text:
    Sidney GROSS v. E. C. SLYE et al.
    77-230.
    Supreme Court of Alabama.
    June 30, 1978.
    Mylan R. Engel and Carl M. Booth, Mobile, for appellant.

      Ernest M. Bailey, Marion E. Wynne, Jr., Fairhope, for appellees.
   BLOODWORTH, Justice.

Appellant Sidney Gross, appeals from a judgment of the probate court denying appellant’s petition for the probate of the will of his deceased wife, Clara Gross. We reverse and remand.

On July 26, 1974, Clara Gross died. On October 3, 1974, the appellant, her husband, was qualified as the administrator of her estate. After an administration of her estate and distribution of the assets, the court entered a decree of final settlement on January 22, 1976, and an order discharging appellant as administrator on April 27, 1976. More than a year later, on June 3, 1977, appellant petitioned the court to probate, what is alleged to be, the valid Last Will and Testament of his deceased wife, which he had just located. Notice was given to the appellees, the Slyes, brothers of the deceased. After the court held a hearing on the matter on November 9, 1977, it entered an order denying the petition. In its order the court held, inter alia, that the assets of the estate had already been distributed in accordance with the laws of intestacy and that the administrator, the appellant, and his surety had been discharged.

Appellant contends the trial court erred in failing to probate the will of his deceased wife in that it ignored the plain language of § 43-2-29, Code 1975.

We conceive the question in this case to be: “Should a will, located within five years of the death of the testator, be denied probate solely because the estate has been fully administered and settled in accordance with the laws of intestacy of Alabama? This is an issue of first impression here. Having examined the applicable statute and the relevant case law, we think the answer is no. Therefore, we must reverse and remand.

Section 43-2-29, Code 1975, provides as follows:

“(a) If, after letters of administration have been granted as in case of intestacy, any will is proved and the executor therein named appears, claims letters testamentary and complies with the requisition of the law, the probate court having jurisdiction must revoke the letters of administration and grant letters testamentary to such executor.
“(b) If, in the case provided for by subsection (a), the sole executor or some of the executors, within five days after the proof of such will, do not appear and take out letters testamentary thereon, a copy of the will must be annexed to the letters of administration and must be executed by the administrator. (Code 1852, §§ 1722, 1723; Code 1867, §§ 2045, 2046; Code 1876, §§ 2414, 2415; Code 1886, §§ 2066, 2067; Code 1896, §§ 113, 114; Code 1907, §§ 2517, 2518; Code 1923, §§ 5739, 5740; Code 1940, T. 61, §§ 78, 79.)” [Emphasis ours.]

The statute, by its terms, dictates that, if after letters of administration have been granted, a will is proved and the executor appears and complies with the requisite requirements, the probate court must revoke the letters of administration and grant letters testamentary to the executor. (See § 43-1-37, Code 1975, regarding the time limit for probate of five years.)

Several Alabama cases have had occasion to apply this statute to cases where a will was presented for probate subsequent to the grant of letters of administration. See, e. g., Fields v. Baker, 259 Ala. 336, 67 So.2d 10 (1953); Sands, Administrator v. Hickey, 135 Ala. 322, 33 So. 827 (1903); Keith v. Proctor, 114 Ala. 676, 21 So. 502 (1897). In each of these cases, this Court held, inter alia, that it would be proper to admit the will to probate.

Appellees contend, however, that each cf these cases is distinguishable because none involved a situation like the one in this case where all the property in the decedent’s estate had been administered. Assuming, arguendo, that this is true, we cannot agree that this distinction is vital. The statute is couched in mandatory terms. That is, it states that if a will is found and it is proved and the executor appears and claims letters testamentary, then the probate court must revoke the letters of administration and grant letters testamentary to the executor. The statute makes no exception for the situation where all the intestate property has been distributed. The view which we take is in accord with the general rule.

“§ 880. Distribution of estate and discharge of administrator.
“The distribution of an estate as intestate property does not prevent the probate of a subsequently discovered will as a basis for establishing the rights of the legatees against those into whose possession the property has gone. The probate of a will is a preliminary step essential to enable a devisee or legatee to recover property previously distributed to heirs under a decree of distribution rendered in an intestate administration of the decedent’s estate. Neither does the final discharge of the administrator appointed upon a supposed intestacy prevent subsequent probate of the decedent’s will. (Footnotes omitted.)” [Emphasis ours.]

80 Am.Jur.2d, Wills, § 880, p. 70.

This was the holding by the Georgia Supreme Court in Walden v. Mahnks, 178 Ga. 825, 174 S.E. 538 (1934) viz:

“While the order appointing the administrator may not have been void, and the rights of third persons may have become involved, probate of the will should not be refused upon these grounds. Whether or not the propounder may be able to reclaim the property which has gone into other hands is a matter for future determination in some other proceeding.” [Emphasis ours.]

174 S.E. at 542.

Appellees next contend the probate court’s decree of final settlement of January 22, 1976, is a “final judgment” whose validity was not timely attacked in a direct attack through Rule 60(b), A.R.C.P. Moreover, appellees contend it may not now be collaterally attacked, as appellees contend is being done .here. There are two answers to these contentions.

The distinction between “direct” and “collateral” attacks was stated in Miller v. Thompson, 209 Ala. 469, 96 So. 481 (1923). There it was said, viz:

“ ‘. . any proceeding provided by law for the purpose of avoiding or correcting a judgment is a direct attack, which . will be successful upon showing error; while an attempt to do the same thing in any other proceeding is a collateral attack, which will be successful only upon showing a want of power.’ Van Fleet on Collateral Attack, § 3, . . .”

Id. at 471, 96 So. at 482. Here, it is clear that this proceeding is provided for by law in § 43-2-29, supra, and thus it is a “direct” attack.

Here, too, the probate court was not exercising “equity jurisdiction” within the meaning of Rule 1, A.R.C.P. and, therefore, Rule 60(b), A.R.C.P. providing, inter alia, for relief from “a final judgment, order, or proceeding . . . ” is inapplicable to this court in this instance.

Appellee next contends that appellant is barred by “laches” from asserting this claim. We cannot agree. The elements of laches include unreasonable delay and prejudice to the opposing party. See Davis v. Alabama Power Co., 383 F.Supp. 880 (N.D.Ala.1974). Here, there has been no showing of unreasonable delay or of prejudice to the appellee.

' Appellee lastly contends that appellant is “judicially estopped” from denying that the testator died intestate. We cannot agree.. To hold that appellant is so es-topped would frustrate the very situation provided for in § 43-2-29, supra.

For the foregoing reasons, therefore, this case is due to be reversed and remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    James H. WHITT, Individually, and Whitt Contractors, Inc. v. Adron McCONNELL.
    77-246.
    Supreme Court of Alabama.
    June 30, 1978.
    Walter Joe James, Jr., of James, Lowe & McNamee, Haleyville, for appellants.
    Hoyt M. Elliott of Elliott, Laird & Wiley, Jasper, for appellee.
   JONES, Justice.

This appeal concerns an action based upon an allegedly written contract of employment. The trial Court, sitting without a jury, found that Appellants-Defendants, James H. Whitt and Whitt Contractors, Inc., were liable for money due under the contract in the sum of $18,365. We affirm.

It is undisputed that under an employment contract Adron McConnell, Plaintiff-Appellee, began work for Whitt (and later Whitt Contractors) in February or March, 1972. He worked as a construction superintendent for Appellants until April 15, 1976, at which time the work “ran out.” Originally, McConnell was paid $5.75 per hour, but he received several raises during the course of his employment.

