author: GARSAUD, Judge. BEER, Judge,' SCHOTT, Judge,

text:
    Grace Borne, wife of/and Allen BORNE v. Fred O. BRUMFIELD, M. D., Eugene H. Countiss, M. D., Adolph A. Flores, Jr., M. D., James O. Lilly, M. D., Fred W. Maher, M. D. and Southern Baptist Hospital.
    No. 9250.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1978.
    Rehearing Denied Oct. 19, 1978.

      Lemle, Kelleher, Kohlmeyer & Matthews, William S. Penick, New Orleans, for defendant-appellant.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for plaintiffs-appel-lees.
    Monte J. Ducote, New Orleans, for defendant-appellee.
    Before SCHOTT, BEER and GARSAUD, JJ.
   GARSAUD, Judge.

Grace Borne, et al., filed this malpractice suit averring that the incorrect diagnosis of gastroenteritis by Dr. Countiss prior to her admission to Baptist Hospital on February 13, 1972, the same incorrect diagnosis by Dr. Brumfield upon her admission, the incorrect diagnosis of “acute abdomen” by Dr. Flores and the incorrect diagnosis of regional ileitis by Dr. Lilly when he was called into the case on February 21, coupled with the implied concurrence by Dr. Maher in these allegedly incorrect diagnoses, caused undue delay in performing necessary surgery and resulted in serious damage to her.

Mrs. Borne’s condition, which apparently improved for several days following her admission to the hospital, began, thereafter, to worsen. Exploratory surgery, performed on March 2,1972, disclosed separtive appendicitis with an abscess and a fistula from appendix to rectum. A closed colostomy was required to allow the rectum to heal, and subsequent surgery was necessary to conclude the colostomy procedure. Contending that the misdiagnosis and resulting delay in surgery caused the complications, Mrs. Borne attributed her pain, mental anguish, permanent injury (in the form of difficulty in urination and defecation which she still claims to experience as of the trial) to the negligence of all of the various defendants.

Pending trial, Dr. Maher died. More than one year subsequent to his death, his medical malpractice insurer, St. Paul Fire and Marine Insurance Company (hereafter, “St. Paul”), was joined as a defendant, notwithstanding their contention that any claim against them had prescribed.

A four-day trial (during which Southern Baptist Hospital was voluntarily dismissed) concluded with interrogatories being submitted to the jury concerning the alleged negligence of each doctor. Four of the five doctor defendants were found non-negligent; only Dr. Maher, who had died in the meantime, and who was the sole doctor the jury knew to be insured, was found negligent.

The judgment awarding $43,000 to Grace Borne, and $7,000 to Mr. Allen Borne for medical expenses, was suspensively appealed by St. Paul, which contends that the jury manifestly erred in finding Dr. Maher guilty of malpractice and in rendering an excessive award. They also contend that the trial court erred in failing to hold that the claim against St. Paul had prescribed, and in failing to give certain requested jury instructions. Plaintiff answered, the appeal seeking an increase in the amount of damages awarded by the jury.

St. Paul concedes that a timely suit against one solidary obligor interrupts prescription against another (La.Civ.Code art. 2097), and that insured and insurer are considered solidary obligors. They argue, however, that upon Dr. Maher’s death, prescription began to run anew, and since neither his legal successor nor St. Paul were sued within a year of his death, the claim prescribed as against St. Paul.

While it is correct that action against Dr. Maher’s succession requires substitution of his legal successor as party defendant, La.C.C.P. art. 802, we find no authority for the proposition that, in the absence of such substitution, prescription as to the insurer commenced anew on Dr. Maher’s death. La.C.C.P. arts. 801, et seq., governing substitution of the legal successor in the event of death of a party, set no time limitations on substitution of the legal successor. Read in pari materia with La.C.C.P. art. 428 providing for the non-abatement of actions, these articles support the conclusion that Dr. Maher’s death did not cause recommencement of the prescriptive period. Appellant’s reliance on J. Wilton Jones Co. v. Liberty Mutual Ins. Co., 248 So.2d 878 (La. App. 4th Cir. 1971), writ refused, 259 La. 61, 249 So.2d 202, is misplaced. There, the issue before us was whether the widow’s substitution as plaintiff (for recovery of survivorship benefits more than one year after decedent’s death) was timely. We concluded that while a right to bring an action under La.Civ.Code art. 2315 is subject to the 1-year limitation, the right to be substituted as plaintiff in an instituted action, as defined in La.C.C.P. art. 421, is limited only by the restrictions of La.C.C.P. arts. 426 and 428, and by the substitution provisions of La.C.C.P. arts. 801-804. Thus, substitution eighteen months past the death of the original plaintiff was allowed. We noted (on rehearing):

“There is a radical difference between institution of an action and substitution of parties in an instituted action. For lack of timely institution of suit, a claim is lost by liberative prescription (or in some cases by peremption). There is no time-limitation on substitution as such; this is only a procedural matter. The key issue in the substantive matter of survival is whether an instituted action abates, or whether it survives (so that substitution can occur). Once an action is instituted by either victim or survivors, since it does not abate only the five-year inaction abandonment rule of C.C.P. art. 561 is applicable, and it of course applies equally as to original plaintiffs and as to substituted plaintiffs.” Id., at 891.

Though here the decedent was a defendant, the same rationale applies. La.C.C.P. art. 802, like La.C.C.P. art. 801, establishes no time limitation for substitution of parties. As in J. Wilton Jones Co., the only limitation is the five-year limitation for prosecution of the suit as provided by La.C.C.P. art. 561.

We turn to consider the contention that the jury manifestly erred: Grace Borne apparently suffered from abdominal pain commencing on Thursday, February 10, 1972. By Friday, she was experiencing diarrhea, nausea, fever and chills. Dr. Flores, whom she had seen a few days previous for unrelated complaints, advised her (by telephone) to be seen by a surgeon or gynecologist. She consulted Dr. Eugene Countiss, a gynecologist (Dr. Brumfield’s partner) on Friday afternoon. Dr. Countiss apparently made a tentative diagnosis of gastroenteritis, a non-specific and non-surgical intestinal irritation. Over the weekend, the abdominal pain became more severe and her temperature rose. Dr. Brumfield, advised of these additional symptoms, concluded that Mrs. Borne should be admitted to Baptist Hospital. There, he performed a pelvic and abdominal examination and ordered tests, including a blood count as well as x-rays of the abdomen. At this point in time, Dr. Brumfield considered the possibility of appendicitis but ruled it out because Mrs. Borne’s pains and tenderness were generalized over both sides of the abdomen, and would come and go in a manner similar to labor pains; she did not experience steady pain localized in the lower right quadrant as is typical of appendicitis. He believed that her high fever and increased bowel sounds (hyperperistalsis) were atypical of acute appendicitis. Thus, Dr. Brum-field confirmed his tentative diagnosis of gastroenteritis. Other than social visits, this was the last time Dr. Brumfield saw Mrs. Borne prior to her operation.

Dr. Flores, an internist who also examined Mrs. Borne at time of admission, diagnosed “acute abdomen.” In his opinion, the symptoms of diarrhea, high fever, pain and tenderness on both sides of the abdomen, cramp-like pains and hyperperistalsis were atypical of appendicitis and typical of gastroenteritis.

Dr. Maher, a surgeon, also examined Mrs. Borne at the time of her admission and, additionally, reviewed the x-rays ordered by Dr. Brumfield. He found slight distention of the abdomen, mild generalized tenderness slightly more marked on the right side, rebound tendency of the abdomen, cramps and hyperperistalsis. Although he considered appendicitis as a possibility, Dr. Maher’s primary diagnosis was severe gastroenteritis with peritoneal irritation, or possible ileitis (inflammation of the small intestine).

On the basis of the gastroenteritis or regional ileitis diagnosis, Drs. Flores and Maher agreed that they should treat the patient conservatively with medications (antibiotics and, later, steroids), bedrest, and a special diet. This was reinforced by their joint view that Mrs. Borne was too sick and too toxic to undergo surgery.

Thereafter, Dr. Maher saw Mrs. Borne on a daily basis and noted some favorable response to the conservative treatment, in the form of fewer cramps, less pain and a reduction in fever. But this was not to continue.

Dr. Lilly, a gastroenterologist, was called in consultation on February 21, 1972, when x-ray findings were thought by Dr. Maher to be indicative of regional ileitis. Dr. Lilly considered appendicitis only as a slight possibility. His working diagnosis was regional ileitis. Dr. Lilly specifically recommended no surgery.

Mrs. Borne’s fever began to rise on February 25. By February 29, her white blood cell count was considerably above previous levels, and pain had increased in her right side. A joint decision to perform exploratory surgery was made by Drs. Flores, Maher and Lilly.

The exploratory surgery was performed by Dr. Maher assisted by a surgical resident. There is no allegation that the surgery was performed improperly. Appellees’ contention is that the delay in its performance caused the damage.

The record essentially confirms the view that the diagnoses of gastroenteritis and regional ileitis were incorrect. However, it is clear that an error in diagnosis is not malpractice per se. In Lauro v. Travelers Insurance Company, 261 So.2d 261 (La. App. 4th Cir. 1972), writ refused, 262 La. 188, 262 So.2d 787, we approved the following jury charge as reflecting the law:

“ ‘A physician is not obligated to always be right in making a diagnosis. It is not malpractice to miss a diagnosis. Making a diagnosis is an act of professional judgment and may not be considered as an act of negligence. This is for you to decide.’ ” Id., at 265-266.

