author: BRADLEY, Judge.

text:
    Bobby Wayne COLLINS v. Karen Paulson COLLINS.
    Civ. 981.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1977.
    Walter Allen Davis for Sullins & Davis, Huntsville, for appellant.

      Miles T. Powell, Decatur, for appellee.
   BRADLEY, Judge.

The appellant, Bobby Wayne Collins, was incarcerated in the Morgan County jail on August 26, 1976 by order of the Morgan County Court for non-payment of child support. After several days in jail, Collins filed a petition for writ of habeas corpus in the Morgan County Circuit Court. A hearing was held thereon and the writ was denied. Collins appeals that decision to this court. The circuit court set bond at $1,000 for Collins’ release from jail pending the outcome of this appeal.

Collins’ primary contention here is that he is unable to comply with the trial court’s order to pay $1,200 into the coffers of the court in order to purge his contempt.

The facts show Collins and his first wife were divorced in December 1972 and the wife was awarded custody of their only child. Collins was ordered to pay $20 per week child support. Since that time Collins has been cited for contempt three times for failure to pay child support as ordered. Each time the amount in arrears was paid, thereby avoiding lengthy incarceration. This time Collins was ordered to pay $1,200, which included back child support, attorney’s fees and court costs.

Since his first divorce, Collins has remarried and has two children by this marriage. His present wife is employed.

Collins’ 1975 income tax return showed that he had earnings in that year of $3,187. He testified that he is a logger and in partnership with his father. Logging is his only source of income. He also said that he is in arrearage on payments for his mobile home, behind in payments on a loan from an individual, owes a large sum to a grocery store for groceries, and has other debts. He was not able to state specifically the amount of these debts. He cancelled his health insurance and sold a 1973 Ford Tori-no because he was unable to keep up the payments; he was unable to remember the name of the buyer.

Collins could not remember his monthly income for 1976, although he said he received about $100 a week in 1975. He said he had borrowed money to pay his grocery bill, light and water bills, and trailer payment, but did not know where he had borrowed, how much, or when; he then said he had borrowed $200 from his daddy, an indeterminate amount from Mr. Bob Russell at Somerville Lumber Company, and from Mr. Burden. When asked how much he spent a week on groceries, he said he did not know. The trailer space where he parks his trailer requires no rental. He has been paying on the trailer for about two years.

Collins’ mother testified that she kept the books and records for the logging operation and she paid her son for his services by check. She said she and her husband were in debt and could not borrow $1,200 to get their son out of jail. After all expenses in the logging operation are paid, the remainder is divided equally between father and son. This witness did not have her check records for 1976 in court and she could not say how much had been paid to their son for 1976.

Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. den. 287 Ala. 737, 247 So.2d 128 (1971), stands for the proposition that a petitioner cannot be held in jail under a civil contempt citation for failure to pay alimony and child support when he is unable to purge himself of the contempt due to inability to comply with the order.

The trial court, after hearing and seeing the witnesses testify and considering all of the evidence produced at the hearing, denied the request for habeas corpus. It in effect concluded from the evidence presented to it that the petitioner had not sustained his burden to convince the court that he is unable to purge himself of the contempt because of his inability to pay the amount deemed owed as back child support. After a careful examination of that same evidence, we cannot say that the trial court erred in denying the habeas corpus writ. We therefore affirm its judgment.

AFFIRMED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    ANNISTON LINCOLN-MERCURY, a corporation, and General Sales Company, Inc., a corp. v. David L. MAYSE.
    Civ. 1017.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1977.
    Ronald S. Held of Lybrand, Sides, Ham-ner, Oglesby & Boozer, Anniston, for appellants.
    Cary F. Smith of Phillips & Watson, An-niston, for appellee.
   HOLMES, Judge.

The appellee-Mayse left his automobile with appellant Anniston Lincoln-Mercury in order for the latter to make certain repairs on the automobile. While the vehicle was in the care of Anniston Lincoln-Mercury it was stolen.

Mayse sued Anniston Lincoln-Mercury for the loss of his automobile. After a hearing ore tenus the trial judge entered a judgment in favor of Mayse and against Anniston Lincoln-Mercury.

Able counsel for Anniston Lincoln-Mercury in an excellent brief argues that the evidence presented is not sufficient to support a judgment in favor of Mayse. Put another way, the appellant argues that there was insufficient proof that the theft of the vehicle was the result of Anniston Lincoln-Mercury’s negligence.

The record reveals the following facts:

Mayse, during the week of August 5, 1975, left his car with Anniston Lincoln-Mercury for repairs to his tail lights. Later that week, he [Mayse] inquired as to whether the car was repaired. Mayse was informed that it was not but that the automobile would be ready the first thing Monday morning. On Sunday, the automobile was stolen from Anniston Lincoln-Mercury. Mayse specifically testified that an agent of the Lincoln-Mercury establishment informed him that the keys had been left in the car.

The only other witness was the service manager of Anniston Lincoln-Mercury. He testified that the appellee’s car had been entrusted to Anniston Lincoln-Mercury’s care for certain repairs. The service manager’s testimony showed that the appellee’s vehicle was placed inside the garage of the business establishment, where cars are repaired, by the service manager; that the keys were left in the ignition switch; that a small door in the rear of the business was broken into. This door had been locked. The front door of the garage was not locked, but opened only from the inside. The service manager further testified that no other vehicles were stolen and that the doors of the vehicles owned by Anniston Lincoln-Mercury which are left overnight on the premises are normally locked.

As noted earlier, with these facts before it, the trial court found in favor of the automobile owner and against the automobile repair shop.

It is clear to this court, as it is to both able counsel, that the appellant Anni-ston Lincoln-Mercury was a bailee for hire, and as such, owed a duty of ordinary care toward the bailed property. It is equally as clear that where a bailee of goods for hire, upon demand made, fails to redeliver them or does not account for a failure to make delivery, as we have here, prima facie negligence will be imputed to him, and the burden of proving a loss without want of ordinary care is devolved upon him. See Dixie Drive It Yourself System, Mobile Co. v. Hames, 253 Ala. 132, 43 So.2d 143; 2A Ala. Digest Bailment &wkey;31(l).

The query then becomes: Has, as a matter of law, the automobile repair establishment shown it was not guilty of negligence or lack of ordinary care? In answering this question, this court must bear in mind that the conclusions of the trial judge, after hearing testimony and passing on facts, have the same force as a verdict of a jury and will not be disturbed on appeal unless palpably wrong or unless the judge fails to give due regard to the controlling legal principle as applied to the facts addressed. See 2A Ala. Digest Appeal and Error 1008(1).

In this instance, we cannot say as a matter of law that the undisputed facts fail to constitute negligence. Mayse’s automobile was left unlocked, with the keys in the ignition, near the garage door which could be easily opened by anyone who gained admittance to the inside of the building. While any one of these three factors might prove insufficient to constitute negligence as a matter of law, considered in sum, they sustain a finding of negligence. In a similar case, less evidence than that contained here has sustained such a finding. Fox Chevrolet Sales v. Middleton, 203 Md. 158, 99 A.2d 731.

AFFIRMED.

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


author: PER CURIAM.

text:
    Zell MIDDLETON v. Irene MIDDLETON.
    Civ. 1029.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1977.

      Taylor D. Wilkins, Jr., Wilkins & Bankes-ter, Bay Minette, for appellant.
    John Earle Chason, Chason & Chason, Bay Minette, for appellee.
   PER CURIAM.

This is an appeal from the Circuit Court of Baldwin County’s action ordering the appellant-husband to pay $2,841 in alimony for the calendar year 1976. The husband appeals and we affirm.

The dispositive issue is whether the trial court abused its discretion in ordering the alimony paid.

The record reveals the parties were divorced in 1974. The decree by way of an agreement provided in pertinent part as follows:

“3. Zell Middleton agrees to pay Irene Middleton, so long as she remains unmarried, the sum of $3,500.00 a year as alimony. This amount may be compromised if a bad farming year occurs. If this should take place, the amount of income balanced against the amount of bills incurred is to be considered in establishing the amount of alimony to be paid that year.”

In August of 1976, the wife petitioned the circuit court alleging that the husband should be held in contempt of court for failure to pay the required alimony. After a hearing ore tenus, the trial court found the husband owed $700 in past due alimony for the year 1975. The trial court further found the husband owed alimony in the amount of $2,841 for 1976, the husband having paid $659, and ordered the $2,841 sum to be paid by December of 1976.

The husband through able counsel argues that the evidence adduced at the hearing showed that the husband experienced a “bad” farming year in 1976. Specifically, he states that the husband lost money on potatoes; made a small amount on corn; owed a considerable sum to fertilizer companies and a production credit association.