Because the instrument itself could not be found, the parties testified orally as to its terms and agreements. McConnell testified that the contract provided that he was to be paid 10% of the profits made on each construction contract under which he worked (limiting the cost per contract to the items included in the original cost estimate); 10% of the profits saved from the estimated construction costs; that the contract contained a guaranteed minimum payment of $20,000 per year; that, regardless of the payments he received from his percentage of the profits, he would be paid an hourly wage of $5.75 with raises to maintain equality with union wages; and that he would not be required to do job “takeoff” work at night. He further stated, however, that he performed approximately 900 hours of such “take-off” work in the determination of job bids for his employer. In this suit, McConnell alleges that he was not paid for such “take-off” work; that he was only partially paid the sums due from the profits Whitt received; and that he was only partially paid his minimum payment due.

In answer to these assertions, Whitt testified that the contract contained no guaranteed minimum payment provision and that McConnell was to be, and was, paid 10% of the net profits — not the profits over the estimated costs.

The trial Court held adversely to Whitt and this appeal followed. The sole issue raised questions the sufficiency and credibility of the evidence supporting the judgment of the trial Court.

It is well settled that where the record shows that a case is tried by the court, sitting without a jury, upon disputed facts heard orally, the conclusion of the trial judge will be affirmed if it is fairly supported by credible evidence under any reasonable aspect, and is not palpably wrong or manifestly unjust. Baptist Foundation of Alabama v. Penn, 295 Ala. 122, 324 So.2d 766 (1975); Hill v. Delchamps Food Stores, 294 Ala. 14, 310 So.2d 871 (1975); and Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974). Furthermore, when the trial judge does not make express findings of fact, this Court must nevertheless assume the trial judge found facts which support his decree, unless such a finding would be clearly erroneous or against the great weight of the evidence. White v. White, 350 So.2d 326 (Ala.1977); Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975); and Grund v. Jefferson County, 291 Ala. 29, 277 So.2d 334 (1973).

Whitt recognizes these oft-stated rules of review, but contends that the judgment of the trial Court was not supported by credible evidence, was against the great weight of the evidence, and was palpably wrong and manifestly unjust.

As stated, McConnell testified that the employment contract contained the guaranteed minimum payment provision and that the 10% figure was to be based on profit above estimated cost. His evidence was that he was due at least $28,000 on the profits during that period and that he received percentage payments of less than $10,000 — thus leaving a balance owed of just over $18,000. The $18,365 judgment closely aligns with this figure. This evidence clearly conflicts with Whitt’s testimony; and the trial Judge, after listening to the evidence and viewing the witnesses, made his determination. The record before us indicates there was sufficient evidence upon which the trial Court could base its judgment.

This leaves but one consideration: Whether the Plaintiff’s evidence was “credible” and worthy of belief. This Court has previously stated:

“The mere fact the testimony given by a witness in support of an issue is not plausible does not destroy its probative force. Where, however, the testimony of a witness is incredible, inherently or physically impossible and unbelievable, inherently improbable and irreconcilable with, or contrary to, physical facts and common observation and experience, where it is so opposed to all reasonable probabilities as to be manifestly false, or is contrary to the laws of nature or to well-known scientific principles, or where it cannot be said to amount to substantial evidence of facts testified to or accepted as a basis of liability, it is to be disregarded as being without evidentiary value even though uncontradicted.” King v. Brindley, 255 Ala. 425, 430, 51 So.2d 870, 875 (1951).

The nature and quality of the evidence presented by McConnell does not render it either implausible or incredible as characterized in King. He had an opportunity to have personal knowledge of all facts to which he testified; and, of course, where there is no jury, the weight and credibility of a witness* testimony is for the trial court’s determination. Baptist Foundation, supra, and Rule 52(a), ARCP.

Our review of this determination, when taken in light of appropriate presumptions, leads to our conclusion that the judgment of the trial Court is due to be affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    NOEL SMITH DEVELOPMENT COMPANY, LTD., a corporation v. NATIONAL FILTRONICS, INC., a corporation, and National Pool Equipment Company, Inc., a corporation.
    77-348.
    Supreme Court of Alabama.
    June 30, 1978.

      J. A. Keller of Keller & Cochran, Florence, for appellant.
    Ferris S. Ritchey, Jr. of Ritchey & Rit-chey, Birmingham, for appellees.
   BLOODWORTH, Justice.

This is an appeal by landlord from a judgment for tenant in a declaratory judgment action brought by landlord seeking forfeiture of the lease and eviction of tenant. We affirm.

The landlord is a Canadian corporation, which, in 1958, purchased the subject real estate, a large tract of land containing several manufacturing units and shop facilities together with an office building fronting Florence Boulevard in Florence, Lauderdale County, Alabama. The tenant is a corporation with no assets other than its leasehold interest in the subject property. The monthly rent was originally fixed at $2,975 and later reduced to $2,621 when a portion of the property was sold off. In the original lease provisions, the monthly rental payment would not be in default until it had remained unpaid at least 30 days after it became due.

By amendment of July 16,1975: the original lease was amended so as to provide for a monthly rental of $3,500 beginning January 1, 1977, $4,000 beginning January 1, 1981, and for a consumer price index increase beginning in 1986; the tenant agreed to carry out certain repairs to the property; and, the tenant agreed to amend the notice provisions whereby the rent would become delinquent after ten days from the due date and the landlord need give only a twenty-day notice to tenant to cure any default.

It is the landlord’s testimony, and that of its witnesses, that tenant was in default with the payment of rent from the date the amendment was signed, that tenant failed to provide insurance on the property for thirteen days in 1976, that the taxes were not paid when due, and that the repairs were not made as promised. It is the tenant’s testimony, and that of its witnesses, that the rent was not in default from the time the lease amendment was made, that all the rent had been paid up to the date of trial, that landlord never gave a proper notice to cure a default in payment or any other claimed default under the lease as amended, that all taxes assessed against the property were paid and that the property had never been without insurance coverage.

After a hearing ore terms, the court found for the tenant because the landlord “failed to reasonably satisfy the Court that the defendant [tenant] deliberately and willfully violated the lease as set out in plaintiff’s [landlord’s] complaint and the plaintiff [landlord] having failed to reasonably satisfy the Court that it had complied with the amended lease of 1975 by giving the required notice prior to re-entry, the prayer for relief by the plaintiff [landlord] is denied and judgment is entered for the defendant [tenant].” The court noted that the lease required “in order to entitle Lessor to re-enter in the event the rent is in default, or in order for Lessor to re-enter under any other provision hereof, Lessor shall give written notice by Registered or Certified mail to Lessee providing twenty (20) days from such notice to cure the default, and only after the end of such period of notice may Lessor re-enter.”

On this appeal, the landlord contends that the circuit court was in error in not declaring a forfeiture, and evicting the tenant, for breach of the covenants and conditions of the lease in failing to pay the taxes on time, failing to pay the rent on time, failing to carry out the repairs as required, and failing to keep the premises insured. The landlord also contends that there was a willful, calculated, or persistent failure to pay the rent pursuant to the terms of the lease, under such circumstances as negativing exercise of good faith, and this prevents relief from a forfeiture of the lease upon that ground. This is the third lawsuit brought to enforce the provisions of this lease. (All have terminated favorably to the tenant.)

This was an ore tenus case, and on the factual issues, the trial judge found in favor of the tenant and against the landlord. On appeal, we indulge all favorable presumptions to sustain the trial court’s judgment and will not disturb that conclusion unless it is plainly erroneous or manifestly unjust. Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976). The evidence was in dispute. We are not persuaded that the trial judge’s findings were plainly erroneous or manifestly unjust.