Therefore, in a case of misdiagnosis, malpractice exists only if it results from a failure by the physician(s) to exercise the standard or degree of care in diagnosing which would have been exercised by members of his profession in good standing in his locality, under similar circumstances. See, Green v. State, 309 So.2d 706 (La.App. 3rd Cir. 1975), writ ref., 313 So.2d 601, and Meyer v. St. Paul Mercury Indemnity Co., 225 La. 618, 73 So.2d 781, 782 (1953).

That issue was, we believe, before the jury as a result of the testimony of Dr. Frederick J. Boyce, who expressed the view that the diagnosis of appendicitis must be foremost in the thoughts of the diagnosing physicians until that possibility can be ruled out. This premise is founded upon the likelihood of rapid development of complications, such as abscesses and perforations, when dealing with acute appendicitis. While acknowledging that the findings based on the examinations conducted at the time of Mrs. Borne’s admission to the hospital would not result in a definitive diagnosis of appendicitis, Dr. Boyce held strongly to the view that if appendicitis could not be definitely eliminated, surgery was necessary.

Dr. Boyce’s testimony was seriously contradicted by all other physicians who testified. In particular, Dr. James A. Stuart, a surgeon, testified, that the concept that immediate surgical exploration is required where appendicitis cannot be ruled out is the medical thinking of the 1930’s and 1940’s, prior to the availability of antibiotics which can retard complications such as abscesses and fistulae.

Although we may have concluded differently had we been the trier of fact, we are obligated to sustain the jury’s finding, absent manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). We can find no error, as there was evidence in the record (Dr. Boyce’s testimony) to support the jury’s conclusion. In other words, the jury believed Dr. Boyce. Thus, we affirm on the question of negligence.

Insofar as the assignment of error on the jury charges is concerned, we do not consider it of any merit. Suffice it to say that one charge complained of was not even given by the trial judge, another dealing with the insured doctor (Dr. Maher) is based on mere speculation, and another in the nature of a general charge on negligence was clearly limited by the special charge relating to medical malpractice.

Finally, we see no reason to disturb the jury’s finding on quantum. Considering all the circumstances, we believe the verdict to be reasonable and, within the mandate of Coco v. Winston Industries, 341 So.2d 332 (La.1976), we must affirm.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

BEER, J., dissents.

BEER, Judge,'

dissenting.

If the jury, as the sole arbiter of the facts, had embraced the standard of care in diagnosis of possible appendicitis described in Dr. Boyce’s testimony and rejected that described by all of the other expert physician witnesses, thus casting all of the treating physicians, I would have voted to affirm. But that is not what has happened here. The jury has, in point of fact, found in favor of all of the living doctors who participated in the diagnostic exercises with which we are here concerned but has cast only the insurer of the then deceased (conveniently?) Dr. Maher. A reading and rereading of all of the pertinent testimony in this record leads forcibly to the conclusion that it is impossible to distinguish Dr. Maher’s professional responses to Mrs. Borne’s symptoms from those of the other involved physicians. There was joint rejection of the original diagnosis of appendicitis; there was joint acceptance of the original diagnosis of gastroenteritis, just as there was joint acceptance of the subsequent diagnosis of regional ileitis; there was joint recommendation against surgery until February 29, when there was a joint decision in favor of same. There is absolutely no evidence whatsoever, either direct or implied, which can, even by attempted interpretation, support some sort of premise that Dr. Maher, because he was a surgeon, bore some greater or more stringent responsibility for the joint diagnoses and decisions above described. No difference of approach to diagnosis or with respect to any other facet of the handling of this case can, on this record, be perceived or demonstrated with respect to Dr. Maher.

The logical inconsistency in apparently applying Dr. Boyce’s standard of care to all doctors and finding only one negligent under these facts leads to an inescapable conclusion: a well-meaning and sympathetic jury has made their finding to conform to the evidence that Dr. Maher, now deceased and, thus, beyond embarrassment, was, obviously, insured by St. Paul, since the clear and unequivocal fact of this coverage had been previously disclosed to them in a manner that proved to be as unmistakable as it was unfair. With this knowledge, their verdict indicates an effort to do right by Mrs. Borne, who had, they knew, suffered considerably.

Under these circumstances, I would not permit the verdict to stand against St. Paul (as the insurer of Dr. Maher) when the jury has specifically determined by categoric response to individually delineated interrogatories that the other physicians are blameless.

The record which supports the jury’s conclusions with respect to their dismissal of the claims against Drs. Brumfield, Countiss, Flores and Lilly and also supports the voluntary dismissal of Southern Baptist Hospital also demands the dismissal of Dr. Maher’s insurer. Though able counsel for ap-pellees describes the particular basis for the jury’s verdict against Dr. Maher’s insurer as his “negligent and substandard approach to diagnosis,” there is not a single word of testimony or any other credible evidence that in any conceivable way delineates Dr. Maher’s alleged “negligent and substandard approach to diagnosis” from the approach to diagnosis — or the actions taken as a result of the diagnosis — on the part of any or all of the physicians who the jury has seen fit to discharge from liability.

Accordingly, I respectfully dissent.

SCHOTT, Judge,

concurring in denial of rehearing.

In its application for rehearing appellant has raised questions which indicate that my position needs clarification. In footnote 2 of the original opinion Judge Garsaud states that there is nothing to distinguish the action of Drs. Maher, Flores and Lilly. In his dissent Judge Beer is more emphatic when he states that all of the physicians jointly rejected the diagnosis of appendicitis, jointly accepted the diagnosis of gastroenteritis and subsequently regional ileitis with a joint recommendation against surgery until February 29, and that “there is absolutely no evidence whatsoever, either direct or implied, which can, even by attempted interpretation, support some sort of premise that Dr. Maher, because he was a surgeon, bore greater or more stringent responsibility for the joint diagnoses and decisions above described.”

I respectfully disagree with my colleagues on this point.

The record shows that Dr. Brumfield, a gynecologist, upon examining plaintiff in the emergency room at the hospital ruled out a gynecological problem, and then called in Dr. Flores because he, Brumfield, had made the diagnosis of gastroenteritis, a condition not normally treated by a gynecologist but one which addressed itself to the care of an expert in internal medicine, such as Dr. Flores.

When Dr. Flores examined plaintiff his immediate finding was “acute abdomen.” While on the witness stand, he was asked if he wanted a surgeon in, and his answer was “I don’t recall that Dr. Brumfield didn’t either. He concurred with me that we have a surgeon consulted but I did want a surgeon to see her, to answer your question directly.”

The hospital admit note contains Dr. Brumfield’s impressions that plaintiff had severe gastroenteritis with peritinel irritations, or, possibly ileitis. With his referral of the patient to Dr. Flores, he recorded in the admit note his impression of “acute abdomen, consult surgery, Dr. Maher.”

This evidence provided a basis for the jury to distinguish Dr. Maher’s role from that of Dr. Flores. The jury could infer that Dr. Maher was the final expert to whom Dr. Flores deferred on the question of whether or not to operate.

As far as Dr. Lilly is concerned, he didn’t see plaintiff until February 21, eight days after plaintiff had been seen by Drs. Maher and Flores. If the jury concluded that Dr. Maher’s negligence consisted of his decision not to operate when plaintiff was first admitted Dr. Lilly was obviously not involved in that act of negligence.

A further basis for distinguishing Dr. Maher from the others is found in the testimony of Dr. Boyce and, to some extent, appellant’s expert, Dr. James A. Stewart.

In Dr. Boyce’s initial testimony, when he was being qualified, he was asked if he was familiar with the degree of knowledge or skill possessed by physicians in the field of medicine “and particularly in the field of general surgery.” As a general surgeon himself, his testimony was most directly pointed to the behavior of the only general surgeon in this picture, namely, Dr. Maher. All of his testimony was from the standpoint of a general surgeon, which would lend support to the jury decision that the general surgeon in this case, Dr. Maher, was the one who had departed from Dr. Boyce’s standards, not necessarily the other specialists.

Dr. Stewart, another general surgeon, was one of the principal witnesses in opposition to Dr. Boyce. He testified that acute appendicitis is the commonest of all surgical diseases and that “surgical disease refers to any condition which is appropriately managed by the surgeon.” Here again was a basis for the jury to infer that Dr. Maher stood out among the others in failing to operate on plaintiff from the beginning.

I do not necessarily agree with the jury verdict. Had I been the trier of fact I may have exonerated all the physicians, including Dr. Maher, as Judge Beer would, or I may have held Drs. Flores and Lilly jointly responsible with Dr. Maher as Judge Gar-saud would. But, in my role as an appellate judge I have concluded that there was evidence before the jury which furnished a reasonable factual basis for their conclusion that there was a distinction in Dr. Maher’s role so that he alone was liable. Under Canter v. Koehring Company, 283 So.2d 716 (La.1973) and its progeny I feel compelled to affirm the judgment.

      . All five doctors were insured by St. Paul, but evidence of coverage was presented only as to Dr. Maher, by reading of his deposition.

