author: BRADLEY, Judge.

text:
    Charles M. SMITH, III v. Gene Langham SMITH.
    Civ. 1526-X.
    Court of Civil Appeals of Alabama.
    Nov. 22, 1978.
    Rehearing Denied Jan. 10, 1979.

      Maury D. Smith, Montgomery, for appellant-cross-appellee.
    Henry C. Chappell, Jr., Montgomery, for appellee-cross-appellant.
   BRADLEY, Judge.

The parties to this appeal were divorced as a result of a decree entered by the Circuit Court of Montgomery County on April 10,1978. Under the terms of the decree the husband (appellant-cross-appellee, Charles M. Smith, III) was ordered to pay his former wife (appellee-cross-appellant, Gene Langham Smith) $1,500 a month in periodic alimony. The husband was also directed to provide $500 a month for the support of the couple’s minor child. In addition, the wife received the family residence, a lake cabin and an automobile. The husband was ordered to pay off the debts incurred by the wife pending the divorce proceeding as well as the monthly mortgage installments due on the family residence. The husband was to continue to pay the monthly mortgage installments until the mortgage indebtedness was paid in full. The divorce decree further states that the husband must provide insurance coverage for his family. He is also required to furnish his ex-wife with periodic statements of his financial condition. The wife is to receive one-fourth of the net proceeds from the sale of the husband’s interest in an apartment complex in the event he decides to sell the complex. Finally, the wife was awarded $20,024.47 for the services of her attorney in this matter.

From the above described decree the husband appeals. He argues that the amount of alimony awarded his former wife under the terms of the divorce decree was exorbitant. Furthermore, he complains that the attorney’s fee accorded the wife was excessive. On the other hand, the wife has filed a cross-appeal claiming that the money, property and attorney’s fee which she received as a result of the decree were inadequate.

In numerous instances we have held that in a divorce case the trial court may weigh a number of factors in ascertaining the amount of alimony to be awarded. While not an exhaustive list, such relevant factors are: the economic circumstances of both husband and wife; the parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after their divorce; their ages, sex and health; the length of their marriage; the source (or sources) of their common property; and in appropriate situations, the conduct of the parties with reference to the cause of divorce. Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184 (1950); Mitchell v. Mitchell, Ala.Civ.App., 351 So.2d 602 (1977); Hughes v. Hughes, Ala.Civ.App., 362 So.2d 910, cert. den. Ala., 362 So.2d 918 (1978).

In the present case the husband is a man of substantial wealth. His income tax returns indicate that he receives income from dividends, interest, real estate, rents and director’s fees. He also receives a weekly salary from Capital City Laundry, which he owns. A personal financial statement dated March 10,1977 showed the husband’s net worth to be approximately 3.8 million dollars. Listed among his assets were stocks, securities and trust funds with a market value of $660,000, and various real estate holdings with an appraised value of $2,391,-500. His adjusted gross income for the tax years of 1972, 1973, 1975 and 1976 was never less than $72,000. In 1974 his adjusted gross income was approximately $50,000. Despite several business setbacks which occurred after the financial statement of March 10, 1977, there was evidence presented at trial which would support the conclusion that the husband’s net worth at the time of the parties’ divorce was approximately 1.7 million dollars. Thus, it is obvious that as a result of the husband’s wealth the parties enjoyed a high standard of living throughout their marriage. The husband’s future prospects and potential for maintaining that standard are excellent due to the diversity and value of his financial holdings.

On the other hand, the wife’s future prospects and potential for maintaining her former standard of living are not as bright as those of her ex-husband. The husband’s interest in the family residence was vested in the wife. She will receive $18,000 a year from her former husband and he is obligated to pay off many of her outstanding debts. In addition, he is required to provide her with $500 a month for the support of their minor child, as well as make the mortgage payments on the home. He must also furnish adequate medical insurance for his family and has agreed to pay the college expenses of both the minor child and an adult son who is already enrolled at Auburn University. Finally, the wife is entitled to receive one-fourth of the net proceeds if the husband and his partners sell a large apartment complex which they own.

Both parties are in their mid-forties and, with the exception of a drinking problem on the part of the husband, in reasonably good health. The husband is well-versed in financial matters and certainly capable of continuing to work. The wife has two and one-half years of college and was employed during the early years of the marriage as a bank teller. However, she has not worked in a number of years. Nor can we ascertain any appreciable skills which would enable her to obtain the employment necessary to produce an income commensurate with the standard of living to which she is accustomed.

The parties were married approximately twenty-four years. During this time the husband was the primary source of the family’s income and property. The wife, however, contributed significantly to the family unit by performing the functions of homemaker and by caring for the couple’s four children.

Finally, with the exception of the fact that she dated other men during a period some twenty-four years ago when the parties were initially married in a secret ceremony, the wife’s conduct throughout the marriage has been irreproachable. Conversely, both the husband and the woman who was his lover admitted to at least one act of adultery. Furthermore, there was evidence that the husband physically abused the wife on one occasion and that he was habitually intoxicated.

Under the ore tenus rule and its attendant presumptions the appellate courts of this state will not disturb the judgment of a lower court on appeal. However, in those instances where the record before the appellate court discloses that the trial court’s discretion in a matter was plainly and palpably abused, the ore tenus rule does not prevail. Based on an examination of the circumstances of the parties involved in this case and the various factors relevant thereto, we are persuaded that the trial court abused its discretion in the division of the parties’ property. Succinctly stated, we find that the trial court failed to award the wife a sufficient amount of the husband’s property.

Although the husband claims that the monthly payment of alimony and child support equals the amount he earns from his only source of income, i. e. a salary from Capital City Laundry, there was a plethora of evidence presented to refute his claim. Moreover, a contention similar to that made by the husband in this case was rejected by this court in Hughes v. Hughes. Accordingly, it is our judgment that the amount of alimony and division of property made by the trial court is not excessive. Instead, we hold that the property awarded to the wife was inadequate.

The record reveals that the husband’s income for 1977 was approximately $47,500. This income was derived from the salary he received from Capital City Laundry; from the termination of a profit-sharing trust and pension plan; and from the net income of Troy Laundry, of which he owns 81.60%. Not included in the 1977 income were the amounts received by the husband as a result of the sale of four pieces of business property. In addition, the husband owns substantial amounts of real property. For instance, his interest in a large apartment complex was valued between $817,614 and $1,750,000. He has an interest in a number of real estate developments in the Montgomery area and at Gulf Shores, Alabama. He is the majority stockholder in a company which owns a small shopping center valued at approximately $275,000. The husband also owns, either individually or as a partner, a significant amount of rental property. Based on real estate appraisals as well as a consideration of the husband’s actual interest in various property, a certified public accountant testified that the real estate holdings of the husband had a fair market value of almost 1.7 million dollars. Moreover, the testimony reviewed by this court demonstrates the husband’s net worth to be between $826,000 and $1,800,000. Despite these facts, the wife received as her portion of the property division, property which was roughly valued at $150,000. Using the figure most favorable to the husband regarding his net worth, the $150,000 awarded the wife in terms of a property division represented only eighteen percent of the husband’s total estate. We feel that in view of the circumstances of the parties — particularly the husband’s misconduct, his wealth and the possibility that his rather severe drinking problem may in the future destroy his ability to pay the wife periodic alimony — a property division of between twenty and fifty percent of the husband’s estate is justified. Accordingly, we believe the wife should receive, in addition to the awards above discussed, an amount of $250,000 as alimony in gross; this award is to be in lieu of the contingent interest in the proceeds from the sale of the large apartment complex known as Burke Leigh which was awarded her in paragraph fifteen of the trial court’s decree. This amount may be paid by the husband in one lump sum or in installments over the next five years.

Turning our attention to the contentions of the parties regarding the amount of attorney’s fees accorded to the wife by the trial court, we find no error. At trial a local attorney testified that after reviewing the time spent by the wife’s counsel on this matter it was his (the local attorney’s) expert opinion that a minimum attorney’s fee of $15,000 to $20,000 should be awarded. In addition to the opinion evidence of this expert, the trial judge was entitled to use his own knowledge and experience in determining the value of the services performed. In view of these considerations, as well as the factors discussed more fully in Rosser v. Rosser, Ala.Civ. App., 355 So.2d 717 (1977), cert. den. Ala., 355 So.2d 722 (1978) and Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107 (1974), we cannot say that the trial court abused its discretion in the amount of attorney’s fee awarded. It is a well established principle that the amount of an attorney’s fee to be awarded rests within the sound discretion of the trial court and the court will not be reversed on appeal unless it is clearly shown that it has abused the discretion vested in it. Rosser v. Rosser; Burgess v. Burgess.