At the conclusion of the hearing, the trial judge stated the following which we consider pertinent:

“It looks like to me, this woman stayed married to this man 22 years, got out and left him with his land and equipment and took this agreement that he would pay her $3500.00 a year . . .”

The husband contends that the aforementioned divorce decree mandates a reduction or modification of the $3,500 alimony to be paid if a bad farming year occurred. We note that we find no petition for such modification; however, the matter was tried as if there was such a petition.

We do not find the above quoted provision of the prior divorce decree to be mandatory on the trial court. Specifically, the words, “may be compromised,” are used. We take this to only be a factor for the trial court to consider in determining whether a modification of alimony should be ordered.

In any event, the dispositive principle of law is that a modification of a prior decree of alimony based on changed circumstances of the parties is largely a matter within the judicial discretion of the trial court; the exercise of such discretion is to be disturbed on appeal only if there is such an abuse of discretion as to be plainly and palpably wrong. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied 295 Ala. 429, 321 So.2d 664; 8 Ala. Digest Divorce 245(3), 286. After a careful review of the evidence, we find no such abuse in this instance, even if it were conceded the “bad farming year” occurred. There is testimony that the husband owns one-third interest in 160 acres of land, farming equipment and cattle, and has purchased a new truck. Additionally, there is testimony that while the parties were married, “bad” farming years had occurred and the husband provided for the wife during those years as well as “good” years. For this court to reverse in this instance, we would have to substitute our judgment for that of the trial court. The law of Alabama does not provide for such substitution.

Appellee-wife in brief states that this court may on application award an attorney’s fee for service on appeal. We find no formal application for such fee; however, we will consider appellee’s brief to be such application. We decline to make such award.

This case is due to be and is affirmed.

AFFIRMED.

All judges concur.


text:
    In re William F. ROMINE v. Thomas McDUFFIE et al. Ex parte Thomas McDUFFIE.
    Civ. 934.
    Court of Civil Appeals of Alabama.
    Jan. 26, 1977.

      Alton R. Brown, Jr., Mobile, for appellant.
    Bert S. Nettles, Mobile, for appellees.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The Circuit Court of Mobile County, after an ore tenus hearing, found that the employee had suffered a seventy-five percent permanent partial disability to his body as a whole (and a correspondingly reduced earning capacity) as the result of a job connected accident, and awarded compensation at the rate of $60 per week for 300 weeks. The employer seeks review of that judgment here by way of certiorari as provided by Title 26, Section 297(E), Code of Alabama 1940 (Recomp.1958).

The employer, in brief filed to support his petition for certiorari, says that the trial court erred by failing to find that the employee suffered an injury to his foot only and therefore should have been compensated for this loss under the statutory schedule found in Title 26, Section 279(C)(1), Code of Alabama 1940 (Recomp.1958). He claims further error in the trial court’s finding that the employee suffered a seventy-five percent permanent partial disability to his body as a whole and a consequent seventy-five percent diminished earning capacity.

The evidence shows the claimant-employee had been a carpenter for about twenty years. While working as a carpenter for petitioner-employer, the employee fell when the scaffolding on which he was standing collapsed, breaking both bones in the lower part of his left leg. He was taken to a hospital where the fractures were set and a cast placed on the leg. Several weeks later the employee returned to the hospital to have the leg reset so that the breaks could be more properly aligned. Another cast was placed on the leg.

After the cast was removed several months later, the employee was fitted with a leg brace, which remained on the leg for about a year and a half. The employee still is required to wear the brace when he walks on uneven ground. Due to inability to completely straighten his knee, the employee’s left leg is now one inch shorter than his right leg. He must wear a built-up shoe on his left foot.

The employee testified that he first experienced pain in his lower back about a month after the cast had been removed and the brace installed on his left leg and before he was fitted with a sufficiently built-up shoe. He had never before experienced pain in this area of his body. The pain, which has been with him since that time, prevents him from sleeping through an entire night and from engaging in any prolonged physical activity. Due to a lessened area of movement of his left knee and left leg, he cannot sit in any one position for any length of time but must move about and stretch.

Dr. J. Nelms, an orthopedic surgeon in Mobile, Alabama, treated the employee initially and has treated him since then up to the time of trial. The doctor testified that the employee now has an atrophied left thigh and calf, limited extension of the left leg, a ten degree angulation at the fracture site, a one inch shortening of the left leg, scoliosis or curvature of the spine, a limp, and low back pain. He attributed the pain to the shortened leg, which caused an unbalanced distribution of weight, and attributed the shortened leg and scoliosis to the injuries received on the job in 1972.

Dr. Mostellar, an orthopedic surgeon who also treated the employee, reported that he found a deformed left leg, scoliosis, a list to the left while standing, and some numbness in the left foot caused by nerves in the lower back. The scoliosis, which could be due to the shortened leg, places unusual stress on the lower back area and is consistent with the type injury suffered by employee.

The employee has a tenth grade education. Prior to taking up carpentry he worked on his father’s farm for five or six years and operated a forklift for a short period of time. For most of the twenty years he was employed as a carpenter, he was a frame carpenter, which entailed putting up house frames. While much of his work was performed on the ground, he was also required to climb ladders and work on scaffolds. The area around building sites is usually littered with debris. Often the ground is uneven, with many holes and depressions, making walking in the area difficult.

The employee says he can no longer do the work of a frame carpenter because too much walking or standing is painful; he is now afraid to climb on scaffolding. Dr. Nelms testified it would be hazardous for the employee to climb ladders, work on scaffolds, or walk around in areas where the ground is uneven and there is a lot of debris.

The employee is trained only as a frame carpenter; he cannot do carpentry work that would allow him to remain on a smooth floor on the ground, e. g. cabinet construction. He has unsuccessfully sought several carpentry jobs since being told by Dr. Nelms that he may again work.

The criteria for review of a workmen’s compensation case is set out in our case of B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. den., 287 Ala. 726, 253 So.2d 45 and 287 Ala. 726, 253 So.2d 46 (1971), and quoted with approval in our recent case of Allied Paper Incorporated v. Davis, 342 So.2d 363 (Ala.Civ.App.1976):

“ ‘Our review by certiorari does not perform the functions of an appeal. The weight or preponderance of the evidence or whether the finding of fact by the trial court is proper is not before us on review by certiorari. We must accept such finding if it is supported by any legal evidence.’ ”

Petitioner first contends that because the only injury suffered by the employee at the time he fell from the scaffold was a leg broken below the knee, the employee should have been compensated under Section 279(C)(1), supra, for the loss of a foot, rather than under Section 279(C)(6), as he was.

Section 279(C)(1) contains a schedule of compensation for permanent partial disability due to loss of specific members of the body, including the loss of a foot. Amputation between the knee and ankle is considered the equivalent of the loss of a foot.

We think petitioner’s reliance on Section 279(C)(1) is misplaced. There has been no amputation, and thus no actual loss of either leg or foot. Likewise we reject petitioner’s argument by analogy. The employee has not lost all use of his left leg, nor is his injury limited only to his left leg. Petitioner relies upon Leach Mfg. Co. v. Puckett, 284 Ala. 209, 224 So.2d 242 (1969), which held that an employee is limited to recovery under Section 279(C)(1) where the injury suffered results in the loss of the use of a member and there is no other physical disability of the body. This case is inapplicable, since the evidence amply indicates that the employee’s entire body was affected by the injury initially sustained by the left leg.

We think the controlling principle here is that stated in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968) and followed by this court in City of Moulton v. Pearson, 54 Ala.App. 340, 308 So.2d 252 (1975):

“We conclude that although the injury itself is to only one part or member of the body, if the effect of such injury extends to other parts of the body, and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or the injury causes an abnormal and unusual incapacity with respect to the member, then the employee is not limited in his recovery under the Workmen’s Compensation Law to the amount allowed under the schedule for injury to the one member.” 282 Ala. at 646, 213 So.2d at 811.

Petitioner’s next contention is that the trial court erred in finding that the employee suffered a seventy-five percent permanent partial disability of his entire body, a finding he claims is unsupported by the evidence. The only testimony relating to percentage of impairment was that of one doctor who treated the employee and testified on the employee’s behalf. The doctor stated the employee suffered a thirty percent impairment of his left leg, with a twelve percent impairment to his body as a whole.

Our supreme court has held that in workmen’s compensation proceedings, the opinions of experts are not conclusive on the trier of fact, even if the testimony is uncon-troverted. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967). There the trial court found the employee to be seventy-five percent disabled, even though the expert testimony was that in his opinion the employee was twenty percent disabled. The supreme court noted that

“ . . . the percentage of partial and permanent disability was an issue arising from the evidence that was addressed to the trial court.” 280 Ala. at 535, 196 So.2d at 384.