      . Judge Garsaud is of the opinion that, as there is nothing to distinguish the actions of Drs. Maher, Flores and Lilly, the latter two were also negligent. However, as plaintiff did not answer the appeal in this regard, the decision below cannot be amended.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Isadore D. BRICKMAN, M.D. v. BOARD OF DIRECTORS OF WEST JEFFERSON GENERAL HOSPITAL et al.
    No. 9804.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1978.
    Archie C. Tatford, Jr., New Orleans, for plaintiff-appellant.
    John J. D’Angelo, Gretna, for defendants-appellees.
   ON MOTION TO DISMISS

Before GULOTTA, STOULIG and BEER, JJ.

STOULIG, Judge.

Appellees move the court to dismiss this appeal on the grounds that neither the motion for appeal nor the appeal bond was filed timely.

• The record reflects that on March 20, 1978 the trial court maintained an exception of prematurity and dismissed plaintiff’s suit seeking a preliminary and permanent injunction against the Board of Directors, the Chief of the Medical Staff, the Chief of the Department of Surgery, and the Director, West Jefferson General Hospital. Since there is no complaint of the lack of notice of the rendition of the judgment, it must be presumed that the trial court rendered judgment at the conclusion of the hearing on the merits of the exception.

Some 30 days later on April 19, 1978, appellant filed his motion for a suspensive appeal which was not signed by the trial judge until April 24, 1978 and was conditioned upon the posting of security in the amount of $500. The required bond was not filed until July 5, 1978, allegedly because appellant was unaware that his motion and order for appeal had been granted by the trial judge.

Appellees submit that under C.C.P. art. 3612 the appellant had 15 days from the date of the judgment within which to appeal from the denial of injunctive relief and since neither the motion for appeal nor the posting of the required bond required was filed within this delay, the appeal was not perfected timely and therefore must be dismissed. We disagree.

It is now well settled that appeals are favored in the law and must be sustained whenever there exists any valid basis for doing so. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963); Succession of Videau, 228 So.2d 352 (La.App. 4th Cir. 1969).

At the outset two things should be noted. The plaintiff’s petition seeks both a preliminary and a permanent injunction against the hospital; and secondly, the 15-day appeal period prescribed by C.C.P. art. 3612 is applicable only to an order or judgment relating to a preliminary injunction and an appeal from the granting or denial of a permanent injunction is governed by the same delays afforded in ordinary proceedings. Therefore, it must be concluded that while this appeal may not be timely as it relates to the denial of the preliminary injunction, it is valid as a devolutive appeal from the denial of the permanent injunction. C.C.P. art. 3612, fn. (b); Pier 1 Imports, Inc. v. Pitcher, 264 So.2d 674 (La.App. 1st Cir. 1972).

The motion for and the order granting an appeal was filed within the 60-day delay allowed for a devolutive appeal (C.C.P. art. 2087). Admittedly the bond required by the order of appeal was not filed until well beyond the 60-day devolu-tive appeal period; however, this in itself is of no legal significance in view of the amendment to C.C.P. art. 2124 dispensing with security for a devolutive appeal effective as to all orders of appeal signed after January 1, 1978. Plaintiff’s motion and order falls within this exemption.

For these reasons the motion to dismiss is denied.

MOTION DENIED.

      . Judgment on exceptions rendered and signed on March 20, 1978. Delay for applying for a new trial expired on March 29. Motion for a new trial filed on April 19 and signed on April 24. The 90-day delay for perfecting a devolu-tive appeal expired on May 29. Security required by order of appeal posted on July 5, 1978.


author: FORET, Judge.

text:
    Oscar CHAISON et al., Plaintiffs-Appellees, v. Evelyn LeBLANC, Defendant-Appellant.
    No. 6597.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 21, 1978.

      Kimball, McLeod & Dow, William L. McLeod, Jr., Lake Charles, for defendant-appellant.
    Drewett, Jacques & Thomas, Robert W. Thomas, Lake Charles, for plaintiffs-appel-lees.
    Before CULPEPPER, WATSON and FORET, JJ.
   FORET, Judge.

This is an appeal from the confirmation of a default judgment. The general facts are that two elderly sisters, Tina Chaison, wife of Oscar Chaison, and Eva Douglas, wife of James A. Douglas, opened a joint savings account in 1952 in the Security Bank & Trust Company of Beaumont, Texas. During the ensuing years these two old ladies deposited a total of $15,512 in the savings account. In early February of 1976, Eva Douglas was in a hospital with a terminal illness. Apparently with the consent of Eva Douglas, the money was withdrawn from the savings account by Tina Chaison and was deposited in a new joint savings account in the names of Tina Chai-son and Evelyn LeBlanc, who is a niece of Eva Douglas and lives in Lake Charles, Louisiana. After Eva Douglas died, Evelyn LeBlanc withdrew all of the money from the account. The present suit was filed by Oscar Chaison, Tina Chaison and James A. Douglas, surviving spouse of Eva Douglas. They claim to be owners of the $15,512 withdrawn from the savings account by Evelyn LeBlanc. They seek a judgment against her for this amount and they also seek an injunction to prevent her from disposing of the money during the pendency of this suit.

This suit was filed on September 28,1976. The temporary restraining order was issued on October 6,1976. No answer was filed by the defendant. On April 18,1977, a preliminary default was taken by the plaintiffs. The plaintiffs attempted to confirm the default on July 15, 1977, but the trial court granted a continuance rather than rule in favor of the defendant because of inadmissibility of the plaintiffs’ evidence. On November 14, 1977, plaintiffs obtained a confirmation of the default after they presented further evidence. Defendant timely perfected this devolutive appeal from said judgment.

The issues presented on this appeal are:

(1) whether there was sufficient evidence to prove a prima facie case as required by Louisiana Code of Civil Procedure, Article 1702, and
(2) whether the notice, interrogatories, answers to interrogatories, and certificates of officer at taking of interrogatories were defective, making them inadmissible evidence.

To obtain a reversal of a default judgment, the defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and is correct. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972).

Among the evidence presented on the first effort to confirm the default were the affidavits of Oscar Chaison and Emil Weaver, Vice-President of the First Security Bank of Beaumont, Texas. Since this case is other than a suit on an open account, affidavits fail to constitute prima facie proof and are inadmissible. La.Code of Civil Procedure, Article 1702; Evangeline Employment Service v. DeCuir, 340 So.2d 1113 (La.App. 3 Cir. 1976). Therefore, the affidavits may not be considered in the instant case.

Also presented at the July 15, 1977 proceeding was the testimony of James Douglas, who is one of the plaintiffs. The trial court correctly ruled that vital parts of his testimony were hearsay and inadmissible. The testimony of James Douglas, therefore, fails to support the plaintiffs’ claim.

The defendant argues that the answers of Tina Chaison and Emil Weaver to the interrogatories propounded to them should not serve as a basis for the confirmation of the default judgment because the record fails to reflect any of these items were offered and received as evidence. We hold to the contrary.

The minutes of the trial court reflect that further evidence was submitted to the court on the second confirmation proceeding (Record, Pg. 4). The certificate of the Clerk of Court certifies that the record consists of forty-seven pages and is a true and complete record of all the minutes, pleadings and evidence introduced. Included in those forty-seven pages are the interrogatories and answers thereto by Tina Chaison and Emil Weaver. The only other evidence found therein was received at the first confirmation proceeding. Our conclusion is that the interrogatories and answers were offered and received as “further evidence” at the second hearing.

The defendant argues that if we find that the interrogatories and answers were filed into evidence, we should hold that the trial court erred in admitting them because of several alleged deficiencies.

First, the defendant calls our attention to a defect in the notice given to defendant of interrogatories to Tina Chaison and Emil Weaver. In the notice, the defendant was advised that she had five days in which to file counter-interrogatories. The defendant now points out that this was a misstatement of the law since Louisiana Code of Civil Procedure Article 1448-C grants thirty days. Obviously, plaintiffs’ counsel erred by stating what the law was prior to the 1976 changes in the discovery law which increased the time from 5 days to 30 days. The defendant now argues that this placed her at a disadvantage. We fail to be persuaded by her argument. Defendant had enrolled legal counsel until April 12, 1977, shortly before a preliminary default was taken. Surely this counsel warned the defendant of the dangers involved in the pending suit. Furthermore, this notice was given on July 19, 1977, and the default was confirmed much later on November 14, 1977. During this time, defendant had ample opportunity to seek counsel. The defendant had the opportunity to respond and advise the court of the misstatement in the notice and argue that she had been disadvantaged by it. Yet, the defendant failed to appear. The defendant neither alleges nor proves good reasons for her non-appearance and failure to make this argument in the trial court. See DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951). Accordingly, we find that the defendant was not unfairly prejudiced by the notice, nor may the defendant now be heard to raise the argument without proving good reason for the failure to raise it at the trial level.

The defendant also argues that she was not given the full time allotted by the law, thirty days, to make cross-interrogatories because the interrogatory to Emil Weaver was mailed July 19, 1977, and execution of the answers was made on August 17, 1977, a period of twenty-nine days. For the same reasons as above, we find that this fails to constitute reversible error on the part of the trial court in allowing the interrogatories and answers to support the confirmation. Additionally, we point out that the defendant had the full benefit of the thirty days to seek counter-interrogatories against Tina Chaison and failed to do so.