Finally, we hold that the refusal of the trial court to accept the supplemental brief submitted by the wife’s lawyer after the divorce hearing had ended was not reversible error. The Alabama Rules of Civil Procedure do not require that a trial court consider briefs submitted either prior to, or at the termination of, proceedings on a particular matter. While trial briefs are certainly helpful in ascertaining the issues for consideration and the contentions of the parties, a trial court is under no compulsion to accept such briefs. The willingness of the court to receive trial briefs is a matter purely within its own discretion and its refusal to allow the submission of such briefs is not sufficient to sustain a reversal of the trial court’s judgment.

Paragraph fifteen of the trial court’s decree awarding the wife a contingent interest in the proceeds from the sale of the husband’s one-fourth interest in Burke Leigh apartments is reversed, and in its place the trial court will enter an award to the wife of $250,000 as alimony in gross. It will be provided that this sum may be paid within ninety days of the decree, or in installments over the next five years. In the event that the husband elects to pay the $250,000 in installments,- the trial court is to direct that the installments shall equal at least $50,000 each year. In order to protect the wife’s judgment, the trial court shall fix an appropriate lien upon the husband’s interest in various properties. This lien is to be made in favor of the wife and shall exist until the judgment is paid in full. All other portions of the trial court’s decree are affirmed. The trial court will enter judgment in accordance with this opinion.

The wife has petitioned this court to award her a reasonable amount of money as an attorney’s fee for the representation which she received on this appeal. After due reflection, we consider $2,500 to be a reasonable amount for the services of the wife’s attorney on this appeal and do hereby award that amount to her as an attorney’s fee.

ATTORNEY’S FEE AWARDED.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

WRIGHT, P. J., concurs.

HOLMES, J., not sitting.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Charles M. SMITH, III.
    78-229.
    Supreme Court of Alabama.
    May 4, 1979.
   BEATTY, Justice.

Writ Denied.

All the Justices concur except TOR-BERT, C. J., and BLOODWORTH and ALMON, JJ., not sitting.


author: HOLMES, Judge.

text:
    Lillian J. TAYLOR v. William H. TAYLOR, Jr.
    Civ. 1540.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.
    Rehearing Denied Jan. 10, 1979.
    Max C. Pope of Fulford, Pope & Minis-man, Birmingham, for appellant.
    John W. Cooper, Birmingham, for appel-lee.
   HOLMES, Judge.

This is a divorce case. The wife appeals from the Circuit Court of Jefferson County’s decree modifying a previous award of alimony and child support.

The dispositive issue on appeal is whether there was sufficient evidence before the learned trial judge of material change in the financial circumstances of the husband to justify a modification. We find there is not sufficient evidence of such change and reverse and remand.

At the time of the divorce decree in June, 1976, the parties had been married over twenty years. There were five children whose ages, in June of 1976, were: Shaun-19, Trey-18, Mark-17, Fonde-15, Havely-11. An agreement of the parties regarding alimony, child support and a division of the property was incorporated into the decree.

Paragraph I of the agreement provided in pertinent part that all payments were included in income for the wife and deductible for husband. The wife initially was to receive $3,250 per month. Specifically, the decree provided the “sum of $3,250 as alimony and as support and maintenance for the parties’ minor children.” This amount would be reduced a total of $1,500 per month in $500 increments roughly corresponding to the years when the youngest two sons reached nineteen and the youngest child, a daughter, reached twenty-two.

The remaining $1,750 per month would only be forfeited by the wife if she remarried. However, if the wife remarried before June, 1980, she would continue to receive at least $500 per month until 1987, the year the daughter reached twenty-two.

In November of 1977, the wife filed a contempt proceeding. The husband countered with a petition to modify the divorce decree regarding alimony and support.

Specifically, the husband alleged that the agreement incorporated in the decree did not provide for child support and that the husband was forced to pay the children’s expenses, that the husband’s income had dropped to one-half of his income at the time of the decree and he had to borrow money to meet his obligations, that the alimony and support agreement was inequitable and, further, that it was necessary for the trial court to determine the amount of monthly payments to be allocated to alimony and to child support.

After an ore tenus hearing in January, 1978, the trial court found the husband not in contempt and modified the prior agreement incorporated in the divorce decree. To the previously mentioned paragraph 1 of the agreement, the court added the following:

“The said amount of alimony and child support payments due to the Plaintiff shall be reduced by the amount of Two Hundred Fifty Dollars ($250.00) per month as each child under the age of nineteen (19) years, as of the 23rd day of June, 1976, reaches the age of nineteen years. The said reduction shall become effective in February, 1978.”

To this court, it is clear that the effect of this modification would be threefold.

First, there would be an immediate reduction of $500 per month because two of the children, Trey and Mark, who had been under nineteen at the time of the decree in June of 1976 had reached nineteen by February of 1978. Second, the amount to be paid the wife after June, 1987, if she does not remarry, would be reduced from $1,750 per month to $750 per month. Finally, if the wife remarries in June, 1980, she will receive nothing at a time when the youngest child, Havely, will be age fifteen.

. It is recognized in this state that a trial court may modify an award of alimony or child support in a divorce decree upon a showing of changed circumstances of one or both of the parties. Such a modification will not be reversed on appeal unless it is clearly an abuse of discretion. Mockridge v. Mockridge, 278 Ala. 79, 175 So.2d 772 (1965); Little v. Little, Ala.Civ.App., 349 So.2d 48 (1977); Copeland v. Copeland, Ala. Civ.App., 343 So.2d 533 (1977); Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975).

To support a modification of the decree, the changed circumstances must be material changes in the financial status of the parties. Block v. Block, 281 Ala. 214, 201 So.2d 51 (1967); Meyer v. Meyer, Ala.Civ. App., 346 So.2d 972 (1977); O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (1976). Additionally, where the decree fixing alimony and support was based upon an agreement between the parties, that decree should not be modified “except for clear and sufficient reasons after the question has been subjected to thorough consideration and investigation.” Hutton v. Hutton, 284 Ala. 91, 95, 222 So.2d 348, 351 (1969). See also Block, supra; Walker v. Walker, 255 Ala. 599, 52 So.2d 505 (1951).

The burden of establishing the conditions necessitating a modification of the decree rests upon the moving party. Brumlow v. Brumlow, 282 Ala. 170, 209 So.2d 849 (1968); O’Dell, supra.

In the instant case, we find that this burden was not met and that the trial court’s judgment of modification was therefore plainly wrong. Simply stated, the evidence of the husband’s financial condition did not present the “clear and sufficient reasons” justifying a modification of alimony and support payments.

As noted above, the husband alleged that his income had decreased by one-half since the decree. According to the documentary evidence and the husband’s testimony, his annual incomes as a medical practitioner were approximately $155,000 in 1975, $91,-000 in 1976, and $84,000 in 1977. However, the husband testified that 1975 had been an exceptional year. In 1975, $31,000 of income had been the first payment of the husband’s prior interest in a medical professional association. The final payment of $11,000 was received in 1976. Approximately $90,000 had been earned from the husband’s practice at a local hospital, a practice which he had discontinued some one to three months before the divorce decree.

In short, the husband entered into the alimony and support agreement with the knowledge that two sources of income had been or would be terminated.

Secondly, the evidence presented at trial did not establish a material deterioration in the husband’s financial circumstances in the eighteen months between the divorce decree and the judgment of modification. The evidence established that the professional association in which the husband was the sole stockholder and medical practitioner had lost money in 1976 and 1977. However, these losses were insignificant in relation to the salary the husband was drawing out from the P.A. and do not alone establish a material loss in income. See, e. g., Johnson v. Johnson, 277 Ala. 126, 167 So.2d 688 (1964).

We particularly note the husband’s testimony that the P.A.’s accounts receivable for September through November of 1977 averaged $56,000 per month. This was twice the monthly average for the same three months in 1976. The husband explained this by stating that his practice was increasing.