After a careful examination of the evidence in this case, pertinent parts of which are set out above, we are convinced that there is sufficient legal evidence to support the trial court’s finding that the employee suffered a seventy-five percent permanent partial disability to his body as a whole, with a corresponding seventy-five percent reduced earning capacity.

Since we find no reversible error, the trial court’s judgment is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    James DUPREE v. Eldred C. DOTHARD, Director, Department of Public Safety, State of Alabama.
    Civ. 971.
    Court of Civil Appeals of Alabama.
    Jan. 26, 1977.

      David Barnes, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Kent Brunson, Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

James Dupree appeals from judgment striking his petition of mandamus. We affirm.

On June 4, 1976, in the Circuit Court of Montgomery County, Alabama, Dupree filed petition for writ of mandamus to be issued to the Director, Department of Public Safety, State of Alabama, compelling him to issue to Dupree a “limited license to operate a motor vehicle upon the public roads in the State of Alabama while conducting the affairs of his employer . ..”

The petition states that Dupree was adjudged guilty of driving while intoxicated in Jefferson County, Alabama on April 6, 1976. He paid a fine and cost therefor; he did not appeal from the conviction within the time given by statute (the stated reason for not perfecting an appeal is immaterial); on May 5, 1976, the driving privilege of Dupree was revoked by the Director (a mandatory revocation under Title 36, Sec. 68, Code of Alabama (1940), Rogers v. Russell, 284 Ala. 477, 225 So.2d 879 (1969)); petitioner has demanded from Director a “limited privilege” as driving a motor vehicle is necessary to his employment; Director has refused to grant such privilege.

The Director answered the petition, alleging the conviction, his mandatory duty to revoke under the statute and lack of subject matter jurisdiction and moved to strike the petition. The motion to strike was granted.

Dupree on appeal admits that the first four grounds of the Director’s motion to strike are true. However, he takes issue with ground 5 — i. e., the court is without subject matter jurisdiction. He further states that the petition for mandamus “is not an appeal or an action seeking review of the action taken from the adverse judgment suffered on the 6th day of April, 1976 . but an action seeking affirmative relief from the hardship of the consequence of said judgment and the harsh effects of Title 36, Sec. 68.”

“There is no provision in the Alabama statute providing for such a proceeding and such is without authority of law.”

This last quoted statement from the brief of Dupree is exactly correct. It is the reason his petition for mandamus was dismissed. It is the reason we affirm.

Dupree appears to be under the impression that there is a remedy by mandamus from the properly entered order of the Director because the result is a hardship upon him. Such impression is not correct. Mandamus is an extraordinary legal remedy to be granted only if there is a clear, specific legal right for enforcement of which there is no other adequate remedy. Finley v. Jenkins, 264 Ala. 536, 88 So.2d 329 (1955). His admission of the absence of any authority of law for his petition rendered the court without subject matter jurisdiction to issue a responsive writ.

The dicta in Kelley v. Lingo, 280 Ala. 128, 190 So.2d 683 (1966), indicating that though there is no right of appeal from the mandatory revocation of a driver’s license by the director, there might be another remedy, clearly must refer to a remedy of review. It cannot mean that a correct act by the Director could be set aside and nullified merely because the result was a hardship upon the licensee. There is no legal right to relief from a penalty required to be imposed for a violation of the law.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HARRIS, Judge.

text:
    STATE of Alabama v. Karen Kay BALLARD.
    1 Div. 703.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 5, 1976.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, J. Michael Crouch, Asst. Attys. Gen., for the State.
    Grey Redditt, Jr. and Benjamin H. Kil-born, Mobile, for appellee.
   HARRIS, Judge.

Mrs. Ballard was indicted for the offense of child abuse pursuant to the provisions of Title 14, Section 41(1), Code of Alabama.

Omitting the formal parts the indictment reads as follows:

“The GRAND JURY of said County charge, that, before the finding of this indictment KAREN KAY BALLARD whose name is to the Grand Jury otherwise unknown than as stated, and who is over the age of eighteen years, did willfully and unlawfully hit, beat, strike, or inflict unjustifiable physical pain or mental suffering on Jennifer Ballard, a child under the age of sixteen years in a manner which was not ordinary and reasonable discipline and punishment, against the peace and dignity of the State of Alabama.”

The defendant filed a demurrer to the indictment alleging:

1. The indictment is defective in that it is so vague and indefinite that it fails to apprise the Defendant of the offense with which she is charged.

2. The statute under which this indictment is drawn is unconstitutionally vague in defining the offense with which the Defendant is charged.

3. The act under which the indictment was returned is unconstitutional in that the act itself is broader than the title under which the act is drawn, in contravention of the Constitution of Alabama, Art. 4, Section 45.

4. The statute under which this indictment is drawn is unconstitutionally over-broad in that its terms are equally applicable to willful offenders and to persons who accidentally or unintentionally inflict injury to a child.

5. The indictment is defective in that it is so vague and indefinite as to the offense with which the Defendant is charged, that she is unable to properly and adequately prepare a defense to the charges.

6. The indictment violates the Defendant’s due rights under U.S. Constitution, Amendment V.

7. The indictment denies the Defendant her right to due process under U.S. Constitution, Amendment XIV.

8. The indictment violates the Constitution of Alabama, Art. 1, Section 6 by failing to inform the Defendant of the nature and cause of the accusation against her.

9. The indictment is defective in that it does not set out with definiteness the constituent elements of the offense, in violation of the Constitution of Alabama, Art. 1, Section 6.

10. The indictment is defective in that the statute under which it was returned violates Constitution of Alabama, Art. 1, Section 6.

11. The alleged offense does not constitute a crime under the laws of Alabama.

12. The statute is unconstitutionally vague and denies the Defendant equal protection in that “unjustifiable pain” is subject to varying opinions and viewpoints of enforcers of the rule, and does not furnish a meaningful standard of action.

13. The Defendant has been placed in former jeopardy.

The law in question is Act No. 2422, General Acts of Alabama 1971, approved October 1, 1971. The entire act reads as follows:

“AN ACT
“To provide for the conviction of persons over 18 years of age who wilfully cause pain or injury to a child under 16 years of age and to provide the punishment for such crime.
“Be It Enacted by the Legislature of Alabama:
“Section 1. Any person over 18 years of age who hits, beats, strikes, cuts, stabs, burns, scalds, or inflicts unjustifiable physical pain or mental suffering on any child under the age of 16 years in a manner which is not ordinary and reasonable discipline and punishment shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than ten years.
“Section 2. This Act shall become effective upon its passage and approval by the Governor or upon its otherwise becoming a law.
“Approved October 1, 1971.”

The trial court rendered the following decree:

“ORDER, DEMURRER TO INDICTMENT SUSTAINED — DEFENDANT DISCHARGED.
"State of Alabama Hodnette vs. 35229 Karen Kay Ballard (WF DB 4/22/54)
Child Abuse.
Demurrer to Indictment— Sustained — Defendant discharged—
Attorney in court.
“This day in open court came the State of Alabama by its District Attorney and the defendant’s Demurrer filed on the 18th day of February, 1976, to the Indictment in this case and having heretofore on the 17th day of March, 1976, been argued by counsel and submitted to the court, together with all of the other papers in this case, and said Demurrer being understood by the Court;
“This cause on coming to be heard is submitted for ruling on the Demurrer of the Defendant challenging the constitutionality of Act No. 2422, 1971 Acts of Alabama, and codified in Tit. 14, Sec. 4[41](1) Code of Alabama (Recompiled 1958); and the Court having heard the argument of counsel and having carefully considered the same and the briefs submitted on behalf of the State and the defendant and the Court being of the opinion that said Act is unconstitutional; “It is therefore ORDERED, ADJUDGED AND DECREED by the Court that Act No. 2422, 1971 Acts of Alabama, codified in Tit. 14, Sec. 41(1) Code of Alabama (Recompiled 1958) be and the same is hereby declared unconstitutional as viola-tive of Article 4, Sec. 45, Constitution of Alabama in that the scope of the body of said act exceeds the scope of the title of the act; Article 1, Sec. 6, Constitution of Alabama, in that the definition of said crime is vague and ambiguous and does not apprise the defendant of the nature and cause of the accusation against her; and further for these same latter reasons is violative of the United States Constitution, Amendment 5.
“It is therefore further ORDERED, ADJUDGED and DECREED by the Court that the defendant, Karen K. Ballard, be and is hereby discharged.”

Since Act No. 2422 was declared to be unconstitutional the State of Alabama appealed the decision of the trial court.

We start with the statement that a statute will, if possible, be so construed as to render it valid. Alabama Digest, Constitutional Law, &wkey;48.

It is also the law that an overbroad enactment cannot enlarge a narrower title. White v. State, 49 Ala.App. 5, 267 So.2d 802. Stated another way, the test is: Is there anything in the bill that cannot by fair construction be referred to the title?

