author: BRADLEY, Judge.

text:
    RICHARD KELLEY CHEVROLET COMPANY, INC., a corporation, v. Charles M. SEIBOLD.
    Civ. 1484.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.

      J. Reese Johnston, Jr. and James M. Holmes, Birmingham, for appellant.
    James R. Moncus, Jr., Birmingham, for appellee.
   BRADLEY, Judge.

Defendant corporation appeals from a verdict and judgment in favor of plaintiff and from the denial of judgment n. o. v. or alternatively for new trial. The Circuit Court for the Tenth Judicial Circuit, Jefferson County, sitting with a jury, rendered a $5,500 judgment in plaintiff’s favor based on defendant’s wrongful detention for eighteen to twenty days of plaintiff's automobile and certain items of personal property therein. We affirm.

This appeal arises out of the following facts. On or about May 17, 1976 plaintiff Seibold came to defendant Richard Kelley Chevrolet’s place of business, an automobile dealership in Jefferson County, for the purpose of looking at used automobiles. One of the dealership’s salesmen, Richard L. Harmon, met and worked with plaintiff on that evening. Plaintiff became interested in one particular 1974 Pontiac on defendant’s lot, and discussed with the salesman the possibility of a trade whereby plaintiff would give his then-present vehicle, a 1973 Chevrolet, plus cash in exchange for the 1974 Pontiac.

During the negotiations for the trade, defendant’s salesman produced a document entitled “Retail Offer for a Motor Vehicle.” As plaintiff and salesman calculated the amount of cash plaintiff was willing to give in addition to his trade-in, a proposed amount would be written down on the document, and the salesman alone would advise the dealership’s sales manager, Olin Bryant, of the proposed amount. If the figure was not acceptable to the sales manager, he would “x” out the figure and the salesman would return to negotiate further with plaintiff. Over the course of one to two hours, numerous attempts were made to arrive at a mutually satisfactory amount. Eventually a final figure was agreed upon. Both plaintiff and the sales manager initialed that figure.

The document identifies the automobiles involved in the trade, lists plaintiff’s name and address, itemizes the various components of the total sales price, and states in pertinent part:

Purchaser by his execution of this order agrees to purchase the described motor vehicle from Richard Kelley Chevrolet, Inc. at the price indicated hereon . . . This offer shall not become binding until accepted by dealer or his authorized representative.

Immediately below this quoted portion are spaces for two signatures; one space styled “Purchaser’s signature,” which was signed by plaintiff that evening, and the other space, styled “Accepted by,” containing sales manager Olin Bryant’s signature.

As was customary for that dealership, the salesman asked for a $100 deposit on the car, but plaintiff had only $25 at the time and left that amount as the deposit. Plaintiff refused the salesman’s request to leave his Chevrolet at the dealership that night and use one of the dealership’s demonstrators until plaintiff took delivery of the Pontiac. Plaintiff stated that some of his personal property was still in his car and that he could not leave his car that night. These personal items in plaintiff’s car were plaintiff’s $400 paycheck, a suit, two pairs of shoes, sunglasses, and miscellaneous business papers.

The record indicates that both plaintiff and salesman understood that the-trade was contingent on plaintiff’s obtaining financing from his bank. However, the document signed by plaintiff mentioned neither this contingency nor the deposit requirement.

The next meeting between the salesman and plaintiff occurred the next morning, May 18, when the salesman visited plaintiff’s place of employment. At that time the salesman left plaintiff the keys to a demonstrator and drove plaintiff’s Chevrolet, with the personal items still in the ear, back to the dealership. Plaintiff was to contact his bank about the financing of the trade, and then come back down to the dealership that afternoon. When plaintiff did not show up that afternoon as expected, the salesman contacted plaintiff’s bank and was told that there was no problem with plaintiff’s credit.

Meanwhile plaintiff, having learned from his bank the amount of monthly payments that would be required to consummate the trade with defendant, decided not to buy the 1974 Pontiac because the payments were too high. Thereupon plaintiff drove the demonstrator to another car dealership, Parkway Auto Sales, to look for another used car.

Plaintiff asked a Parkway employee, John Parker, to go to defendant’s dealership and pick up plaintiff’s Chevrolet. Parker failed in his attempt to do so, being told by defendant’s sales manager, Olin Bryant, that plaintiff had already traded with Richard Kelley Chevrolet.

Plaintiff himself went to defendant’s dealership and repeatedly requested that his car be returned to him. Defendant’s sales manager on duty at the time, Bob Reed, told plaintiff that, as far as the dealership was concerned, the trade had already been made, and that “plaintiff’s car” was outside, pointing to the 1974 Pontiac. The sales manager also told plaintiff that he would be glad to discuss any problem that may have arisen concerning the trade.

After plaintiff’s requests for return of his Chevrolet had been denied, plaintiff left the premises of defendant’s dealership. During the next few days plaintiff purchased a used car from Parkway Auto Sales.

Plaintiff filed suit against Richard Kelley Chevrolet, Inc., sales manager Olin Bryant, and salesman Richard Harmon, claiming compensatory and punitive damages for the conversion of his Chevrolet and the personal property therein. On or about June 4, 1976 defendants returned possession of the car and personal items to plaintiff, having detained this property for eighteen to twenty days.

Plaintiff’s testimony indicated that during the initial negotiations for the trade, plaintiff told the salesman that he could not bind himself to a deal that evening because he had not yet made arrangements with his bank for financing the trade, but that if he decided he wanted the car or if he thought he was interested, he would call the salesman. Plaintiff testified that the salesman had reassured him that his signature on the “Retail Offer” document would not commit him to the proposed trade, nor would his signature authorize defendant to “take his car,” and that plaintiff “had to sign it before the offer could even be approved.” The salesman agreed that the document “doesn’t mean anything, except we’re getting around to an agreement on a price,” and that plaintiff’s $25 deposit would be returned if plaintiff decided not to take the car.

Plaintiff testified that the salesman attempted to get him to fill out some other document that evening, apparently a GMAC contract or something similar, but plaintiff told him, “I didn’t want to, didn’t have time, I needed to get home. So, I left

Plaintiff further testified that the next day when the salesman came to plaintiff’s place of employment, the salesman represented to him that plaintiff’s Chevrolet was being taken in for appraisal as to its trade-in value. No statements were made by either to indicate that the proposed trade had already been consummated. Plaintiff also testified that after defendant’s denial of his request to get his Chevrolet back, defendant also refused to allow him to retrieve his personal property from that car. Plaintiff conceded that he was never treated rudely or discourteously by defendant.

Plaintiff testified that defendant’s conduct damaged him in several ways. The deprivation of his car for twenty days required him to borrow cars from various persons, and soon required him to buy another car “at whatever price I had to buy it at” in order to commute back and forth from his home in Guntersville to his job in Birmingham. He also had to continue to make payments to his bank on the car in defendant’s possession. The deprivation of his paycheck caused him to go without a paycheck for a month, and required him to borrow money from friends and relatives. He also was deprived of the use of the other items in the car.

Testimony adduced on behalf of defendant tended to show that defendant took possession of and retained plaintiff’s car pursuant to a mutually-binding contract. Plaintiff voluntarily gave up possession of the Chevrolet to the salesman who made no representations to him that the car was being taken in for appraisal. The demonstrator, rather than the 1974 Pontiac, was left with plaintiff at that time because the agreed-upon cash payment had not yet been tendered by plaintiff. The salesman testified that “until an automobile or vehicle is paid for there can be no sale.”

The salesman further testified that when plaintiff demanded return of his car, he gave no explanation as to why he would not go through with the trade. Nor did plaintiff ever request that he be allowed to retrieve the personal property in the car. Defendant concedes that the paycheck, suit, etc. formed no part of the consideration for the trade. Defendant became aware of the presence of the personal items in the car on May 18, after the salesman had brought plaintiff’s Chevrolet back to the dealership.

The judgment, based on the jury verdict, was rendered in favor of plaintiff and against defendant Richard Kelley Chevrolet Company, Inc. only, and assessed plaintiff’s damages at $5,500. Defendant appeals from this judgment and from the denial of defendant’s motion for judgment n. o. v. or in the alternative for a new trial.

Defendant’s basic contention on appeal is that its detention of plaintiff’s car was justified by the valid, mutually-binding contract (i. e. the “Retail Offer” document). Its lawful possession of the Chevrolet pursuant to that contract did not constitute a conversion. Defendant argues that the trial court erred in admitting parol testimony at trial to vary or contradict the terms of the written contract, and also erred in submitting to the jury the question of the existence vel non of the contract.

We note at the outset that defendant failed to object to the trial court’s instructions to the jury before it retired to consider its verdict, and thus defendant is precluded from now raising this alleged error as cause for reversal. Lankford v. Redwing Carriers, Inc., Ala.Civ.App., 344 So.2d 515, cert. den. Ala., 344 So.2d 522 (1977); Rule 51, ARCP.

The parol evidence rule is generally defined as follows:

When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing. (Footnote omitted.) 3 A. Corbin, Contracts, § 573, at 357 (1960).

Any application of the rule presupposes the existence of an existing, valid contract expressing the obligations of the parties. Sellers v. Dickert, 185 Ala. 206, 64 So. 40 (1913). In this action the crucial issue is not what terms are or are not included in the contract, but rather, whether an agreement existed which justified defendant’s retention of plaintiff’s automobile.