Additionally, the fact that the husband’s 1977 income was lower than in 1976 was due in no small measure to a $36,000 depreciation and interest deduction from a business venture the doctor had invested in.

While other aspects of the husband’s financial status could be detailed, suffice it to say the clear import of all the evidence is that not only had the husband not suffered a material decline in income, but instead, his financial situation was improving at the time of the modification hearing.

In the past, this court has not found such evidence sufficient to justify a downward modification of the husband’s alimony and support payments. Compare Johnson v. Johnson, supra; Meyer v. Meyer, supra; O’Dell v. O’Dell, supra; Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902 (1972), with Lloyd v. Lloyd, 52 Ala.App. 374, 292 So.2d 668 (1974).

Even if it is assumed that the decrease over three years in the husband’s reported income accurately reflects his present earning ability, we cannot say that that decline is a material change in view of the total circumstances. The original payments when compared with the husband’s income, incorporating as they do elements of child support, are not so unreasonable as to justify at this time the modification as ordered by the trial court.

As we noted above, when alimony and support are agreed upon by the parties, those payments should not be modified without close scrutiny. This is especially true where, as here, so short a time as eighteen months separates the decree and the hearing for modification.

In view of the above, it is unnecessary to discuss other issues or contentions as set forth in brief.

The wife has requested an attorney’s fee for her representation on appeal. A fee of $1,000 is hereby awarded.

For the reasons set out above, this case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: SHORES, Justice.

text:
    Ex parte William H. TAYLOR, Jr.
    78-228.
    Supreme Court of Alabama.
    May 4, 1979.
   SHORES, Justice.

Writ denied.

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


author: BOWEN, Judge.

text:
    Recardo COOK v. STATE.
    6 Div. 489.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    Rehearing Denied Jan. 24, 1978.

      Charles M. Purvis, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted under the Alabama Death Penalty Act for robbery when the victim is intentionally killed and con-, victed as charged. Code of Alabama 1975, Section 13 — 11—2 (Code of Alabama 1940, Recompiled 1958, T. 15, § 342(4), 1975 Interim Supplement). Punishment was fixed at death.

On Friday, August 26, 1976, at approximately 6:45 A.M., the appellant was seen pacing back and forth, as if waiting for someone, immediately across the street and in front of the gate to the Sherman Concrete Products Company in Birmingham, Alabama. The deceased, Lewis Webb, always parked his automobile in this area and customarily carried large sums of money to work every Friday so he could cash the plant employees’ payroll checks. When Webb arrived at his place of employment, he parked his car and walked across the street to where several of his friends met every morning beside the gate to discuss sports. The appellant, pulling a stocking mask over his head, came up behind Webb as he was crossing the street, whirled him around and demanded his money. Webb raised his hands and denied having any money. The appellant then reached under Webb’s shirt, pulled out the money bag containing $3,000.00 and shot Webb once through the heart. The appellant then ran from the scene of the crime.

Walter Lee Hill and James Earl Jones were sitting outside the plant that morning talking with Webb when the robbery-murder occurred. Both men separately identified the appellant in a pre-trial lineup and testified that they observed the appellant in the area that morning. Hill testified that the appellant walked up one side of the street, crossed and then walked down the plant side of the street right in front of them. Jones stated that the appellant remained on the other side of the street pacing back and forth. Joe Goldson, Webb’s brother-in-law, saw the appellant running from the scene as he came to work at Sherman Concrete that morning. When Goldson arrived at the plant gate, Hill told him that Webb had been shot and robbed and pointed in the direction the appellant had escaped and that Goldson had just come from. Goldson went back and saw the appellant in a Thunderbird driven by a woman pulling out of a “Mexican food place”. He wrote down the license number of the escaping Thunderbird and returned to the plant.

The Thunderbird was registered to the appellant’s sister who testified that the car was purchased in her name for the appellant.

The defense was alibi. Janet Jackson testified that she was living with the appellant at the time of the crime. On that particular morning they both went to her mother’s house arriving about 6:50-6:55 A.M. They left about 7:06 A.M. She drove her mother’s car and the appellant drove his Thunderbird and arrived at the Southside Citgo Service Station at 7:15-7:16 A.M. where the appellant left his car to have some work done on it. Ms. Jackson’s mother verified this as did Curtis Pickens, the owner of the service station. The appellant took the stand, denied the killing and testified to his alibi.

In reviewing this conviction we are guided by the principle that an accused is entitled to a fair and impartial trial.

“(T)he law should prevail, without any reference to the magnitude or brutality of the offense charged. No matter how revolting the accusation, how clear the proof, or how degraded, or even brutal, the offender, the Constitution, the law, the very genius of Anglo-American liberty, demand a fair and impartial trial. If guilty, let him suffer such penalty as an impartial jury, unawed by outside pressure, may under the law inflict upon him. He is a human being and is entitled to this. Let not an outraged public, or one which deems itself outraged stain its own hands — stamp on its soul the sin of a great crime — on the false plea that it is but the avenger of the innocent.” Seay v. State, 207 Ala. 453, 455, 93 So. 403, 405 (1922).

With these comments as the framework and basis for our review we now proceed to examine the merits of this cause.

I

Initially, the appellant argues that the imposition of the death penalty as provided by Alabama law is a violation of both state and federal constitutional provisions. The constitutionality of the Alabama Death Penalty Statute (see Code 1975, §§ 13-11 — 1 —13-11-19) was initially proclaimed in Jacobs v. State, 361 So.2d 607 (Ala.Cr.App. 1977) and subsequently upheld and followed in John L. Jacobs v. State, 6 Div. 388 (Remanded for further proceedings, Ala.Cr.App., Ms. October 4, 1977), and Wayne Eugene Ritter and John Louis Evans, III v. State, 1 Div. 837 (Ala.Cr.App., Ms. October 25, 1977). Since the appellant has raised no new or additional reason which we have not previously considered for invalidating the Death Penalty Statute, we hereby reaffirm the constitutional soundness of that statute.

II

The appellant additionally argues that it was error for the trial court to overrule his demurrer to the indictment because of the misspelling of the word “intentionally” in that indictment. The indictment brought against the appellant read, “the defendant did intentially kill the said Lewis Webb”.

Before an objection because of false grammar, incorrect spelling, or mere clerical errors is entertained, the court should be satisfied of the tendency of the error to mislead, or to leave in doubt the meaning of the charge to a person of common understanding, reading, not for the purpose of finding defects, but to ascertain what is intended to be charged. Grant v. State, 55 Ala. 201 (1876). Neither clerical nor grammatical errors vitiate an indictment unless they change the words or obscure the meaning, Grant, supra, or unless the error changes a word into one of different import or the sense is so obscured that one of ordinary intelligence cannot determine with certainty the meaning from the context. Sanders v. State, 2 Ala.App. 13, 56 So. 69 (1911). Here the sense of the indictment is clear. The error in spelling did not obscure the sense and it is obvious what was intended to be charged. Therefore this defect was not fatal to the indictment. Verbal inaccuracies or clerical errors, which are explained and corrected by necessary intendment from other parts of the indictment, or errors of spelling, not obscuring the sense, are not fatal. Gary v. State, 18 Ala.App. 367, 92 So. 533 (1922). Examples of clerical or spelling errors which were held not to vitiate an indictment are: “afore-though”, Sanders v. State, 2 Ala.App. 13, 56 So. 69 (1911); “aforethgought”, Frazer v. State, 29 Ala.App. 204, 195 So. 287, cert. denied, 239 Ala. 309, 195 So. 290 (1940); “atorethought”, Curry v. State, 23 Ala.App. 182, 122 So. 298 (1929); “a forethought”, Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); “bihphetamine” for “biphetamine”, McKessick v. State, 291 Ala. 564, 284 So.2d 516 (1973); “bu” for “by”, Burk v. State, 22 Ala.App. 107, 114 So. 71, cert. denied, 216 Ala. 655, 114 So. 772 (1927); “charged” for “charge”, Salts v. State, 21 Ala.App. 573, 110 So. 169, cert. denied, 215 Ala. 247, 110 So. 170 (1926); “controll” for “controlled”, Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976); “cornally” for “carnally”, Brown v. State, 15 Ala.App. 611, 74 So. 733 (1917); “di” for “did”, Holland v. State, 11 Ala.App. 134, 66 So. 126, cert. denied, 191 Ala. 662, 66 So. 1008 (1914); “fertilize” for “fertilizer”, Kirk v. State, 13 Ala.App. 316, 69 So. 350 (1915); “fraudulently” for “frau-delently”, Bell v. State, 139 Ala. 124, 35 So. 1021 (1904); “innocense” for “innocence”, Mitchell v. State, 28 Ala.App. 119, 180 So. 119, cert. denied, 235 Ala. 530, 180 So. 123 (1938); “maltous” for “malt”, Couch v. State, 6 Ala.App. 43, 60 So. 539 (1912); “on” for “one”, Witt v. State, 5 Ala.App. 137, 59 So. 715 (1912); “papaper” for “paper”, Askew v. State, 18 Ala.App. 345, 91 So. 911 (1922); “vive” for “five”, Bozeman v. State, 40 Ala.App. 391, 114 So.2d 912, cert. denied, 269 Ala. 610, 114 So.2d 914 (1959). The only Alabama case we found holding the indictment fatally defective because of misspelling or the omission of letters from a word in the indictment is Parker v. State, 114 Ala. 690, 22 So. 791 (1896), “dwell-house” for “dwelling house”. Therefore, under these authorities, we hold that the indictment was not vitiated by the appearance of “intentially” for “intentionally”.