The defendant next contends that the depositions were not properly certified by the Texas notary before whom Tina Chaison and Emil Weaver were sworn and answered the interrogatories. Code of Civil Procedure Article 1446 requires that the officer “ shall certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony given by the witness”. In the depositions at issue here, the notary stated only “subscribed and sworn to before me on this the 21st day of September, 1977". Consequently, defendants urge that the depositions are deficient because they lack the seeond requirement of Article 1446, i. e., “that the deposition is a true record of the testimony given by the witness”.

Code of Civil Procedure Article 1456 provides that:

“Errors and irregularities in the manner in which the testimony is transcribed or a deposition is prepared, signed, certified . or otherwise dealt with by the officer under Code of Civil Procedure Articles 1437-1449 are waived unless a motion to suppress the deposition or - some parts thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.”

In the present case, defendant filed no motion to suppress the depositions which were filed in the record respectively on August 22, 1977 and on October 4, 1977. With due diligence, the defendant had ample time to discover the defect in the certification and file a motion to suppress the deposition before the default judgment was finally obtained on November 14, 1977. Thus, we hold that the defendant waived the objection to the deficiency in the notary’s certificate.

The defendant contends, finally, that there is no evidence to show that the plaintiff, Oscar Chaison, husband of Tina Chaison, owned any interest whatsoever in the money which was deposited in the savings account. There is no evidence in the record that this was community money or that any of it belonged to Oscar Chaison, and we are of the opinion that the trial court erred in rendering judgment in favor of Oscar Chaison.

In accordance with the foregoing, we hereby reverse the judgment of the trial court insofar as it awarded to Oscar Chai-son an interest in the funds in dispute, and set aside that portion of the said judgment; in all other respects, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against defendant.

AFFIRMED IN PART AND REVERSED IN PART.


author: CUTRER, Judge.

text:
    Succession of Elmer RAYNER. James F. RAYNER, Plaintiff-Appellee, v. PHARIS & PHARIS, Intervenor-Appellant.
    No. 6806.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1978.
    Pharis & Pharis, James A. Pharis, Alexandria, for intervenor-appellant.
    David A. Sheffield, Vincent Hazleton, Alexandria, for plaintiff-appellee.
    Before CUTRER, DOMENGEAUX and WATSON, JJ.
   CUTRER, Judge.

MOTION TO DISMISS

The defendant-mover, James F. Rayner, former administrator of the Succession of Elmer Rayner, moves to dismiss the appeal of the intervenor, Pharis & Pharis, on the grounds that the intervenor’s appeal is now moot.

We agree and dismiss intervenor’s appeal.

Decedent, Elmer Rayner, left a will which was admitted to probate on February 2, 1978, and a petition for appointment of an administrator was filed on May 9, 1978, to which was attached a detailed descriptive list.

The detailed descriptive list listed the property of decedent, Elmer Rayner, as totaling $243,318.83. The surviving spouse, Mary Elizabeth V. Rayner, employed inter-venor, Pharis & Pharis, who filed a Motion to Traverse the Inventory on April 10,1978. In the Motion to Traverse, Mary Elizabeth V. Rayner sought to be recognized as owner of an undivided one-half interest of all property shown on the Sworn, Descriptive and Estimative List. On April 13, 1978, an amended detailed descriptive list was filed in the record in which decedent’s estate was said to consist of an undivided one-half interest in all property incorporated in the previous Sworn, Descriptive and Estimative List, and adding additional property to the Sworn, Descriptive and Estimative List with a total value of $325,150.92, and showing of that amount only $9,000.00 as decedent’s separate estate and $158,075.46 as decedent’s undivided one-half interest.

On April 24, 1978, Mrs. Rayner discharged the firm of Pharis & Pharis as her attorneys and thereafter, the intervenor, on April 24, 1978, filed a petition of intervention in the succession proceedings alleging a right to intervene pursuant to Louisiana Revised Statute 37:218.

Thereafter, exceptions of no right or cause of action were filed on behalf of both the administrator and Mrs. Rayner through her new counsel. On May 31, 1978, a final judgment was read and signed, sustaining the exceptions of no right or cause of action, and on June 5, 1978, the intervenor moved for and obtained an order of appeal from the judgment of May 31, 1978, sustaining the exceptions.

Subsequent thereto, the administration of the succession was concluded and a judgment of possession and judgment discharging the administrator were signed on July 11, 1978. No appeal was taken from that judgment.

The defendant-mover, James Rayner, the former administrator of the succession, now moves to dismiss the appeal of the interve-nor on the grounds that since the succession is now closed, due to the valid judgment of possession and judgment discharging the administrator of July 11, 1978, the interve-nor’s appeal from the dismissal of its intervention is now moot. We agree.

LSA-C.C.P. Art. 1038 provides that the trial court may try the principal and incidental demands separately, either on exceptions or on the merits. It further provides that where the principal and incidental demands are tried separately, it may render separate judgments. This is exactly the situation that is before us now. The inter-venor’s incidental demands for attorney’s fees was tried on an exception of no cause of action, which the trial judge sustained and rendered a separate judgment thereon on May 31,1978. Separate judgments were rendered in the principal action, placing the heirs in possession and discharging the administrator on July 11, 1978.

In Meaux v. Hoffpauir, 219 So.2d 551, writs refused 253 La. 1096, 221 So.2d 522 (1969), this court held:

“For pleading purposes, the incidental action is independent of the principal action. LSA-C.C.P. Arts. 1031-1040; cf., Art. 1156. A final judgment may dispose of both the principal and the incidental actions, or separate judgments may be rendered as to each. LSA-C.C.P. Arts. 1038, 1915.
“In either event, however, and also if the judgment is silent as to disposition of one demand or the other, an appeal brings before the reviewing court only a demand in which the judgment is appealed. An appeal as to one demand does not bring before court also all other principal and incidental demands tried in the suit. See McCoy v. Pacific Coast Fire Insurance Co., 248 La. 389, 178 So.2d 761; Fontenot v. Pan American Fire & Casualty Co., La.App. 3 Cir., 209 So.2d 105. See also LSA-C.C.P. Art. 2087 (as amended by Act 92 of 1962), and 1962 Official Revision Comment (c).” (Emphasis supplied)

Assuming for the sake of argument that the intervenor’s intervention was improperly dismissed on the exception of no cause of action, and that they had a right to intervene in the succession proceedings in order to attach Mrs. Rayner’s share of the succession, the succession is now closed and the judgment thereon cannot be reviewed or modified since no appeal was taken from the judgment placing the heirs in possession and discharging the administrator.

For the reasons assigned, the appeal of the intervenor-appellant is hereby dismissed at its costs.

APPEAL DISMISSED.


text:
    Willie James STENNIS v. STATE of Mississippi.
    No. 50761.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    Henry C. Wood, Louisville, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

Affirmed.


text:
    Michael RUSSELL v. STATE of Mississippi.
    No. 50884.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    Stribling & King, F. Kent Stribling, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., ROBERTSON, P. J., and WALKER, J.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Affirmed.


text:
    Mrs. Louise RAINER v. Sylvester N. RAINER, Sr.
    No. 50585.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    Sandusky & Bailey, Robert W. Bailey, Meridian, for appellant.
    Self, Jordan & Jones, Robert D. Jones, Meridian, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
    SMITH and ROBERTSON, P. JJ., and WALKER and COFER, JJ., concur.
    SUGG and BOWLING, JJ., took no part.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Reversed and remanded.


text:
    M. F. SURLES, Superintendent of Education, Montgomery County, Elmo Branch, Thomas Woods, Richard Mormon, E. C. Henson, M.D., J. W. Card, Members of the Board of Education, Montgomery County, Mississippi v. Mrs. Tobie BRANTLEY.
    No. 50681.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
   Appeal from Chancery Court, Montgomery County; Kermit R. Cofer, Chancellor.

Watkins & Eager, James A. Becker, Jr., John L. Low, IV, Jackson, for appellants.

Charles L. Lewis, Jr., Frank M. Deramus, Louisville, for appellee.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

PATTERSON, C. J., SMITH, P. J., and LEE, J., concur.

SUGG, BOWLING and COFER, JJ., took no part.

Reversed and Order of Board of Education reinstated.


text:
    James GRANT v. STATE of Mississippi.
    No. 50752.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    John B. Gee, Ellis J. Farris, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
    PATTERSON, C. J., SMITH, P. J., and LEE and COFER, JJ., concur.
    SUGG and BOWLING, JJ., took no part.
   Appeal from Circuit Court, Yazoo County; Dan M. Lee, Judge.

Affirmed.


text:
    B. C. HUX, Jr. and Mary Geneva Hux v. Jeanette ALLEN.
    No. 50800.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    Richard E. Stratton, III, Brookhaven, for appellants.
    Allen & Allen, Emmette P. Allen, Brook-haven, for appellee.
    Before SMITH, P. J., LEE and COFER, JJ., and JAMES E. BOST, Commissioner.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

AFFIRMED.


text:
    FIRST BIBLE BAPTIST CHURCH, a Non-Profit Mississippi Corporation, et al. v. MID-STATE HOMES, INC. and Jim Walter Homes, Inc.
    No. 50683.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    David A. Harris, Jackson, for appellants.
    Fox & Gowan, John H. Fox, III, Jackson, for appellees.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

AFFIRMED.


text:
    Bruner BEXLEY v. J. C. HOWELL et al.
    No. 50846.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    Williams S. Murphy, Robert P. Shepard, Lucedale, for appellant.
    Parsons & Matthews, Jack Parsons, Wiggins, for appellees.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   Appeal from Chancery Court, George County; Kenneth B. Robertson, Chancellor.