On the issues of whether a contract is void, voidable or reformable because of illegality, fraud, mistake or any other reason and whether the parties assented to a particular writing as the complete and accurate integration of their contract, there is no parol evidence rule to be applied. On these issues no relevant evidence, parol or otherwise, is excluded. No written document is sufficient, standing alone, to determine any one of them, however long and detailed it may be. No one of these issues can be determined by mere inspection of the written document. See 3 A. Corbin, Contracts, § 573 at 360 (1960). Accord, Battery Steamship Corp. v. Refineria Panama, S. A., 513 F.2d 735 (2nd Cir. 1975).

Our case law is in accord with these principles. In Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So. 665 (1938) the supreme court affirmed the trial court’s ruling allowing into evidence plaintiff’s testimony of an oral agreement which contradicted a written agreement, where the written contract was signed by plaintiff who was invited not to read the contract and who was told that there was no “catch” in it. The court’s opinion states that the parol agreement was admissible upon the theory that it clearly appears the parties never intended that the written contract should express their full agreement.

The Alabama Supreme Court has recently cited with approval Alabama Power Co. v. Pierre, holding that parol evidence is admissible where there is doubt that a written agreement was intended to reflect the full agreement between the parties. I. H. M., Inc. v. Central Bank of Montgomery, Ala., 340 So.2d 30 (1976). There the court noted “that the written document in question was clearly intended only as a memorandum of agreement and that the execution of a more formal document, containing all of the terms of the agreement, was contemplated by the parties. Under these circumstances, the opinion states, it is perfectly permissible for the court to look to pre-contract negotiations and the conduct of the parties to determine what was meant by their agreement.

We think the principles discussed above are controlling in the case at bar. The testimony of defendant’s salesman indicated that the “Retail Offer” document was subject to certain contingencies and conditions, one of which was plaintiff’s obtaining financing for the trade. Plaintiff’s testimony was that the salesman told him that his signature on the document would not bind him to the trade and that he could have his deposit returned to him should he decide not to go through with the trade. Plaintiff’s refusal to sign the GMAC contract proffered by defendant’s salesman could reasonably be viewed by the jury that the evening’s discussions were merely non-binding preliminary negotiations, and that a more formal, binding contract was contemplated by the parties. See Restatement (2d) of Contracts, § 26 (1973).

Plaintiff’s testimony, uncontradicted by that of defendant’s salesman, tended to show that the salesman knew that plaintiff was unable to make a binding agreement on the evening of the initial negotiations. Section 25 of the Restatement (2d) of Contracts (1973) provides in pertinent part:

Preliminary Negotiations
A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.

The comments to that section provide in pertinent part:

a. Interpretation of proposals for exchange. ... If the addressee of a proposal has reason to know that no offer is intended, there is no offer even though he understands it to be an offer. “Reason to know” depends not only on the words or other conduct, but also on the circumstances, including previous communications of the parties .
e. Written contract documents. A standard method of making an offer is to submit to the offeree a written agreement signed by the offeror and to invite the offeree to sign on a line provided for that purpose. . . . But the signature even in such a case is not conclusive if the other party has reason to know that no offer is intended. . . . Reason to know that such is the intention may exist even though the document on its face seems to be clear and unambiguous. (Emphasis supplied)

The jury might reasonably have inferred from the evidence presented that plaintiff was not making an offer to the salesman, that the salesman knew or had reason to know this fact, and that a meeting of the minds, a sine qua non of a binding contract, was not present. Moreover, this record reveals that plaintiff’s understanding of the initial negotiations was that defendant would make an offer to him, based on the “Retail Offer” document.

Our view in the case at bar is further supported by the opinion in Roan v. McCaleb, 264 Ala. 31, 84 So.2d 358 (1955). In that case plaintiff-buyer was to trade his Chevrolet and cash in exchange for a Ford from defendant-automobile dealer. The dealer asked plaintiff to sign a document which purportedly would provide insurance coverage for the Ford while plaintiff took possession of the Ford overnight to “try it out.” The document, in fact, was a sales contract with blanks which were not then, nor ever, filled in. When plaintiff returned the car the next day, having decided not to trade cars, he found that the dealer had already disposed of his Chevrolet. In plaintiff’s suit for conversion, the dealer contended that a firm trade had been made. The supreme court, in sustaining plaintiff’s recovery, stated that defendant’s contention that a firm trade had been made presented an issue for the jury.

In sum, we hold that the trial court properly admitted into evidence the parol testimony, and that submission to the jury of the question of defendant’s rights, if any, to the car under the “Retail Offer” document was not reversible error.

Defendant’s next contention is that the jury verdict of $5,500 — an amount which obviously included punitive as well as compensatory damages — demonstrates bias, prejudice, and improper motive on the part of the jury and is excessive. Since there existed a valid contract between plaintiff and defendant, it is argued, defendant’s detention of the automobile did not constitute the “knowing, intentional and wilful violation” of the law and of plaintiff’s rights which would authorize the award of punitive damages. Likewise, no attendant circumstances of insult or malice were present in this case to warrant such damages. We disagree.

The jury might reasonably have concluded from the evidence that defendant, having no right to keep the car under the agreement between the parties, intentionally and willfully violated the law and plaintiff’s rights by its actions. The intentional, willful and knowing violation of the law and of plaintiff’s rights in and of itself is legal insult, contumely and malice, and would authorize the jury in its discretion to award punitive damages. Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975); Parker v. Sutton, 47 Ala. App. 352, 254 So.2d 425, cert. den. 287 Ala. 738, 254 So.2d 431 (1971). Nor are we able to agree with defendant that the verdict is excessive.

Defendant further argues that the trial court erred in failing to grant defendant’s motion for a directed verdict. The basis for this contention is the trial court erred in allowing parol evidence to vary the terms of the written contract which contained no ambiguous terms. In view of the foregoing discussion, we are unable to agree with this contention. In reviewing refusal of affirmative charge for defendant, we must review the evidence in a light most favorable to plaintiff and affirm the trial court’s action if there is a scintilla of evidence to support the complaint. Ramos v. Fell, 272 Ala. 53, 128 So.2d 481 (1961); ARCP 51. We believe there was at least a scintilla of evidence to support plaintiff’s claim, and that the trial court properly overruled defendant’s motion for directed verdict.

Defendant also assigned other grounds for its motion for new trial, but failed to argue these in brief. Therefore, we do not reach these arguments.

A motion for new trial is properly overruled when there is credible evidence which justifies the verdict. W. T. Ratliff Co. v. Purvis, 292 Ala. 171, 291 So.2d 289 (1974). We think the record reveals sufficient evidence to support the jury’s verdict. There being no reversible error, this case is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Shirley Reed SELF v. Raymond L. SELF.
    Civ. 1535.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.

      Edward B. McDermott, of McDermott, Deas & Boone, Mobile, for appellant.
    Thomas E. Bryant, Jr., of Gaston, Bryant, Gaston & Burns, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals from the provisions of the judgment relating to division of property and the failure to provide her alimony.

The parties married in 1969 at middle age after previous marriages of each had ended in divorce. The husband is employed as a plant pathologist by Auburn University. He is assigned to the experiment station owned by the university near Mobile. The parties lived for a time in the home owned by the wife. The husband then purchased some twenty-four acres of land upon which the wife built a home with funds of her own. The husband built greenhouses and began a plant nursery operation. The wife initially worked regularly in that business.

In this period, the parties executed a post-nuptial agreement whereby the husband deeded to the wife full title to twelve of the twenty-four acres purchased by him. The home built by the wife was located on the twelve acres deeded to her and the greenhouses were located on the twelve acres retained by the husband. Each party agreed to waive all marital rights or interest in the property of the other. Thereafter, the husband purchased an additional twelve acres with $5,000 borrowed from the wife. The husband thereafter built with his funds another bedroom onto the house of the wife and purchased appliances installed in the house. The evidence tended to show that these items were equal or greater in value than the $5,000 loaned to him.

The evidence was that the wife at the time of the hearing had a separate income of over $650 per month and had savings accounts of at least $5,000 with other interests in her father’s estate. The husband’s salary is some $25,000 per year and he often earns additional sums as a consultant. The nursery business and landscaping business at the time of the hearing was without capital but had stock which could be salvaged.

The evidence tended to show the husband had a drinking problem and had admittedly on one occasion been guilty of adultery. There was other evidence that he had a continuing relationship with the same woman.

The trial court by its judgment permitted the real property to remain as then titled. It awarded all household furnishings to the wife and all nursery property and equipment to the husband. It gave to the wife one automobile and to the husband a station wagon and a pickup truck. The husband was ordered to pay a fee of $750 to the attorney for the wife.

The wife contends the court abused its discretion in division of property and in failing to award alimony.

There is no disagreement between counsel in argument that the division of property and the granting of alimony are matters addressed to the judicial discretion of the trial court. Therefore, we need recite neither principle nor authority on those matters. Neither do we need repeat the principle of the presumption of correctness of the judgment of the trial court after orally hearing the testimony. We find no need to rely upon that principle in this case.