m

Finally the appellant alleges that his conviction is due to be reversed because of the comments of the prosecutor in closing argument.

A.

The first argument objected to occurred when the Assistant District Attorney made the following comment in closing argument.

“MR. JOHNSON: Don’t you know that right now out there on every corner, in every little store, in every little Quick Mart, in every little 7-11 Store they are out there, the owners, the proprietors, and they are considering the odds. They are wondering which way you’re going to stack them. Don’t you know that the Recardo Cook’s and the would be Recardo Cook’s of this world are out there and they are considering the odds too. Don’t you know they are wondering if you’re going to say to them, ‘We’re going to give you a license. We’re going to give you a license to kill’.
“MR. WILKINSON: We object to any argument that suggests the jury giving other people license to kill. We object to that.
“THE COURT: Well, that wouldn’t be — I sustain.
“MR. WILKINSON: Did you sustain? “THE COURT: Yes, sir.
“MR. WILKINSON: Would you instruct the jury to disregard his last argument?
“THE COURT: I sustained. Go ahead.”

The appellant merely asserts that it was error for the trial judge to refuse to instruct the jury to disregard the prosecutor’s argument.

The objected to portion of the argument is similar to that made by the prosecutor in Blalock v. State, 8 Ala.App. 349, 351, 63 So. 26, 27 (1913), involving a prosecution for allowing stock to run at large, where the solicitor argued that “If you turn this man loose, it will be a license for all them people up there in beat 24 to turn their stock out”. The Court of Appeals held that it was not error for the trial judge to refuse to exclude this argument although it was not strictly pertinent because no fact was asserted but simply an inference drawn and argument made thereon. Such arguments have been held to be “not ineradicable”. See Fuller v. State, 269 Ala. 312, 332, 113 So.2d 153 (1959) (error in statement by prosecutor in closing remarks to the effect that a verdict of acquittal would amount to a license to the defendant to return to Phenix City and engage in illegal activities was not ineradicable). The prosecuting attorney may properly argue the necessity of law enforcement as a detriment to crime, the evil results that will flow to society from the failure of the jury to do its duty, the responsibility of trial juries in the suppression of crime and the legitimate inferences to be drawn from the evidentiary and record facts of the case. He may not, however, seek by inflammatory appeals to arouse in the jurors a personal hostility toward, or personal fear of, the accused and neither is it proper for the prosecutor to speculate as to future possible acts or conduct of the accused. Embrey v. State, 283 Ala. 110, 118-120, 214 So.2d 567 (1968); Ash v. State, 33 Ala.App. 456, 460, 34 So.2d 700, cert. denied, 250 Ala. 417, 34 So.2d 704 (1948); Cross v. State, 68 Ala. 476 (1881); James v. State, 14 Ala.App. 652, 72 So. 299 (1916); Rogers v. State, Ala.Cr.App., 346 So.2d 29, cert. denied, Ala., 346 So.2d 31 (1977). As defense counsel’s objection points out, the prosecutor referred to giving others a license to kill and not to the possible future conduct of the appellant. Prosecutors must be allowed a wide range in their exhortations to the jury to discharge their duties in such a manner as, not only to punish crime, but to protect the public from like offenses and as an example to deter others from committing like offenses. Witt v. State, 27 Ala.App. 409, 174 So.2d 794, cert. denied, 234 Ala. 391, 174 So.2d 795 (1937). Certainly the comments of the prosecutor were not grossly improper or highly prejudicial. Defense counsel did not request a mistrial. In view of the facts that the trial judge did sustain the objection and the remark was not so prejudicial that it could not be cured by proper ruling of that court, the failure to instruct the jury was not error. Scott v. State, Ala.Cr. App., 333 So.2d 619, 622 (1976).

The record reflects that there was no objection to the prosecutor’s reference to “Quick Mart” and “7 — 11” stores although the appellant argues the prejudicial content of the argument on appeal. Even in a prosecution where the punishment is death, improper argument of counsel is not the subject of review on appeal unless there is due objection by counsel, or a motion to exclude, a ruling by the court and an objection to that ruling or a refusal of the court to make a ruling. Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968); Jackson v. State, 260 Ala. 641, 71 So.2d 825 (1954); Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961); Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957). Even if proper objection had been made, the comment would not require a reversal. See Robinson v. State, 47 Ala.App. 51, 54, 249 So.2d 872 (1971). Here, as in Robinson, we interpret this argument as an appeal for law enforcement.

B.

Defense counsel also objected when the Assistant District Attorney stated:

“This is the first case that the death penalty was reinstated. Don’t you think the people who represent the people of Alabama have something in mind when they restored the death penalty. Don’t you think that they had in mind people like the Mr. Tortorici’s of the world out in their grocery stores.
“MR. WILKINSON (Defense Counsel): We object to all this referring to other specific incidents and things of that sort, that type of argument, and we object to it.
“THE COURT: Overrule.
“MR. WILKINSON: We except.”

Initially we note that we are unable to intelligently review the prejudicial character of the argument, because the comment is fragmentary and the record so incomplete. Pate v. State, 32 Ala.App. 365, 26 So.2d 214 (1946); Mincy v. State, 262 Ala. 193, 78 So.2d 262 (1955); Brothers v. State, 236 Ala. 448, 183 So. 433 (1938) (Reviewing court would not reverse conviction because of prosecutor’s argument that “We ought to tear the electric chair down and build a monument to John Dillinger and ‘Baby Face’ Nelson”, where connection in which such statement was made did not appear). The comment is not patently or obviously prejudicial for the simple reason that we are not informed of who “Mr. Tortorici” is or was. There was no motion for a new trial and the record does not reveal any further comments on or about “Mr. Tortorici”. Hembree v. State, 20 Ala.App. 181, 101 So. 221 (1924).

While technically the comment may be said to be improper in that it refers to a matter outside the record, the appellant has in no manner demonstrated that it substantially and prejudicially affected his legal rights. In closing argument a prosecutor should not be permitted to state as facts what he alleged had occurred in the perpetration of another crime having some alleged features analogous to those developed at trial. Cross v. State, 68 Ala. 476 (1881); Williams v. State, 83 Ala. 68, 3 So. 743 (1888); Curry v. State, 23 Ala.App. 140, 122 So. 303 (1929). Here we have no indication that the comment referred to facts from another case or was designed to institute a comparison between such foreign and irrelevant facts and the facts of the case on trial. Davis v. State, 213 Ala. 541, 105 So. 677 (1925). While we may speculate that Mr. Tortorici was the victim of a robbery-murder, such is mere presumption on our part. To read error into the statement we would have to resort to speculation and surmise. Such will not serve as a basis for error. Nolen v. State, 35 Ala.App. 249, 45 So.2d 786 (1950). The judgment of the trial court and verdict of the jury are solemn expressions and should not be overturned unless a good legal reason is shown. Freeman v. State, 30 Ala.App. 99, 1 So.2d 917, cert. denied, 241 Ala. 178, 1 So.2d 920 (1941). We will not presume a fact not shown by the record and make it a ground of reversal. Duncan v. State, 88 Ala. 31, 7 So. 104 (1889).