A careful reading of Act No. 2422, supra, demonstrates that nowhere does the element of scienter or wilfulness appear in the body of the act. The title of this act is narrow and restrictive, carefully setting out the precise elements required to constitute the commission of a crime. The body of the act fails to do this. This is a penal statute and must be strictly construed and may not be extended by construction. Dumas v. State, 17 Ala.App. 492, 86 So. 162.

In Locklear v. State, 50 Ala.App. 679, 282 So.2d 116, this Court held:

“Criminal statutes cannot be extended to cases not included within the clear and obvious import of their language. Young v. State, 58 Ala. 358(1).
“No person is to be made subject to penal statutes by implication, and all doubts concerning their interpretation are to predominate in favor of accused. Fuller v. State, 257 Ala. 502, 60 So.2d 202(5). “Penal statutes are not to be extended by construction, but must be limited to cases clearly within the language used. Greek-American Produce Co. v. Illinois Central R. R. Co., 4 Ala.App. 377, 58 So. 994(9).”

The problems arising from broad statutes with restrictive titles have confronted the Alabama Court on a number of occasions. In Brown v. National Motor Fleets, Inc., 276 Ala. 493, 164 So.2d 489 (1964), the Court dealt with a statute imposing a tax on motor trucks operating “for hire.” There the Court found that where the body of the Act used the term “for hire” in a broader sense than the ordinary commercial meaning, and the title did not indicate this broader usage, the Act was unconstitutional under Section 45. In so holding, the Court stated that:

“The title alone should be considered and a determination made as to object or objects, it expresses; and the body of the Act, regardless of definition, cannot enlarge the meaning. . . . ‘The body determines the scope of the operation of the act, but is limited by the maximum scope as expressed in the title . . . ’ Mason, ‘The Drafting of Statute Titles’, 10 Ind.Law Journal 155, 160.” Brown at 494, 164 So.2d at 490 (Emphasis added).

In striking down a portion of Alabama’s stop and frisk statute, which allowed for search after a frisk revealed no weapons, and the title referred to only a “search for weapons,” the Court of Criminal Appeals in White v. State, 49 Ala.App. 5, 267 So.2d 802 (1972), held that an overbroad enactment cannot enlarge a narrow title, and to the extent it purports to do so is void.

Most recently this question was presented in Bagby Elevator Company v. McBride, 292 Ala. 191, 291 So.2d 306 (1974). There the Court held that where the title indicated the Act dealt with the time within which actions must be brought (the traditional statute of limitations), while the body contained a provision extinguishing the cause of action, that portion of the statute was void under Section 45 in that the latter provision encompassed matters not indicated by the title.

Similar holdings permeate Alabama constitutional law. In Fuqua v. City of Mobile, 219 Ala. 1, 121 So. 696 (1928), the Court held that where the title of an Act is narrow and restrictive, and where the subject matter of the Act goes beyond the title, the Act violates Section 45. Likewise the Court stated in Opinion of Justices, 247 Ala. 195, 23 So.2d 505 (1945), that if an Act is broader than the title . . that part of the Act that is not indicated by the title is unconstitutional. See also 73 Am.Jur.2d, Statutes, Section 113.

In order to bring the title and body of this Act into harmony this Court would, of necessity, have to redefine the crime of child abuse which we are forbidden to do. This is purely a legislative function. The offense defined in the title requires an evil mind — the offender must wilfully commit the act. The offense defined in the body of the act requires no such mental state, but rather a physical act. It is absolutely impossible to avoid holding that the title to this Act is more restrictive than the body.

In Opinion of Justices, 247 Ala. 195, 23 So.2d 505, it is said:

“It is a familiar principle that if the Act is broader than the title, that part which is within both the title and the body of the Act can stand, while that part not indicated by the title will fall.”

Another problem inherent in this Act is that it is vague and uncertain in that the words: “or inflicts unjustifiable physical pain or mental suffering . . . in a manner which is not ordinary and reasonable discipline and punishment,” leaves so many variables that an accused would be at a loss to know precisely what he is charged with in order to enable him to adequately prepare his defense.

In Gayden v. State, 262 Ala. 468, 80 So.2d 501, the Supreme Court said:

“Indictments must always conform to the mandates of our organic law. The emphasis in our cases ‘that in all criminal prosecutions, the accused has the right * * * to demand the nature and cause of the accusation’ now § 6 of the Constitution of 1901 — is not meaningless tautology, but one of the cornerstones of our Bill of Rights. As was observed by the late lamented Mr. Justice Brown in Spooney v. State, 217 Ala. 219, 222-223, 115 So. 308, 312;
* * * It is but an expression of the fundamental principle that inspired civilized man to form a government, the ultimate purpose of which is to protect the individual in working out his destiny, and finds expression in our Constitution in these words: ‘That in all criminal prosecutions the accused has a right to be heard by himself and counsel, or either; * * * and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law.’ * * * Constitution of Alabama 1901, §§ 6, 13. * *
‘ “The manifest purposes of the quoted constitutional provisions, where life, liberty, and property are affected, are to secure the citizen against the arbitrary action of those in authority, and to place him under the protection of the law.” * * * >
“And that provision and the others of our Bill of Rights ‘are to be largely and liberally construed in favor of the citizen.’ Dorman v. State, 34 Ala. 216, 238.
“We are further restrained in this case by the requirements of the Fourteenth Amendment to the Constitution of the United States. The following utterances by our Federal courts are pertinent: ‘No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.’ Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. ‘The petitioner charged that he had been denied any real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process * * *.’ Smith v. O’Grady, Warden, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859. ‘An intelligent and full understanding by the accused of the charge against him is a first requirement of due process.’ Bergen v. United States, 8 Cir., 145 F.2d 181, 187.
“Regardless of some ill-considered, loose expressions in some of the cases, the law and always has been that it is not enough to charge against a defendant a mere legal conclusion as justly inferential from facts not set out in the indictment. United States v. Almeida, 24 Fed.Cas. pages 775, 776, No. 14,433. is
‘ “In order to properly inform the accused of the ‘nature and cause of the accusation,’ within the meaning of the constitution and of the rules of the common law, a little thought will make it plain, not only to the legal, but to all other educated, minds, that not only must all the elements of the offense be stated in the indictment, but that also they must be stated with clearness and certainty, and with a sufficient degree of particularity to identify the transaction to which the indictment relates as to place, persons, things, and other details. The accused must receive sufficient information to enable him to reasonably understand, not only the nature of the offense, but the particular act or acts touching which he must be prepared with his proof; and when his liberty, and perhaps his life, are at stake, he is not to be left so scantily informed as to cause him to rest his defense upon the hypothesis that he is charged with a certain act or series of acts, with the hazard of being surprised by proofs on the part of the prosecution of an entirely different act or series of acts, at least so far as such surprise can be avoided by reasonable particularity and fullness of description of the alleged offense.” ’ (Italics supplied.) United States v. Potter, 1 Cir., 56 F. 83, 89.”

In Bolin v. State, 266 Ala. 256, 96 So.2d 582, the Supreme Court said:

“It is also settled law that ‘In enacting a criminal statute, there is an obligation on the State to so frame it that those who are to administer it and those to whom it is to be administered may know what standard of conduct is intended to be required and legislation may run afoul of the due process clause because of a failure to set up any sufficient guidance to those who would be law-abiding, or to advise a defendant of the nature and cause of an accusation he is called on to answer, or to guide the courts in the law’s enforcement.’ Kahalley v. State, 254 Ala. 482, 483, 48 So.2d 794, 795; Seals v. State, 239 Ala. 5, 194 So. 682; Standard Oil v. State, 178 Ala. 400, 59 So. 667; Carter v. State, 243 Ala. 575, 11 So.2d 764.
“And a person is not required to speculate as to the meaning of a statute at the peril of his freedom. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. The intent of the legislature must appear from the face of the statute. Standard Oil Co. v. State, supra.”

A defendant who is called upon to answer an indictment which tracks the language of Act No. 2422, supra, could be put in an impossible position in preparing to defend himself against charges of “unjustifiable pain” or “ordinary and reasonable punishment.” These are subjective terms and there are no standards whereby one can determine what constitutes the crime. He might appear in court to adequately defend himself against charges that he “hit, beat, struck, cut, stabbed, burned or scalded” a child. On the other hand, he might be met with evidence adduced by the State that he chained his child to a bed in a dark room without food or water. No one would contend for a moment that such an act would not be “unjustifiable pain” or would constitute “ordinary and reasonable punishment,” yet the defendant would be helpless in preparing his defense to such evidence. Such language is vague, indefinite and overbroad and cannot pass constitutional muster.