We affirm the judgment of the trial court, not because that judgment would have been ours had we sat as the nisi prius judge, for that is not a criterion for affirmance, but because upon consideration of the judgment in the light of the evidence, we do not find that judgment to be so arbitrary and unjust as to be a clear abuse of discretion. Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App., 1977).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Felicja Elizabeth OLDHAM v. Mervyn OLDHAM.
    Civ. 1538.
    Court of Civil Appeals of Alabama.
    Nov. 1, 1978.
    Felicja Elizabeth Oldham, pro se.
    Marcel E. Carroll, John T. Kirk, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals.

The parties separated in 1976 and a divorce from bed and board was granted on September 7,1976. There was no reconciliation and the husband filed for an absolute divorce on November 18, 1977. The wife answered and counterclaimed for divorce. The court heard the matter orally after considering briefs and arguments upon the legal propriety of the judgment of divorce from bed and board, wherein there was ordered a sale and division of the properties of the marriage including the homestead. There had been no appeal from that judgment but the sale of the home and payments to the wife ordered therein were apparently made by the husband and accepted by the wife. After hearing and consideration of oral testimony, without entering judgment upon the legality of the original judgment mensa et thoro, the court divorced the parties a vinculo and affirmed as its judgment the sale and division of property previously ordered in 1976 and partially executed.

By the judgment a vinculo, the wife was divested of any title in property purchased by the husband since the judgment mensa et thoro. She was granted title to specific items of personal property and divested of title to others. The husband was ordered to pay the wife $5,000 for her interest in the homestead. She was granted the sum of $350 per month as support. The husband was ordered to maintain life insurance of the death benefit of $10,000 with the wife as beneficiary. He was ordered to pay $1,000 as attorney fee for the services of the wife’s attorney.

The wife prosecutes this appeal pro se. No transcript of the evidence heard orally by the trial court has been presented to this court. This court has suspended all procedural rules for the benefit of the wife and has permitted her oral argument before the court. Though the court has attempted to give the wife explanation that this is an appellate rather than a trial court, she has not submitted to us errors of law committed by the trial court, but rather has submitted only her testimony of the events of her marriage and contended that it should not be put asunder by a secular court. We therefore have no alternative but to conclusively presume the judgment of the trial court was supported by the evidence and enter an affirmance. Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976), Rule 10, ARCP.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Jackie DEASON v. STATE.
    3 Div. 826.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.
    George W. Cameron, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., Elizabeth N. Petree and Samuel J. Clenney, III, Asst. Attys. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of the offense of carnal knowledge of a girl under twelve years of age and the jury fixed his punishment at nineteen years and six months in the penitentiary. At arraignment, in the presence of his attorney, he 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 was in sharp conflict. The victim was the stepdaughter of appellant and lived in the same house with him, her mother, two brothers and an infant sister. Appellant and his wife both worked but had different hours of employment. Appellant worked in the mornings and got off around 2:00 p. m. The mother went to work at 2:00 p. m. and got off around 10 o’clock each night. The victim and her brothers went to school and got back home around 2:30 or 3:00 p. m. We will set forth the evidence to prove appellant’s conduct and involvement with the victim.

The victim testified that she was born on January 10, 1965, and was twelve years of age at the time of appellant’s trial; that appellant and her mother had been married about eleven years. She spent the Christmas holidays with her aunt in Birmingham and then returned home to go back to school. In January of 1977 they were living at 227 Swan Lake Drive, Hope Hull, Montgomery County, Alabama, and she attended the Southlawn public school located about two miles from her home. She further testified that a couple of days or a week after she had started back to school she came home and appellant was there and was baby-sitting for her infant sister. She stated that her two brothers, ages thirteen and eleven, were told by her stepfather to go out of the house and play. She told her stepfather that she wanted to go play also, but he told her she had to stay in the house and watch the baby.

After the victim’s brothers went out of the house appellant told her he wanted her to do something for him and she protested as she knew what he meant and appellant started poking and tickling on her body. He then took off her shorts and pants. She told him that she didn’t want to do it and he said he was going to make her do it. Appellant then put her on the couch in the living room and got on top of her. In her words, “He took and laid on top of me and stuck his private into mine.” She felt him inside her and he remained inside her for a few minutes. He got off her and told her to go to the bathroom and wipe off. When she went into the bathroom, she noticed there was some “white stuff” between her legs and on her privates. She wiped it off and also wiped the inside of her private and removed all the fluid she could. She further stated that “when he first started doing it, he said not to tell anybody. He said don’t tell my Mama because she would whip me and then he would.”

The victim stated she did not tell her mother what her stepfather had done to her until about February 16, 1977. She explained she told her mother after watching the “Baretta” show on television where a “girl’s stepfather took her and went with her and got her pregnant." After viewing the show she became afraid and decided to tell her mother.

The victim further testified that her stepfather first had sexual relations with her when she was nine years of age and the last time was just before her twelfth birthday. She said that appellant had sexual relations with her more than five times from the time she was nine years old until she was eleven. She further stated that no one else had ever done this to her.

After the victim told her mother everything her stepfather had done to her, the mother carried her to Dr. Mont Highley, a medical doctor in Montgomery, whose qualifications were admitted by the defense. The doctor gave her a pelvic examination involving the vaginal area and the female organs.

From the record:

“The patient was brought to me by her mother giving a history of having had intercourse and she wanted her examined to be sure she did not have an infection, number one, and was not pregnant. Her condition was, number one, she did have a vaginal infection. It was not a venereal type infection. It is one commonly seen in women who are sexually active called trichomoniasis, and the other was that she was not a virgin.”

On cross-examination Dr. Highley testified, “what she told me was that the patient had been engaging in sexual activity with her stepfather since December. That is what I was told at that time.” He further stated that the girl was not a virgin but he did not know who destroyed her hymen.

The victim’s mother testified that on February 16, 1977 she had a conversation with her daughter about what appellant had been doing to her — that he had been having sex with her. Her daughter told her that it had been several times. She carried the victim to Dr. Highley who examined her and “he confirmed it that somebody had been going with her.”

The mother issued a warrant for the arrest of appellant and moved her children to Jefferson County where the victim would be safe from appellant. She subsequently got a divorce from appellant.

On cross-examination she was asked her feelings toward appellant and she replied, “Well, if he is guilty of it, I want him punished. If he is not guilty, I want him turned loose.”

Appellant offered the testimony of the two brothers of the victim both of whom testified that they had never seen appellant do anything wrong to the victim. One of them testified that he had seen a thirteen year old boy, Andy Ash, do something wrong with the victim but he never stated what he had seen. He said his stepfather was never in the house alone with the victim while he and his brother were playing outside the house.

The testimony of the other brother was of like import. He further stated that he saw his sister kissing a boy named Wade who was nineteen years of age.

Appellant offered the testimony of one Henry Cox, a minister of the Trinity Baptist Church on the Old Selma Road, who testified that appellant’s character and reputation were good in the community.

On cross-examination he stated appellant never came to his church; that he got to know him primarily as a customer at his place of business.

Appellant testified in his behalf and denied that he had ever done anything wrong with his stepdaughter.

On cross-examination he testified that he worked at the Thrifty Service Station on Lower Wetumpka Road and that his hours of employment were from 6:00 a. m. until 2:00 p. m. He said that his wife worked from 2:00 p. m. to 10:00 p. m. He stated that his stepdaughter went to Birmingham on December 24,1976 and stayed until January 9, 1977. He said there was snow on the ground and she couldn’t get back from Birmingham and the schools were closed. He stated that his stepdaughter was not even in Montgomery at the time it was claimed he had sexual intercourse with her.

On rebuttal the State called the principal of the Southlawn Elementary School who testified that she was custodian of the records of the school. She stated that the attendance record of the victim showed she was in school from January 3 through January 7, 1977. This attendance record was marked State’s Exhibit 2 and introduced into evidence. State’s Exhibit 1 was a certified copy of the birth certificate showing the victim was born on January 10, 1965, and it was introduced into evidence.

State’s Exhibit 2, the school attendance record, served to thoroughly impeach the testimony of appellant to the effect that victim went to Birmingham on December 24,1976, and did not return until January 9, 1977.

Conflicting testimony is for the jury and a verdict rendered thereon will not be disturbed on appeal. Woods v. State, Ala. Cr.App., 344 So.2d 1225; Young v. State, Ala., 346 So.2d 509; Carlton v. State, Ala. Cr.App., 342 So.2d 1382.

In a prosecution for carnal knowledge of a girl under twelve years of age, the condition of the genital organs of the victim after the offense is a relevant inquiry. Malloy v. State, 209 Ala. 219, 96 So. 57; Jenkins v. State, Ala.Cr.App., 339 So.2d 133.

Carnal knowledge is a statutory crime and was unknown to the common law. The design and breadth of our carnal knowledge statutes are to protect young girls of tender years from falling victims to the wiles, schemes, debasedness, and depravity of oversexed men who use arts of flattery and other inducements to persuade them to surrender their most precious possession to the gratifications of men who have lost their moral values and think of nothing save their animal instincts regardless of specific intent on the part of an accused to carry forward by the force the sexual act to completion, and regardless of consent or non-consent of the child. While consent is a defense in rape cases it is absolutely no defense to prosecutions under our carnal knowledge statutes. Owens v. State, 29 Ala.App. 53, 191 So. 899; Smith v. State, 34 Ala.App. 45, 38 So.2d 341; Powell v. State, 53 Ala.App. 30, 297 So.2d 163.