The comment of the prosecutor does not refer to the specific facts of another case and nowhere approaches those comments condemned in Cross, supra; Roy v. State, 24 Ala.App. 419, 136 So. 273 (1931); Eaton v. State, 278 Ala. 224, 177 So.2d 444 (1965). In Cross, supra, at 68 Ala. 484, the court summarized the governing law.

“We sum up, lest we be misunderstood. .There must be objection in the court below, the objection overruled, and an exception reserved. The statement must be made as of fact; the fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury; or the case is not brought within the influence of this rule. To come within the last clause above, namely, where the natural tendency is to influence the finding of the jury, the case must be clear and strong. We would not embarass free discussion, or regard the many hasty or exaggerated statements counsel often make in the heat of debate, which can not, and are not expected to become, factors in the formation of the verdict. Such statements are usually valued at their true worth, and have no tendency to mislead. It is only when the statement is of a substantive, outside fact — stated as fact — and which manifestly bears on a material inquiry before the jury, that the court can interfere, and arrest discussion.”

The mere mention of the name of Mr. Tortorici by the prosecutor in closing argument, even if improper, was not so prejudicial as to have deprived the appellant of a fair trial absent any showing that the name itself would have some sinister effect upon the jury or a juror.

C.

The third and final instance where the appellant objected to the closing argument of the prosecutor is presented by the following excerpt.

“MR. JOHNSON: Does anybody doubt that that car, the 1 C — 23670, was not at Sherman Concrete Products that morning? Do y’all think that Joe Golson made that up? On the one hand they say—
“MR. WILKINSON: We object to that. Joe Golson never said any 1 C-23670. “THE COURT: Mr. Wilkinson, this is argument. The jury heard the evidence.
“MR. WILKINSON: I understand that, and wg object to that statement being outside the evidence and we object to it.
“THE COURT: Overrule.
“MR. WILKINSON: Exception.”

The prosecutor’s remarks were a misstatement of the evidence. Witness Goldson testified that he saw a man run from the scene of the murder and drive away in a Thunderbird automobile with license number “1— 23670”. Through the principal accountant for the Jefferson County Department of Revenue, the state proved that the only Thunderbird with those numerical digits (1— 23670) belonged to the appellant and had a license number of “1 C-23670”.

The correct rule of law in this regard is that

“Generally, it is improper for counsel in argument to the jury to misquote or misstate the testimony, . . . However, the fact that the prosecuting attorney states some portion of the evidence erroneously, or makes exaggerated statements as to its strength, is not error, unless it is clear to the court that accused has been prejudiced thereby.” 23A C.J.S. Criminal Law p. 145, § 1093.

It is our conclusion from a review of the evidence that this comment by the prosecutor did not harm the appellant. Rule 45, Alabama Rules of Appellate Procedure.

While we feel that the Harmless Error Rule, A.R.A.P., Rule 45, is to be applied with great caution in capital cases, there is “no reason why it should not be applied in a capital case where it is obvious that a defendant could not have probably been injured in a substantial right by a ruling”. Seibold v. State, 287 Ala. 549, 559, 253 So.2d 302 (1971). This court does not “tower above the trials of criminal cases as impregnable citadels of technicality”. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 1245, 90 L.Ed. 1557 (1946). A comprehensive and lengthy review of the case law in this area of prosecutorial limitations on closing argument convinces this court, as we have often held, that each case must be considered and reviewed on its own merits, “resulting from examination of the proceedings in their entirety, tempered but not governed in any rigid sense of stare decisis by what has been done in similar situations.” Kotteakos, supra, at 66 S.Ct. 1246.

In determining that no substantial prejudice to the appellant has resulted from the prosecutorial summation we have taken into account the facts that the remarks were single or isolated and not repeated, that the trial was relatively short and the jurors would not have been misled over the precise import of any testimony, and that the cumulative effect of the errors is not sufficient to require reversal. From the record the atmosphere of the courtroom throughout the trial convinces us that the appellant received a fair and just determination of his guilt. And finally we have considered the overwhelming evidence of the appellant’s guilt. While it is not an appellate court’s function to determine guilt or innocence or to speculate upon probable reconviction and decide according to how the speculation comes out, to weigh the error’s effect against the entire setting of the record without relation to the verdict would almost be to work in a vacuum. Kotteakos, supra, at 66 S.Ct. 1247.

Finding direction in the opinion of Justice Livingston in Stain v. State, 273 Ala. 262, 266, 138 So.2d 703 (1962), we are of the opinion that the errors complained of in closing argument had no substantial influence on the jury.

In the words of Judge Harris in Jacobs v. State, 361 So.2d 607 (Ms. 1977), this was a “conscienceless and pitiless” crime evidencing a “cold stone heart” and “a sad commentary upon the very name of civilization of the ease with which human beings can be turned into beasts.”

The judgment of conviction is affirmed. We will not fix the date of execution until the appellant has been afforded the opportunity for further appellate review.

AFFIRMED.

All Judges concur.


author: FAULKNER, Justice. BLOODWORTH, Justice MADDOX, Justice JONES and SHORES, Justices FAULKNER, Justice.

text:
    In re Recardo COOK v. STATE of Alabama. Ex parte Recardo Cook.
    77-320.
    Supreme Court of Alabama.
    Sept. 15, 1978.
    As Corrected on Denial of Rehearing Feb. 9, 1979.
    Affirmed in part, reversed and remanded with directions.
    Bloodworth, J., with whom Almon, J., concurred, concurred specially.
    Maddox, J., concurred specially. •
    Jones and Shores, JJ., dissented.
    Bloodworth, Maddox and Almon, JJ., concurred in overruling application for rehearing.
    Jones and Shores, JJ., dissented on rehearing.

      J. Louis Wilkinson and Charles M. Purvis of Wilkinson, Purvis & Pickard, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen. for the State, OPPOSED.
   FAULKNER, Justice.

Recardo Cook was convicted of “robbery . when the victim is intentionally killed.” § 13-11 — 2(a)(2), Code of Ala.1975. After a sentencing hearing held by the trial court, Cook was sentenced to death. His conviction and punishment were upheld by the Court of Criminal Appeals. This court granted certiorari as a matter of right. ARAP 39(c).

Cook urges two grounds for reversal: (1) that the Alabama Death Penalty Act is unconstitutional, and (2) that the trial court committed error by not correcting certain prosecutorial arguments allegedly containing prejudicial or erroneous material.

We affirm Cook’s conviction, but opine that the sentencing hearing did not comport with the constitutional standards outlined in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Jacobs v. State (Ala.1978, opinion extended on rehearing Aug. 11, 1978), 361 So.2d 640, and remand for another sentencing hearing pursuant to the procedures outlined in this opinion.

On March 4, 1977, one week after the jury returned its guilty verdict, the trial judge held the sentencing hearing required by § 13-11-3, Code of Ala.1975. Present at the hearing were the trial judge, a district attorney, one member of Cook’s defense team, and Cook himself. The State began by presenting Cook’s “prior record or his involvement in other criminal activities.” It was revealed that in 1972 Cook was charged with assault with intent to murder, but this charge was reduced to malicious destruction of property with a $100 fine. In addition, in 1975 Cook was alleged to have robbed the “Red One Shop.” The trial judge was informed that there were two purported eyewitnesses and that a tag number was taken for Cook’s sister’s car (the same car reportedly used in the murder of Webb.) The witnesses did not appear at the hearing. According to the district attorney, “There was no physical violence involved at all other than the use of a gun.”

Defense counsel rebutted by pointing out that malicious mischief with a $100 fine probably would not equal a “significant history” and that Cook was still presumed innocent on the pending robbery charge. Counsel also stated briefly that it was shown at trial that Cook had a good work history at a local factory but had been laid off shortly before the murder. Defense counsel showed that Cook was 22 at the time the crime was committed, but the trial judge did not feel Cook’s age presented a mitigating circumstance. Counsel then emphasized that immediately prior to trial Cook had been offered life imprisonment for a guilty plea, arguing that Cook should not now be sentenced to death simply because he insisted on a trial by jury. The State then asserted that it was now seeking the death penalty for deterrence reasons, to avoid “making it open season out there.” The trial judge refused to consider these last arguments.

