in proximity in time and place to the commission of the crime is not always sufficient corroboration to meet the requirements of our statute. Section 307, Title 15, Code of Alabama; Commander v. State, 28 Ala.App. 42, 178 So. 241; Kemp v. State, 24 Ala.App. 591, 139 So. 437. The rule is often stated that when an accomplice and an accused are seen together in rather unusual places and times in proximity to the locus of the crime, which occurs at an unreasonable hour, the requirements of corroboration are met. Robinson v. State, 40 Ala. App. 74,108 So.2d 376, cert. denied, 268 Ala. 698, 108 So.2d 377 (1959). A more proper and correct statement of the rule is that the fact that at or about the time of the commission of the offense with which the accused is charged, he and the accomplice were together, in or near the place where the crime was committed, may, in conjunction with other facts and circumstances, sufficiently tend to connect the accused with the commission of the crime to furnish the necessary corroboration of the accomplice. Kemp, supra; Commander v. State, 28 Ala.App. 42,178 So. 241 (1938); DeGraaf v. State, 34 Ala.App. 137, 37 So.2d 130 (1948); Segars v. State, 19 Ala.App. 407, 97 So. 747 (1923). This conclusion is substantiated by a reading of those cases announcing the general rule. Additional facts and circumstances, however slight, must be adduced to support the testimony of the accomplice in addition to or in conjunction with those of proximity, chronologically and graphically, to the alleged offense in the association of an accomplice. In conjunction with the facts of proximity and association, those additional facts and circumstances may consist of flight of the accused (Ross v. State, 74 Ala. 532); escape of the accused (Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972)); suspicious conduct of the accused (Luther v. State, 47 Ala.App. 647, 259 So.2d 857, cert. denied, 288 Ala. 745, 259 So.2d 862, cert. denied, 409 U.S. 877, 93 S.Ct. 129, 34 L.Ed.2d 131); testimony of nonaccomplice witness that she saw the defendant enter back door of another’s house after trying front door and come out front with a saddle (Blevins v. State, 56 Ala.App. 115, 319 So.2d 734, cert. denied, 294 Ala. 753, 319 So.2d 739); defendant seen in company of others when one of those present in room with defendant had hand in pocket of robbery victim who was unconscious (Miller v. State, 290 Ala. 248, 275 So.2d 675); association with accomplice before and immediately after crime in unusual place (Cheatwood v. State, 22 Ala. App. 165, 113 So. 482, cert. denied, 216 Ala. 692, 113 So. 915; Tidwell v. State, 37 Ala. App. 228, 66 So.2d 845, cert. denied, 259 Ala. 464, 66 So.2d 848 (1953)); and the testimony of the accused which tends to corroborate that of the accomplice (Rogers v. State, 38 Ala.App. 126, 78 So.2d 668; Robinson v. State, 40 Ala.App. 74, 108 So.2d 376, cert. denied, 268 Ala. 698, 108 So.2d 377 (1959)). Here there was simply no evidence which would implicate and tend to connect the appellant with the charged crime. While some argument could be made that the appellant was seen at an unusual hour, this contention is weak and unacceptable in view of the surrounding circumstances and conditions.

The facts of this case create a strong suspicion that the appellant did, in fact, participate in the burglary of the ■ drug store. However, speculation and suspicion will not support a conviction. This court can do no more than apply the laws of this State to the facts in hand. Under such laws, we find that the appellant was convicted upon the uncorroborated testimony of his accomplices. For this reason, this case is hereby

REVERSED AND REMANDED.

All Judges concur.


author: TYSON, Presiding Judge.

text:
    Bobby Ray PILKINGTON v. STATE.
    6 Div. 376.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    William Conway, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.
   TYSON, Presiding Judge.

Appellant was convicted in the Jefferson County Court of possessing gambling devices in violation of Title 14, Section 284, Code of Alabama 1940, and fined $50.00. He appealed to the Jefferson Circuit Court where the charge was presented by the District Attorney’s complaint. The jury found the appellant “guilty as charged in the complaint” and fixed his punishment at a “fine of $500.00.” Because of appellant’s failure to pay the fine, the trial court ordered that the appellant perform 140 days hard labor for Jefferson County.

On May 22, 1976, Deputy Sheriff J. E. Brooks received information from a confidential informant that the appellant was in possession of five shotguns and a rifle which had been taken during a burglary on Happy Top Road in Jefferson County. Deputy Brooks had “worked” a burglary at the residence of an Ernest Kelley on Happy-Top Road three days before, and it was his belief that the Kelley burglary was the only one that had occurred in that area within the year during which guns were taken. The informant also alleged that the appellant was in possession of “illegal pills” and that both the guns and pills could be found at the appellant’s business establishment, the Kountry Kitchen, on Highway 79, Hopewell, Jefferson County, Alabama.