AFFIRMED.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    No. 17.
    Supreme Court of Alabama.
    Oct. 3, 1978.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION DOCKET FEE — PETITION FOR RULE TO SHOW CAUSE IN A CONTEMPT PROCEEDING

Mr. Allen L. Tapley, Administrative Director of Courts, has requested my opinion, as Clerk of the Supreme Court, as follows:

In Opinion No. 3, May 4,1977, you stated that a petition for rule to show cause in a contempt proceeding should be treated as an original filing for docket fee purposes. Does this opinion authorize a docket fee for a petition for rule to show cause filed prior to a final decree or filed pursuant to an interlocutory decree?

Section 12-2-19(d), Code of Alabama 1975, authorizes the Clerk of the Supreme Court to “give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the Supreme Court to any other officer or official of the state who shows a need for such opinion and requests the same.”

The inquiry must be answered in the affirmative.

In Opinion No. 3, it was stated that a proceeding for contempt for failure to comply with the decree of the court is a “case” within the meaning of the words, “cases filed,” in § 16-111, supra, now § 12-19-71, Code of Alabama 1975, and that the filing of a petition for rule to show cause in such a proceeding is a “filing” under Rule 7, Rules of Judicial Administration.

Rule 7, Alabama Rules of Judicial Administration, is as follows:

FEES FOR MISCELLANEOUS FILINGS
“Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

The term, “consolidated fee structure,” in Rule 7, supra, means the list of fees prescribed in Title 12, Chapter 19, Code of Alabama. Opinion of the Clerk, No. 11, 356 So.2d 636 (1978). There is no express cost under the consolidated fee structure for the filing of a petition for rule to show cause in a contempt proceeding.

The words, “as an original filing for cost purposes,” in Rule 7 refer to “cases” filed in § 12-19-71, Code of Alabama 1975, which provides a docket fee for civil cases.

The rule in Alabama is that a proceeding for contempt is not a part of the main case, before the court, but it is a proceeding in itself. Ex Parte Dickens, 162 Ala. 272, 276, 50 So. 218, 220 (1909); Musgrove v. United States Pipe and Foundry Co., 290 Ala. 156, 274 So.2d 640 (1972); Robertson v. State, 20 Ala.App. 514, 104 So. 561 (1925); Falk v. Falk, Ala.Civ.App., 355 So.2d 722 (1978).

This rule is more fully explained in Robertson v. State, supra, as follows:

“A contempt proceeding raises an issue outside the pending cause. While in some cases, it may, in a sense, be collateral to the main cause, it is not a part of that cause. It is a separate, independent proceeding, governed by well-established rules of procedure . . .” (Underlining supplied)

Robertson v. State, supra, which cites Ex Parte Dickens, supra, and is quoted in Mus-grove v. United States Pipe & Foundry Co., supra, has not been overruled on its statement of this rule. See Tetter v. State, Ala.Cr.App., 358 So.2d 1043 (1977); Ex rel Attorney General, In re Tetter v. State, Ala., 358 So.2d 1046 (1978).

It is my opinion that the filing of a petition for rule to show cause in a contempt proceeding whether it is prior or subsequent to the final decree or judgment in the main cause, is a “filing” within the meaning of Rule 7, supra; and that a docket fee is required to be collected at the time the petition is filed.


author: BRADLEY, Judge.

text:
    Lawrence B. LUNCEFORD v. Merthalean LUNCEFORD.
    Civ. 1506.
    Court of Civil Appeals of Alabama.
    July 19, 1978.
    Rehearing Denied Aug. 23, 1978.

      Donald M. Phillips, Lanett, for appellant.
    No brief filed for appellee.
   BRADLEY, Judge.

Appellee, Merthalean Lunceford, was granted a divorce on the ground of incompatibility of temperament by the Circuit Court of Lee County on November 30,1977. The appellant, Lawrence B. Lunceford, filed notice of appeal from that judgment on January 10, 1978. Subsequent to the taking of the appeal from the November 30, 1977 judgment, both parties filed petitions for modification. The wife also asked that the husband be held in contempt for failure to comply with several of the provisions of the November 30, 1977 decree. After a hearing on the various petitions, the husband was held in contempt and then given an opportunity to purge himself. Before purging himself, the husband attempted to include the contempt order in the record on appeal from the November 30, 1977 judgment.

The wife has filed in this court a motion to dismiss the appeal on the grounds: (1) that the contempt citation cannot be reviewed on appeal and (2) that the argued ground for reversal of the November 30, 1977 judgment, i. e., that the trial court made an unequal property division, cannot be reviewed because there is no transcript of the testimony taken at the hearing before the trial court included in the record on appeal.

Appellant’s first contention is that the trial court erred in holding him in contempt for failing to comply with the provisions of the November 30, 1977 judgment. Appellant’s argument is based on the fact that he was not present at the hearing wherein he was held in contempt. Appellee says that we cannot consider the merits of the contempt citation here because an appeal is not the proper procedure for testing the sufficiency of a contempt finding.

In Hayes v. Hayes, Ala.Civ.App., 337 So.2d 770 (1976), this court said:

“The proper remedy for review of a contempt proceeding is by habeas corpus if the party is in jail, or by certiorari if the party is not, and appeal is not the proper remedy. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969).
“Appeal not being the proper remedy for a resolution of the contempt order, it cannot be considered in this proceeding. Only the validity of the Morgan County Court’s modification order will be considered. Review of the contempt order will have to be treated in another proceeding.”

Likewise, in the case at bar, an appeal is not the proper vehicle for reviewing the trial court’s contempt citation. Review of the contempt order will have to be secured in another proceeding.

With regard to his second contention, appellant maintains that the trial court erred in the divorce decree by awarding an unequal division of the parties’ jointly owned property.

As pointed out by the appellee, the record before us on appeal contains no transcript of the testimony of the witnesses who testified at the trial court’s hearing on the merits of this matter. Inasmuch as there was evidence presented to the trial court upon which it based its judgment, and this evidence is not in the appeal record and available to this court for review, this court is without authority to review the trial court’s judgment. Old Southern Life Insurance Co. v. Spinato, 57 Ala.App. 416, 329 So.2d 106 (1976).

Motion to dismiss the appeal is denied.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Ex parte Lawrence B. LUNCEFORD.
    77-758.
    Supreme Court of Alabama.
    Oct. 27, 1978.
   BEATTY, Justice.

WRIT DENIED.

MADDOX, FAULKNER, JONES and SHORES, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    DEPARTMENT OF INDUSTRIAL RELATIONS and Revere Copper and Brass, Inc. v. Jimmy BALDWIN.
    Civ. 1457.
    Court of Civil Appeals of Alabama.
    July 26, 1978.
    Rehearing Denied Aug. 30, 1978.
    Frank D. Marsh, Asst. Gen. Counsel, Dept, of Industrial Relations, Legal Division, State of Alabama, Montgomery, for appellants.
    No brief for appellee (Submitted on appellant’s brief).
   WRIGHT, Presiding Judge.

. This is an unemployment compensation case.

The Appeals Referee found claimant disqualified by Section 25-4-78(3)b, Code of Alabama (1975). Claimant appealed for trial de novo to circuit court, which reversed the referee’s decision, finding claimant only partially disqualified by Section 25-4-78(3)c. The State appeals.

The issue is whether claimant is completely disqualified from compensation by Section 25 — 4-78(3)b or is only partially disqualified by Section 25-4-78(3)c. The relevant portions of the statute, providing such differing treatment with regard to disqualification, are as follows:

“b. If he was discharged from his most recent bona fide work for actual or threatened deliberate misconduct committed in connection with his work . after previous warnings to the individual.
“c. If he was discharged from his most recent bona fide work for misconduct connected with his work (other than acts mentioned in paragraphs a and b of this subdivision) . . . ”

Claimant was fired for absenteeism. The evidence indicates he had worked for his employer seven years. He was considered a good worker. During the last few years a problem with alcohol resulted in an unsatisfactory attendance record. He began missing an average of one work day per week. He was given numerous warnings, oral and written, and had been suspended before being discharged. He eventually obtained other employment and at the time of trial his alcoholism problem had abated.

Since warnings had been given, the question is whether the trial court correctly found his conduct not to be “deliberate” as used in Section 25-4-78(3)b. A strikingly similar case is Department of Indus. Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App. 1976). The same question was presented to the trial court where the employee had been discharged for reporting late to work after previous warnings for absenteeism. The finding of no deliberate misconduct was affirmed by this court after comparing the case of Department of Indus. Relations v. Rich, 42 Ala.App. 80, 152 So.2d 692 (1963). See Department of Indus. Relations v. Smith, 360 So.2d 726 (1978).

As in Department of Indus. Relations v. Jaco, supra, the trial court has heard the case orally and his findings are clothed with a presumption of correctness unless plainly contrary to the evidence. Zac Smith Stationery Co. v. Reynolds, 39 Ala.App. 389, 101 So.2d 573 (1958). The finding that the misconduct was not deliberate is consonant with the evidence.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: JONES, Justice.

text:
    Ex parte DEPARTMENT OF INDUSTRIAL RELATIONS.
    77-778.
    Supreme Court of Alabama.
    Oct. 27, 1978.
   JONES, Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Lou Ella HOLMAN v. ALABAMA STATE TENURE COMMISSION et al.
    Civ. 1553.
    Court of Civil Appeals of Alabama.
    Aug. 30, 1978.
    Rehearing Denied Sept. 27, 1978.