After this brief discussion the trial judge began to consider, seriatim, the aggravating and mitigating circumstances listed in §§ 13-11-6 and 13-11-7, Code of Ala.1975. Under § 13-11 — 7 (mitigating circumstances) the trial judge stated, “I would agree that he probably has no significant history, but he does have a history.” He later incorporated this statement in his findings of fact where he discussed the 1972 assault with intent to murder and its final outcome and also detailed the pending robbery charge. The trial judge thought this was the only mitigating circumstance present, although it was obviously very limited in his mind. Under § 13 — 11—6 (aggravating circumstances) the trial judge found two present, (4) — a capital felony committed in the course of a robbery, and (6) — a capital felony committed for pecuniary gain, and these were both listed in his findings of fact. Consequently, since he did not think the mitigating circumstances outweighed the aggravating circumstances, the trial judge “allowed the jury’s verdict to stand.”

I.

As to the first issue raised by the defendant, the constitutionality of Alabama’s Death Penalty Act, our recent consideration of this point in Jacobs v. State eliminates the need for further discussion of the general statutory provisions here.

II.

Nor do we find merit in defendant’s contention that his conviction must be reversed because of allegedly prejudicial or erroneous material in the prosecutor’s closing argument. Specifically, defendant objects to two portions of the argument. The first comment complained of occurred as follows:

“MR. JOHNSON [Assistant District Attorney]: Don’t you know that right now out there on every corner, in every little store, in every little Quick Mart, . in every little 7-11 Store they are out there, the owners, the proprietors, and they are considering the odds. They are wondering which way you’re going to stack them. Don’t you know that the Recardo Cooks and the would be Recardo Cooks of this world are out there and they are considering the odds too. Don’t you know they are wondering if you’re going to say to them, ‘We’re going to give you a license. We’re going to give you a license to kill.’
“MR. WILKINSON [Defense Counsel]: We object to any argument that suggests the jury giving other people license to kill. We object to that.
“THE COURT: Well, that wouldn’t be — I sustain.
“MR. WILKINSON: Did you sustain?
“THE COURT: Yes, sir.
“MR. WILKINSON: Would you instruct the jury to disregard his last argument?
“THE COURT: I sustained. Go ahead.”

It is clear that a district attorney in closing argument may make a general appeal for law enforcement. Embrey v. State, 283 Ala. 110, 118, 214 So.2d 567 (1968). In Cross v. State, 68 Ala. 476 (1881), this Court observed:

“[C]ounsel is in legitimate bounds, when he urges a firm and fearless administration of the criminal law, as the great conservator of human life, and of the repose of society; and is not within reversible grounds, when he complains generally that juries are frequently more inclined to mercy than to judgment. On the other hand, counsel may warn juries against hasty or harsh verdicts, and may invoke the humane mercies of the law, which accords to persons accused the saving benefit of all reasonable doubts.” 68 Ala. at 483.

In line with this principle, this court allowed the argument of the district attorney in Embrey that, “ ‘You have got to determine whether or not these juries are going to stop these robberies from going on.’ ” 283 Ala. at 118, 214 So.2d at 575. See also Davidson v. State, 211 Ala. 471, 100 So. 641 (1924). In fact, the comment objected to in this case is distinguishable only in the severity of the crime and punishment from that allowed in Blalock v. State, 8 Ala.App. 349, 63 So. 26 (1913), where the solicitor stated, “ ‘If you turn this man loose, it will be a license for all them people up there in beat 24 to turn their stock out.’ ” In approving this argument the Court of Appeals stated:

“The excerpt from the argument of the solicitor . . . cannot be taken to mean more, when construed in connection with the evidence, than that it was the duty of the jury to convict the defendant, if the evidence was sufficient, for the purpose of deterring others from committing similar offenses. This is one of the objects sought to be attained by the enforcement of the criminal laws and punishment of offenders against it. At most it could be deemed no more than an argument, intended to illustrate the evil consequences that might result from a failure of the jury to do their duty in the premises if the evidence was sufficient to authorize a conviction. It does not appear from the isolated excerpt set out that the solicitor was asserting any fact, and it is not error to refuse to exclude the argument of counsel, although not strictly pertinent, when no fact is asserted, but simply an inference is drawn and argument made thereon.”

Since the argument complained of did not imply that Cook himself would commit other illegal acts in the future the comment did not overstep the bounds of legitimate argument.

In this same vein defendant also objects to another portion of the district attorney’s closing argument where the following occurred:

“MR. JOHNSON: This is the first case that the death penalty was reinstated. Don’t you think the people who represent the people of Alabama have something in mind when they restored the death penalty. Don’t you think that they had in mind people like the Mr. Tortoricis of the world out in their grocery stores.
“MR. WILKINSON: We object to all this referring to other specific incidents and things of that sort, that type of argument, and we object to it.
“THE COURT: Overrule.
“MR. WILKINSON: We except.”

The rule governing the permissible scope of argument was succinctly stated by this court in Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961):

“It is sometimes difficult to draw the line between allowable argument and improper statements in argument. The rule is that an attorney cannot be allowed to state anything as a fact as to which there is no evidence. . . . But the solicitor may properly comment upon the evil generally of the crime which the law he is seeking to enforce intends to prevent . It is only when the statement is of a substantive, outside fact — stated as a fact — and which manifestly bears. on a material inquiry before the jury, that the court can interfere and arrest discussion.” 272 Ala. at 637, 133 So.2d at 56.

Here defendant objected to the prosecutor’s remark about “Mr. Tortorici” as a reference to “other specific incidents.” Certainly counsel could not draw comparisons between the case at bar and another case, the facts of which are not and could not be in evidence. See, e. g., Roy v. State, 24 Ala. App. 419, 136 So. 273 (1931), where a comparison was made to a then notorious New York murder case. However, the record here does not give any indication of who Mr. Tortorici is or was, if he is in fact a real person. Defense counsel invites us to assume that Mr. Tortorici was the proprietor of a grocery store and was slain in a robbery. It is just as possible, on the other hand, that he is a purely hypothetical figure. Without more facts we simply cannot tell, and we cannot presume that this comment was prejudicial error upon such a sketchy background. The trial judge, a local resident presumably acquainted with the city’s more notorious crimes, did not consider the comment so prejudicial as to warrant exclusion or curative instructions to the jury. Consequently, we will not disturb his ruling on the record presented here.

III.

We opine that the sentencing hearing contained errors which can only be corrected by remanding the case for a new sentencing hearing. We realize, of course, that the same result may very well be reached on remand. Nevertheless, it is the duty of this court to insure that no error has tainted the trial or the sentencing process. This duty is a constitutionally mandated one stemming from “the nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978).

In Lockett the U. S. Supreme Court outlined the constitutional requirements for a sentencing hearing in a capital case. In a plurality opinion joined by Justices Stewart, Powell, and Stevens, the Chief Justice declared:

“[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases.
“[A] statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death, penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” 438 U.S. at 604-05, 98 S.Ct. at 2965. (Emphasis added.)

The Chief Justice noted that the Court assumed, in upholding the Florida death statute in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), that a list of mitigating factors contained in that statute was not exclusive. 438 U.S. at 605, 98 S.Ct. 2954.

Lockett was not released until after this court upheld Alabama’s Death Penalty Act in Jacobs v. State. Nevertheless, on rehearing in Jacobs we considered the possible impact of Lockett on Alabama’s statute. In an extended opinion we noted that Lockett does not invalidate Alabama’s sentencing scheme in death cases since § 13 — 11—3, Code of Ala.1975, specifically allows any relevant evidence in mitigation to be presented at the sentencing hearing. That statute reads in part:

“In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13— 11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the state of Alabama. The state and the defendant, or his counsel, shall be permitted to present argument for or against the sentence of death.” (Emphasis added.)