We are loath to strike down any law dealing with child abuse. We realize that child abuse is a fast growing national problem and that all 50 states have passed statutes, in one form or another, dealing with this problem, but we are compelled to follow the law. We agree with the decision of the trial court and affirm his decree holding Act No. 2422 to be unconstitutional as written.

AFFIRMED.

All the Judges concur.


author:
PER CURIAM.
      MADDOX, Justice

text:
    In re STATE of Alabama v. Karen Kay BALLARD. Ex parte State of Alabama.
    SC 2102.
    Supreme Court of Alabama.
    Jan. 14, 1977.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, and W. Lloyd Copeland, Asst. Atty. Gen., for the State, petitioner.
    Grey Redditt, Jr., Mobile, for respondent.
    David H. Bibb, Decatur, for Karen Kay Ballard, amicus curiae.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

The majority, by quashing the writ, lets stand the determination by the Court of Criminal Appeals that Alabama’s Child Abuse Statute is unconstitutional. I think the Court of Criminal Appeals misapplied the law and I believe this Court should reverse the Court of Criminal Appeals. 341 So.2d 957. Consequently, I dissent.

The Court of Criminal Appeals correctly held that an overbroad enactment will not enlarge a narrower title, but when it declared the entire Act unconstitutional instead of removing the offending portions, it committed grievous error, in my opinion.

In fact, a statement in the opinion of the Court of Criminal Appeals shows that the court made a mistake. It opined:

“The problems arising from broad statutes with restrictive titles have confronted the Alabama Court on a number of occasions. In Brown v. National Motor Fleets, Inc., 276 Ala. 493, 164 So.2d 489 (1964), the Court dealt with a statute imposing a tax on motor trucks operating ‘for hire.’ There the Court found that where the body of the Act used the term ‘for hire’ in a broader sense than the ordinary commercial meaning, and the title did not indicate this broader usage, the Act was unconstitutional under Section 45. In so holding, the Court stated that: '■
“ ‘The title alone should be considered and a determination made as to object or objects, it expresses; and the body of the Act, regardless of definition, cannot enlarge the meaning. . . . The body determines the scope of the operation of the Act, but is limited by the maximum scope as expressed in the title . (Mason, ‘The Drafting of Statute Titles,’ 10 Ind.Law Journal 155, 160).’ Brown at 494, 164 So.2d 489 (Emphasis added).
“In striking down a portion of Alabama’s stop and frisk statute, which allowed for search after a frisk revealed no weapons, and the title referred to only a ‘search for weapons,’ the Court of Criminal Appeals in White v. State, 49 Ala. App. 5, 267 So.2d 802 (1972), held that an overbroad enactment cannot enlarge a narrow title, and to the extent it purports to do so is void.”

In Brown and White, the entire Acts were not declared void, only those portions which were overbroad. Here, the accused was not charged with conduct other than that expressed in the title, that is, willful conduct. In Brown and White the taxpayer and the accused respectively were complaining about being held accountable under the overbroad provisions of the statutes involved. Consequently, those cases are distinguishable, but helpful because they establish the rule that only the overbroad provisions are struck down.

Basically, I start with the proposition that the statute is presumed valid. Next, the intent of the legislature in passing Act No. 2422 is plain — to prevent child abuse.

I come now to consider the challenger of the Act. Karen Kay Ballard was charged with willfully and unlawfully hitting, beating, striking or inflicting unjustifiable physical pain or mental suffering on Jennifer, in a manner which was not ordinary and reasonable discipline and punishment. In short, she was charged with child abuse, willful conduct clearly prohibited by the statute, even considering a narrow construction of the Title. The rule set out in both Brown and White is that when it is determined that an Act is broader than the Title, that part which is within both the Title and the body of the Act will stand (which I contend is the case here), that part not indicated within the Title will fall. Opinion of the Justices, 247 Ala. 195, 23 So.2d 505 (1945).

As I stated, I do not need this rule of construction to find what the legislature intended when it passed Act 2422, but if I did, I would look to the Title to aid me in determining that when the legislature used the words “hits,” “cuts,” “stabs,” “burns,” “scalds,” or “inflicts unjustifiable physical pain or mental suffering,” it meant that these acts must be “willfully” done, as set out in the Title.

The Court of Criminal Appeals relies strongly on this Court’s case of Brown v. National Motor Fleets. The majority in Brown did not invalidate the entire Act, it merely held that where a title is narrow, that the body of the Act cannot expand or broaden the words as used in the Title. The State here does not attempt to broaden the Act to cover anything other than willful conduct. Consequently, insofar as Karen Kay Ballard is concerned, she was charged with willful conduct, which was proscribed by the Title, and which the majority, even in Brown, said was permissible.

Consequently, I believe that the Act is valid insofar as it proscribes willful conduct — the object expressed in the Title.

I also would reverse the Court of Criminal Appeals’ affirmance of the trial court’s determination that the Act is void for vagueness.

The Constitution does not require impossible standards. Absolute definitional exactness is impossible to achieve. Some generality of language must be acceptable. The words “pain or mental suffering” and “discipline and punishment” are common words. The terms “unjustifiable” and “unreasonable” are common words, commonly understood, especially when used in connection with “pain” and “punishment,” as they are in this statute. Many other state courts have upheld similar statutes when they were attacked as “vague.”

In Campbell v. State, 240 So.2d 298 (S.Ct.Fla.,1970), defendant attacked the constitutionality of Florida Statutes, § 828.04, F.S.A., contending that the words “unnecessarily or excessively” (in connection with chastising a child) as used in the Florida child abuse law were too vague to meet constitutional standards of due process. The opinion of the Supreme Court of Florida is particularly relevant here:

“We find appellant’s contentions without merit. The particular words complained of, ‘unnecessarily or excessively’ are not vague when considered in the context of the entire Statute and with a view to effectuating the purpose of the act. The fact that specific acts of chastisement are not enumerated, an impossible task at best, does not render the statutory standard void for vagueness. Criminal laws are not ‘vague’ simply because the conduct prohibited is described in general language .
“Men of common understanding can comprehend the meaning of the words ‘unnecessarily or excessively chastise’ when read in conjunction with the entire act. The conduct described by the Statute can be determined with reasonable certainty notwithstanding the various methods of disciplining children . . ” 240 So.2d 299, 300 [Footnotes omitted].

In People v. Curtiss, 116 Cal.App.Supp. 771, 300 P. 801 (1931), the court considered the constitutionality of a statute strikingly similar to the one sub judice. There, the defendant was complaining of the language contained in Section 273a(2) of the Penal Code of California, which provided: “Any person who . . . willfully inflicts thereon [on any child] unjustifiable physical pain or mental suffering . is guilty of a misdemeanor.” The California Court commented at 300 P. 804:

“By the use of the word ‘unjustifiable,’ the Legislature intended to make use of the antonym of ‘justifiable,’ and to designate as criminal the infliction of physical pain or mental suffering upon a child, which could not be defended, or vindicated, or which was not exculpable, excusable or authorizable, under the circumstances. The standard thus set up is not abstract. It is concrete. . . . ”

And at 804, 805:

“ * * * Granting that there must be certainty in the definition of criminal acts, we are of opinion that the statute does contain a fixed standard of guilt and that the principles declared in Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146, do not apply. . Reasonableness as the standard of an act, which can be determined objectively from circumstances, is a common, widely-used, and constitutionally valid standard in law. . . . Conformity to this standard cannot be said to be violative of the guaranty of due process of the Fourteenth Amendment to the Federal Constitution or of the corresponding provisions in the state Constitution. . . . ” [Footnotes omitted].

In a case recently decided by the Court of Criminal Appeals of Texas, Nabors v. State, 508 S.W.2d 650 (1974), the defendant attacked the constitutionality of the language contained in the Texas Child Abuse Statute, specifically alleging that the statute did not adequately define what constituted “moderate restraint or correction.” In upholding the constitutionality of the statute, the court noted that:

“ ‘The law has not and obviously could not lay down any fixed measure of moderation in the correction of a child. Whether in any particular case the correction was moderate or excessive must necessarily depend on the age, sex, condition, and disposition of the child, and on all the attending circumstances to be determined by the jury under proper instructions.’ Cf. Stanfield v. State, 43 Tex. 167 (1875). We conclude that the statute is not unconstitutional for the reason assigned.” 508 S.W.2d 651, 652, quoting from 44 Tex.Jur.2d, Sec. 17, p. 43.

See also People v. Vandiver, 51 Ill.2d 525, 283 N.E.2d 681 (1971), and State v. Fahy, 201 Kan. 366, 440 P.2d 566 (1968) for examples of similar reasoning in upholding vagueness attacks on child abuse statutes.