      W. Troy Massey, Montgomery, for appellant.
    J. Garrison Thompson, Selma, for appel-lees.
   HOLMES, Judge.

This is a teacher tenure case.

The Board of Education of Bibb County determined that the appellant-teacher had resigned. The Tenure Commission agreed with the Board of Education. The circuit court upheld the above and the teacher appeals to this court.

The dispositive issue on appeal is whether the teacher had resigned. We find she had not and reverse and remand.

The record reveals the following pertinent facts: The teacher, on August 31, 1977, submitted a letter of resignation to the superintendent of education. On September 2, 1977, the teacher rescinded her letter of August 31, 1977. This rescission was by letter addressed to the superintendent. On September 6,1977, the teacher was orally notified by the superintendent that she was no longer an employee of the Bibb County Board of Education. The Board of Education, on September 20,1977, attempted to ratify the action of the superintendent.

It is the position of the teacher that a county school superintendent is not lawfully empowered to accept an offer of resignation by a tenured teacher by virtue of § 16-24-11, Code of Ala.1975, inasmuch as the boards of education, as employers, may not delegate this responsibility to anyone other than themselves. She further contends that, once her offer to resign was timely withdrawn, there was nothing for the Board to ratify. In support of her argument, appellant cites the recent case of Alexander v. Alabama State Tenure Comm’n., Ala.Civ.App., 358 So.2d 1032 (1978). Appellee argues that, notwithstanding the dispositive nature of this case, we should re-examine its holding. We decline to do so and reaffirm Alexander, supra.

In Alexander, supra, we held that school superintendents have no power to accept resignations from tenured teachers because the language of § 16-24-11 provides that only the teacher’s employing board may do so. We further held that until the board accepts such an offer to resign, the resignation may be timely withdrawn.

Here, the teacher clearly timely withdrew her offer of resignation before the Board of Education took action on such resignation.

In view of Alexander, supra, the case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: SHORES, Justice.

text:
    Ex parte ALABAMA STATE TENURE COMMISSION.
    78-17.
    Supreme Court of Alabama.
    Oct. 27, 1978.
   SHORES, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Donald Roland SHIRLEY, alias v. STATE.
    6 Div. 726.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    Rehearing Denied June 20, 1978.
    Marion F. Walker, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

This is an appeal from a judgment denying appellant’s discharge in a habeas corpus proceeding and also from a denial of bail pending appeal.

Section 15-9-31, Code of 1975 provides: “No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found, or by an information supported by affidavit, in the state having jurisdiction of the crime or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth. (Acts 1931, No. 482, p. 559; Code 1940, T. 15, § 50.)”

Section 15-9-33, Code of 1975, is as follows:

“A warrant of extradition must not be issued unless the documents presented by the executive authority making the demand show that the accused was present in the demanding state at the time of the commission of the alleged crime and that he thereafter fled from that state and is now in this state, and that he is lawfully charged by indictment or by an information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of crime in that state and has escaped from confinement or broken his parole. (Acts 1931, No. 482, p. 559; Code 1940, T. 15, § 52.)”

We have carefully examined the record in this case and nowhere is there to be found the requisition warrant from the Governor of the demanding State. This omission in and of itself is sufficient to work a reversal of this case.

The requirements of the above-quoted Code provisions were not in any manner complied with and we are bound by the record submitted to this Court.

We also note that there is no return by the Sheriff to the writ of habeas corpus issued in this case showing by what authority the Sheriff was holding petitioner.

The only official document appearing in this record is the rendition warrant signed by the Governor of Alabama. This, without more, fails to meet the requirements in extradition cases.

Under authority of Meadows v. State, 38 Ala.App. 319, 82 So.2d 811, and Aldio v. State, 42 Ala.App. 653, 177 So.2d 107, this case is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and Remanded.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    In re Donald Roland SHIRLEY v. STATE of Alabama. Ex parte STATE of Alabama.
    77-616.
    Supreme Court of Alabama.
    Sept. 8, 1978.

      William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
    Marion F. Walker, Birmingham, for respondent.
   TORBERT, Chief Justice.

Petitioner, the State of Alabama, seeks a writ of certiorari to review the discharge by the Court of Criminal Appeals of respondent, Donald Shirley, in a habeas corpus proceeding, 363 So.2d 103. Shirley was indicted in Texas in 1969 for the crime of murder with malice. He was arrested in Tuscaloosa, Alabama in November 1977. Subsequently, the Governor of Texas issued a requisition warrant for the arrest and return of Shirley. The Governor of Alabama then issued a rendition warrant based on the request of the Governor of Texas and the supporting papers.

In December 1977, Shirley filed a petition for writ of habeas corpus in the Tuscaloosa County Circuit Court. At the hearing on the petition, the prosecutor introduced the rendition warrant into evidence, but did not introduce the requisition warrant or supporting papers. The writ was denied. Shirley appealed the decision to the Court of Criminal Appeals who reversed holding that under Meadows v. State, 38 Ala.App. 319, 82 So.2d 811 (1955) and Aldio v. State, 42 Ala.App. 653, 177 So.2d 107 (1965), the failure to introduce the requisition warrant at the trial court level is sufficient “in and of itself” to require a reversal.

Petitioner contends that this holding is in conflict with prior decisions of the Court of Criminal Appeals and maintains that a rendition warrant reciting the necessary jurisdictional facts is sufficient to make out a prima facie case for the detention of the prisoner without the need for introduction of the requisition warrant and supporting papers. We agree.

The statutory requisites for issuance of a rendition warrant by the governor are:

No demand for the extradition of a person charged with a crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found, or by an information supported by affidavit, in the state having jurisdiction of the crime or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.

Alabama Code § 15-9-31 (1975).

A warrant of extradition must not be issued unless the documents presented by the executive authority making the demand show that the accused was present in the demanding state at the time of the commission of the alleged crime and that he thereafter fled from that state and is now in this state, and that he is lawfully charged by indictment or by an information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of a crime in that state and has escaped from confinement or broken his parole.

Alabama Code § 15-9-33 (1975).

It is well settled that if the rendition warrant recites certain jurisdictional facts, to-wit: (1) that there was a demand in writing for the return of the person named in the warrant as a fugitive from justice by the executive authority of the state from which he fled, (2) that the requisition was accompanied by a copy of an indictment found, or an information or an affidavit before a magistrate, substantially charging the person demanded with a crime under the laws of the state from whose justice he fled, and (3) that the copy of the indictment, information or affidavit was authenticated by the executive authority making the demand, then a prima facie case is made out for detention and the burden shifts to the prisoner to rebut the State’s prima facie case. See Morrison v. State, 258 Ala. 410, 63 So.2d 346 (1953); State v. Parrish, 242 Ala. 7, 5 So.2d 828 (1941); Peacock v. State, 48 Ala.App. 391, 265 So.2d 175 (1972); State v. Shelton, 30 Ala.App. 484, 8 So.2d 216 (1942). It is not necessary for the establishment of a prima facie case that the requisition warrant and supporting papers be introduced into evidence when the rendition warrant makes the required showing. See Stinson v. State, 43 Ala.App. 27, 179 So.2d 94 (1965); State v. Freeman, 42 Ala.App. 240, 160 So.2d 12 (1964); Denson v. State, 36 Ala.App. 216, 57 So.2d 830 (1951); State v. Knight, 31 Ala.App. 174, 14 So.2d 159 (1943).

In the ease at bar, it does not appear from the opinion of the Court of Criminal Appeals whether the rendition warrant recited the necessary jurisdictional facts. So we refer to the record, which is proper on certiorari when there is no dispute about the facts, as here, for a more complete understanding of those features of the record which have been treated in the opinion of the court of appeals. See Ison v. State, 281 Ala. 189, 200 So.2d 511 (1967); Weigart v. State, 279 Ala. 609, 188 So.2d 919 (1966); Johnson v. State, 277 Ala. 655, 173 So.2d 824 (1965). We find that the rendition warrant reads in pertinent part as follows:

I, GEORGE C. WALLACE, Governor of the State To any SHERIFF, CORONER, CONSTABLE or other OFFICER authorized by Law to make Arrest send GREETING: WHEREAS, His Excellency, DOLPH BRISCO Governor of the state of TEXAS, by requisition dated the 16TH day of DECEMBER, 1977 has demanded of me, as Governor of the State of Alabama, the surrender of DOYLE SHIRLEY who, it appears, is charged by INDICTMENT & CAPIAS, in the county of CHAMBERS in said State, with the crime of MURDER WITH MALICE (a duly certified copy of which INDICTMENT & CAPIAS accompanies said requisition) and it appearing that said DOYLE SHIRLEY has fled from justice in said State and taken refuge in the State of Alabama. .

The rendition warrant did contain sufficient jurisdictional facts to establish a pri-ma facie case for lawful detention; thus, the burden was on Shirley to rebut the State’s prima facie case by showing that he was not the identical person named on the indictment or that he was not a fugitive from justice. See Denson v. State, supra; State v. Shelton, supra; State v. Knight, supra.