Deputy Brooks took the information that he had received from his informant to the Jefferson County District Attorney’s office and discussed the matter with a member of that office who thereafter drew up a search warrant for him. Deputy Brooks later presented this search warrant to a magistrate, Mr. Wiles, and discussed his informant’s information with him, then swore to an affidavit in the presence of Mr. Wiles who, thereafter, signed the search warrant. The day of the warrant’s issuance was May 25,1975, and it was executed two days later by Deputy Brooks and two other officers at the “Kountry Kitchen.” Their search of the cafe produced none of the items described in the search warrant, but the officers did seize four pistols, one M-80 smoke grenade, forty-nine packs of untaxed cigarettes, a gun holster, a bottle of prescription pills, twelve dice, and eighteen “used punchboards.” The punchboards were found on the middle shelf of a counter “which served as the bar to this restaurant,” and “on top of a freezer inside a box in the Kountry Kitchen . . .(R. pp. 9, 10, 13, 43) The appellant was arrested for being in possession of these punchboards which are gambling devices prohibited by Title 14, Section 284, Code of Alabama 1940.

Appellant filed a pretrial motion to suppress the punchboards alleging that they were the product of an illegal search inasmuch as the “search was made and none of the items named in the search warrant was seized or found on the premises named.” (R. p. 62) Attached to appellant’s motion is a copy of the search warrant and its supporting affidavit which reads as follows:

“CRIMINAL COURT OF JEFFERSON COUNTY
AFFIDAVIT FOR
SEARCH WARRANT
STATE OF ALABAMA

Before me, Ex-Officio Judge of the Criminal Court of Jefferson County, personally appeared J. E. Brooks, Deputy Sheriff, Jefferson County Sheriff’s Office,

who, after being duly sworn, upon his oath deposes and says as follows:

On April 30,1976, the residence of Ernest Kelley at Rt. 1 Box 231-B Happy Top Road, Morris, Jefferson County, Alabama, was burglarized and the following items taken:

(1) Winchester shotgun, Model 12, 16 gauge pump, with new bluing and a repaired place on the bottom rear of fore-piece

(1) Remington 12 gauge automatic shotgun, Model 48 serial No. 3057349

(1) Browning .22 cal. rifle, lever action, with a Sears 4X scope, serial no. 71B49886

(1) Winchester shotgun, model 370, 12 gauge single shot, serial no. unknown

(1) Stevens shotgun, 12 gauge, single shot, serial number unknown

(1) Revelation shotgun, 12 gauge pump, serial number unknown

On May 22, 1976, I talked with a confidential and reliable informant who has furnished me with information in the past relative to stolen property which resulted in the recovery of stolen property, who informed me that the guns that were taken out of a burglary on Happy Top Road were being kept in the basement and the kitchen of the Kountry Kitchen on Highway 79 North, Hopewell, Jefferson County, Alabama. This confidential and reliable informant also informed me that a quantity of illegal pills were being kept at this location in addition to the aforementioned guns. To the best of my knowledge this burglary of Ernest Kelley’s residence is the only one that has occurred on Happy Top Road in the last year where guns were stolen.

Based on the above information, I have probable cause to believe that the above listed items and some illegal pills are being illegally concealed at the Kountry Kitchen on Highway 79 North, Hopewell, Jefferson County, Alabama.

Subscribed and sworn to before me this 25th day of May, 1976.

S/ Wiles_ Ex-Officio Judge, Criminal Court of Jefferson County

S/ J. E. Brooks AFFIANT

“CRIMINAL COURT OF JEFFERSON COUNTY

SEARCH WARRANT

STATE OF ALABAMA

TO: ANY LAWFUL OFFICER OF SAID COUNTY AND STATE

Proof by affidavit having this day been made before me as Ex-Officio Judge of the Criminal Court of Jefferson County that there is probable cause for believing that the following stolen property and illegal pills are presently being concealed at the Kountry Kitchen on Highway 79 North, Hopewell, Jefferson County, Alabama:

1 Winchester shotgun, Model 12,16 gauge pump, with new bluing and a repaired place on the bottom rear of fore-piece. 1 Remington 12 gauge automatic shotgun, Model 48 serial No. 3057349 1 Browning .22 cal. rifle, lever action, with a Sears 4X scope serial no. 71B49886 1 Winchester shotgun Model 370, 12 gauge single shot, serial no. unknown 1 Stevens shotgun, 12 gauge, single shot, serial number unknown 1 Revelation shotgun, 12 gauge pump, serial number unknown.