Moreover, forfeitures are not favored in the law nor in equity. City Garage & Sales Co. v. Ballenger, 214 Ala. 516, 108 So. 257 (1926). All the rental payments under the lease were made by the tenant and accepted by the landlord. The evidence shows that either all repairs called for in the amended lease agreement have been made or the evidence is in conflict on this issue.

The evidence also shows that all taxes had been paid and that the property has been insured, or the evidence is in conflict on these two issues. As we have heretofore stated this was an ore tenus case, and on these issues the trial judge found in favor of the tenant and against the landlord. On the good faith issue, the trial judge also found that the landlord had failed to reasonably satisfy the court that the tenant deliberately and willfully violated the lease provisions. We are not disposed to overturn his findings.

The trial court also found in favor of the tenant because the landlord had failed to reasonably satisfy the court that it had complied with paragraph 5 of the amended lease which provides that, in order for the landlord to be entitled to re-enter the premises in the event the rent is in default, or in default of any other provision of the lease, the landlord must give written notice by registered or certified mail to the tenant providing 20 days from such notice to cure the default and only after the end of such period is the landlord entitled to re-enter. The trial court is correct in this conclusion.

This Court has heretofore held that compliance with such a condition precedent must be averred and proved. Having failed to prove compliance with this provision as a condition precedent, landlord is not entitled to a re-entry of the premises and a forfeiture of the lease. Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So.2d 23 (1963). See also Eurton v. Smith, 357 So.2d 324 (Ala.1978).

For the foregoing reasons, this case is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    Alma W. PRICE, a/k/a Alma W. Pruett v. James D. PRICE.
    Civ. 1439.
    Court of Civil Appeals of Alabama.
    June 28, 1978.

      Marion F. Walker, Birmingham, for appellant.
    James L. Shores, Jr. and L. Drew Redden, Birmingham, for appellee.
   BRADLEY, Judge.

The parties involved in this appeal were divorced in 1971. The husband (appellee-James D. Price) was ordered to provide child support for the couple’s minor children. He was also directed to pay his former wife monthly alimony. Finally, the divorce court awarded the wife (appellant-Alma W. Price) title to the residence which she had shared with her ex-husband.

In addition to the above described matters, the court’s decree contained a provision which dealt with the parties’ jointly owned farm. This provision indicated that the husband was to pay the wife $35,000 for her interest in the property. This amount was to be paid in fifteen yearly installments of $2,333. However, the court’s decree continued by stating that the yearly installments were to be provided by the husband until the $35,000 sum was paid in full, “with right of anticipation.” The wife was to retain title to the farm until the husband had completed the performance of this obligation.

The husband subsequently filed a petition in the Circuit Court of Jefferson County, Birmingham Division, in an effort to have the divorce decree modified. In his petition for modification he requested that the court allow him to pay the entire amount remaining on the $35,000 obligation; in exchange for this lump-sum payment, the wife would be required to convey her interest in the farm to her former husband.

The wife filed an answer to the petition of her ex-husband, contending that relief should not be granted because the original divorce decree made no provision for the husband to pre-pay installments. The wife also filed a cross-petition to have the divorce decree modified. She requested that the court order the sale of the farm property and divide the proceeds equally between herself and her former husband, with the latter receiving credit for any installments he had paid.

Following the occurrence of these events an oral hearing was held to determine the meaning of the phrase “right of anticipation.” The court interpreted this language to mean that the husband was permitted to pay in advance of the fifteen year term the entire amount he owed his wife. Accordingly, the court concluded that the husband could pre-pay the balance remaining on the $35,000 obligation, and on this basis directed the wife to accept such a payment when it was tendered and convey her interest in the farm to her former husband. From the judgment of the trial court the wife brings this appeal.

The provision of the original divorce decree which is the subject of this appeal provides:

“THIRTEENTH: That Respondent [husband] shall pay to Complainant [wife] the sum of Thirty-five Thousand Dollars ($35,000.00) representing Complainant’s [wife’s] interest in a farm jointly owned by the parties, with survivorship, . said payment shall be made over a fifteen (15) year period at Two Thousand Three Hundred Thirty-three ($2,333.00) per year until said sum is paid in full, with right of anticipation. . . (Emphasis supplied.)

Continuing, the decree states that:

“Upon completion of said payments Complainant [wife], her executors, administrators, heir[s] or assigns shall convey all of Complainant’s [wife’s] right, title and interest in and to said real property to Respondent [husband], his heirs or assigns. Respondent [husband] shall have title to all personal property and chattels on the farm, as of the date of this decree. Respondent [husband] shall have sole occupancy of said premises during the period of payment.”

Specifically, the issue for our determination is whether the trial court’s interpretation of the phrase “with right of anticipation” was correct.

The wife contends that the phrase in question does not permit any pre-payment of the yearly installments. She argues that since the decree made no provision for the receipt of interest on the $35,000 value of her joint interest in the property, the court obviously intended for her to retain title to the property with right of survivorship. In other words, it is her claim that she would be entitled to the farm if her husband died before the fifteen year term specified in the decree was completed and that she was granted this right of survivorship in lieu of yearly interest on the installment payments. She dismisses the phrase “with right of anticipation” as indicating nothing more than her right to alienate, assign or otherwise pledge the installment payments which she anticipated.

Conversely, the husband submits that at the time of the parties’ divorce the trial court recognized that he was unable to purchase his ex-wife’s interest in their jointly owned property. However, he asserts that the court placed the language “with right of anticipation” in the decree to enable him to pre-pay the sum owed to his ex-wife for her interest, and upon the occurrence of such an event, receive full title to the property. The husband maintains that such a construction of the phrase is further indicated by additional language in the decree which stipulates that the husband (or his heirs and assigns) were to ultimately receive title to the farm.

After a careful reading of the provision in question we are persuaded that-the trial court’s interpretation of the phrase “with right of anticipation” was correct.

The term “with right of anticipation” is unclear and ambiguous within the context it is used. A literal reading of the phrase does not-demonstrate that it meant that the husband was entitled tc pre-pay the balance due on his $35,000 obligation. Nor does the language of the phrase support the wife’s contention that it dealt with her right to assign or alienate the installment payments which she anticipated. Consequently, the rules regarding interpretation of instruments must be invoked in order to reach a determination of this matter.

Judgments and decrees are to be construed like other written instruments. Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970). If there is uncertainty and ambiguity in a contract or judgment, the court must construe it so as to express the intent of the parties or the trial judge. Reeder v. Reeder, Ala.Civ.App., 356 So.2d 202 (1978). Such intent can be derived from the provisions of the judgment. See Reeder v. Reeder; Sisco v. Empiregas, Inc., 286 Ala. 72, 237 So.2d 463 (1970).

We believe that had the trial judge- intended the wife to receive the farm property if her ex-husband died before he had purchased her interest in the property, the judge would not have included a provision stating that “[u]pon completion of said payments [the wife], her executors, administrators, heir[s] or assigns shall convey all of [the wife’s] right, title and interest in and to said real property to [the husband], his heirs or assigns.”

To us, the quoted portion of the decree indicates that the wife was never to receive complete title to the property. Instead, the fact- that the husband (or his heirs or assigns) would obtain the property upon payment of the $35,000 obligation supports the husband’s contention that the wife was permitted to retain her one-half interest in the property as security to insure the receipt of the payments due her.