Although not required, if the requisition warrant and supporting papers are introduced into evidence, then it is the duty of the court to examine them for their sufficiency notwithstanding the introduction of a proper rendition warrant containing the jurisdictional recitals. Harris v. State, 257 Ala. 3, 60 So.2d 266 (1951). And in any event, the prisoner may make a timely demand for production of the allied papers. Johnson v. State, 261 Ala. 1, 72 So.2d 863 (1954).

In both cases relied upon in the opinion of the Court of Criminal Appeals, these allied papers were introduced into evidence and were found to be insufficient to support issuance of the rendition warrant. Aldio v. State, 42 Ala.App. 653, 654-55, 177 So.2d 107, 109 (1965); Meadows v. State, 38 Ala. App. 319, 320, 82 So.2d 811, 811 (1955). And in Aldio, the rendition warrant itself was insufficient to establish a prima facie case. In each case, then, the prisoner was discharged not because of a failure to introduce the allied papers into evidence; but because once introduced and examined, such papers were insufficient to satisfy the statutory requirements for issuance of the rendition warrant.

Accordingly, this case is reversed and remanded.

REVERSED AND REMANDED.

BLOOD WORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: Per Curiam.

text:
    Donald Roland SHIRLEY, alias v. STATE.
    6 Div. 726.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
   AFFIRMED on authority of opinion of the Supreme Court of Alabama, 77-616, dated September 8, 1978, 363 So.2d 104.

Per Curiam.

All the Judges concur.


author: BOWEN, Judge.

text:
    Lawrence CRAWFORD v. STATE.
    3 Div. 750.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.
    Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted of murder in the second degree and sentenced to eighteen years’ imprisonment.

Under the state’s evidence the appellant intentionally and wilfully shot and killed Walter Lee Frazier on November 26, 1976, at the corner of Cleveland Avenue and Wayne Street in Montgomery, Alabama.

The defense was self-defense and, if believed, shows that the appellant accidentally shot the deceased. Under the defense testimony the deceased came over to the appellant’s car to get a ride home. The deceased then jerked open the car door, grabbed the appellant by his coat lapel, and threatened to kill him if he either said or did anything to Elsie, the common law wife of the deceased and the former girlfriend of the appellant. The appellant got out of his car and “the deceased made a break at him, gritting his teeth, and the appellant pulled his gun”. Elsie came between them, “tussled” with the appellant and the pistol discharged, shooting the deceased in the neck and causing his death.

Only one instance of error is assigned on appeal and concerns the failure of the trial judge to give the following written charge requested by the defendant.

“Jury Charge No. 13:
“The court charges the jury that the defendant may offer proof of the deceased’s reputation for being a turbulent, violent, and bloodthirsty individual, and that such proof taken in connection with all the evidence in the case, may be sufficient to create a reasonable doubt of the guilt of the defendant.” (Emphasis added)

The trial judge did give a written requested charge very similar to the one refused and set out above. The given charge read:

“Jury Charge No. 14:
“The court charges the jury that the defendant may offer proof of the deceased’s reputation for being a turbulent, violent and bloodthirsty individual and that such proof taken in connection with all the evidence in the case, may be sufficient to create a presumption of self-defense.” (Emphasis added)

A review of the reported eases fails to reveal a ruling by any appellate court of this state approving or disproving either charge.

In Smith v. State, 88 Ala. 73, 7 So. 52 (1889), the following charge, of similar import, was approved:

“If the jury believes from the evidence that the deceased was of a violent and bloodthirsty character, they are to take such evidence into consideration in determining the degree of the defendant’s guilt, provid[ing] they find him guilty.” The court stated that where testimony is sometimes admissible only for a specific purpose, such as testimony proving or disproving the character of the person alleged to have been injured for turbulence, violence, or bloodthirstiness, the jury should be told to what extent this exceptional testimony should be weighed by them.
“(I)f the jury finds the defendant guilty, the character of the deceased for violence or bloodthirstiness may be considered by them in determining the degree of the homicide. This, because in altercations with persons of such character, doubts are more readily indulged, and prompter defensive measures may become necessary, than would be permitted between persons of peaceable habit. ‘On all doubtful questions as to who was the aggressor, the violent or blood-thirsty character of the deceased, if such be his character, enters into account. More prompt and decisive measures of defense are justified, when the assailant is of known violent and blood-thirsty nature. But this principle is confined to defensive measures. It furnishes no excuse or palliation for aggressive action.’ DeArman v. State, 71 Ala. 351, 361.
“The second charge asked, simply declared the proper scope and function of the testimony, as applied to this case, and should have been given . . . .” Smith, 88 Ala. at 77, 78, 7 So. at 53.

See also Collier v. State, 57 Ala.App. 375, 328 So.2d 626, cert. denied, 295 Ala. 397, 328 So.2d 629 (1976); McMillon v. State, 37 Ala.App. 690, 74 So.2d 728 (1954); Abercrombie v. State, 33 Ala.App. 581, 36 So.2d 111 (1948); Jacobs v. State, 29 Ala.App. 388, 197 So. 67, cert. denied, 240 Ala. 58, 197 So. 69 (1940), also approving this same charge.

Evidence of the general reputation of the deceased for violence, bloodthirstiness, or dangerousness is admissible “as having probative value on elements of the doctrine of self defense, other than the single issue concerning who was the aggressor”. Brooks v. State, 263 Ala. 386 at 389, 82 So.2d 553 at 554 (1955). Evidence of this type is also admissible for the purpose of showing a reasonable apprehension of immediately pending danger which would justify the accused in striking more quickly, under the circumstances prevailing at the time of the homicide. Brooks, 363 Ala. at 309, 82 So.2d 553.

The trial court acted properly in refusing Requested Charge No. 14 which was identical with the given Requested Charge No. 13 except that Charge No. 14 was phrased in terms of “a presumption of self-defense” and Charge No. 13, in terms of “a reasonable doubt of guilt”. The given requested charge fairly and adequately covered the principle embraced in the refused requested charge. Helms v. State, 254 Ala. 14, 47 So.2d 276 (1950); Campbell v. State, 29 Ala.App. 343, 195 So. 775 (1940); Self v. State, 21 Ala.App. 304, 107 So. 719 (1926). The trial court charged the jury on reasonable doubt and self-defense and instructed the jury that

“if you have any reasonable doubt as to the Defendant’s guilt arising out of his plea of not guilty or arising out of his plea of self-defense, then the form of your verdict would be, ‘We, the jury, find the Defendant not guilty’.”

Considering the charge as a whole and for the reasons noted above, we find that the action of the trial court in refusing Requested Charge No. 13 was without error.

As required by law we have searched the record for error. Finding none, we affirm the judgment of the circuit court.

AFFIRMED.

All Judges concur.


text:
    Ex parte Lawrence CRAWFORD.
    77-768.
    Supreme Court of Alabama.
    Oct. 27, 1978.
   JONES, Justice.

WRIT DENIED.

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


text:
    Van David DIAMOND v. STATE.
    1 Div. 930.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    Rehearing Denied Oct. 3, 1978.

      Willis W. Holloway, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the unlawful possession of marijuana and hydromorphone. Section 20-2-70, Code of Alabama 1975. The trial judge imposed a sentence of eight years’ imprisonment. Appellant’s retained attorney was appointed by the trial court to represent him on this appeal.

In urging this court to reverse his conviction, the appellant finds error in his trial because of (1) the failure of the trial judge to grant his motion to suppress the evidence of the fact that the appellant had a key to the house searched and (2) the three alleged prejudicial remarks made by the Deputy District Attorney in closing argument before the jury.

I

The trial court did not err in denying the appellant’s motion to suppress any testimony concerning the appellant’s act of producing a key and unlocking the door to the house where the drugs were found.

Based on the testimony of a reliable informant, Prichard Police Detective Jack Harbin obtained a search warrant to search inside the appellant’s residence at 617 Baldwin Drive, Prichard, Alabama, for the presence of Dilaudids (hydromorphone).

The search warrant was executed within two hours after its issuance. Detective Harbin testified that when he went to the residence to execute the warrant the appellant and three other males drove up and stopped in front of the house. Two men got out but the other man and the appellant drove away only to be stopped by a backup squad car and returned to the residence. Detective Harbin told the appellant that they had a search warrant to search his house and needed to get inside.

“When we got back to the door, I asked him to unlock the door, if not we would have to force it open with a sledge hammer. At this time he pulled a key out of his pocket and unlocked the door.”

On these facts it is argued that the appellant’s actions were involuntary and an infringement of his right against self-incrimination.

Section 15-5-9, Code of Alabama 1975, furnishes the authority for an officer, in executing a search warrant, to break into a house.

“To execute a search warrant, an officer may break open any door or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance.”

However it is not always necessary to have an affirmative refused admittance before an officer will be justified in forcing entry. This statute does not prohibit officers executing a warrant from forcing an entrance into a house which is unoccupied or where they have failed to obtain a response within a reasonable period.

Subject to the constitutional requirement that an officer use only reasonable force in gaining entry to execute a search warrant, the execution of a search warrant by forceful entry on an unoccupied residence is not per se unreasonable. The constitution does not require that the occupant be present before his home can be searched under a valid search warrant. United States v. Gervato, 474 F.2d 40, 43 (3rd Cir.), cert. denied, 414 U.S. 864, 94 S.Ct. 39, 38 L.Ed.2d 84 (1973); Payne v. United States, 508 F.2d 1391 (5th Cir.), cert. denied, 423 U.S. 933, 96 S.Ct. 287, 46 L.Ed.2d 263 (1975).