I would uphold the constitutionality of the Child Abuse Act.


author: BOOKOUT, Judge.

text:
    John W. BUSH v. STATE.
    3 Div. 568.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
    Rehearing Denied Jan. 4, 1977.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Driving while intoxicated; sentence: five hundred dollar fine.

On May 5, 1974, the appellant’s pickup truck left Ware’s Ferry Road, struck an embankment, and overturned. The appellant suffered various painful injuries. He testified that he had a bottle of bourbon with him and that he drank some of the bourbon after the wreck to relieve the pain.

A State’s witness, John Wesley McCloud, testified that he saw the wreck, that he was approximately one hundred feet from the wreck when it occurred and that he assisted the appellant out of the pickup truck. He stated that he observed the appellant from the time of the wreck until State Trooper William L. Fletcher arrived at the scene. McCloud stated that he did not see the appellant take a drink during that period of time.

Lt. Fletcher, upon arrival, found a half-full bottle of bourbon near the truck. He stated in effect that the appellant exhibited the classical signs of being under the influence of alcohol and that a P.E.I. (photoelectric intoximeter) test was administered to the appellant. The results of the test revealed an alcohol reading of .17 (.10 constituting a rebuttable presumption of intoxication).

I

The appellant contends the results of the P.E.I. test should have been excluded because a proper predicate was not laid for its introduction. No objection was made to the introduction into evidence of the fact that the test was given nor to the results of the test. Absent an objection and a ruling thereon, we have nothing to review. Patterson v. State, 51 Ala.App. 659, 288 So.2d 446 (1974).

II

The appellant contends that there is a conflict between Title 36, § 2 and Title 36, § 68, Code of Alabama 1940 (Recompiled 1958) as to who shall have the authority to revoke a driver’s license for the offense of D.W.I. This is an appeal from a conviction for D.W.I., and the revocation of a driver’s license is not an issue in this case.

Appellant also contends that Title 36, § 154, is void for vagueness. According to the appellant, the statute is unclear as to whether one who refuses to submit to a P.E.I. examination will lose his driver’s license for forty-five or ninety days. The issue of revocation of driver’s license is not a proper subject for review on a criminal appeal, and furthermore since appellant submitted to the P.E.I. test, he has no standing to question the sanctions which could be taken against one who refuses to submit to the test.

Appellant makes an additional novel argument that the Act providing for the chemical test for intoxication is a “bill of attainder” because it authorizes the Director of Public Safety to impose penalties without judicial review. Again, appellant attempts to raise an issue which is not properly before this Court on a criminal appeal.

Ill

The appellant’s final contention is that the State failed to show that he did not have access to alcohol after the accident.

John Wesley McCloud testified that he observed the appellant from moments just prior to the wreck until Lt. Fletcher arrived on the scene and took custody of the appellant. He stated that he did not see the appellant with any alcohol, much less see him drinking. From that evidence, the jury was justified in finding that the appellant did his drinking before the wreck, and thus was guilty of driving while intoxicated.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte John W. BUSH.
    SC 2311.
    Supreme Court of Alabama.
    Feb. 4, 1977.
   Certiorari to the Court of Criminal Appeals, 341 So.2d 965.

JONES, Justice.

WRIT DENIED.

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


text:
    Eziekel SCROGGINS, alias v. STATE.
    3 Div. 455.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.

      Philip Dale Segrest, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. He was represented by court-appointed counsel and at arraignment he entered a plea of 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 appeal.

On the night of October 31, 1974, Mr. Glenn Harrison, the owner and operator of the Elmont Grocery Store and Service Station located on the Old Wetumpka Highway in the Madison Park area of Montgomery County, was shot with a .410 gauge shotgun. The time was around 8:45 p. m. The only persons present at the time of the shooting were the deceased and his wife. They were in the process of closing the business for the night when the shooting occurred. The deceased was at the gas pumps locking them when he was shot. Mrs. Harrison was inside the store closing and bolting the windows when she heard voices outside followed by gunshots. She rushed outside and saw her husband staggering toward the front door to the store. She saw the barrel of a shotgun in the hands of a black man who had his back toward her. She screamed and the man with the shotgun ran around the store and she did not see him again. Mrs. Harrison never got to see the gunman’s face and could not identify her husband’s killer.

The Montgomery Police Department was called and several uniformed officers and detectives came to the scene of the shooting. The uniformed officers were the first to arrive and they secured the scene. Detective R. E. Fisher arrived next and found Mrs. Harrison propping up Mr. Harrison who was bleeding from his chest and stomach area. An ambulance was called and the victim was carried to a local hospital. Officer Fisher was allowed to talk to Mr. Harrison just before he died in an attempt to get a description of the gunman. Mr. Harrison told the officer that he was dying and that his insides were all shot up. As he was dying he told the officer that he was shot by a black male, approximately six feet tall, who was wearing a three quarter length coat and had on a stocking covering his face.

Detectives Cody Wood and John Lloyd arrived at the scene of the shooting and they found a spent .410 gauge shotgun shell near the gas pumps. Wood testified that he smelled the spent shell and from the fresh odor he determined that the shell was recently fired. Another .410 spent shell was found but it was mutilated and appeared to have been run over previous to the night of the shooting. Wood also found two stockings on a dirt pile near the store and these had eye holes in them. These items were placed in a paper bag and sealed and Wood wrote his initials — CRW—across the seal. All of these items were personally delivered by Wood to Dr. Richard A. Roper, Assistant State Toxicologist, at the hospital the night of the killing.

Dr. Roper performed an autopsy on the body of the deceased to determine the cause of death. After stating his education, experience and qualifications Dr. Roper testified that death resulted from hemorrhage and shock associated with a single shotgun wound to the lower right chest. He further testified that he removed five gunshot pellets from the body of Mr. Harrison and turned them over to Mr. Charles Wesley Smith of the State Department of Toxicology-

Following the death of Mr. Harrison an intensive investigation was begun to apprehend the killer. The police took into custody a number of .410 shotguns from the residents of the Madison Park area and turned them over to Mr. Smith for examination and comparison with the spent .410 shell found near the gas pumps where the shooting occurred.

In the course of their investigation the officers learned that appellant had borrowed a .410 shotgun from Jesse Boswell between 7:30 and 8 o’clock on the night of the murder. Jesse Boswell and his wife, Eva Boswell, operated a sweets shop in the Madison Park area and about two miles from where Mr. Harrison was shot. Eva Boswell was present when appellant came to their place to borrow the shotgun and told them that he was going to shoot rabbits on the highway that night and if he killed any, he would bring them one. Jesse Boswell loaded the shotgun and gave it to appellant who then got in his car and left. According to Eva Boswell’s testimony appellant returned to their shop later that night to play cards and told them that he had been stopped by a State Trooper who was on his way to the scene of the shooting and the Trooper told him that Mr. Harrison had been shot. Appellant further stated that he didn’t get a chance to shoot any rabbits that night because he did not think it wise to be out shooting rabbits with so many police around.

Eva Boswell further testified that the .410 shotgun was loaded by her husband when he loaned it to appellant and that appellant returned the gun the morning after Mr. Harrison was shot and the gun was empty. A day or two later appellant came back to see the Boswells and told them they had to get rid of the gun or give it to him and he would get them another one. He explained that the night Mr. Harrison was killed, “he loaned his car to a fellow and this fellow had gone down and shot the man.” Appellant didn’t say whom he loaned his car to that night and who had shot Mr. Harrison. The Boswells told appellant they would not let him have the gun saying, “We would handle it from here.”

Officer T. J. McLain came to the Boswell place and asked them about a .410 gauge shotgun and he gave them a receipt for the gun and took it to Mr. Charles Wesley Smith of the State Toxicology Department.

Mr. Charles Wesley Smith of the Alabama Department of Toxicology testified that he conducted a firearms comparison test on about six .410 gauge shotguns that had been collected by the police officers from the residents of the Madison Park area including the shotgun the Boswells surrendered to Officer McLean. After conducting the firearms comparison tests Mr. Smith concluded that the spent shotgun shell casing found at the scene of the shooting had been fired from the shotgun which appellant borrowed from the Boswells shortly before Mr. Harrison was shot on the night of October 31, 1974.