Moreover, it is noteworthy that the wife received the couple’s jointly owned residence and acquired full title thereto. On the other hand, the husband was granted title to all personal property on the farm and was allowed to occupy the premises during the period of payment. Thus, it is our conclusion that the division of the parties’ jointly owned property in this manner further demonstrates that the court intended for the wife to have title to the couple’s former home, while the husband was to receive full title to their farm upon performance of a condition precedent, i. e. the purchase of the wife’s interest in that property.

Having determined what the trial court did not intend when it inserted the phrase “with right of anticipation” in its decree, it remains the duty of this court to decide what that term should be interpreted to mean.

The word “anticipation” means the act of doing or taking a thing before its proper time. Black’s Law Dictionary 119 (4th ed. 1968). And Webster’s Third New International Dictionary 94 (unabr. ed. 1966) defines “anticipate” as: “to . satisfy or fulfill beforehand,” or “to meet (an obligation) before a due date.” In view of these definitions and in light of the language of the entire decree, we believe that the trial court intended to give the husband the right to pay the money he owed his wife before it was due. In other words, the phrase “with right of anticipation” must be construed to mean that the husband had the right to pay off the entire balance remaining on his obligation to his wife at any time prior to the expiration of the fifteen year period, and having paid the sum due in advance, receive full title to the farm. Thus, we cannot say the .trial court erred in directing the wife to convey her interest in the farm to her former husband upon receipt of the amount owed her.

The wife also asserts on appeal that the trial court erroneously denied her an award of a reasonable attorney’s fee for the services of her lawyer in this matter. However, we have held in numerous instances that such a determination is within the discretion of the trial court. E. g., Smith v. Smith, 57 Ala.App. 615, 330 So.2d 439 (1976). Nor will the trial court’s refusal to award an attorney’s fee be revised or reversed on appeal unless such a refusal was plainly and palpably in error. Sturdivant v. Sturdivant, 276 Ala. 390, 162 So.2d 484 (1964); Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461 (1972). We find nothing in the record here to demonstrate that the court’s action in denying the wife’s request for a reasonable attorney’s fee was plainly and palpably in error.

Furthermore, in view of the fact that no attorney’s fee was awarded below and our affirmation of the trial court’s decree, we decline to award such a fee for the services of the wife’s counsel in representing her during the course of this appeal. McGugin v. McGugin, Ala.Civ.App., 357 So.2d 347 (1978).

REQUEST FOR ATTORNEY’S FEE ON APPEAL DENIED: AFFIRMED.

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


author: HARRIS, Presiding Judge.

text:
    Ronnie PARKER v. STATE.
    6 Div. 219.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.
    Rehearing Denied May 2, 1978.
    Mark B. Poison, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L.n O’Kelley, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of burglary in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. He was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

The evidence adduced by the State was not disputed. Appellant did not testify but offered alibi evidence.

There was no request for the affirmative charge and there was no motion for a new trial. When the State rested its case appellant made a motion to exclude the State’s evidence on several specified grounds, and arguments were heard. The Court overruled the motion to exclude.

The evidence for the State tended to show that Mrs. Rosie Garrett, a 75 year old woman, was in her home on the night of December 19, 1974, located at 2013 Fifteenth Place Southwest, Birmingham, Alabama. Around 6:30 or 7:00 p. m. on that date Mrs. Garrett was in her dining room sitting in a chair near a bed. She was quilting and had two electric irons holding the quilt on the bed. The front door was closed but it was not locked. Suddenly and without any warning two black males opened her front door and ran directly to where she was sitting. One was shouting, “Give me the money, give me the money.” Appellant picked up one of the irons and struck Mrs. Garrett on the head twice knocking her to the floor, and the other man grabbed her around the throat and started choking her. While she was on the floor one of the men took her keys and went through her dresser and took four cartons of cigarettes; then both men ran out the front door. Mrs. Garrett said she knew appellant and had seen him many times prior to the night of the burglary as her husband had carried him on fishing trips.

After the men left Mrs. Garrett managed to crawl to the door and call a neighbor who came over immediately and called the Police Department. When the officers arrived Mrs. Garrett identified Ronnie Parker, appellant, as the man who hit her on her head. She was carried by ambulance to the University Hospital where sutures were taken in her head.

Annie Pearl Cooke, a friend of Mrs. Garrett’s, was in the living room when the two men came in the front door. The friend ran out the back door and in her haste to get away she left one of her shoes. She returned later and got her shoe, and that was the last time she has been seen by Mrs. Garrett.

Burford Garrett testified that he went to his mother’s house at about 8:30 on the night of December 19, 1974. His mother told him that Ronnie Parker was the man who hit her in the head with the iron. He took his mother to swear out a warrant for appellant some time after she was treated at the hospital. Some time later he picked up Ronnie Parker at the Powderly Bus Stop after a boy who was with him identified Parker. Parker asked Garrett for a ride to town so that he could pick up his check and Garrett agreed to take him. Appellant voluntarily got in the car with Garrett but instead of taking him to get his check, Garrett started driving him toward Mason City where Rosie Garrett lived. Within a half of a block of Rosie Garrett’s home, appellant opened the car door and started to jump out but Burford Garrett restrained him and took him to his mother’s house. When they got to the victim’s house they got out of the car and stood in the front yard. Burford Garrett called his mother to come to the front door and he asked her if this was the man who hit her and she said yes. Appellant said to Burford, “Look man, I didn’t hit your mother. Snuffy is the one that hit her. I was with him but I didn’t hit her.” Then Burford Garrett carried appellant to the County jail where he was arrested on the warrant that had been issued after Rosie Garrett had signed a complaint charging him with this offense.

Kenneth W. Williams of the Birmingham Police Department received a radio dispatch on December 19, 1974, to go to the victim’s house. He was in his patrol car writing up a police report on an unrelated case by the aid of the dome light in his car when the call came over the radio at 7:20 p. m. He stated that it was dark and had been dark for approximately an hour. Upon arriving at the victim’s house he observed a black female about 74 years of age who was bleeding profusely around her head and eyes. Mrs. Garrett gave the officer a description of Ronnie Parker. The officer was asked to give his best judgment as to the time it got dark on December 19, 1974, and he replied, “I would say approximately six o’clock, maybe a little earlier.”

Diane Garrett testified that Rosie Garrett was her mother-in-law; that between seven and eight o’clock on the night of December 19, 1974, she received a telephone call from Rosie Garrett and she and her husband left immediately and went to her home. She further stated that she had attempted in vain to locate Annie Pearl Cooke, the friend who was with her mother-in-law at the time of the offense.

Police Officer L. E. Strickland, an evidence technician with the Birmingham Police Department, went to the home of Mrs. Garrett on the night of December 19,. 1974, and processed the house for fingerprints. He was unable to lift any usable prints.

Bill Marshall testified that since 1962 he had been employed by the National Weather Service in Birmingham as a Principal Assistant. He stated that he had with him the official tables prepared by the Naval Observatory in Washington, D. C., of the time the sun set in the Birmingham area on December 19, 1974. The tables were prepared by astronomical calculations and were the official records used in every state in the union to determine the time of sun-, rise and sunset and other weather conditions. He testified that these records were true, correct and accurate. According to these official records the sun set in Birmingham, Alabama, on December 19, 1974, at 4:44 p. m. Central Standard Time.

Clarence Beard testified that Ronnie Parker was his nephew and lived with him on December 19, 1974. He stated that he and Ronnie went to the Birmingham Paper Company on that date at 9:00 a. m. and returned home at 10:00 on that same morning. After they returned home Beard did not see Ronnie Parker again and did not know where he went.