In McElroy’s Alabama Evidence, Third Edition, Gamble, Section 45.11(3), it is stated:

“In a prosecution for having carnal knowledge of a female under a specified age, the state may prove that the accused, prior to the act upon which the prosecution is based, had sexual relations with the female. The state is also permitted to prove that the accused engaged in undue familiarity with the female. The Courts have likewise affirmed the prosecution’s right to prove that the accused, subsequent to the act upon which the prosecution is based, had sexual relations with the prosecutrix.” (citing five Alabama cases).

We find no error in the record prejudicial to appellant. The evidence was more than ample to sustain the verdict and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    In re Jackie DEASON v. STATE of Alabama. Ex parte Jackie Deason.
    77-457.
    Supreme Court of Alabama.
    Sept. 8, 1978.
    Rehearing Denied Oct. 6, 1978.

      George W. Cameron, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for the State, respondent.
   BEATTY, Justice.

Certiorari was granted to enable this Court to determine whether or not the trial court erred in refusing to grant the defendant’s motion to require the prosecution to elect among charges of carnal knowledge. The opinion of the Court of Criminal Appeals, 363 So.2d 998, refers neither to that motion nor to the colloquy between counsel and the trial court in connection with it. However, the petitioner filed with his application for rehearing in the Court of Criminal Appeals his request for a finding of facts which included that motion and exchange, together with the language of the indictment, all containing references to the pertinent portions of the record and transcript, and which we have examined and found to be correct. Rule 39(k), ARAP.

The indictment charged carnal knowledge or, in the alternative, abuse in the attempt thereof in the following form:

The Grand Jury of said County charge that, before the finding of this indictment, JACKIE DEASON, alias JACKIE D. DEASON, whose name is to the Grand Jury otherwise unknown, did carnally know, or abuse in the attempt to carnally know Sherry Deason a girl under the age of twelve years, .

The opinion of the Court of Criminal Appeals recites the facts proved by the prosecution. Insofar as it relates to the problem of an election, the record shows that the mother of the prosecutrix testified that her daughter told her of having sex with her stepfather several times.

In the initial stage of the prosecutrix’s testimony she testified that her twelfth birthday was January 10, (1975), and then she was asked:

Q Now, when you were living there before your birthday in January this year — was this a house trailer?
A Yes, sir.
and
Q Sherry, do you recall the Christmas Holidays, this last Christmas?
A Yes, sir.
Q Where did you spend the Christmas Holidays?
A Up at my Aunt’s.
Q After the Holidays were over, did you come back to Montgomery to go to school?
A Yes, sir.
Q And then did you start going to school after the Holidays?
A Yes, sir.
Q Did you go to school the first week after Christmas?
A Yes, sir.
Q I call your attention, Sherry, to one afternoon when you got home from school. Was your father there at home?
A Yes, sir.
Q You’re talking about Jackie Deason?
A Yes, sir.
And shortly thereafter she testified:
Q After your brothers went outside to play ball, Sherry, did Jackie Deason say anything to you?
A Well, he told me that he wanted me to do something for him, and I said I wanted to go outside and play, and he said I couldn’t because I had to watch the baby.
Q Had he ever said that he wanted you to do something for him before?
A Yes, sir.
Q When he said that, told you you had to stay inside, what did you do then, Sherry?
A Well, I just started watching the baby.
Q What did he do?
A He took — he kept saying he wanted me to do something for him.
Q Did he do anything to you then?
A I said I didn’t want to do it, because I knew what he meant, and he started poking and tickling me.
Q Where was he poking and tickling you?
A He was tickling me on my arms and poking me in the side.
Q What did he do then?
A Then he took me, and I kept telling him to stop it and he kept saying he wanted me to do it and then in a minute he started pulling off my shorts and pants.
Q Where were you?
A We were in the living room.
Q Where were you in the living room?
A I was in the floor.
Q And where was he?
A He was behind me.
Q Behind you?
A Yeah.
Q And he started taking your clothes off?
A Yes, sir.
Q Did you ask him not to?
A Yes, sir. I said I didn’t want to do it.
Q What did he say?
A He just said he was just going to make me do it.
Q Did you beg him not to do it?
A I just asked him not to.
Q What did he do then?
A Then he got on top of me.
Q Were your clothes on or off then?
A My pants and my shorts were off.
Q Your pants and shorts were off?
A Yes, sir.
Q Did he have his clothes on?
A Yes, sir. He had them on.
Q Did he not do anything with his clothes?
A No, sir, nothing but unzipped his pants.
Q Unzipped his pants. Where were you then?
A I was up on the couch.
Q Now, Sherry, what did he do then?
A He took and laid on top of me and stuck his private into mine.
Q Did you feel him inside of you?
A Yes, sir.
Q How long was he there?
A Just a few minutes.
Q What were you doing?
A I was just laying there.
She told her mother about it on February 16. Then the following exchange occurred:
Q Sherry, had your stepfather Jackie Deason done anything like this to you before?
A Yes, sir.
Q When was the first time he did it to you, Sherry?
Q How old were you?
A I was about nine.
Q How many times did he do it to you, Sherry?
A Just — it would be — I mean about — it was more than five times I know.
Q More than five times?
A Yes, sir.

On cross-examination she testified that “it” happened “A couple of days or a week” after the holidays.

Following her testimony the State rested its case, whereupon the defense moved orally to require the prosecution to elect among the charges it had proved:

There has been evidence in detail by the State that sometime in this year, 1977, so I think under the law they have clearly elected to proceed under that charge. That is their case whether they know it or not. They have elected for that to be their case.
THE COURT: State that again, now.
MR. CAMERON: Yes, sir. The State has proved in detail that sometime in January of this- year, in the afternoon when she came home from school he told her two brothers to get out and so forth, and they have gone into detail on that. My position is that under the law they have elected for that offense to be the one that they are going to prosecute under, and I couldn’t find the exact case that I wanted, but I have got some cases. And, the importance of it is this, Judge. He has already proved that it happened when she was nine years old. Now, which one am I going to defend on. That is what I want to know. And, the second question is, how is the Court going to charge this Jury. There is only one—
THE COURT: You mean the charge as to over twelve or under twelve? Is that what you are talking about?
MR. CAMERON: No, sir.
THE COURT: I don’t understand that.
MR. CAMERON: They have proved in detail — let me get my case, maybe that will help. (Handing book to The Court.) The first part of the decision, Your Honor.
THE COURT: (Court reads.) All right, sir. Let me hear what you have to say.
MR. CAMERON: What I am saying to the Court is this. The State has rested, and I simply do not know which charge I am called upon to defend against. I am ready to present my case—
THE COURT: With the two.
MR. CAMERON: That’s right. I couldn’t demur to the indictment. They can shotgun the indictment but they can’t shotgun the proof. That is what I am saying; very clearly.
THE COURT: What you are saying is they allege a particular act at a particular time and proving that particular act at a particular time—
MR. CAMERON: That’s right. And, we get into variances, and we get into charges. In other words, like that robbery case we tried, there might be evidence that is admissible to show a co-defendant here, or something like that, but we are entitled to a charge on it. I don’t know what we are entitled to because I don’t know which case they are relying on to prosecute any crime.
MR. POOL: Judge, I would show the Court McElroy in Section 45.114.
■THE COURT: I want to hear it again.
MR. POOL: In McElroy, Section 45 — excuse me, it is 45.113, carnal knowledge cases. ‘In having carnal knowledge of a female under a specified age the State may prove that prior to the act upon which the prosecution has based had sexual relations with the female.’ Thomas vs. State.
THE COURT: I know, but that is what he is saying at this point. I think what you are saying is you can prove an act and you can prove other acts—
MR. POOL: Yes, sir.
THE COURT: What he is saying is, which act are you talking about that is the crime, the evidence pertaining to those.
MR. POOL: What Mr. Cameron—
THE COURT: Is that what you are saying, Mr. Cameron?
MR. CAMERON: That’s right. What is the corpus delicti of this case?
MR. POOL: She has testified that he did the same thing to her on numerous occasions. There is only one indictment, Judge. I think any one of the times that she has said would be sufficient to authorize a verdict. Cases say that the credibility of the witness is for the Jury to decide. And, it would be the State’s contention if he is charged as to this one—
THE COURT: I understand that.
MR. POOL: —and this one alone then he could set up an alibi that if you charged us out on this one it could probably alleviate the prosecution. It would be the State’s contention that if they believed that it happened at any time from the girl’s age nine, then they have the duty to convict. (emphasis added)

In opposition to the petitioner’s position, the State has viewed the problem as one of evidence law, referring us to that portion of the opinion of the Court of Criminal Appeals in which McElroy’s Alabama Evidence, § 45.11(3) (3rd Ed. 1977) is cited for the proposition that in a carnal knowledge case the prosecution may introduce proof of sexual relations between the accused and the prosecutrix before and after the act on which the prosecution is based. That is a correct proposition of evidence law. The reason behind the admissibility of such acts was discussed by Mr. Justice Brown in Harrison v. State, 235 Ala. 1, 2, 178 So. 458, 459 (1937):

[w]e hold that the weight of authority sustains the proposition that it is permissible for the prosecutors to offer evidence of such acts occurring before and after the alleged act on which the indictment is based, as tending to sustain the principal charge by showing the relation and intimacy of the parties, (citations omitted) (emphasis added)

One of the cases cited as authority allowed proof of subsequent sexual conduct upon the same child because:

“[i]t went to show the existence of relations between her and the defendant which tended to make the commission of the act of a similar nature, which was the subject of the charge, more probable, and so to confirm her previous testimony. That the accused was under the influence of a sexual passion in respect to this girl in July [the subsequent act], which led him then to take advantage of her youth in order to gratify it, was logically relevant to the question whether he gave rein, in the same manner, to such passion in respect to her, three months before [the principal offense].” (emphasis added)

He added:

If such subsequent acts are too remotely related to the act upon which the prosecution is based, in point of time, to be without probative force, such evidence should not be admitted, (citation omitted) (emphasis added)

That discussion clearly demonstrates that the admissibility of sexual occurrences before and after the one charged in the indictment is based upon conditions of relevancy, that is, whether they are probative of the main charge. That rule of evidence, however, does not create for carnal knowledge cases an exception to the rule of election which applies to all others.