We are left with the problem of categorizing the evidence received and balancing the aggravating circumstances with the mitigating circumstances. At Cook’s sentencing hearing the trial judge found that two aggravating circumstances were present: (4) — a capital felony committed in the course of a robbery, and (6) — a capital felony committed for pecuniary gain. In so finding we feel that the learned trial judge misconstrued the latter aggravating circumstance, in effect condemning Cook twice for the same culpable act — stealing money. Subsection 6 would, of course, cover a variety of crimes committed with the hope of financial benefit, ranging from “murder-for-hire” to an heir killing his benefactor to gain his inheritance. But we do not think it appropriate to apply this aggravating circumstance to situations already condemned under subsection 4 which by definition involve an attempt at pecuniary gain. Thus, to avoid repetition, subsection 6 should not be applied to a robbery. The trial court erred in considering it and including it in the findings of fact.

We also find error in the trial court’s application of one of the enumerated mitigating circumstances, '“(1) — The defendant has no significant history of prior criminal activity.” The key word in this provision is significant. Thus the trial judge erred when he determined that Cook had no significant history “but he does have a history” and proceeded to detail Cook’s criminal background in his findings of fact. The legislature has indicated that lack of a significant criminal history should operate in a convicted individual’s favor. A court cannot qualify this provision by relying on pri- or criminal activity which does not rise to the level established by the legislature.

In fact, Cook’s background presents even less of an admissible criminal history than the trial judge believed. At the hearing the trial judge improperly considered evidence of a pending robbery charge and in effect decided that case without benefit of a trial by jury. Of course, it could not seriously be contended that evidence could be presented of a prior acquittal even though the defendant had clearly escaped justice on the most technical of technicalities. Consequently, a pending charge cannot be considered either. Cook may well be convicted at some future date of this robbery, but then again he may not be convicted for any number of reasons. Until the State proves him guilty of this charge in accordance with appropriate legal procedures Cook is presumed innocent. This fundamental tenet of our system of justice prohibits use against an individual of unproven charges in this life or death situation.

Nor do we think it appropriate, in considering a previously adjudicated criminal charge, to admit evidence of the original charge as was done in Cook’s case. Here the trial judge stated in his findings of fact that Cook was “charged in 1972 for assault with intent to murder, which was reduced to malicious destruction of property, fined a hundred dollars and costs.” Instead the court must rely on the prior judge’s decision that Cook’s acts were most appropriately treated as malicious destruction of property. Once judgment is entered the original charges become irrelevant. Thus it is apparent that of Cook’s “prior criminal history” the only thing that could properly be considered is a 1972 conviction for malicious destruction of property with a $100 fine and costs. This single conviction hardly constitutes “a significant history of prior criminal activity” so this mitigating circumstance should have operated fully in favor of Cook.

Once all of the proper evidence has been received at the sentencing hearing and arguments have been given, the trial judge must “weighing the aggravating and mitigating circumstances” and sentence the defendant to death or life imprisonment without parole. § 13-11-4, Code of Ala.1975. This “balancing” should not, however, be construed to authorize a “tallying” of items for and against the defendant. We can readily envision situations where several aggravating circumstances may not be sufficient to outweigh only one mitigating circumstance and, on the other hand, where numerous mitigating circumstances may be present but opposed to one aggravating circumstance so outrageous as to justify the death penalty. In conducting these hearings trial judges should keep in mind their ability to order presentence investigations and psychiatric evaluations to obtain a full picture of the defendant.

We realize, of course, that many of the errors at the sentencing hearing were not objected to and therefore would not normally be subject to review. But where the State proposes to take a life as punishment for crime, it is our duty to insure that the proper result is reached. At the time of Cook’s trial no cases interpreting this statute were available for guidance to the court or to the parties and, considering that they were forging into undeveloped areas of the law, the participants did an admirable job of applying this untested law to an actual fact situation. Nevertheless, we feel that justice will best be served by allowing the trial judge to resentence Cook under the guidelines now established by this court and the U.S. Supreme Court.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED TO THE COURT OF CRIMINAL APPEALS WITH DIRECTIONS TO ORDER A REHEARING IN THE CIRCUIT COURT ON THE MITIGATING CIRCUMSTANCES.

TORBERT, C. J., and EMBRY and BEATTY, JJ., concur.

BLOODWORTH, J., with whom ALMON, j., concurs, concurs specially.

MADDOX, J., concurs specially.

JONES and SHORES, JJ., dissent.

BLOODWORTH, Justice

(concurring specially).

I concur in the result of Mr. Justice Faulkner’s'opinion to reverse and remand this cause for resentencing because I agree that the trial judge erred in improperly considering aggravating circumstance (6).

I also agree with Mr. Justice Maddox’ special concurrence where he writes that Alabama’s statute “broadly permits a defendant to ‘proffer’ any circumstance” and that the burden is on the defendant to offer such mitigating circumstances. I also agree with him that the trial judge erred in refusing “to consider, as a mitigating circumstance, that Cook may have been offered life imprisonment for a guilty plea.”

We cannot tell from the trial judge’s decision whether he would have affirmed the death penalty had he not considered aggravating circumstance (6) or had he considered the offer of life imprisonment. Consequently, a remand is in order.

ALMON, J., concurs.

MADDOX, Justice

(concurring specially).

I concur in parts I and II of the opinion. As to part III, I concur in the result only.

After reading the entire transcript of the sentencing hearing, I am convinced that the trial judge conducted a proper sentencing hearing, except for one point; he refused to consider, as a mitigating circumstance, that Cook may have been offered life imprisonment for a guilty plea. During the sentencing hearing, defendant’s counsel stated:

“Lastly, I would say that the fact nine or ten days ago the Defendant was considered to be a candidate for life imprisonment, and because he asserted that he was not guilty and went to trial and got convicted he now stands the risk that he knew he would stand of capital punishment. But the only thing that happened in those nine days that I know of is that he had a jury trial and has been convicted. I don’t think his personality has changed a great deal or his background or anything else. I would think under those circumstances if anybody under this act, and I mean there is always aggravating circumstances or you are not under the act, but if anybody under this act deserves mitigation it would be somebody who had two of the mitigating factors present and who was originally sought and adjudged the type of person who should not suffer capital punishment. With that statement we rest.
# * * * * *
“MR. WILKINSON: The Legislature also said that there are mitigating circumstances even where there were aggravating circumstances that put somebody under the death penalty. The State did not feel about ten days ago that Re-cardo Cook needed to die to satisfy anything. They didn’t feel that Recardo Cook needed to die to protect the public in any particular way. Recardo Cook’s need to die seems to have arisen after Recardo Cook’s trial. I would submit the only thing that has changed is the fact that he decided to assert and does assert that he was not guilty, went to trial and lost.
“THE COURT: I’m not going to consider that one way or the other, Mr. Wilkinson. I don’t think that is proper for me at all to consider that.
MR. WILKINSON: So far as their position is concerned I do.
“THE COURT: I know, but as far as mine is concerned I don’t.”

In refusing to consider the fact that Cook may have been offered life imprisonment for a guilty plea, I think the trial court erred and I would remand on this ground.

I disagree with the plurality insofar as they hold that the sentence cannot stand because the sentencing judge found, as an aggravated circumstance, that the capital felony was committed for pecuniary gain. Even assuming that this particular aggravating circumstance was not applicable in this case, § 13-11^4 only requires that the sentencing judge find “one or more of the aggravating circumstances.” (Emphasis added.)