Charles Sparks, Jr. testified that between three and four o’clock on the afternoon of December 19, 1976, Ronnie Parker joined him at Jackson Heights and stayed with him until 9:30 that night. Sparks said they were drinking wine all during this time and that Ronnie did not leave his presence the entire time. Sparks stated that he and Ronnie Parker had been close friends for ten years. Sparks admitted that he pleaded guilty to a charge of burglary and grand larceny on October 1, 1968.

Appellant contends that the State failed to prove the alleged offense occurred during the nighttime and that he could not be guilty of burglary in the first degree. The victim testified that appellant and his companion entered her house at about 6:30 or 7:00 on the night of December 19, 1976, and attacked her, inflicting grievous injuries. The official weather records established that the sun set in Birmingham, Alabama, at 4:44 p. m. Central Standard Time on December 19, 1976.

In Gaskin v. State, 53 Ala.App. 64, 297 So.2d 388, this Court defined nighttime as, “that part of the natural day when the sun is beneath the horizon, or the time from sunset to sunrise; especially] the time between dusk and dawn, when no light of the sun is visible.”

The totality of the evidence presented by the State sufficiently established that the offense was committed at night and that the motion to exclude the evidence was properly overruled.

Appellant contends also that he was illegally arrested by a private citizen who did not advise appellant of the offense for which he was being arrested as provided by Section 15-10-7 Code of 1975. It is obvious from the testimony of the victim’s son that he did not formally place appellant under arrest. Appellant asked Burford Garrett to give him a ride and appellant voluntarily got in Garrett’s car. Garrett stated:

“I didn’t arrest him. I took him down there to the people at the County. They arrested him. I took him down there.”

Burford Garrett knew that a warrant had been issued after a complaint was signed by his mother for Ronnie Parker. Appellant voluntarily got in Garrett’s car and, after his mother positively identified him as the man who entered her house on the night of December 19,1974, and struck her twice on the head, Burford Garrett transported him to the authorities where he was formally arrested. We hold there was a legal arrest under the facts and circumstances of this ease.

In a long line of eases we have held that alibi evidence is always a jury question. Ala.Dig.Criminal Law, «=* No. 739(2).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Re Ronnie PARKER v. STATE of Alabama. Ex parte Ronnie Parker.
    77-545.
    Supreme Court of Alabama.
    June 30, 1978.
    Mark B. Poison, Birmingham, for petitioner.
    No brief for the State, respondent.
   EMBRY, Justice.

We deny the writ because it is clear from the Court of Criminal Appeals’ opinion, 360 So.2d 344, that this offense occurred at least after 6:30 P.M. on December 19, 1974, which we know to be nighttime.

We do not necessarily agree with the rule announced in the opinion to the effect that nighttime, as it relates to burglary, begins at sunset. See footnote one in Gaskin v. State, 53 Ala.App. 64, 297 So.2d 388 (1974).

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    William R. WATERS, Jr. v. STATE.
    4 Div. 518.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    Rehearing Denied May 30, 1978.

      William H. Mills, of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Buying, receiving, and concealing stolen property; sentence: six years imprisonment.

Mrs. Mae Stembridge of Dothan, Alabama, who had temporarily vacated her home because of fire damage, returned to the home on February 3, 1976, and found that her dining room table and chairs, two marble top tables, one antique dresser, and a china closet had been stolen. The appellant and his girl friend were charged with the unlawful possession of those items by an indictment which, in pertinent part, was as follows:

“William R. Waters, Jr., alias Billy Waters and Lethia Speigner, whose names are to the Grand Jury otherwise unknown, did, buy, receive, conceal or aid in concealing, one antique china cabinet, one antique Victorian dresser and antique furniture of the aggregate value of to-wit: $7000.00, the personal property of Mae Stembridge, knowing that they were stolen and not having the intent to restore them to the owner. . . . ”

The stolen items listed in the indictment were recovered through a search of the appellant’s apartment. Police officers were led to the apartment based upon information they obtained as a result of a search of a local warehouse. The search of the warehouse was based upon information furnished to officers by an undisclosed confidential informant. By way of a pretrial motion and hearing, objections during trial, and by motion for a new trial and a hearing thereon, the appellant challenged the admissibility of the fruits of the search. The ruling of the trial judge in each instance was adverse to the appellant.

The facts presented on the pretrial motion and during trial, upon which the search warrant was issued and the trial court based its decision, are completely different than the evidence adduced upon the motion for a new trial. We will summarize the facts as they ultimately appeared.

On October 19, 1976, Dothan Police Officer James Wachob received information from a confidential informant, known by Wachob for a year and a half, who told him that a rental warehouse in town contained furniture stolen by the appellant. The informant gave Wachob keys to the warehouse and to the appellant’s apartment, but did not give him the name of the warehouse. Officers Wachob and Locke contacted Mrs. Gladys Jackson, manager of the Store-All Warehouse in Dothan, and asked if William Waters had rented a storage unit from her. She stated that he had not; however, the officers returned the next day and asked if a woman had rented space recently. Mrs. Jackson went through her files for the officers, and the name Lethia Speigner turned up. Mrs. Jackson told the officers that Lethia Speigner had rented the warehouse space some two months earlier, and at that time she observed Mrs. Speigner storing in the warehouse a white wicker baby carriage and other antique furniture.

After Mrs. Jackson had closed the warehouse office for the day, Wachob and Locke returned, without a search warrant, and opened the storage unit with the key furnished by the informant. They observed the contents of the storage unit and unwrapped a bundle containing several guns. They copied down the serial numbers of the guns and returned them to the same position in the warehouse where they were found. Among the items observed during the illegal entry was a wicker baby carriage.

The two officers returned to the police station and made inquiry through the Alabama Criminal Justice Information System (ACJIS) computer as to whether the guns in question had been stolen. No guns of the same serial numbers were listed with the ACJIS as stolen.

The two officers then called the police departments in the cities of Montevallo, Eu-faula, and Enterprise to determine if any of the items observed in the warehouse had been reported stolen in those cities. They were informed by police in Enterprise that a wicker baby carriage and other items had been stolen from the residence of Mrs. Margaret A. Rawls about a year earlier on October 30, 1975. Officer Wachob drove to Enterprise that night and obtained copies of various offense reports from the Enterprise Police Department. The wicker baby carriage was listed in one of those reports.

The next morning, October 21, 1976, Wa-chob went to the district attorney’s office where an affidavit was prepared which he presented to the Dothan City Recorder (municipal judge). The officer gave no sworn testimony before the Recorder, and the search warrant was based solely upon the affidavit.

The affidavit was in pertinent part as follows:

“. . . there is now being concealed in warehouse no. 232, Store-All Warehouse, 310 Bic Road, Dothan, Alabama, property which was stolen from the residence of Mrs. Margaret A. Rawls, 301 W. College, Enterprise, Alabama, on October 30, 1975, said stolen property being more particularly described as follows: Antique furniture, including one white wicker baby carriage. Affiant’s probable cause for believing that the above-described items are concealed at the above-mentioned location is as follows: Affiant received information from a reliable informant within the past 48 hours to the effect that Billy Waters had stolen furniture and weapons stored in a local (Do-than) rental warehouse. Affiant checked a local Dothan warehouse and found that Lethia Speigner, known to affiant as a frequent companion of Billy Waters, had rented a warehouse there . . . said
warehouse being no. 232. Affiant contacted the manager of the above described Store-All Warehouse, and found that: (1) Billy Waters had attempted to rent a warehouse there within the last 2 months but had been turned down; and (2) the day the manager rented the above-described no. 232 warehouse to Waters’ known companion, Aletha (sic) Speigner, which was rented to Speigner after Waters had been refused rental of a warehouse, the manager of the above-described warehouse, Mrs. Jackson, observed Lethia Speigner unloading numerous antiques and storing them in the above-described warehouse no. 232, among them a white wicker baby carriage, distinct in appearance, and exactly matching the description of the white wicker baby carriage which had been stolen from the residence of Mrs. Margaret A. Rawls. . . . ” (Emphasis supplied.)