The State’s evidence focused directly on appellant and he was arrested by Detective Cecil H. Humphrey and carried to the station house where he was given the Miranda rights and warnings. He signed a waiver of rights form and freely talked to the officer but told him he was not going to sign a statement. A voir dire hearing was held out of the presence and hearing of the jury. He told the officer that his brother-in-law, Alfonso Hogan, and some other men picked him up in his car at Federal Drive and Coliseum Boulevard after he got off work and they went to Hogan’s home on West Fairview Avenue where they drank a fifth of gin after which he carried the men to their respective homes. At this point appellant changed his story and told the officer that he went to the Boswells and borrowed the .410 gauge shotgun which Jesse Boswell loaded for him. That he told the Boswells that when he went to pick up his girl friend at 11 o’clock that night he would be able to kill rabbits on the highway. He told the officer that after getting the gun he went home and left the men in the car while he ate supper. That after supper he carried the men home and while on his way back to his home he was stopped by a State Trooper who told him that Mr. Harrison had been shot. He then stated that he went to the house across the highway from the grocery store where the shooting took place and saw several policemen there. He then took the shotgun to his trailer and went to the Boswells and told them about Mr. Harrison. Appellant told the officer that he borrowed the gun to rabbit hunt but he did not tell the officer that he loaned the gun or the car to anyone. Appellant first said he had taken the gun back to the Boswells that night but changed his story again and said he took it to his trailer. At the conclusion of the voir dire hearing the Court ruled that appellant’s statement was knowingly and voluntarily made. The State laid the proper predicate, and the officer was permitted to relate to the jury what appellant had told him.

On cross-examination Officer Humphrey stated that he knew Alfonso Hogan and that he questioned Hogan one night, after he was given the Miranda rights and also that a Polygraph test was run on him. On redirect he testified the officers had investigated Hogan several times and his story checked out to be true and no warrant was ever signed for him.

After the State rested, appellant moved to exclude the State’s evidence on the ground the State had failed to make out a prima facie case against him. This motion was overruled and denied.

Appellant testified in his behalf and denied that he had anything to do with killing Mr. Harrison. Appellant did admit that he borrowed the shotgun from Jesse Boswell to shoot rabbits but he didn’t shoot at any rabbits. He claimed that he loaned his car to Hogan to get gas and the gun was in the car. He further testified that when Hogan returned his car, he admitted shooting Mr. Harrison twice.

On cross-examination he claimed the police put a gun in his face and forced him to sign the waiver form under a threat of death. He further stated that he returned the gun to the Boswells the same night he borrowed it. This was in direct conflict with the testimony of Eva Boswell.

Appellant admitted that he had previously been convicted of grand larceny in El-more County. He further testified that he told the police officers that Hogan had admitted to him that he shot Mr. Harrison two times. This statement was also in direct conflict with the testimony of the officers.

Appellant called Alfonso Hogan as a witness but he denied killing Mr. Harrison, denied telling appellant that he did, and denied borrowing appellant’s car. He confirmed the testimony of the officers that he had been questioned on several occasions but that his story checked out to be true and he was released.

The State was compelled to rely on circumstantial evidence in this case. Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury, and other evidence, tending to implicate the defendant is thereby rendered admissible. Johnson v. State, 247 Ala. 271, 24 So.2d 17; Phillips v. State, 248 Ala. 510, 28 So.2d 542; DeSilvey v. State, 245 Ala. 163, 16 So.2d 183; Harnage v. State, 49 Ala.App. 563, 274 So.2d 333; Cronnon v. State, 56 Ala.App. 192, 320 So.2d 697.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict of the jury. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State’s evidence,the refusal to give the affirmative charge and the denial of a motion for new trial, do not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

Counsel for the State and the defendant are allowed a rather wide latitude in drawing their deductions from the evidence. Cronnon v. State, supra.

Very wide latitude is allowed where the prosecution relies on circumstantial evidence for a conviction. Aaron v. State, 54 Ala.App. 71, 304 So.2d 625.

The circumstances in this case tending to connect appellant with the crime charged against him were: (1) Shortly before the killing he was in possession of the gun that was used in the killing. (2) The spent shotgun shell found at the murder scene was fired from the identical gun borrowed by appellant. (3) The gun was fully loaded when appellant borrowed it to shoot rabbits. (4) Admittedly he did not shoot at any rabbit, yet the gun was empty when he returned it to the owner. (5) He claimed he returned the gun the night he borrowed it but the proof showed he hid the gun in his trailer the night of the homicide and returned it the morning after the killing. (6) He tried to get the owner of the gun to get rid of it or give it to him and he would replace it with another gun. (7) He told the officers that he loaned his car in which the gun was located to another man who told him that he shot the deceased. This statement was proven to be false. The jury had all of these facts and circumstances from which to draw reasonable inferences that appellant was implicated in the shooting of the deceased.

Appellant bitterly complains that the prosecutor was guilty of misconduct during the trial of this case in making derogatory remarks and casting aspersions upon defense counsel. We do not condone the vituperative remarks made by the prosecutor. On the contrary, we condemn such remarks and the conduct of the prosecutor as being unworthy of his role as a prosecuting attorney. However, from our review of the entire record, we cannot say that these remarks, though improper, were so prejudicial to appellant as to have warranted a mistrial.

Appellant’s counsel objected to many of the remarks of the prosecutor and received a favorable ruling and in some instances there was no ruling on the objection. It is settled law in this state that in the absence of a ruling from the trial court to the admissibility of testimony no question is presented for review. McClendon v. State, 54 Ala.App. 327, 307 So.2d 723; Conner v. State, 52 Ala.App. 82, 289 So.2d 650.

Matters not objected to in the trial court cannot be considered for the first time on appeal, since review on appeal applies only to rulings invoked at nisi prius. Wade v. State, 49 Ala.App. 601, 274 So.2d 626.

It is equally well settled that a negative answer to an improper question does not constitute reversible error. Stephens v. State, 250 Ala. 123, 33 So.2d 245; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Haisten v. State, 50 Ala.App. 504, 280 So.2d 209.

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

The judgment of conviction is affirmed. AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Ezekial SCROGGINS.
    SC 2316.
    Supreme Court of Alabama.
    Feb. 4, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


text:
    Oscar CURRY v. STATE.
    3 Div. 550.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.
    Randolph P. Reaves, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at 40 years in the penitentiary. At arraignment he was represented by Court-appointed counsel and pleaded not guilty and not guilty by reason of insanity. After conviction he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence presented by the State is not in conflict. Appellant did not testify and offered no testimony in his behalf.

Walter Cobb testified that he was the owner and operator of the Loop Lounge and Cafe located on Holt Street in the City and County of Montgomery, Alabama. He stated that on Friday night, May 16, 1975, two black men came in his place and requested permission to use the rest room. He gave them permission and pointed to the back of the lounge. The two. men walked to the back but instead of going into the men’s room they went into the ladies’ room. Cobb called them out of the ladies’ room and they entered the men’s room. A short time later the men came out of the rest room and approached Cobb with drawn pistols and one of the robbers, who was later identified as appellant, pointed a pistol at Cobb and said, “Freeze, this is a stick up.” Cobb further testified that at the time Clara Belser and George Larkin and a few other people were in the lounge. He stated that Larkin was knocked off a barstool by one of the men, and Clara Bel-ser ran into the kitchen but was forced to return by one of the robbers. The bandits forced everyone in the place to lie face down on the floor and while they were on the floor, the robbers took all the money from the cash register and one of the bandits took two 20 dollar bills from Cobb’s wallet.

Cobb further testified that there was a boy in the lounge who was about half drunk and when he was ordered to get on the floor, he was slow to move and one of the robbers struck him over the head with a pistol and threw him on the floor. Cobb told the robbers that the boy was drunk and there was no-point in killing him. In a few moments Cobb heard a noise up front and also heard one of the robbers say, “I told this boy not to run,” and then Cobb heard three shots. Cobb and the others stayed on the floor a few minutes after the shots were fired and then they went just outside the lounge and found the boy was still living but he died before he could be moved.

Cobb further stated that the lounge was well lit the night of the robbery and he got a good look at both robbers in close quarters and without disguises. Cobb was called to view a lineup the next day in which there were five black men all dressed alike in prison clothes. He immediately identified the number three man in the lineup as appellant. He stated that he based his identification on seeing appellant at the time of the robbery and he also made a positive in-court identification of appellant as one of the bandits who robbed his place of business on the night of May 16, 1975, at the time one of them took $40.00 out of his wallet while he was on the floor.

Clara Belser testified that she was employed at the Loop Lounge and Grill on the night of the robbery and she saw both robbers when they came in and asked to use the rest room. She stated when the robbers emerged from the rest room, both pulled pistols and told everyone present to “Freeze, this is a stick up.” She said she became scared and ran in the kitchen, but one of the bandits came and got her and said, “-, I will blow your_brains out.” She was ordered to lie face down on the floor with the others and she heard the robbers open the cash register. She stated that her pocketbook was under the cash register and after the robbery, her .22 pistol was missing from her purse. She further testified that while she was on the floor, she heard someone say, “don’t run,” and she heard gunshots.