Said stolen property was taken in a burglary of the residence of Ernest Kelley at Rt 1 Box 231-B Happy Top Road, Morris, Jefferson County, Alabama.

You are therefore commanded to make, in the daytime, an immediate search of the premises described above, a better description of which is not available, for the above described property, and if you find the same or any part thereof to seize the same and hold it until further order from the Criminal Court of Jefferson County. And you are hereby commanded to make a return of this writ within ten (10) days as required by law.

Dated this, the 25th day of May, 1976.

S/ Wiles_ Ex-Officio Judge, Criminal Court of Jefferson County, Alabama

The affidavit on which this search warrant is based being positive that the articles as described are presently on the premises to be searched, this warrant may be executed at any time of the day or night.

Dated this, the 24 day of May, 1976.

Ex-Officio Judge, Criminal Court of Jefferson County, Alabama”

Appellant’s motion to suppress was heard and denied by the trial court as was his motion to exclude the State’s evidence made at the conclusion of the State’s case. The appellant presented no evidence at trial.

I

Before examining the issue of whether or not items of contraband, which are not particularly described in a search warrant, may be seized if found in plain view of an officer who has a right to be in the position to have that view, we must first examine the validity of the search warrant which, in the instant case, initially authorized the officers to conduct a search of the premises in question, the Kountry Kitchen. “ ‘[A] search is not to be made legal by what it turns up . [;] it is good or bad when it starts and does not change character from’ what is dug up subsequently.” Ker v. California, 374 U.S. 23 [N. 12], 83 S.Ct. 1623, 10 L.Ed.2d 726.

When, as here, probable cause for the issuance of a search warrant is based upon an informant’s information, the hearsay information must be measured against the two-pronged test as enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), which requires that the affidavit used to obtain the search warrant reveal the following:

(1) Underlying circumstances showing the basis of the informant’s conclusion that the items to be seized are where he said they were (See Miller v. State, 54 Ala.App. 230, 307 So.2d 40, and authorities therein cited); and
(2) Underlying circumstances which give cause to believe that the informant is a credible person. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Dudley v. State, Ala. Cr.App., 342 So.2d 437 (1977); and Bates v. State, 51 Ala.App. 338, 285 So.2d 501, cert. denied 291 Ala. 773, 285 So.2d 506, cert. denied 416 U.S. 939, 94 S.Ct. 1940, 40 L.Ed.2d 289.

Applying these criteria to the instant case, it is evident that Deputy Brooks’ affidavit did not afford the magistrate a substantial basis for concluding that the property sought was located at the premises described. It is unknown whether the informant obtained his information from personal observation of the guns and pills at the Kountry Kitchen or “from an off-hand remark heard at a neighborhood bar.” Thus, the basis of the informant’s information is not here shown. Spinelli v. United States, supra.

There is a declaration by the affiant, Deputy Brooks, of the previous reliability of his informant; however, Aguilar requires more because even a credible informant can reach unjustifiable conclusions, especially if they are based on hearsay or circumstantial evidence.

Moreover, there are no other allegations in the affidavit which would support or independently corroborate the informant’s tip to make it “as reliable as one which passes Aguilar’s requirements when standing alone.” Spinelli v. United States, supra; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Walker v. State, 49 Ala.App. 741, 275 So.2d 724, cert. denied 290 Ala. 371, 275 So.2d 732; Miller v. State, 54 Ala.App. 230, 307 So.2d 40.

Furthermore, the affidavit was not supplemented at the motion to suppress hearing by evidence of additional facts, proven to be known to Deputy Brooks at the time the affidavit was made, and discussed with the magistrate, but which he failed to set out in his affidavit. See Funches v. State, 53 Ala.App. 330, 299 So.2d 771, cert. denied 293 Ala. 752, 299 So.2d 778, cert. denied 419 U.S. 1114, 95 S.Ct. 793, 42 L.Ed.2d 813; Oliver v. State, 46 Ala.App. 118, 238 So.2d 916.

Since the affidavit was insufficient to establish probable cause, issuance of the warrant was improper, and the evidence obtained (the punchboards) should have been suppressed, the judgment of the court below is therefore reversed and the cause remanded. Cases herein cited.

REVERSED AND REMANDED.

DeCARLO, BOOKOUT and BOWEN, JJ., concur.

HARRIS, J., concurs in result.


text:
    William Craig CALLAHAN v. STATE.
    1 Div. 732.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.

      J. D. Quinlivan, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted by a grand jury of Mobile County for the murder of one Jerry D. Morgan by stabbing him with a knife. A jury convicted the appellant of manslaughter in the second degree and set his punishment at six months in the county jail. The trial court entered judgment and sentence accordingly. Appellant’s retained trial counsel has been appointed to represent him on his appeal.