Armed with a search warrant based upon the above affidavit, Wachob, Locke, and other officers returned to the warehouse and again opened the storage unit with the key furnished by the informant. During the search and inventory of the items, a food stamp identification card and a card table were found which bore the appellant’s name. Officer Locke and an investigator then went to 92 Colony Square Apartments around 11:00 A.M. in order to locate the appellant or Lethia Speigner.

When the officers reached the apartment, they knocked and Lethia Speigner came to the door. The officers immediately placed her under arrest, and she stepped outside and closed the door behind her. Neither Investigator Hobbs nor Officer Locke went inside the apartment. When Lethia Speig-ner answered the officers’ knock, Officer Locke was able to see through the cracked door momentarily. He observed a desk and what appeared to be a portion of a keyboard of a typewriter. He could not see the body of the typewriter but could determine that the keyboard was white. Locke was not close enough to ascertain the shape of the typewriter keys nor the trade name of the typewriter. However, he went to the Recorder’s Court that afternoon and executed a search warrant affidavit which was in pertinent part as follows:

. . Harold Locke ... deposes and says that he has probable cause to believe and does believe that certain articles taken in the burglary of Whittaker and Warren Insurance Co., Enterprise, Alabama, which burglary occurred on August 20, 1976, are being concealed in the residence of Lethia Speigner and Billy Waters which is located at no. 92 Colony Square Apartments, Dothan, Alabama, said stolen articles being more particularly described as follows: an Olympia typewriter, serial # 141086, and a Casino hand calculator, black in color. Affiant’s probable cause for believing that the above-described stolen articles are located at the above-described residence is as follows: (1) Based partly on information received from Mrs. Jackson, manager of Store-All Warehouse, Inc., 310 Bic Road, Dothan, Alabama, to the effect that she had rented Lethia Speig-ner warehouse no. 232 . . approximately 2V2 months ago, and, shortly after, had observed Lethia Speigner moving various antiques into said warehouse # 232, including a white wicker baby carriage which exactly matched the description of a baby carriage which was taken in the burglary of Margaret A. Rawls . . . affiant obtained a search warrant this date (10/21/76) for Warehouse no. 232. . . . (2) Affiant executed said search warrant and found numerous items of stolen merchandise which had been taken in several recent burglaries in Dothan, Alabama and Enterprise, Alabama . . including numerous personal effects of one Billy Waters, whom affiant knows to be a frequent companion of Lethia Speigner, and whom affiant knows to be residing with Lethia Speigner at the present time in a residence listed in Billy Waters’ name, said residence being located at # 92 Colony Square Apartments, Dothan, Alabama. (3) Immediately upon finding this stolen merchandise, which did not include the Olympia typewriter . . . and the Casino hand calculator . .af-fiant proceeded to Apt. # 92, Colony Square Apartments ... for the purpose of arresting Lethia Speigner. . Lethia Speigner answered the affiant’s knock at the door, opened it, and affiant immediately saw, behind her, within this apartment, lying on the table, a typewriter which, as near as affiant could tell, matched the description of the above-described typewriter taken in the aforementioned burglary. . . . ” (Emphasis supplied.)

Both Officers Wachob and Locke concealed their illegal entry into the warehouse prior to obtaining the search warrant. In sworn testimony given during the suppression hearing, both officers testified that they had not opened the warehouse prior to obtaining the search warrant. During examination of Wachob, the following occurred:

“Q. Sergeant Wachob, at any time before you went to the store or warehouse with a search warrant on October 21st, and opened the. door with a key at that time, had you ever attempted to use that key on that door at any previous time?
“A. No, sir, I had not.
“Q. Had you ever tested to see if it work?
“A. No, sir, I had not.
“Q. Had anyone else connected with the Dothan Police Department, to your knowledge?
“A. No, sir. Not to my knowledge, no one from the police department had.”
* * * * * *
“Q. Did you ever try any other keys at the Stor-All Warehouse to see if they would open any of the doors there?
“A. No, sir.
“Q. At any other time, before you went there with the search warrant?
“A. No. sir.
“Q. Anybody else, to your knowledge?
“A. No, sir, not to my knowledge.”

During the examination of Officer Locke, the following occurred:

“Q. Now, on that occasion — I’m talking about the afternoon of the 20th, when you were at the Stor-All Warehouse, did either of you or Sergeant Wachob have any keys?
“A. Sergeant Wachob had some keys.
“Q. Did he test any of these keys to see if they would fit any of the locks at the warehouse?
“A. No, sir.”

It was not until after the trial that defense attorneys discovered evidence which caused the police officers in question to recant and tell the truth. Attorneys for the appellant requested information from the ACJIS concerning the inquiry made, by the Dothan police concerning stolen articles found in the warehouse. It was only then that the appellant’s attorneys discovered that Officers Wachob and Locke had, on the night before obtaining the search warrant, furnished the ACJIS with the serial numbers of the guns stored in the warehouse. Thus, during the hearing on the motion for a new trial, the newly discovered evidence came to light. Officers Wachob and Locke then testified that they had entered the warehouse the night before obtaining the search warrants and had furnished the ACJIS with the serial numbers of the weapons found in the warehouse prior to the search. After receiving negative reports from the ACJIS computer, the two officers then placed telephone calls to police departments in cities where they knew the appellant had some connection;

Wachob testified that after they had looked into the warehouse on October 20, the calls were made to other police departments. He stated that he went to Enterprise that night after Locke had talked to someone with the Enterprise Police Department. He picked up offense reports and discussed the baby carriage with Lt. Rainey of the Enterprise Police Department. Wa-chob stated that, “the purpose that I went to Enterprise for was to get his report on the baby carriage.” He testified that at the time he first looked inside the warehouse, the only information he had about the baby carriage was what Mrs. Jackson had told him.

Officer Locke testified that after the ACJIS inquiry resulted in a negative reply, he placed a call to Enterprise and talked to Lt. Rainey of that police department. He gave Rainey the serial numbers of the weapons and inquired about the white wicker baby carriage. Prior to observing the carriage during the warrantless search, the only information Officer Locke had concerning it was what Mrs. Jackson had told him, that being that she had seen Lethia Speigner storing a white baby carriage and some antique furniture in the warehouse about two months earlier. From the evidence adduced on the motion for new trial, it appears that neither Officer Locke nor Wachob knew that a white wicker baby carriage had been stolen until after they observed it during the warrantless search and later called the Enterprise Police Department. The trial court overruled appellant’s motion for new trial.

STANDING

The State, on appeal, challenges the appellant’s standing to object to the search of the warehouse which in turn led to the search of the apartment. The State contends that, since the warehouse was not rented in the appellant’s name, he has no standing to avail himself of the protection of the Fourth Amendment.

The State finds its primary support in the case of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1968). That case involved the use of evidence obtained through illegal electronic surveillance of a co-conspirator. The Supreme Court refused to expand the exclusionary rule, stating that a Fourth Amendment right may only be urged by those whose rights were violated by the search itself, and that co-conspirators and co-defendants have been accorded no special standing. However, in Alderman, it appears that the appellant’s premises were not the subject of the surveillance and neither were his private conversations intercepted. There, a co-defendant’s premises were under surveillance and conversations between two other parties implicated the appellant. The facts in the instant case are altogether different and, therefore, Alderman does not apply.