This witness identified appellant as one of the robbers and said she based her identification on seeing him and the other bandit at close quarters in a place that was so lighted one could see everyone in the lounge. She made a positive in-court identification of appellant as one of the bandits. This witness also attended the lineup the day after the robbery and identified appellant as the number three man in the lineup. She based her identification on seeing him the night before when he and the other man robbed the lounge and took her pistol from her purse. We quote her testimony: I picked out number three. I know faces. I know the two what came in there, and that was Oscar Curry and Martinez. I was looking right at them when they came in.”

Detectives M. R. Holt and Tom Coker both testified that they conducted the lineup and that Walter Cobb and Clara Belser viewed the lineup separately and identified appellant as one of the robbers. They stated that the men in the lineup were dressed in plain white jail clothes and there was no great disparity in their height and weight. They stated that appellant was number three in the lineup and that Cobb and Bel-ser identified him without the slightest hesitation and without any suggestions from them or anyone else.

At the close of the State’s case appellant made a motion to exclude the State’s evidence on the ground that the State totally and wholly failed to prove the elements of robbery. This motion was overruled and denied. Appellant also requested the affirmative charge which was refused. Appellant filed a motion for a new trial and this motion was overruled.

The three essential elements of the offense of robbery are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away the property of another from his person or in his presence, all of these elements concurring in point of time. Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382.

It is difficult to conceive of a clearer case of robbery than was made out by the facts in this case. Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and the overruling of a motion for a new trial, do not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

Appellant’s major contention on this appeal relates to the evidence involving the shooting death of a young man during the course of the robbery. He insists that the homicide is a separate and distinct crime, and testimony concerning the homicide prejudiced appellant’s right to a fair trial and constituted reversible error. We do not agree. The law is well settled that everything constituting the one continuous transaction is admissible as of the res ges-tae. Jackson v. State, 229 Ala. 48, 155 So. 581; Shields v. State, 52 Ala.App. 690, 296 So.2d 786.

The in-court identification of appellant was not tainted by the lineup. This is a clear case on “independent source.” Hannon v. State, 48 Ala.App. 613, 266 So.2d 825.

We find no reversible error and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Oscar CURRY.
    SC 2315.
    Supreme Court of Alabama.
    Feb. 11, 1977.
   SHORES, Justice.

WRIT DENIED.

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


author: OVERTON, Chief Justice. SUNDBERG, Justice

text:
    NATIONAL BEN FRANKLIN INSURANCE COMPANY, Petitioner, v. Miguel VALDES, Sr., as father of Miguel Valdes, Jr., Deceased, and Samuel S. Smith, as Administrator of the Estate of Miguel Valdes, Jr., Deceased, Respondents. Peter SMALLEY, a minor, by and through his father, next friend and natural guardian, H. Earl Smalley, and H. Earl Smalley, Individually, Petitioners, v. Miguel VALDES, Sr., as father of Miguel Valdes, Jr., Deceased, and Samuel S. Smith, as Administrator of the Estate of Miguel Valdes, Jr., Deceased, Respondents. RESERVE INSURANCE COMPANY, Petitioner, v. Miguel VALDES, Sr., as father of Miguel Valdes, Jr., Deceased, and Samuel S. Smith, as Administrator of the Estate of Miguel Valdes, Jr., Deceased, Respondents. MILLERS CASUALTY COMPANY OF TEXAS, Petitioner, v. Miguel VALDES, Sr., as father of Miguel Valdes, Jr., Deceased, and Samuel S. Smith, as Administrator of the Estate of Miguel Valdes, Jr., Deceased, Respondents.
    Nos. 46734-46737.
    Supreme Court of Florida.
    Nov. 18, 1976.
    Rehearings Denied Feb. 21, 1977.
    A. Dan Killian, Jr. and Tully Scott of Corlett, Merritt, Killian & Sikes, Miami, for National Ben Franklin Ins. Co.
    Arnold I. Levy of Papy, Levy, Carruthers & Poole, Coral Gables, for Peter Smalley.
    L. Norton Preddy, Charles B. Patrick and Michael J. Parenti, III, of Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for Reserve Insurance Co.
    Jonathon P. Lynn of Stephens, Thornton & Schwartz, Miami, for Millers Casualty Co. of Texas.
    Joe N. Unger, and Wolfson, Diamond & Logan, Miami Beach, for respondents.
   OVERTON, Chief Justice.

These causes are before us on petitions for writs of certiorari to review a decision of the Third District Court of Appeal reported at 303 So.2d 342 (Fla. 3d DCA 1974). The issue relates to a provision of insurance coverage by auto liability carriers and driver liability in an unusual factual situation.

The facts presented at summary judgment hearings are not disputed. On the evening of April 26, 1969, Peter Smalley, a minor, was driving his father’s car. Steven Spradley, another minor, was the only passenger in the vehicle. The police halted a parking lot altercation with other teenagers in which Smalley and Spradley were participating. Thereafter, the two drove to an agreed-upon rendezvous for a continuation of the incident. In the face of overwhelming odds and lack of expected reinforcements, the two withdrew in the car. On a second pass through the park, however, they began receiving a heavy pelting with rocks. They drove through a group of stone-throwing youths at about forty miles per hour in an attempt to escape the barrage. Just prior to passing through the group, Steven Spradley, the passenger, threw a glass beer mug into the crowd. The mug struck the decedent, Miguel Valdes, Jr., in the head, and he died five days later. Peter Smalley, the driver, testified he was ducking from the rocks when the mug was thrown, and he was ignorant of it until later. Spradley testified his purpose was to clear the way for the car. He said he did not know the decedent, Miguel Valdes, Jr., and testified that he was aiming only generally at the crowd to clear the way for the automobile.

Petitioner National Ben Franklin Insurance Company is the automobile liability carrier of H. Earl Smalley, owner of the vehicle driven by Peter Smalley. Petitioner Reserve Insurance Company is the excess coverage carrier for H. Earl Smalley. Petitioner Millers Casualty Company is the automobile liability carrier for the father of the passenger, Steven Spradley. As stated, petitioner Peter Smalley was the minor driver of the vehicle involved in the incident.

The cases were consolidated by the trial court, which granted summary final judgments in favor of these defendants. The issue concerned whether the decedent’s death “arose out of the ownership, maintenance, and use of the owned automobile.”

The Third District Court of Appeal reversed the trial court, holding that the death was causally connected with the use of the automobile and insurance liability might arise for three reasons: (1) that the clauses in the insurance policies must be liberally construed, if ambiguous, in favor of the insureds, since their function was to extend coverage; (2) that the boys undeniably acted in harmony, which tended to bring in automobile use, since one was driving while the other threw the mug; and (3) that the velocity of the car added forty miles per hour to the velocity of the mug, greatly enhancing its lethality.

Petitioners argue this holding conflicts with National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971); O’Dwyer v. Manchester Insurance Company, 303 So.2d 347 (Fla. 3d DCA 1974), and St. Paul Fire & Marine Insurance Company v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973). We disagree. National Indemnity Co. v. Corbo, supra, decided that an automobile liability insurance carrier was liable under the “arising out of the use” language in its insurance contract to pay damages occasioned by the bite of a German Shepherd watchdog being transported in the motor vehicle. Whatever may be said of Corbo, the holding of coverage under a virtually identical contract provision cannot be said to conflict with the holding of coverage in the instant case.

The facts and circumstances of O’Dwyer, supra, and St. Paul Fire & Marine Insurance Company v. Thomas, supra, are so dissimilar that conflict with the instant case is impossible. O’Dwyer, supra, held that a child’s nighttime collision with a bolt protruding from an accessory rack on a van on the insured’s premises did not “arise out of the use of the vehicle.” The vehicle was parked and unoccupied. In St. Paul Fire & Marine Insurance Company v. Thomas, supra, the court construed a homeowners policy rather than an automobile liability insurance policy.

We conclude there is no decisional conflict, and the petitions for certiorari are discharged accordingly.

It is so ordered.

BOYD, ENGLAND and HATCHETT, JJ., concur.

SUNDBERG, J., dissents with an opinion, with which ROBERTS and ADKINS, JJ., concur.

SUNDBERG, Justice

(dissenting).

I respectfully dissent from the majority’s determination that there is no decisional conflict in this case. The majority dispenses with St. Paul Fire and Marine Insurance Company v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973), with the terse statement that “the court construed a homeowner’s policy rather than automobile liability insurance policy.” Although appearing as a coverage exclusion in a homeowner’s policy the language in the Thomas policy is virtually identical to the language of the policies in the instant cases. The Third District Court of Appeal in the instant cases construed “arising out of the ownership, maintenance, or use of the owned automobile, or any non-owned automobile” precisely contrary to the construction given essentially the same policy language by the court in Thomas. For our purposes here I do not deem the distinction between a homeowner’s policy and an automobile liability insurance policy to be a meaningful difference.

ROBERTS and ADKINS, JJ., concur.