The indictment in this case charges two separate offenses in the alternative. This is permissible under our statute. Tit. 15, § 249, Alabama Code (Recomp. 1958) (now Code of 1975, § 15-8-52), and places no obligation upon the prosecution to elect before hand which of those offenses it intends to prove. The case of Elam v. State, 26 Ala. 48 (1855) established the rule when the indictment charges only one offense: The true rule, . . . is to hold the

State to the act to which the testimony relates, if it can be covered by the indictment, and but one offence is charged. If the prosecuting officer deems it for the interest of the State, that evidence as to different offences should be offered, he must frame the indictment accordingly; We have laid down the rule generally, and think that, after the election is once made by offering evidence on the part of the State, it holds through all future stages. . . . (emphasis added)

The reason for placing the obligation to elect among the charges was stated in Garleton v. State, 100 Ala. 130, 14 So. 472 (1893):

When there is but one count charging a single offense, the law presumes, the defendant comes to trial prepared to meet the single charge, and the prosecution will not be permitted, after once having elected, to introduce evidence of another and different offense; .

Accord, Nuckols v. State, 109 Ala. 2, 19 So. 504 (1896); Untreinor v. State, 146 Ala. 133, 41 So. 170 (1906).

The same reasoning has been applied to indictments containing only one count with alternative averments. As early as Cochran v. State, 30 Ala. 542, 545 (1857) this Court commented upon both the propriety of such allegations and the prosecution’s obligations under them:

Prior to the adoption of the Code, it was a rule, that an indictment, charging a man disjunctively, was bad. The reason was, that such indictment mentioned distinct offences, and did not show of which of them the indictors accused the defendant. .

Pointing out that the Code then in effect allowed disjunctive pleading in one count, the Court continued:

Such an indictment, however, does not include more than one offence; and conceding that the State may elect under it, for which particular offense it will proceed, yet it cannot under it elect to proceed for two distinct offenses. .
Under such indictment, the election of the State is made by introducing evidence of any act charged in it; and after introducing evidence of any such act, the State cannot give evidence of any other act charged. — (citations omitted) (emphasis added)

Accord, Williams v. State, 77 Ala. 53 (1884).

And in Warrick v. State, 8 Ala.App. 391, 62 So. 342, 343 (1913), involving a prosecution for violation of the prohibition law, the following language expressed the same limitation:

The evidence introduced by the state had a tendency to prove the defendant’s guilt of some of the offenses charged in the alternative in the first count of the indictment. Under that count he could be convicted of only one of those offenses. It was his right, before going into his defense on the evidence, to require an election 'by the state of the offense for which a conviction under that count would be sought, . . . (emphasis added)

To the same effect is Brooms v. State, 197 Ala. 419, 73 So. 35 (1916).

In Watkins v. State, 36 Ala.App. 711, 63 So.2d 293 (1953), Judge Harwood summed up the requirement:

The doctrine of election operates to protect a defendant from being prosecuted for more than one offense in the same count of an indictment. Where the evidence discloses two or more offenses growing out of distinct and separate transactions, a court should grant a timely motion to require the State to elect, (citations omitted)

As this record discloses, the prosecution directed much of its proof of carnal knowledge to an occasion in early January, 1975, during her Christmas holidays. But it went further and proved other such occasions, specifically one when the prosecutrix was about nine years old. Indeed, the prosecutor’s remarks disclose the State's position, that it could go to the jury on all of them. While proof of these other instances were relevant to the commission of the January offense, as we have stated, nevertheless under the authorities the petitioner could not have been convicted of their commission, having been charged in one count only. To the contrary, the authorities entitled him to require the State to elect between them. His timely motion to that effect should have been granted, and the failure to grant it was reversible error. The judgment of the Court of Criminal Appeals must be reversed and this case is remanded to that Court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur.


author: PER CURIAM.

text:
    Jackie DEASON v. STATE.
    3 Div. 826.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
   PER CURIAM.

No opinion.

All the Judges concur.


text:
    Lovett YOUNG, Jr., alias Curley Young v. STATE.
    1 Div. 889.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Lee R. Butcher, Mobile, for appellant.
    William J. Baxley, Atty. Gen., David W. Clark, Asst. Atty. Gen., and Willis Isaac, for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Mobile County returned an indictment against the appellant, Lovett Young, Jr., alias Curley Young, charging him with the first degree murder of Frank Broadnax by shooting him with a gun. Appellant entered a plea of not guilty. A jury found the appellant guilty of murder in the first degree and fixed his punishment at imprisonment for life. The trial court entered a judgment in accordance with the verdict, and appellant appeals to this Court.

The appellant is now, and was at all proceedings in the trial court, represented by court appointed counsel. This appeal was submitted to this Court on briefs.

The appellant states in his brief three reasons why his conviction should be reversed: first, the evidence is not sufficient to sustain the jury verdict of murder in the first degree; second, denying appellant’s motion to suppress a dying declaration; third, improper conduct of the Assistant District Attorney which denied the appellant a fair trial.

State’s evidence tended to prove that at about eleven o’clock, A.M. on the 26th day of September, 1976, the stepfather of deceased carried him in a car over to appellant’s house and left the deceased there with the appellant; that on the next day the stepfather of the deceased saw him at the hospital, and at that time the deceased told his stepfather that Curley Young shot him.

State’s evidence further tended to prove that in the early morning hour on September 27, 1976, Mr. M. H. Muller, the owner and operator of Alabama Security Police Company which provides guard and patrol services for private concerns in the city of Mobile, together with Thomas R. Sandell, were in an automobile on their way to the Deishiki Club on Stone Street in the city of Mobile for the purpose of checking on a guard furnished by Alabama Security Police Company for the club when they saw the deceased lying in the street with his head lying in a pool of blood; that Mr. Muller saw blood which looked like it was coming from the head and shoulder of the deceased; that the deceased was screaming that his arm and his head hurt; mostly the deceased was screaming that, “I’m dying. He killed me. I’m dying. He killed me. He killed me;” that Mr. Muller told the deceased, “well, you’re not dead yet, so don’t get so excited. Calm down and you have a chance. Calm down. We’re getting an ambulance for you;” that deceased kept saying, “Get me an ambulance. Get me an ambulance. I’m dying. I’m dying.” Mr. Muller said to deceased, “Just calm down. Who shot you?” and the deceased said, “He shot me.” Mr. Muller said, “Who shot you?” and the deceased said, “Curley — .” On September 27,1976 deceased was admitted to a hospital with a gunshot wound to the back of the head and one in his shoulder, and died on the 2nd day of October, 1976. Death was due to a gunshot wound to the head, and an autopsy of deceased revealed two bullet injuries — one to the shoulder and one to the head; that one bullet struck the base of the brain fracturing the bone and damaging the brain producing hemorrhage and swelling with damage to the spinal cord as it emerged from the brain; that death was attributed to injury to the brain and the first portion of the spinal cord.

State further offered evidence of Sergeant Gavin Lamar Presnall of Mobile Police Department, Detective Division, and of Mr. Henry Nunn, Jr., a commercial artist and sign painter. All of these were present at the scene where Mr. Muller found the deceased lying in the street on September 27, 1976. All of the foregoing witnesses described the scene and statements of the deceased at the scene essentially the same as Mr. M. H. Muller.

State offered evidence that the appellant was known by the name of Lovett Young, Jr., and as Curley Young; that when the officers who arrested appellant in this case approached him, he ran about a block, and was caught by two officers. The State further offered the evidence of Shirley Sumpter, a sister of the deceased as to statements made to her by the deceased that he was dying and that the appellant shot the deceased. These statements will be more fully set out later in this opinion.

The appellant offered himself as a witness and testified that his name was Lovett Young, and he was also known as Curley Young; that he was 21 years of age, and had lived at 1905 Morton Street in Mobile with his mother and father all his life; that he knew the deceased; that the deceased visited with him on the day before he was shot; that he liked the deceased; that he knew nothing of the shooting of the deceased; that he did not see the deceased on the night he was shot; that the appellant was at the pool hall, or his house, all the night, and did not know of the shooting of the deceased until about noon the next day when he went to the pool hall; that he does not know anything about the shooting of deceased; that he had never been convicted of a crime of violence.