The only assignment of error is that the trial judge erred in his definition of felonious in his instructions to the jury.

From the evidence in this case it is apparent that Jerry D. Morgan and the appellant were archfoes, neither having any feeling of friendship for the other. The antagonism between these two individuals arose from an automobile accident during the summer of 1975, in which Morgan had hit the appellant’s car in the rear. The appellant then swore out criminal charges against Morgan and had him prosecuted. Subsequently, there was a fight between Morgan and the appellant in a bar called The Slave Galley. In that fight, Morgan, who was the taller and heavier of the two, “severely beat” the appellant and it took three men to pull Morgan off the appellant according to the appellant’s own testimony.

Then one fateful day in November of 1975, both the appellant and Morgan were again found frequenting The Slave Galley. Morgan, being “medium intoxicated”, either stumbled into, lunged at or hit the appellant who was sitting at the bar. The appellant, knocked off his stool but not to the floor and knowing that- Morgan could and would cause him serious bodily harm, drew his pocketknife in an asserted attempt to defend himself. The appellant testified that in an effort to shield his face from Morgan who continued swinging, he held his hand out with the knife in it. Immediately, either Morgan was pulled off the appellant or stopped swinging because the appellant made his way to the back door of the club and drove home.

When Morgan got off the floor he was holding his neck and bleeding profusely. Morgan walked out the front door of the club, fell down on the sidewalk and there, literally bled to death. A coroner’s examination of the deceased revealed three stab wounds, one across the cheek into the upper part of the neck, one in Morgan’s back, and a third and the fatal wound to Morgan’s neck. The coroner testified that this third wound was actually a “stab” wound as opposed to a wound caused by a “slashing”.

The police arrested the appellant at his home and obtained a statement from him. At trial, this statement was admitted without objection after defense counsel stipulated that “the man (appellant) was read the rights. We waive any predicate”. In this statement, which the appellant later claimed he did not read before signing, the appellant admitted that he stabbed Morgan and intended to cut him, “I intended to get him off of me”. At trial, the appellant claimed that he did not know he had stabbed or cut Morgan and did not intend to kill him but only “to get him off of me”.

I

After the jury had begun their deliberations, the court was informed that they had a question. In open court, with all parties being present including the appellant, the following occurred:

“BY THE COURT: . . . What is the question?
“BY THE FOREMAN: Well, we would like a definition of first degree manslaughter and second degree manslaughter as stated by the law.
“BY THE COURT: All right. Manslaughter in the first degree is defined as a killing in sudden passion excited by sufficient provocation, but without malice. Manslaughter in the second degree is the unlawful killing of a human being without malice either expressed or implied and without legal intent to kill or inflict injury causing death committed accidentally in the commission of some unlawful act not felonious or in the improper or negligent performance of an act lawful within itself.
All right, there is a definition you will have to work with.
“BY THE FOREMAN: Could you give me a definition of felonious, please, sir? “BY THE COURT: Just a moment. I have to speak to both attorneys.
All right, gentlemen, the only way the court can define felonious for you is in this manner: To tell you that a felony is a public offense which may be punished by imprisonment in the penitentiary. All other public offenses are called misdemeanors.
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“BY MR. QUINLIVIN: Exception to the definition of felonious.
“BY THE COURT: All right, sir.”

The court recessed for the night, it being agreed by the appellant and his attorney that the jury would be allowed to separate during their deliberations. The next morning the jury resumed their deliberations and subsequently the court was informed that the jury wanted the court to repeat its definition of manslaughter in the first and second degree. After having redefined manslaughter in the first degree the court gave the following charge of manslaughter in the second degree:

“BY THE COURT: * * * Manslaughter in the second degree is the unlawful killing of a human being without malice either expressed or implied and without legal intent to kill or inflict injury causing death committed accidentally in the commission of some unlawful act not felonious, or in the improper or negligent performance of an act lawful within itself. And, the court has stated to you .that it is the unlawful killing of a human being without malice either expressed or implied without the legal intent to kill or commit injury — cause death accidentally in the commission of some unlawful act not felonious or in the improper or negligent performance of an act lawful within itself.
So, the term felonious, the court is going to define it for you in this way. A felony under the law of the State of Alabama from which the term felonious is drawn is any public offense which may be punished by imprisonment in the state penitentiary. Any other offense would be a misdemeanor.
“BY MR. QUINLIVIN: Judge, the Defendant excepts to the definition of felonious.
“BY THE COURT: You may step back into the jury room to consider your verdict.”

Citing no Alabama authority in his brief, counsel for the appellant argues that “felonious means that an act must be done with a criminal intent”. The definition given by the trial court, says the appellant confused the jury and resulted in an unjust conviction.