Fourth Amendment rights are personal in nature and may be asserted only by those whose own protection has been infringed by the search and seizure. At one time, a defendant asserting such a right had to establish that he was the owner or possessor of the seized property or that he had a possessory interest in the premises searched. However, the Supreme Court relaxed the standards for establishing standing in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The standards now applying are:

(1) When possession of the seized evidence is an essential element of the offense, the prosecution is precluded from denying that the defendant has the requisite possessory interest to challenge admissibility of the evidence; and

(2) A person legitimately on the premises when the search occurs may assert a Fourth Amendment right even though he has no possessory interest in the premises. Jones, supra; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

In the instant case, the appellant is charged with a possessory crime. The State’s affidavit to obtain the warrant to search the warehouse stated specifically that an informant provided information, “that Billy Waters had stolen furniture and weapons stored in a local (Dothan) rental warehouse.” After the warehouse was searched, a second affidavit was executed for a warrant to search the appellant’s apartment. That affidavit set out the circumstances of the warehouse search, stating that numerous items of stolen merchandise had been found therein, “including numerous personal effects of one Billy Waters.”

After alleging in two search warrant affidavits that there was probable cause to believe Waters was concealing stolen property in a warehouse and in his apartment, the State now contends that he had no standing to challenge the searches. In effect, the State is charging him with possession and concealment of stolen property in the indictment, but maintaining in the suppression hearing that he did not possess the merchandise. This it cannot do. Jones v. United States; Simmons v. United States, supra. See also: United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1960); United States v. Harwood, 470 F.2d 322 (10th Cir. 1972).

THE WAREHOUSE WARRANT

The protection of the Fourth Amendment extends to a commercial warehouse. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). Also see: Adair v. State, 53 Ala.App. 251, 98 So.2d 671 (1974). Since we determine that appellant has standing to challenge the searches, the next strand of this Gordian knot to unravel is that of the effect of the illegal warehouse search on subsequent actions taken by the police.

The officers were initially led to the warehouse through the tip of a confidential informant. Probable cause may be based solely upon hearsay information obtained from a reliable informant. Jones v. United States, supra; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). The informant’s tip may be the sole basis for probable cause provided it meets the two pronged test of Aguilar: the veracity prong and the basis of knowledge prong.

In the instant case, the affidavit fails to meet either prong of the Aguilar test. First, the affidavit merely recites that the affiant received information from, “a reliable informant.” The magistrate is left with only the officer’s conclusion that the informant is reliable. The law requires that the magistrate be given sufficient information to enable him to make a judicial determination of reliability of the informant rather than depending solely upon the officer’s conclusion. The minimum information allowable for this purpose in an affidavit in Alabama is a statement that the information came from, “a person whose record of reliability for correctness has been good.” Neugent v. State, Ala., 340 So.2d 52 (1976); State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970). The conclusion that officers “received reliable information from a credible person” was condemned in Aguilar, supra. An affidavit that the FBI “ ‘has been informed by a confidential reliable informant’” was condemned in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Secondly, the instant affidavit fails to set out any of the underlying circumstances to show how the informant learned of the stolen items being stored where he says they were stored. Again, the magistrate is left only with the officer’s mere conclusion that the informant’s hearsay information was correct.

Judge Charles E. Moylan, Jr., of the Maryland Court of Special Appeals, sets forth with exceptional clarity the functions of a magistrate in evaluating hearsay information. In “Hearsay and Probable Cause: An Aguilar and Spinelli Primer,” Mercer Law Review, Vol. 25, p. 741 (1974), Judge Moylan states:

“Just as the magistrate must satisfy himself as to the credibility of a primary source by administering an oath to him and by looking at him, so too must he, by some alternative means, satisfy himself as to the credibility of the secondary source. In neither case may he accept someone else’s conclusion in lieu of arriving at his own. Just as he may not permit an affiant’s assertion as to his own credibility to serve as dispensation for the oath, neither may he permit the affiant’s assertion as to his informant’s credibility to serve as dispensation for the required recital of -all necessary data about that informant that will permit the magistrate to draw his own conclusion as to credibility. This, simply, is the ‘credibility/reliability’ or ‘veracity’ prong of Aguilar.
“Once the magistrate has decided that the informant is believable, he has still only half completed his ultimate determination. He must still decide what the information is worth. He has decided that the source is not lying, but he has not yet decided whether the source is mistaken. The magistrate’s second function is now to evaluate the information which he is accepting as true and to see what probabilities emerge from that available data. Again, he may not accept the conclusion of either the affiant-ob-server or the nonswearing informant. He must take from either of those sources his facts and then arrive at his own conclusion as to the significance of those facts.”

Thus, the instant affidavit fails to meet either prong of the tests set out in Aguilar and Spinelli, supra. However, if a tip fails one of those prongs, the informant’s tip may still constitute the sole basis for a finding of probable cause if his information is in such detail and minute particularity that the “magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” Spinelli, supra. This is the self-verifying tip. Hatton v. State, Ala.Cr.App., 359 So.2d 822 [Ms. November 15, 1977]. In the instant case, we find the informant’s tip completely lacking in detail.

Less detailed information from a reliable source may also establish probable cause where the key elements of the information are verified or corroborated. State ex rel. Attorney General, supra; Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). Finally, a tip that will not meet any of these standards may still be used in conjunction with a number of other factors to support a finding of probable cause. Hatton, supra.

In United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971), at 580, it was stated:

“ . . . First, if the information provided is in such ‘detail’ and ‘minute particularity’ that ‘a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way,’ then the report, if sufficiently incriminating, may, without more, be grounds for finding probable cause. Secondly, less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant’s report to make it ‘apparent that the informant had not been fabricating his report out of whole cloth.’ Corroboration must render the report ‘of the sort which in common experience may be recognized as having been obtained in a reliable way.’ Thirdly, even a report that is not under the above two standards sufficient of itself to establish probable cause may count in the magistrate’s determination of probable cause, but only as one of a number of other factors of ‘further support’ tending to show probable cause. Examples of satisfactory ‘further support’ given in Spinelli involved law enforcement agencies’ knowledge of independent facts which suggest criminal conduct or of facts which take on an aura of suspicion in light of the informant’s tip.’’ (Footnotes omitted.)

Here, although the affidavit does not satisfy the two pronged test set out above, it may have nevertheless appeared to the magistrate that the affiant had made an independent investigation based upon the informant’s tip and had determined that a stolen baby carriage had been stored in the warehouse in question by the appellant’s girl friend sometime within the prior two months. However, there is no showing in the affidavit that the officers had probable cause to believe that the baby carriage would still be stored in the warehouse on October 21. Evidence taken on the appellant’s motion to suppress would not support the officers’ belief that a wicker baby carriage was still stored in the warehouse at the time the affidavit was prepared. Additionally, the warehouse manager, Mrs. Jackson, gave conflicting testimony concerning the baby carriage. She first testified that she did not tell the investigating officers that she saw a baby carriage being stored in the warehouse on the date that Lethia Speigner rented the storage unit. On further examination, she said that she did disclose that fact to the officers; then during further testimony, she stated that she did not remember. But assuming ar-guendo that the affidavit on its face states sufficient facts to establish probable cause, we are still left with the ultimate fact, established on motion for a new trial, that much of the information contained in the affidavit, independent of the informant’s tip, came about through leads obtained by way of the illegal search conducted on the night of October 20.