The sufficiency of State’s evidence to sustain the jury verdict of murder in the first degree having been properly raised by the record has been carefully considered by the Court. The essential elements of murder in the first degree are that the taking of the life of a human being must have been willful, deliberate, malicious and premeditated. Code of Alabama, 1975, Sec. 13-1 — 70; Coats v. State, 253 Ala. 290, 45 So.2d 35; Cosby v. State, 269 Ala. 501, 114 So.2d 250. We hold that under the facts in this record the State’s evidence fully supports the jury verdict, and that the trial court did not err in overruling appellant’s motion to dismiss the indictment as to murder in the first degree. Coats v. State, supra; Cosby v. State, supra; Code of Alabama, 1975, Sec. 13-1-70, Sec.13-1-74.

Appellant complains that the trial court erred to appellant’s prejudice by denying his motion to suppress a portion of the testimony of State’s witness, Shirley Sumpter, sister of the deceased, wherein she testified that when she asked her brother who shot him, he replied, “Curley Young was the one who shot me.” The appellant contended in the trial court that the statement of the deceased to his sister was not a dying declaration and should be suppressed because: first, it was made in response to a question when she asked him “Who shot you;” second, that the deceased was not in extremis when he made the statement to her because he said to his sister on one occasion, “To tell the family not to do anything to Curley, because if he lived he was going to get him back, but if he died, for us to bring him to court.”

First, with reference to appellant’s contention that the statement of the deceased was not admissible in evidence as a dying declaration because it was in response to a question propounded to him by his sister, in the case of Anderson v. State, 79 Ala. 5, on page 8, Justice Sommerville, speaking of a dying declaration, said, “The declarations were, therefore, admissible, and it was immaterial that one of these statements was elicited by an inquiry propounded to the declarant.” In the case of Ingram v. State of Alabama, 67 Ala. 67, on page 71, Justice Stone, speaking of a dying declaration, said, “Part of the declaration of the deceased was in reply to a question asked him. This precise question has been several times before the English courts, and it was ruled that the fact that the declaration was made in reply to an inquiry did not render its admission illegal.”

We hold that the fact that a declaration of the deceased is in answer to a question propounded to him does not render its admission illegal. Anderson v. State of Alabama, supra; Ingram v. State of Alabama, supra; Greer v. State, 156 Ala. 15, 47 So. 300; Nolan v. State, 207 Ala. 663, 93 So. 529; Tyler v. State, 207 Ala. 129, 92 So. 478.

We now consider the appellant’s contention with reference to the trial court’s finding that the deceased was in extremis when he told his sister who shot him. We find from the record before us that the sister of the deceased was called by the appellant as a witness and testified on direct examination before the trial judge on the hearing of the motion to suppress in substance the following: that she was the sister of deceased; that he was shot on September 27, 1976; that she visited him every day while he was in the hospital; that she had several conversations with him; that he died on October 2, 1976. When she first arrived at the Mobile Medical Center on September 27, 1976, she saw deceased in the emergency room, and he stated that he was in pain; that he had been shot in the head and shoulder; that she asked him who shot him. Later on in the day when she visited the deceased, he was crying and told her he was in pain. He asked the doctor for pain medicine, but the doctor would not give it to him. He said, “That Curley had shot him, and to tell the family not to do anything to Curley, because if he lived, he would get him back, but if he died, for us to bring him to court.”

On cross-examination the witness testified that, when she visited her brother on the morning of September 27, 1976, at about 9:00 A.M., in the intensive care room at Mobile Medical Center, he said to her that he knew he was going to die; he said he believed he was going to die because he was in pain; that he said Curley was the one that “done it;” that she asked him what was Curley’s full name, and he said that all he knew was the last name was Young; that was the Young man that my mother had carried him over to his house that morning. Her brother told her he believed he was going to die; that he knew he was shot in the head, because he complained of headache; that the doctor told him he would get well, but the bullet had cracked his skull, and the brain swelled; that deceased believed that he was going to die even though the doctor told him he was going to be fine, and he was going to live. He was shot in the head and left shoulder.

It is the duty of the trial court to determine if the declarant of a dying declaration was in extremis at the time the declaration was uttered, and if the declaration was made under a sense of impending death as a result of his wound, and if it is not otherwise objectionable, it should be admitted. In law the sanction of an oath is present. There is no set rule to determine a proper predicate for the admission of a dying declaration. Each case must be considered by the trial judge on its merits. In determining the predicate the trial court should consider statements of the deceased, the gravity and nature of his wounds, his physical condition, time between wounds and death, and all other facts tending to show the state of the mind of the deceased at the time the declarations were made. This Court should not disturb the finding of the trial court if there is sufficient evidence to sustain it. The appellant, in his argument, would confine the trial court, and this Court, to the consideration of one isolated statement of the witness brought out on skillful examination by appellant’s counsel. The trial court did, and it was its duty to, consider all of the evidence brought out on the motion to suppress and determined from such evidence that the deceased was in extremis at the time he made the declaration before allowing it in evidence. We hold that there was sufficient evidence before the trial judge to sustain his action in overruling appellant’s motion to suppress, and this Court should not interfere. Ragland v. State, 238 Ala. 587, 192 So. 498; Kissic v. State, 266 Ala. 71, 94 So.2d 202; Riddle v. State, 41 Ala.App. 682, 149 So.2d 465; Sidney v. State, 265 Ala. 136, 89 So.2d 745; Brooks v. State, 32 Ala.App. 389, 27 So.2d 48; certiorari denied, 248 Ala. 239, 27 So.2d 55; Shikles v. State, 31 Ala.App. 423, 18 So.2d 412; certiorari denied, 245 Ala. 641, 18 So.2d 417.

Appellant insists that he was denied a fair trial due to the improper conduct of prosecuting counsel during appellant’s trial in asking him questions about crimes that he had not been convicted of. On direct examination of the appellant, he testified that he had never been convicted of a crime of violence. During the cross-examination of appellant by the prosecuting counsel we find in the record the following:

(CROSS EXAMINATION BY MR. VA-LESKA)
“Q As a matter of fact, they arrested you for having no pistol permit, didn’t they?
“MR. PORTER: Judge, I object.
“MR. VALESKA: They went into it about his gun.
“MR. PORTER: We move for a mistrial.
“THE COURT: Denied.
“MR. VALESKA (RESUMED)
“Q As a matter of fact, Curley, back on August the 7th, 1976 you were arrested and convicted of—
“MR. PORTER: Judge, we are going to object—
“MR. VALESKA: Let me finish my question.
“MR. PORTER: We move for a mistrial.
“THE COURT: He has a right to object. I sustained the objection to the question that has already been objected to. Now, we don’t want you to repeat the same verbage.
“MR. VALESKA: I’m not, Judge. This is a completely different one.
“THE COURT: Well, you have already repeated it.
“MR. PORTER: Judge, we object to any testimony about him being arrested. If he wants to ask him if he’s been convicted of a crime, that’s all right. He knows this is improper, and he’s just trying to prejudice the jury.
“THE COURT: All right. I don’t want you to argue your case in front of the jury. Grant the motion that he not proceed further with it. I deny the motion for a mistrial.
“MR. VALESKA (Resumed):
“Q As a matter of fact, you were convicted on August the 7th, 1976 for assault with a gun and leaving the scene of an accident, weren’t you?
“A I was not convicted.
“Q Oh, you were not convicted?
“A I was not convicted.
“Q What happened?
“MR. PORTER: Judge, we are going to object to this. He said that he wasn’t convicted. We move for a mistrial.
“THE COURT: Sustain the objection. I am going to deny the motion for a mistrial. I want you to cease going into the area.
“MR. VALESKA: Judge, they went in—
“THE COURT: It’s not allowed by law, Mr. Valeska.
“MR. VALESKA: Judge, they went into the fact about him having a gun, and they opened the door. I submit to the Court—
“THE COURT: I already made my ruling, Mr. Valeska.
“MR. VALESKA (Resumed):
“Q He asked you if you had ever been convicted of a crime of violence. Remember that? Remember the gentleman right there asking you that?
“A I believe I said, ‘no’.
“Q Do you want to think about it?
“A I was never convicted of a crime. I was never convicted of no crime period.
“Q As a matter of fact, you were convicted of burglary in the Circuit Court of Mobile County August the 27th, 1974, weren’t you?
“MR. PORTER: Judge—
“THE COURT: Is there an objection?
“MR. PORTER: Yes, sir, Judge. We are going to object to this.
“THE COURT: Approach the bench.
“(Discussion held at bench.)
“THE COURT: What was your answer to the last question? Do you want the reporter to repeat it?
“THE WITNESS: Yes, sir.
“THE COURT: Repeat the question.
“(Reporter read.)
“THE COURT: What’s your answer to the question?
“THE WITNESS: I was not convicted. “MR. YALESKA (Resumed):
“Q You were not convicted?
“A No.
“MR. PORTER: Judge, I’m going to object to this and move for a mistrial.
“THE COURT: Overrule your objection and deny your motion.”