Manslaughter in the second degree or involuntary manslaughter is defined as the unlawful killing of a human being without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, committed accidentally in the commission of some unlawful act not felonious, or in the improper or negligent performance of an act lawful in itself. Johnson v. State, 94 Ala. 35, 10 So. 667 (1891); Davis v. State, 31 Ala.App. 508, 19 So.2d 356, cert. denied, 246 Ala. 101, 19 So.2d 358 (1944); Champion v. State, 35 Ala.App. 7, 44 So.2d 616, cert. denied, 253 Ala. 436, 44 So.2d 622 (1950). The phrase “some unlawful act amounting to a misdemeanor” is often substituted for the phrase “some unlawful act not felonious” contained in the above definition and as charged by the trial court. Steward v. State, 55 Ala.App. 238, 314 So.2d 313, cert. denied, 294 Ala. 201, 314 So.2d 317 (1975); Ivery v. State, 48 Ala.App. 257, 263 So.2d 712 (1972).

The appellant does not dispute the correctness of the trial court’s definition of second degree manslaughter but contests that court’s definition of the term “felonious”. The trial court defined felonious as being derived from the word felony and as referring to “any public offense which may be punished by imprisonment in the state penitentiary”.

Black’s Law Dictionary, 4th Edition, 1957, defines “felonious”, as the appellant states, as

“A technical word of law which means done with intent to commit crime;” the definition continues:

“of the grade or quality of a felony: such an assault on the person as, if consummated, would subject party making it, on conviction, to punishment of a felony.”

The Random House Dictionary of the English Language, 1967 Edition, defines “felonious” as

“1. Law, pertaining to, of the nature of, or involving a felony: ... 2. Archaic, wicked; base; villainous.”
“Felonious” is defined in 36A C.J.S. 254. “The word ‘felonious’ is defined as meaning of, or pertaining to, or having the quality of, felony; proceeding from an evil heart or purpose; done with a deliberate purpose to commit a crime; . . ”
******
“The word ‘felonious’ is generally employed to classify offenses and it is not a distinct element of the crime. It is descriptive of the grade of the offense rather than the criminal act which constitutes the offense.”

See also 16 Words and Phrases 669, “Felonious”, applicable to misdemeanor, p. 672.

Considering the above, it is obvious that the appellant is correct in his definition of the term, yet so also is the trial court. To determine which meaning is proper we must look to the context in which the word was employed.

We have already demonstrated, in defining manslaughter in the second degree, how the phrase “some unlawful act not felonious” means “some unlawful act amounting to a misdemeanor”. As used in the oral charge of the trial court, “felonious” is employed to distinguish the various classes of offenses called felonies from those called misdemeanors.

The trial court properly employed the term “felonious” in defining second degree manslaughter as referring to those offenses (felonies) which may be punished by imprisonment in the state penitentiary. That constitutes a correct and legal definition of a felony. Lashley v. State, 236 Ala. 1, 180 So. 717 (1938); Cook v. State, 60 Ala. 39, 31 Am.Rep. 31 (1877); Clifton v. State, 73 Ala. 473 (1883); Jackson v. State, 37 Ala.App. 335, 68 So.2d 850, cert. denied, 260 Ala. 698, 68 So.2d 853 (1954). To substitute the definition of “felonious” suggested by the appellant in the definition of second degree manslaughter would vitiate one of the elements of that crime. That would definitely make it confusing for the jury. To convict of manslaughter in the second degree, it is not necessary to prove that the killing was done intentionally. McWilliams v. State, 52 Ala.App. 487, 294 So.2d 454, cert. denied, 292 Ala. 731, 294 So.2d 457 (1974). Intent to kill is not required. Vul can Life Ins. Co. v. McDuffie, 57 Ala.App. 634, 331 So.2d 280, cert. denied, Ala., 331 So.2d 284 (1976).

From the record before us it only appears that the jury wished the court to restate its definitions of manslaughter. There is no evidence or hint that after the court defined “felonious”, the jury was confused as to the meaning of that word. It does not appear that they specifically requested the trial judge to redefine that particular word. Therefore, we are of the opinion that the charge and definition of the trial court were proper and in no way tended to confuse or mislead the jury.

Having reviewed the entire record as required by law and finding no error substantially prejudicing the rights of the appellant, this case is hereby

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    Sharon CURRY v. STATE.
    1 Div. 760.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    No brief for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
   PER CURIAM.

On an indictment charging unlawfully selling heroin, Appellant, Sharon Curry, was convicted and sentenced to six years imprisonment in the penitentiary.

This cause was submitted to this Court on brief of Appellee, and on merits. Appellant is here, and was at all times during the proceedings in the lower court, represented by court appointed counsel.