Under the circumstances, Detective Harbin was only informing the appellant of what he had a proper and legal right to do. The fact that the appellant then opened the door with a key which he produced from his pocket is no more incriminating than if, being inside the residence, he had opened the door to admit the officers after having been informed of their authority.

II

The appellant predicates three errors on the remarks of the Deputy District Attorney made in closing argument to the jury.

A.

The first objected to remark is contained in the following portion of the record.

“MR. VALESKA (Deputy District Attorney): Look at this piece of paper when you go back there and use your common sense. That will tell you what type person the Defendant is, this one little piece of paper.
“MR. HOLLOWAY (Defense Counsel): Judge, wait a minute, I’m going to object to a statement about referring to State’s Exhibit .
“MR. VALESKA: Five.
“MR. HOLLOWAY: Five, the statement about referring to this one little piece of paper, that will tell you what kind of person he is, as implying that the Defendant is guilty of crimes other than those charged in the indictment.
“THE COURT: Sustain the objection.
“MR. HOLLOWAY: I move the Court to instruct the jury to disregard that statement.
“THE COURT: Disregard Mr. Valeska’s last statement.
“MR. HOLLOWAY: I would also move the Court to grant a mistrial.
“THE COURT: Denied.”

The trial judge sustained defense counsel’s objection and instructed the jury to disregard the remark. This was sufficient to cure any possible prejudice generated by the prosecutor’s statement.

A motion for a mistrial implies a miscarriage of justice and should only be granted where it is clearly manifest that justice cannot be afforded. Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312 (1974); Section 12-16-233, Code of Alabama 1975. A mistrial does not serve the same function as a mere objection or motion to strike and is not ordinarily used to indicate a mere erroneous ruling of law. It specifies such fundamental error in a trial as to vitiate the result. Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501 (1967).

“A mistrial will not be granted on motion of defendant where the court has sustained his objections to alleged improper argument and excluded it from the jury’s consideration, unless it clearly appears that the defendant’s rights have been so prejudiced as to render a fair trial a matter of grave doubt.” Watson v. State, 266 Ala. 41, 44, 93 So.2d 750, 752 (1957).

We cannot say that the statement in this case was so injurious as to deprive the appellant of a fair trial. Price v. State, 348 So.2d 517 (Ala.Cr.App.1977); McCulloch v. State, 338 So.2d 187 (Ala.Cr.App.1976).

B.

The appellant would also have this court reverse his conviction because of the following statement of the prosecutor.

“MR. VALESKA: What is the one question that I submit to you will solve this whole case, the one question the Defense did not ask and did not put up any testimony to? They brought the Defendant’s friend right in here to testify to you, (Mr. Valeska writes on blackboard) but they didn’t ask him that question.”
* * * * * *
“MR. HOLLOWAY: Judge, at this time the Defense would object to the statement of the Prosecutor to the jury that one question the Defense did not ask, did not put up any testimony on, was where did Van Diamond live. I submit that is a comment on the Defendant’s failure to take the witness stand.
“THE COURT: How did he ask the question?
“MR. VALESKA: What I said was something to the effect that they brought a person in to testify, but the one question they did not ask him was, and I wrote on the board, where did the Defendant live.
“MR. HOLLOWAY: Have you got that on record anywhere? I want that put on record, Judge, that statement by the State that ‘They did not put on any testimony as to where did Diamond live’.
“THE COURT: It will become. I deny your motion for a mistrial.”

In the context in which it was made we find this argument unobjectionable. A statement by the prosecuting attorney to the effect that the evidence for the state is uncontradicted or undenied is not a comment on the defendant’s failure to testify unless the defendant himself is the only one who can contradict or deny that evidence. Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Robinson v. State, 352 So.2d 11 (Ala.Cr.App.), cert. denied, 352 So.2d 15 (Ala.1977). Here the prosecutor simply stated that defense counsel did not ask the one witness called on behalf of the defendant where the defendant lived. This was properly within the scope of argument as being merely a comment that the state’s evidence was uncontradicted. Swain v. State, 275 Ala. 508, 156 So.2d 368 (1963); Welch v. State, 263 Ala. 57, 81 So.2d 901 (1955); Richardson v. State, 354 So.2d 1193 (Ala.Cr.App.1978).

C.

The appellant objected to a third comment made by the prosecutor in closing argument.

“MR. VALESKA: Look at that stuff in there. I don’t have to tell you what damage it does in this community. I don’t have to tell you how it hurts the young people in this community, how they prey on them. It robs them of their minds, it robs them of their athletic ability because of people like him, and you may not in your life have ever run across one .
“MR. HOLLOWAY: Judge, I want to make an objection.
“MR. VALESKA: . . . but there he is.
“MR. HOLLOWAY: Judge, I’m going to object to his statement of this stuff robbing young people of their minds and their athletic ability because of people like the Defendant as being improper comment. There is absolutely no evidence of any young people or anything else in this trial.
“THE COURT: I deny your motion.
“MR. HOLLOWAY: I would move for a mistrial.
“THE COURT: Denied.”

The affidavit supporting the search warrant was admitted into evidence. In this affidavit Detective Harbin stated that his informer had seen the appellant sell two yellow tablets of Dilaudid to an unknown white male for forty dollars. When arrested the appellant had his child with him. There was testimony that the appellant and three other males drove up to the appellant’s residence and two “guys” got out. One of the “guys”, Jerry Driggers, testified for the appellant and stated that he was twenty-three years old.

In numerous cases convictions have been reversed for prosecutorial accusations of other crimes, unsupported by the record, or appeals to the passion and prejudice of the jury. Racine v. State, 290 Ala. 225, 275 So.2d 655 (1973). A statement that the defendant would sell liquor or narcotics to children, where not supported by the evidence, is improper and a reversal will follow where the objection to such remark is overruled. Roden v. State, 3 Ala.App. 202, 58 So. 72 (1912); Racine, supra. The rule was discussed in Dollar v. State, 99 Ala. 236, 237, 238, 13 So. 575, 576 (1892).

“We do not think a narrow or rigid rule should be laid down in restraint of the argument of counsel. Observation and experience show that jury trials rarely occur wherein counsel, in the zeal of discussion, are not led to indulge impertinent remarks, the expression of personal opinions, and often to draw illogical and improper deductions from the evidence. It often occurs, too, that counsel differ as to the testimony of witnesses, each insisting upon his recollection or version of facts which have been deposed to. In the interest of the ending of litigation, a wide range must be given to the arguments of counsel, and much must be left to the good sense and sound judgment of the jury, who will ordinarily be able, under proper instructions from the court, to give proper consideration to what has been said, and not suffer themselves to be influenced by outside and irrelevant matters, and improper opinions and conclusions, drawn into the discussions before them. But there should be a limit placed upon this license. Counsel should not be permitted by the court, against the objection of the opposite party, to state as fact that of which there is no evidence whatever, and particularly that which is irrelevant to his adversary’s cause, and of which no evidence would have been received if offered, if the facts so stated are of such a character as that they are well calculated to impress the minds of the jurors, or some of them, to the injury of the opposite party.”
# jje * * * *
“We do not mean to say that the solicitor may not comment upon the evils generally of the crime which the law he is seeking to enforce intends to prevent; but he goes beyond this when he gratuitously states to the jury, as fact, the existence of particular evils, in the locality of defendant’s offense, and to which that offense is supposed by him to be related. The defendant’s guilt must be determined by the facts touching the particular act with which he is charged, and, as we have said, his punishment must be determined by the nature of the act committed, and a consideration of the evils generally resulting from the commission of such acts, within the limits prescribed by law.”

Where the prosecuting attorney asserts a fact not in evidence which is prejudicial to the defendant it is error. McAdory v. State, 62 Ala. 154 (1878). Thus it constituted reversible error for the District Attorney to argue “whose children were these drugs to be sold to? How much money was to be made by selling this illegal drug?” in a prosecution for falsely obtaining Dilaudid, where such statements did not find eviden-tiary support in the record and constituted an appeal to passion and prejudice. Taylor v. State, 54 Ala.App. 353, 308 So.2d 714 (1975). The prosecutor’s argument that there was no telling how many 15, 16 and 17-year old girls and boys the defendant had sold to constituted reversible error in a prosecution for possession of heroin wherein evidence was offered that the defendant had sold heroin to a 15 or 16-year old boy and no evidence was offered that he had sold it to a girl. Smith v. State, 51 Ala. App. 527, 287 So.2d 238, cert. denied, 292 Ala. 750, 289 So.2d 808 (1974).

In this instance the objected to remarks do not directly charge the appellant with selling drugs to young people. While that meaning could, perhaps, be read into the remark, the statement could also be considered as an appeal to law enforcement and a comment on the evils of the crime charged. The trial judge was in the best position to determine the propriety of the argument and under these circumstances we are unwilling to find that he abused his discretion in overruling the objection. An appeal for law enforcement is within the limit of legitimate forensic discussion. Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968); Sanders v. State, 260 Ala. 323, 70 So.2d 802 (1954); Price v. State, 348 So.2d 517 (Ala.Cr.App.1977); Cooper v. State, 55 Ala.App. 576, 317 So.2d 543 (1975).

We have written to every error assigned by the appellant and searched the record on appeal. Finding that the appellant received a fair trial free of injury to his substantial rights, we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.