The Assistant District Attorney requested to go into some matters outside of the presence of the jury, which request was granted. Out of the presence and hearing of the jury, State’s counsel stated to the trial judge that appellant had been charged with burglary in the first degree, and that the case was disposed of by a plea of not guilty by reason of insanity. The State contended that this was the same as a conviction for the purpose of moral turpitude. Appellant’s counsel contended it was not the same as a conviction; that a certified copy of a judgment finding the appellant guilty of first degree burglary is the lawful way to prove a prior conviction when it is denied by the witness. The trial court ruled that a judgment finding a defendant not guilty by reason of insanity was not a conviction and not admissible in evidence. State’s counsel at no time during the trial offered a certified copy of a conviction of the appellant for carrying a pistol without a permit, for an assault with a gun, for leaving the scene of an accident, or for burglary in the first degree. In the presence and hearing of the jury State’s counsel, after being instructed by the trial court on several occasions to cease going into the area of prior convictions, proceeded to go into the matter of prior convictions when he had no legal evidence of such convictions and knew he could not support them by evidence. It appears to us from the record before us he made his point clear to the jury that the appellant had been charged with other crimes and had been confined to the hospital for the insane by a court on a charge of burglary in the first degree.

We hold that a judgment based on a jury verdict finding a defendant not guilty by reason of insanity of a charge of burglary in the first degree is not a conviction of the defendant and is not admissible in evidence to impeach him as a witness. Boswell v. State, 63 Ala. 307; Code of Alabama, 1975, Sec. 15-16-2; Weeks v. State, Ala.Cr.App., 342 So.2d 1335.

We now come to the most serious question presented by this record. Is it unprofessional conduct for a prosecuting attorney to ask questions on cross-examination of the defendant which imply the existence of a factual predicate which the examiner knows he cannot support by evidence? As said by Judge Harris, Presiding Judge of this Court, in the case of Bezotte v. State, Ala.Cr.App., 358 So.2d 521, at page 525:

“We find in the American Bar Association Standards for Criminal Justice the following statement concerning the function of the prosecution. ‘It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner knows he cannot support by the evidence.’ Similarly, Alabama law states that, while the prosecuting attorney is under a duty to prosecute the case with vigor and earnestness, he should not take unfair advantage of the defendant. Arant v. State, 232 Ala. 275, 167 So. 540.
Even though a prior conviction involving moral turpitude may be shown upon the cross-examination of a witness, this examination should be subject to the limitation that it be conducted in good faith. See 3 A.L.R.3d 965, and the cases cited therein, concerning lack of documentary proof of a prior felony conviction.”

In the case of McGovern v. State, 44 Ala.App. 197, 205 So.2d 247, 250, Judge Johnson declared that:

“The State owed appellant that diligence necessary to establish properly a predicate and to clarify whether or not his alleged conviction involved moral turpitude, outside of the hearing of the jury, so as to not prejudice appellant in the eyes of the jury.”

We have reviewed the entire record in this case, including all of the oral charge to the jury and hold that, under the facts shown in the record in this case, the appellant was denied a fair trial due to the improper conduct of the prosecuting attorney in asking questions which implied the existence of factual predicates which the examiner knew he could not support by evidence, and that the court erred in overruling appellant’s motion for a mistrial. Jones v. State, 21 Ala.App. 505, 109 So. 564; Bezotte v. State, supra; McGovern v. State, supra; American Bar Association Standards For Criminal Justice, Prosecution Function Examination Of Witnesses, Sec. 5.7(d); Code of Alabama, 1975, Sec. 12-21-162; Birmingham Baptist Hospital, Inc. v. Blackwell, 221 Ala. 225, 128 So. 389; Gregath v. Bates, Ala.Civ.App., 359 So.2d 404; Moore v. State, 30 Ala.App. 552, 9 So.2d 146; People v. Perez, 58 Cal.2d 229, 23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946; Wolffe v. Minnis, 74 Ala. 386; Blue v. State, 246 Ala. 73, 19 So.2d 11; Madison v. State, 55 Ala. App. 634, 318 So.2d 329; certiorari denied, 294 Ala. 764, 318 So.2d 337.

For the error pointed out, the judgment of the trial court should be reversed and the cause remanded for a new trial.

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

The judgment below is hereby reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Douglas Keith MORGAN v. STATE.
    5 Div. 424.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      W. L. Chenault, Decatur, for appellant.

      William J. Baxley, Atty. Gen., and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

Douglas Keith Morgan was indicted for assault with intent to ravish. A jury found him guilty of assault and battery and fined him five hundred dollars. The trial judge imposed a sentence of six months’ hard labor.

I

Morgan was eighteen years of age and on leave from service in the United States Navy when the crime was committed. His application for treatment as a youthful offender was denied.

In urging that the trial judge abused his discretion in denying youthful offender status, appellant’s counsel states that “no investigation was made by any probation officer on behalf of the Circuit Court of Lee County, Alabama”. Contrary to this assertion the very first witness whose testimony is reported in the record is Jim V. Lord. Officer Lord testified that he was a “State Probation and Parole Supervisor assigned to Lee County, Alabama”, and that he conducted an investigation of the appellant pertaining to a youthful offender petition at the request of the Circuit Court of Lee County. Though his recommendation was not requested he did make a report to the court. Prior to ruling on the application the trial judge conducted a full hearing and allowed defense counsel to present whatever evidence he desired.

The Youthful Offender Act vests in the trial judge almost absolute discretion to grant or deny youthful offender status after making an appropriate investigation. McClendon v. State, 341 So.2d 174 (Ala.Cr. App.1976); Section 15-19-1, Code of Alabama 1975. This act does not require a full, formal hearing or an investigation by a probation officer in every case. Clemmons v. State, 294 Ala. 746, 749, 321 So.2d 238 (1975). While we have no indication of why youthful offender status was denied in this case, the trial judge is not required to state his reasons for denying youthful offender status. This court will not overturn that exercise of discretion except where it affirmatively appears that the decision of the trial judge was arbitrary or made without some examination or investigation of the youthful offender. Watkins v. State, 357 So.2d 156 (Ala.Cr.App.), cert. denied, 357 So.2d 161 (Ala.1977). It is not for this court to overturn the decision of the trial judge in denying youthful offender status simply because we would not have made that same decision.

The record supports no finding that the decision was arbitrary or constitutes an abuse of discretion. After weighing other factors, the trial judge may have decided that youthful offender status was due to be denied because of Morgan’s age, status, and the seriousness of the crime charged. For this reason we cannot overturn the judge’s ruling denying youthful offender status.

II

Also the trial court did not abuse its discretion in ruling that the appellant’s confession was voluntary and admissible as evidence. While the appellant testified that Detective Edwin D. Downing told him that “things would go easier” if a statement were made, Downing testified that he never made such a statement.

Where the trial court finds on conflicting testimony that the confession was voluntarily made, that finding will not be disturbed on appeal unless it is palpably contrary to the weight of the evidence. Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 246 (1960); Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967); Thompson v. State, 347 So.2d 1371 (Ala.Cr. App.), cert. denied, 347 So.2d 1377 (Ala. 1977); Sullivan v. State, 340 So.2d 878 (Ala.Cr.App.), cert. denied, 340 So.2d 881 (Ala. 1976); Jenkins v. State, 337 So.2d 72 (Ala.Cr.App.1976); Botsford v. State, 54 Ala. App. 482, 309 So.2d 835, cert. denied, 293 Ala. 745, 309 So.2d 844 (1974). Even when there is credible testimony to the contrary, if the evidence is fairly capable of supporting an inference that the rules of freedom and voluntariness were observed with respect to an extrajudicial confession, the ruling of the trial court need only be supported by substantial evidence and not to a moral certainty. Elliott v. State, 338 So.2d 483 (Ala.Cr.App.1976).

III

The trial judge denied the appellant’s motion to exclude the state’s evidence and dismiss the defendant. The grounds of this motion were that

“The State has failed to meet the burden of proof in that they have failed to meet the elements of intent to have intercourse with this woman by force and fear and against her consent.”

The appellant was convicted of assault and battery and not for assault with intent to ravish. Where the accused is convicted of a lesser included offense, the accused is not harmed by the refusal of the trial court to give instructions requiring an acquittal of the higher offense. Phillips v. State, 167 Ala. 75, 52 So. 746 (1910); Pittman v. State, 153 Ala. 1, 45 So. 245 (1907); Vaughn v. State, 45 Ala.App. 169, 227 So.2d 801 (1969); Flournoy v. State, 40 Ala.App. 629, 120 So.2d 121, reversed on other grounds, 270 Ala. 448, 120 So.2d 124 (1960); Berness v. State, 40 Ala.App. 198, 113 So.2d 178, cert. denied, 269 Ala. 694, 113 So.2d 183 (1959); Burton v. State, 8 Ala.App. 295, 62 So. 394 (1913). Therefore the failure of the trial court to exclude the state’s evidence because of the state’s failure to prove the intent to ravish was not error where the defendant was convicted of the lesser included offense of assault and battery.

IV

Any touching by one person of the person of another in rudeness or in anger is an assault and battery. Jacobi v. State, 133 Ala. 1, 17, 32 So. 158 (1902). It is an assault and battery for a man to hold a woman in his arms pressing her against her will, although without an intention to hurt her.

“Imposition of his arms on her person, and holding and pressing her against her will, is, in legal contemplation, force, though there may have been no intention to hurt — unquestionably an assault and battery.”
Norris v. State, 87 Ala. 85, 88, 6 So. 371 (1888).