The appellant moved to exclude the evidence at the close of the state’s case, and requested in writing the affirmative charge. This brings before us for review the sufficiency of the state’s evidence to sustain the jury verdict.

From the record before us it appears that William Harris was working with the Mobile Police Department as an undercover officer, that on February 12, 1976 he went to the office of the Narcotics Division of the Police Department of Mobile where he was searched and all his personal possessions taken from him by Police Officer Sergeant Gill. Officer Gill gave Harris a $20.00 bill and a $10.00 bill. Officers Gill and Washington drove Harris to Delony Street where he got out of their car and walked about a half block to the LeGrand Motel at Davis and Lincoln Streets, in Mobile County. Harris went to room number 3, knocked, a man by the name of Winston came to the door. Harris told him he wanted to buy some stuff. Winston told Harris to go to room number 6. Harris went to room 6 and knocked on the door. A man by the name of Clarence E. Johnson came to the door and asked Harris what he wanted. Harris told him that Winston had sent Harris up to buy some stuff. Stuff is the street name for heroin. Harris entered the room. The appellant was on the bed in the room. Harris, Johnson and appellant were all the persons in the room at this time. Harris told them he wanted to buy two caps of stuff. Johnson went over to a night stand and got two aluminum foil pieces out of a plastic bag containing about 15 pieces of aluminum foil and gave them to Harris. At this time the telephone rang and the appellant answered it and said, “we’re not selling anything today,” at which time Johnson took the phone, talked a few minutes, hung the receiver up, came back across the room and took back the two packages he had given Harris. The appellant then said, “I know Bill, he’s OK, let him have the stuff.” Then Johnson handed Harris back the two packages, and Harris handed the appellant the $30.00. Then Harris left the room, went up behind the church and gave the two packages to Sergeant Gill. Harris did nothing to alter the contents of the two packages. Harris was not a police officer. He worked under the supervision of the Narcotics Department of the Mobile Police. He was paid by the Mobile Police Department $25.00 for each buy he made of heroin.

When Harris got out of the officer’s car on Delony Street, Officers Washington and Gill watched him until he entered room number 6, which was rented in the name of appellant, and saw Harris come out of the room. Harris went straight to the car and handed Officer Gill the two pieces of aluminum foil Johnson had handed him containing a powder substance. Officer Gill put it in a brown envelope, sealed and initialed it, and locked it up. Officer Gill did nothing to alter the substance in the two pieces of aluminum foil, and turned them over to Miss Pillman the next day in the same condition as he received them.

Miss Pillman, an employee of the City of Mobile Toxicology Laboratory, her qualifications being stipulated, testified that state’s exhibit 1 was delivered to her by Officer Gill on Friday, February the 13th, 1976, at 9:55 A.M. She analyzed the contents of the two pieces of aluminum foil, and found that it was heroin, totaling .3936 grams. It had been in her possession since she got it from Sergeant Gill.

Clarence Johnson, a witness for the appellant, testified that he and the appellant were in room number 6 at LeGrand Motel on February 12th, 1976, at about 6:00 P.M., that appellant was on the bed, that someone knocked on the door, he opened the door, invited the person in, sold him some heroin in two aluminum foil papers for $30.00 or $27.00, that he, Johnson, handed the stuff to the man and the man handed him the money. That the appellant had nothing at all to do with the transaction, she did not say a word to the man who bought the heroin, nor did he say anything to her, and he did not hand her the money.

Appellant testified that on February 12, 1976, at about 6:00 P.M., she was at the LeGrand Motel in room 6 with Clarence Johnson, when Mr. Harris came there, that she did not do or say anything during the time Mr. Harris was in the room, that she knew Clarence Johnson had some heroin in the room at the time, that she often goes to the motel with Johnson and she checks in the room in her name.

We hold the evidence is sufficient to sustain the jury verdict. Cooks, alias v. State, 55 Ala.App. 538, 317 So.2d 506; Henry, alias v. State, 57 Ala.App. 383, 328 So.2d 634.

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

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All Judges concur.


text:
    Albert N. EVANS v. STATE.
    3 Div. 533.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted under an indictment charging him with the embezzlement of “money and checks, or money or checks to the amount of about $5,720 and of that value.” He was sentenced to three years imprisonment in the penitentiary.

His principal contention on appeal is that the evidence is not sufficient to support the verdict and that the court should have granted defendant’s motion to exclude the State’s evidence at the conclusion of the State’s case.