The State’s contention is that the information contained in the affidavit was “obtained entirely from independent sources.” The State contends that the “fruit of the poisonous tree” doctrine applies only to evidence that is obtained as a result of the prior illegality, citing Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed.2d 319 (1920). It contends in its brief that the information received from Mrs. Jackson and the informer was the “fruit of a healthy tree” and that the officers’ prior information did not become unusable merely because they saw objects (the baby carriage) during the illegal search which they already knew about.

The fallacy in the State’s position relative to the independent source doctrine is that the officers did not know that a baby carriage had been stolen at the time they committed the illegal entry into the warehouse on October 20. Both officers later testified that the only information they had at the time of the illegal search was what Mrs. Jackson had told them. Both stated that the only thing Mrs. Jackson told them was that she had observed Lethia Speigner storing a white baby carriage in the warehouse some two and one-half months earlier. At the time of their illegal entry, the officers did not know (1) whether the baby carriage was still in the warehouse, (2) whether that baby carriage was stolen, property, or (3) whether any baby carriage of a similar description had been reported stolen. It was only after they had burglarized the warehouse that they verified that the wicker baby carriage was still there. It was only after confirming that fact by illegal means that the officers then began to call other cities making inquiry about a wicker baby carriage. It was only after calling three cities that the officers discovered that such a carriage had been stolen in Enterprise almost a year earlier. It was only then that they could state in the affidavit that there was a carriage in the warehouse “exactly matching the description of the white wicker baby carriage which had been stolen.”

It is obvious that confirmation of the existence of the carriage, through the illegal search, is what led the officers forward in their inquiries to the other cities to determine if such a carriage had in fact been stolen. The record reveals that the illegal warehouse search provided the impetus for the officers’ further investigation and so influenced all their'future actions in this case that its taint is evident in everything the officers did or said thereafter.

The purpose of the exclusionary rule is “to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The exclusionary rule would thus deny the State the use of any evidence it obtained as a result of the illegal warehouse search. The next question presented then is whether the search of the appellant’s apartment came as a result of the prior search of the warehouse.

THE APARTMENT SEARCH

An examination of the affidavit supporting the warrant to search the apartment reveals the following:

(1) A typewriter and a hand calculator were alleged to have been stolen from Enterprise two months earlier;

(2) Based “partly” on information received from Mrs. Jackson, the warehouse had been searched;

(3) The warehouse search revealed numerous stolen items stored there, “including numerous personal effects of one Billy Waters;”

(4) The affiant knew Waters to be a frequent companion of Lethia Speigner, both residing at the appellant’s apartment;

(5) Since the stolen merchandise at the warehouse did not include the typewriter and hand calculator, the affiant apparently concluded that those two items must be at the apartment;

(6) That when the affiant went to the apartment to arrest Lethia Speigner, he saw a typewriter which, “as near as affiant could tell,” matched the description of the stolen typewriter in question.

Since Officer Locke swore to the affidavit, the magistrate had no reason to doubt the truth of the statements contained therein. Taken at face value, the affidavit would support the issuance of a warrant. Likewise, evidence presented during the hearing on the motion to suppress did not contradict the facts set out in the affidavit. On the motion to suppress, the trial judge therefore was not in error in finding that probable cause did exist for the issuance of the warrant to search the apartment. However, evidence taken during the hearing on the motion for a new trial was altogether different than that presented initially to the magistrate or to the trial judge on the motion to suppress.

Evidence on the motion for a new trial along with prior evidence in the case would support the following findings:

(1) Information obtained by the officers during the illegal search of the warehouse prompted their inquiry to the Enterprise Police Department. The Enterprise Police Department then furnished the Dothan officers with copies of offense reports from which affiant obtained the information concerning the baby carriage, the typewriter, and the hand calculator which appeared in his affidavit to obtain the warrant to search the apartment;

(2) Leading officers to the appellant’s apartment was the discovery of “numerous personal effects” of the appellant during the warehouse search;

(3) The affiant deduced that the typewriter and hand calculator were probably at the appellant’s apartment simply because they were not turned up in the search of the warehouse;

(4) Officer Locke only had a momentary glimpse through a crack in the door of the apartment and saw only what appeared to be a keyboard of a typewriter;

(5) The officer had no description of the stolen typewriter except its trade name and serial number;

(6) His observation of the keyboard inside the apartment was so poor that he could not ascertain whether the keys were round or square or the color of the typewriter body;

(7) That in fact the only typewriter found in the apartment was an antique black L. C. Smith typewriter rather than a gray Olympia typewriter, and furthermore the hand calculator was not found in the apartment either;

(8) Officer Locke’s testimony established that his recitation in the affidavit comparing the typewriter he saw with the description of the stolen typewriter was completely invalid. The qualifying phrase, “as near as affiant could tell,” added nothing to its credibility.

In McConnell v. State, 48 Ala.App. 523, 266 So.2d 328 (1972), this court reversed a conviction for buying, receiving, and concealing stolen property where another Dothan police officer had made false statements in an affidavit to obtain a search warrant. This court found the affidavit to be sufficient on its face, but held the search warrant to be invalid because material statements in the supporting affidavit were subsequently contradicted and proven erroneous by the testimony of the affiant himself. In McConnell, this court quoted from Walker v. Graham, 228 Ala. 574, 154 So. 806 (1934), stating:

“ ‘ . . . [N]o one will be permitted to wrongfully procure the issuance of a process by practicing a fraud or imposition upon the court or authority, and seek shelter behind such a process, though it be ever so regular upon its face. . .

CONCLUSION

After a review of the evidence submitted on the motion for a new trial and considering the totality of the circumstances of the entire case, we can only come to the conclusion that the search of the apartment was the end result of an exploitation of information obtained by the illegal search of the warehouse. The chain of evidence leading from the illegal search of the warehouse to the search of the apartment is clear and unbroken. The evidence obtained as a result must be considered as “fruit of the poisonous tree” and, therefore, inadmissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The one remaining issue concerns the trial court’s overruling of the motion for a new trial. Generally, a motion for a new trial is addressed to the sound discretion of the trial judge. Such a motion may be granted upon a showing of newly discovered evidence which could not have been discovered with due diligence before trial. The newly discovered evidence must be such that it would probably change the results of the trial; must be material; not merely impeaching; not merely cumulative; and must not be addressed to minor discrepancies in testimony. Lackey v. State, 41 Ala.App. 46, 123 So.2d 186, cert. denied, 271 Ala. 699, 123 So.2d 191 (1960).

In the instant case, evidence of the officers’ illegal search of the warehouse had been concealed and was such that it could not have been reasonably discovered with due diligence by the defense before trial. The evidence presented on the motion for a new trial was such that, had it been known and presented during the hearing on the motion to suppress, it would have changed the results of the trial in that suppression of the evidence would have been mandated. The newly discovered evidence presented was certainly material, was not cumulative, and was not i introduced for the purpose of merely impeaching testimony of other witnesses given during the course of the trial. The appellant’s motion for a new trial should therefore have been granted.

The appellant is presently under a five year sentence for burglary from Barbour County which this court affirmed in Waters v. State, Ala.Cr.App., 357 So.2d 368 [1978], He is also under a five year sentence from Houston County on another charge of buying, receiving, and concealing stolen property which we have this date also affirmed. However, due to the reason set out herein, appellant is entitled to a new trial on the instant charge.

REVERSED AND REMANDED.

All the Judges concur except DeCARLO, J., concurs in result only.


author: JONES, Judge.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-586.
    Supreme Court of Alabama.
    June 30, 1978.
   JONES, Judge.

WRIT DENIED.

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