The uncontradicted and uncontested evidence in this case reveals that Morgan grabbed his victim, held a knife to her throat and covered her eyes with his hand. He then removed her dress and made her walk to the front door of the apartment. Clearly this constituted an assault and battery and denies the appellant’s claim that the verdict was contrary to the evidence.

V

The appellant also contends that the trial court committed reversible error in failing to give five of his written requested charges. We have carefully reviewed each i'efused written requested charge and found that each was adequately, substantially, and fairly covered in the excellent charge of the trial court except for one which was covered in a given requested charge. For these reasons the refusal of the requested charges was not error.

We have searched the record for error under our statutory duty. Finding none, we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Michael Hugo LADD v. STATE.
    6 Div. 3.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.
    Calvin M. Howard, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Buying, receiving, or concealing stolen property; sentence: three years imprisonment.

On June 26, 1973, a white 1963 Chevrolet automobile belonging to Mrs. Alma Graves was stolen from the South Highland Hospital employee parking lot in Birmingham, Alabama. The automobile was recovered by the Birmingham Police Department on July 20, 1973. Latent fingerprints taken from the inside rear view mirror of the automobile were identified as matching those of the appellant.

On July 19, 1973, appellant was arrested by Birmingham police on suspicion of robbery. He was incarcerated in the city jail for approximately six days and then released. During that period of time, he was not charged with any crime. On July 19, 1973, he was fingerprinted and on the next day he was palmprinted.

On July 20, 1973, Birmingham police detectives received information from an undisclosed informant that the appellant had stolen and had been driving an automobile. The informant told police where to locate the car. The detectives went to that location and found Mrs. Graves’ stolen automobile. The car was on the side of a public road, and the motor had been burned out. On the basis of the information received, detectives submitted the appellant’s name to a fingerprint technician with the police department. The technician testified that the prints from the rear view mirror matched the appellant’s fingerprints.

The appellant puts forth several grounds for reversal, however, we need deal with only one. At the close of the State’s case in chief, the appellant made a motion to exclude the State’s evidence on the ground of insufficiency to prove the charge. The trial judge overruled the motion, and the defense rested without putting on any evidence. On a two count indictment charging grand larceny and buying, receiving or concealing stolen property, the jury returned a verdict of guilty only on the latter charge thereby acquitting the appellant on the grand larceny charge.

To establish the offense of buying, receiving, or concealing stolen property, the following elements must be proved by the State: (1) the property must have been stolen; (2) the accused must have bought, received, concealed, or aided in concealing the property with the knowledge that it was stolen; and (3) the accused must have had no intention of returning the property to the owner. Scott v. State, 55 Ala.App. 318, 314 So.2d 921 (1975); Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ala., 360 So.2d 367 (1978); Title 14, § 338, Code of Ala.1940 (now § 13-3-55, Code of Ala.1975).

The evidence was undisputed that Mrs. Graves’ automobile was stolen and that the fingerprints of the appellant were found on the inside rear view mirror of the automobile after it had been recovered by the police. That the appellant’s fingerprints were on the mirror is material evidence that the appellant was present in the automobile at some point in time. Since the automobile was stolen from a public parking lot, and was discovered on a public street, the fingerprints could have been left on the mirror, either before the larceny or after the automobile had been abandoned by the thieves. The fact that police had received information from an undisclosed informant was not evidence in the case, but was brought out on voir dire examination outside the presence of the jury. Thus, the only evidence directly connecting the appellant with the automobile in any fashion was the fingerprints.

Judge Clark, speaking for this court in West v. State, 57 Ala.App. 596, 329 So.2d 653, cert. denied, 295 Ala. 427, 329 So.2d 658 (1976), said:

“. . . Proof of guilt beyond a reasonable doubt in the minds of the jury is essential to a conviction. For the submission of the case to a jury, there must be substantial evidence tending to prove all elements of the crime, a mere scintilla not being sufficient. . . .” (Citations omitted.)

In a case similar to the one at bar, the Supreme Court of Mississippi stated in McLain v. State, 198 Miss. 831, 24 So.2d 15 (1945):

“. . .In the case before us here the sole and only proof against appellant consists of a thumb-print on the rear-view mirror, which is conclusive evidence of his identity, and that he had been in the car for some purpose; but evidence of identity and of presence alone is not equivalent to evidence of guilt of a particular crime, especially where several crimes could have been committed as to this car, but as to which a certain charge was made. The thumb-print here was not declaratory, as stated supra, of the nature of the crime, since it was not aided by other evidence identifying the particular crime, and did not exclude other crimes.”

Citing McLain, the Mississippi Supreme Court stated in Evans v. State, Miss., 250 So.2d 619 (1971):

“. . . While recent possession of stolen property may be established by circumstantial evidence, it must exclude every other reasonable hypothesis. Whenever, as here, the evidence leaves it uncertain which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, it does not amount to proof that appellant was in recent possession of stolen property. . . .”

The mere presence of the accused’s fingerprints inside the car does not prove possession. Such proof, standing alone, has very little probative value in proving the offense charged in the indictment. The appellant was not charged with an illegal breaking and entering or burglary of the vehicle, in which case his fingerprints would have had great bearing on the primary issue in the case. The gist of the instant charge is the illegal possession of, or control over, stolen property.

As we have stated in various other cases dealing with possessory crimes, mere presence alone is insufficient for a conviction. Isbell v. State, 57 Ala.App. 444, 329 So.2d 133, cert. denied, 295 Ala. 407, 329 So.2d 140 (1976); Raley v. City of Andalusia, Ala.Cr.App., 341 So.2d 753 (1976); Crowden and Askew v. State, 55 Ala.App. 325, 315 So.2d 122, cert. denied, 294 Ala. 756, 315 So.2d 128 (1975); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971). That the appellant’s fingerprints were found on the mirror inside the stolen automobile does not show his dominion, possession, or control over the vehicle. It denotes mere presence only and fails to establish any particular time for the appellant’s presence in the automobile.

Just as footprints in the snow are circumstantial evidence of a person’s presence, so too are fingerprints circumstantial evidence of presence. But, the test is that a conviction may be had on circumstantial evidence so long as that evidence is so strong and cogent as to show the defendant’s guilt to a moral certainty. Tanner v. State, 291 Ala. 70, 277 So.2d 885 (1973); Hollenquest v. State, 290 Ala. 146, 274 So.2d 613 (1973); Gantt v. State, Ala.Cr.App., 356 So.2d 707, cert. denied, Ala., 356 So.2d 712 (1978). As stated in Taylor v. State, 46 Ala.App. 105, 238 So.2d 902 (1970):

“When the evidence in a criminal case raises a mere suspicion, or if the defendant’s guilt is uncertain or dependent upon conjecture or probability, the trial court should grant a motion to exclude or give the requested general affirmative charge; for such evidence does not overcome the presumption of innocence with which every accused is clothed.”

This court stated in Duncan v. State, Ala.Cr.App., 338 So.2d 446 (1976):

“. . . We cannot affirm a conviction based upon mere conjecture or speculation where the record is completely silent as to an essential element of the offense.

Of the essential elements of the offense, the State only proved that the vehicle had been stolen. Proof that the appellant had touched the rear view mirror in the automobile at some undetermined point in time does not prove or raise an inference that the” accused either bought, received, concealed, or aided in concealing the automobile with the knowledge that it was stolen and having no intention to return it to the owner. Those latter elements of the offense were left to mere conjecture or speculation on the part of the jury. The trial court therefore erroneously overruled the appellant’s motion to exclude the State’s evidence.

A regrettable aspect of this case is that the appellant has apparently served the entire term of the instant sentence in the penitentiary pending the outcome of this appeal. The record shows that the appellant was sentenced to three years in the penitentiary on April 30, 1975. At that time, he gave notice of appeal but elected to take a “working appeal,” meaning that he elected to begin serving his sentence. The trial court credited the appellant with all the time he had spent incarcerated in the county jail pending trial.

From the record, it appears that the court reporter applied for and was granted seven extensions of time for filing the transcript of the evidence thus resulting in this inordinate delay in the appeal process. Undue delays on the part of court reporters in preparation of trial transcripts have caused the appellate courts of Alabama numerous problems in the past. See: Smith v. State, Ala.Cr.App., 346 So.2d 463, reversed Ala., 346 So.2d 464 (1976), after remand, Ala.Cr. App., 346 So.2d 465 (1976), appeal after remand, Ala.Cr.App., 346 So.2d 382, cert. denied, Ala., 346 So.2d 385 (1977); Pope v. State, Ala.Cr.App., 345 So.2d 1381 (1975), reversed, Ala., 345 So.2d 1385, on remand, Ala.Cr.App., 345 So.2d 1388 (1976), cert. dismissed, Ala., 345 So.2d 1390 (1977), appeal dismissed,, Ala.Cr .App., 345 So.2d 1390. In order to deal with this problem and others brought on by an antiquated appellate procedure, our Supreme Court adopted the new Alabama Rules of Appellate Procedure. Rule 11 worked a complete change in the mechanics of completion and transmission of a record on appeal. It has corrected many of the problems encountered in the old appellate procedure such as the instant delayed appeal.

A new trial is normally granted an appellant when his conviction has been reversed and remanded. However, in the instant case, the trial court, in making a proper disposition of this case, should take into consideration the fact that the appellant has already served the sentence imposed.

REVERSED AND REMANDED.

All the Judges concur.