The transcript presents a tangled mass of testimony, so confusing that when the State first rested and defendant moved to exclude the testimony, the trial court recognized the impenetrable condition of the thicket and allowed the State to reopen its case and clarify some of the evidence that should have been clear when introduced. One particular item was as to the name of the legal entity that in the indictment is averred to have been the correlate of defendant as its “officer, agent, clerk or employee.” Said correlated is named in the indictment as “G & M Chassis Products, Inc., a Corporation,” but until the case was reopened, there was hopeless confusion as to the name. After the case was reopened, it was explained by competent testimony that the particular legal entity had changed its previous name, even though such previous name continued to be used on its printed checks, and at the time of the alleged embezzlement the correct name was as stated in the indictment.

Notwithstanding the confusing state of the evidence, we are able by laborious reading to determine that there was substantial testimony to the effect that on October 23, 1975, defendant drew a check on a bank deposit of “C & M Chassis Products, Inc., a Corporation,” the employer of defendant, payable to defendant, which defendant deposited in a bank to his credit and used the proceeds thereof, the check being in the sum of $5,720. According to the evidence, appellant was the “plant controller” of C & M Chassis Products, who, with others, had authority to issue checks and sign them on behalf of such company. According to the evidence, the money, the said sum of $5,720, was not used in company business; it was appropriated by defendant to his own personal use. There was some evidence that the company would at times lend money to its employees, but, as stated by one of the witnesses, whenever an employee obtained money from the company, whenever anyone authorized to do so issued and signed a check for the company, a “back-up” was required, that is, a bookkeeping entry showing justification for the transfer of funds from the bank account of the company was necessary. Also according to the evidence, defendant, when confronted by other employees of the company with the fact of his withdrawal of the money, admitted that he did so and that he used the funds for his personal benefit. All of this testimony was presented prior to the closing of the case by the State after it had been allowed to reopen. After the State rested, defendant took the stand and admitted that he had thus withdrawn money from the company and deposited it to his account and appropriated it to his personal use. In attempting to justify his conduct, he testified that he considered he had authority from the company to borrow money as he needed it and that he intended to reimburse the company for the money he had converted to his own use.

We have no difficulty in concluding that the evidence, even before defendant himself testified, was sufficient basis for a finding that defendant converted to his own use the sum of $5,720 with the felonious or fraudulent intent necessary to constitute embezzlement under Code 1940, Tit. 14, § 126, for which he was indicted and tried.

Appellant ingenuously raises the age-old question, ofttimes baffling, whether particular felonious or fraudulent conduct as to personal property constitutes embezzlement on the one hand or some other crime on the other, or perhaps no crime at all. Relying upon Gary v. State, 160 Ala. 107, 49 So. 678, appellant urges that in the issuance and signing of the particular check in this case for the benefit of defendant, the crime, if any, was forgery or some other crime other than embezzlement, as was held in Gray as to one of the checks considered in that case which defendant had issued and signed without authority in the name of another. However, unlike the facts in Gray, appellant in the case now before us had authority from his employer to issue and sign checks on his employer’s bank account. There was no forgery. We note that what was held in Gray as to the particular point has been delimited as follows:

“Petitioner contends that a person cannot embezzle a check in which he is the specified payee and cites Martin v. State, 37 Ala.App. 197, 65 So.2d 540. This case and Gray v. State, 160 Ala. 107, 49 So. 678, held only that checks being payable to accused and cashed by him are not sufficient facts to constitute embezzlement of checks. The cases did not indicate that it was impossible to embezzle such checks .” (Emphasis supplied) Christison v. State, 273 Ala. 564, 566, 142 So.2d 676, 678, aff'g, 41 Ala.App. 192, 142 So.2d 666.

We need not be concerned whether there was an embezzlement of “checks” as charged disjunctively in the indictment. The crime was committed if there was an embezzlement of money, as charged in the disjunctive also.

A more controversial question is whether the money, deposited in a bank and transferred by defendant to. his use through the usual bank procedure and channels, is to be considered as having been in his possession by virtue of his office, agency, or employment as alleged in the indictment pursuant to Tit. 14, § 126 of the Code. The opinion in Garner v. State, 229 Ala. 600, 158 So. 546, cert. den., 26 Ala.App. 246, 158 So. 543, is not decisive of the question, for therein was considered a different Code Section (now Tit. 14, § 127) involving embezzlement of public funds not requiring possession by defendant. Such being true, the Supreme Court of Alabama did not find it necessary to pass upon the question whether, under a statute requiring possession, embezzlement could occur if the funds were not in defendant’s “physical possession.” Such question was decided in State v. Doucet, 204 La. 79, 14 So.2d 917. There, public funds were involved and the statute, like the Alabama statute on the subject, did not expressly require possession by the alleged embezzler; but the indictment charged that he had possession, and the Supreme Court of Louisiana held that the “Sheriff’s Salary Fund,” deposited with a bank, was in the legal possession of the sheriff, and he could be prosecuted for embezzlement therefrom.