The trial judge, during the sentencing hearing, went down the list of aggravating circumstances contained in § 13-11-6 and made the following observations:

“The aggravating circumstances; ‘The capital felony was committed by a person under sentence of imprisonment.’ That does not apply in this case. He was not under a sentence of imprisonment.
“ ‘The Defendant was previously convicted of another capital felony or a felony involving the use of threat of violence to the person.’ That does not apply to this case.
“ ‘The Defendant knowingly created a great risk of death to many persons.’ I don’t think that’s present.
“ ‘The capital felony was committed while the Defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, rape, robbery, burglary, or kidnapping for ransom.’ That is present but, of course, that is what he was charged with. The deed of the aggravating circumstance is present.
“ ‘The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody.’ That is not present.
“ ‘The capital felony was committed for pecuniary gain.’ That is present. There’s evidence that it was committed for $3,000.
“MR. WILKINSON: Of course, again, a robbery—
“THE COURT: I understand. I understand.
“ ‘The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.’
“ ‘The capital felony was especially heinous, atrocious or cruel.’ Well, I don’t really know what they’re talking about there. I’ll say at best this felony was totally senseless. I don’t know about cruel, what people’s different definitions of atrocious or heinous or cruel is, what— whether they’re talking about torture or what, but if robbing somebody and taking their money and then shooting them through the heart is considered heinous then this crime was heinous. I don’t know that that’s what they’re talking about. I’ll be honest with you, I really don’t know. Does anybody want to say anything about that?
“MR. WILKINSON: I’ll just say that the word ‘especially’ — I think you’re right. Any time that there is a death penalty, and we have always got to keep in the background, that any time there is a death penalty case or a prosecution under this particular law you have somebody killed and you have somebody killed intentionally and as a general rule killed in the commission of a robbery or some other kind of felony. Now, those' things are always, yes, heinous, atrocious or cruel, I’ll buy that. I think the key word is especially. I think what the legislature is talking about is something over and above that, whether it be torture, whether it .be prolongation of the offense or whatever, but the key word is especially. I would think that would be the key word. They acknowledge any crime under this section is heinous, atrocious or cruel, but the reason for the word especially, it seems to me, would be to indicate that something in addition should be for that aggravating circumstance.”

The plurality, on rehearing, modified the original opinion, and the opinion now reads:

“. . . Subsection 6 [§ 13-11-6(6)] would, of course, cover a variety of crimes committed with the hope of financial benefit, ranging from ‘murder-for-hire’ to an heir killing his benefactor to gain his inheritance. But we do not think it appropriate to apply this aggravating circumstance to situations already condemned under subsection 4 which by definition involve an attempt at pecuniary gain. Thus, to avoid repetition, subsection 6 should not be applied to a robbery. The trial court erred in considering it and including it in the findings of fact.”

I disagree with this portion of the opinion.

It is perfectly clear to me that the trial judge found at least one of the aggravating circumstances to exist. That is enough. However, a fair reading of the colloquy shows that the evidence supported a finding that Cook committed a capital felony for pecuniary gain. I think the plurality errs in determining that the aggravating circumstance in subsection 6 is inapplicable when the evidence shows that the accused intentionally killed the victim in a robbery. There are fourteen categories of “aggravated offenses,” and only eight “aggravating circumstances.” Subsection 6, in my opinion, could apply under several of the fourteen “aggravated offense” categories, including intentional killing of robbery victims, as presented here.

I make a couple of other observations. As I view Lockett v. Ohio, the sentence there was set aside because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, the defendant’s character, prior record, age, lack of specific intent to cause death, and relatively minor part in the crime.

As the majority correctly points out, Alabama’s sentencing scheme provides that at the sentencing hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the mitigating circumstances enumerated in § 13-11-7, Code of Alabama, 1975.

In Lockett, the Court speaks of mitigating circumstances “proffered” by the defendant. Alabama’s statute broadly permits a defendant to “proffer” any circumstance. This record is devoid of any evidence that the defendant was hampered, circumscribed or otherwise prevented from presenting mitigating evidence; therefore, I disagree with any suggestion that the burden is on the state or the judge to proffer mitigating evidence — the only obligation on the state is, as Lockett holds, to permit the defendant to present mitigating evidence. Alabama permits that.

JONES and SHORES, Justices

(dissenting).

For the reasons stated in our separate opinions in Jacobs v. State, supra, we dissent.

ON REHEARING

FAULKNER, Justice.

The opinion is corrected and application for rehearing overruled.

TORBERT, C. J., and EMBRY and BEATTY, JJ., concur.

BLOODWORTH, MADDOX and AL-MON, JJ., concur in overruling the application for rehearing.

JONES and SHORES, JJ., dissent.

      . The statutes read:
      § 13-11-6. Aggravating circumstances.
      Aggravating circumstances shall be the following:
      (1) The capital felony was committed by a person under sentence of imprisonment;
      (2) The defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person;
      (3) The defendant knowingly created a great risk of death to many persons;
      (4) The capital felony was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, rape, robbery, burglary or kidnapping for ransom;
      (5) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody;
      (6) The capital felony was committed for pecuniary gain;
      (7) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws; or
      (8)The capital felony was especially heinous, atrocious or cruel.
      § 13-11-7. Mitigating circumstances.
      Mitigating circumstances shall be the following:
      (1) The defendant has no significant history of prior criminal activity;
      (2) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance;
      (3) The victim was a participant in the defendant’s conduct or consented to the act;
      (4) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor;
      (5) The defendant acted under extreme duress or under the substantial domination of another person;
      (6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and
      (7) The age of the defendant at the time of the crime.

      . “[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977).


author: BOWEN,. Judge.

text:
    Recardo COOK v. STATE.
    6 Div. 489
    Alabama Court of Criminal Appeals.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.
   AFTER REMANDMENT

BOWEN,. Judge.

The appellant was convicted of “robbery when the victim is intentionally killed” and sentenced to death. This Court affirmed his conviction on December 20, 1977.

The Alabama Supreme Court remanded this case to this Court with directions to order a rehearing in the circuit court. However further review convinces us that the case must be reversed and remanded under the principles recently asserted by the Alabama Supreme Court in Watters v. State, 369 So.2d 1272 (1979). The cause for the reversal of the appellant’s conviction is identical to the cause of reversal in Wat-ters.

An indictment charged that the appellant, Recardo Cook:

“feloniously took Three Thousand Dollars of the lawful currency of the United States of America, the personal property of Lewis Webb, from his person and against his will, by violence and said defendant in the course of the aforesaid robbery, did intentially kill the said Lewis Webb by shooting him with a pistol.”

However, from the entry of judgment on March 4, 1977, it clearly appears that the appellant was found guilty of an offense not charged in the indictment.

“(T)he defendant Recardo Cook, being in open Court and having been convicted by a jury of Murder in The First Degree and his punishment fixed by say (sic) jury at death, . . . . It is therefore considered by the Court and it is the judgment of the Court that the defendant Recardo Cook, is guilty of Murder in The First Degree in accordance with the verdict of the jury in this cause, . . . ”

We quote from Watters :

“Nowhere in the indictment is Murder charged against the defendant; nowhere in the judgment is petitioner pronounced guilty of attempted robbery in which the victim is intentionally killed. Therefore, there is a fatal variance between the indictment and the judgment, and the judgment cannot stand. Aiola v. State, 39 Ala.App. 215, 96 So.2d 816 (1957). Further, even if Murder were charged against the defendant such an offense is not one for which the death penalty can be imposed because it is not listed in our Death Penalty Act, § 13-11-2, Ala.Code of 1975.

“In § 15-17-1, Ala.Code of 1975 the legislature of this state provided for the jury’s finding of guilt for a lesser offense than that charged in the indictment:

‘When an indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged and guilty of any degree inferior thereto or of an attempt to commit the offense charged; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony or a misdemeanor.’

“However, it is clear from the terms of the Death Penalty Act that there are no lesser included offenses — such as murder — within the offense for which this defendant was indicted. Section 13-11— 1, Ala.Code of 1975 provides:

‘Except in cases enumerated and described in section 13-11-2, neither a court nor a jury shall fix the punishment for the commission of treason, felony or other offenses at death, and the death penalty or a life sentence without parole shall be fixed as punishment only in the cases and in the manner herein enumerated and described in section 13-11-2. In all eases where no aggravated circumstances enumerated in section 13-11-2 are expressly averred in the indictment, the trial shall proceed as now provided by law, except that the death penalty or life imprisonment without parole shall not be given, and the indictment shall include all lesser offenses.’

“Because there ■ were no offenses for which the defendant could be found guilty under the indictment other than attempted robbery in which the victim was intentionally killed, the trial court erred in entering judgment on the strength of a jury verdict finding the defendant guilty of murder and the Court of Criminal Appeals erred in affirming that judgment. Therefore this cause must be reversed and the cause remanded to the Court of Criminal Appeals for further proceedings not inconsistent with this opinion, and it is so ordered.”

For these reasons we have no course but to reverse and remand this cause.

REVERSED AND REMANDED.

All Judges concur.

      . This indictment is fundamentally identical in charging the capital offense (including the misspelling of the word “intentionally”) as the indictment in the Watters case.

      . The jury’s verdict read:
      “We, the jury find the defendant guilty of Murder as charged in the indictment and fix the punishment at Death.”