“Money, the disbursement of which is entrusted to the person, is, for the purpose of the statute punishing embezzlement, in his possession, even though the actual custody and control of the money is in another.
“Although there is authority to the contrary, it has been held that an accused who draws checks payable to his own creditor against his principal’s or employer’s bank account had sufficient possession of the funds to support a conviction for embezzlement. The courts which take this view base it upon the fact that the accused has control, as in trust, of his employer’s or principal’s funds while they are mixed with the bank’s general fund.” 26 Am.Jur.2d, Embezzlement, § 18.

The check drawn on the bank for the money which the indictment charges the defendant embezzled was not made payable to a creditor of defendant. It was made payable to defendant himself and deposited by defendant to defendant’s personal account in a bank. Thereafter he drew on said funds for his own personal use. As noted in the quotation from 26 Am.Jur.2d, Embezzlement § 18, the cleavage of authority is not as to drawing on another’s account by checks payable to one’s self, but only as to checks payable to creditors of the drawer. Even as to the latter, the majority view is that the funds so involved and handled are subject to embezzlement. Anno.: 88 A.L.R.2d 688. The leading case supporting the minority view is State v. Tauscher, 227 Or. 1, 360 P.2d 764, 88 A.L.R.2d 674. The conclusion reached in Tauscher was because of the particular language of the embezzlement statute under which defendant was tried. The particular embezzlement statute was to the effect that “only that property which is the subject of larceny can be the subject of embezzlement.” The court held that as to larceny, as we held in Latham v. State, 56 Ala.App. 234, 320 So.2d 747, aff., 294 Ala. 685, 320 So.2d 760, and Latham v. State, 57 Ala.App. 107, 326 So.2d 299, property that cannot be ma-nucaptured, which is not in such form that it can be trespassed upon or to, cannot be the subject of larceny. Not so as to the crime of embezzlement, which is not afflicted with the restrictions of trespass as to the physical form of property or the methods by which an unlawful invasion of another’s interest therein can be accomplished.

Many of the cases supporting the majority view are cited in the following from State v. Moreno, 156 Conn. 233, 240 A.2d 871:

“The defendant also urges that, since funds deposited in a commercial checking account create a creditor-debtor relationship between the bank and the depositor, such funds could not be moneys in the care and custody of the defendant. ‘Although there is authority to the contrary, it has been held that an accused who draws checks payable to his own creditor [or to third persons] against his principal’s or employer’s bank account has sufficient possession of the funds to support a conviction for embezzlement. The courts which take this view base it upon the fact that the accused has control, as in trust, of his employer’s or principal’s funds while they are mixed with the bank’s general fund.’ 26 Am.Jur.2d 569, Embezzlement, § 18; see Commonwealth v. Shepard, 83 Mass. (1 Allen) 575, 586; State v. Colson, 325 Mo. 510, 516, 30 S.W.2d 59; Territory v. Hale, 13 N.M. 181, 189, 81 P. 583. ‘Embezzlement convictions for drawing cheeks payable to the accused’s own creditor [or to third persons] against the principal’s or employer’s bank account have been upheld in a majority of cases, notwithstanding the question of the accused’s possession of the embezzled funds.’ Note, 88 A.L.R.2d 688, 689; see People v. Schmidt, 147 Cal. App.2d 222, 229, 305 P.2d 215; State v. Lockie, 43 Idaho 580, 587, 253 P. 618; State v. Johnson, 109 Kan. 239, 241, 199 P. 104; State v. Bussa, 176 La. 87, 101, 145 So. 276; Simmons v. State, 165 Miss. 732, 743,141 So. 288; State v. Lomax, 322 Mo. 86, 92, 14 S.W.2d 436; State v. Krug, 12 Wash. 288, 308, 41 P. 126.”

The majority view as to funds transferred or checks payable to the drawer’s creditor would apply a fortiori to checks payable to the drawee himself. We are persuaded that it should be so applied in this case.

The court was not in error in refusing to grant defendant’s motion to exclude the evidence either at the close of the State’s case or at the close of the evidence in its entirety.

Appellant complains further of the admission in evidence of other crimes, the issuance by defendant of other checks on his employer’s bank account payable to defendant for his own personal use. In some of these instances, there was no objection by defendant, and in some of them the evidence was offered by defendant. At any rate, the evidence was admissible for the purpose of showing a fraudulent intent. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. den., 292 Ala. 743, 294 So.2d 462; Lambert v. State, 48 Ala.App. 600, 266 So.2d 812; Esdale v. State, 37 Ala.App. 48, 68 So.2d 512.

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

AFFIRMED.

All Judges concur.