author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK.
    Opinion No. 18.
    Supreme Court of Alabama.
    Nov. 22, 1978.
   SENTELL, Clerk.

RULES 18 and 19, ALABAMA RULES OF JUDICIAL ADMINISTRATION MAGISTRATES — UNIFORM TRAFFIC INFRACTIONS

Judge T. M. Smallwood, Jr., Presiding Judge of the Municipal Court of the City of Birmingham, refers me to Paragraph 7 of the Notice on the back of the uniform traffic ticket and complaint and to Section No. 45-27(c), Birmingham City Code, and requests my opinion on the following questions:

Are improper lights, whether they be headlights, brake lights, etc., moving violations or are they equipment violations? And, if they can be voided under municipal ordinance previously cited?
And thirdly, if these are voidable equipment violations, must a person be referred to court for the third or subsequent violations within twelve months even if he has had these lights repaired within the allowable time with a recommendation that the ticket be voided?

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

I. A moving violation is a traffic offense which can occur only when the vehicle is in motion. See opinion of the Attorney General addressed to K. K. Holmes, Clerk of the Criminal Court of Jefferson County, January 5, 1976; Miller v. Texas Department of Public Safety, Tex.Civ.App., 375 S.W.2d 468; Rudd v. David, Mo., 444 S.W.2d 457. See also the definition of “moving traffic violation” in Section 32-5-313, Code of Alabama 1975.

Improper lights constitutes a traffic infraction for which a fine is prescribed in Rules 18(A)(4) and 19(B)(2)(a). Improper lights is listed as an offense in the uniform traffic ticket and complaint.

Rule 19(D) of the Alabama Rules of Judicial Administration is as follows:

“(D) Declaration of Approval. — The uniform traffic ticket and complaint, which is attached hereto and marked as Attachment One to this rule, is hereby approved and declared to be sufficient for each of the offenses listed therein.”

It is my opinion that the traffic offense designated as improper lights in Rules 18 and 19 of the Alabama Rules of Judicial Administration and listed in the uniform traffic ticket and complaint is not a moving violation but is an equipment violation.

Motion of vehicle is not a necessary element of the offense. This is apparent when the offense of improper lights is compared with some of the other violations for which fines are prescribed in Rules 18 and 19 and which are listed in the uniform traffic ticket and complaint, such as “driving on wrong side of road,” “failure to yield right-of-way,” “following too closely,” “running red light,” “running stop sign,” and “speeding.”

The essence of the offense of improper lights is a failure to have the vehicle equipped with proper lights.

II. Paragraph 7 of the notice on back of the uniform traffic ticket and complaint reads as follows:

“7. Local Municipal Police Issued Tickets Only:
For minor equipment violations, local ordinances may allow you to have the equipment repaired and inspected within 72 hours, excluding Sundays and legal holidays, and present your citation to any law enforcement officer. This officer, after inspection of your vehicle, may recommend that your citation be voided by signing below. You must then deliver or forward the citation to the clerk of court at the address on the front of this ticket.”

The offense designated as improper lights is a minor misdemeanor under the provisions of Rules 18 and 19.

Section No. 45-27(c) of Birmingham City Code reads as follows:

“(c) Defective Equipment.
Any person who has received a citation for driving a vehicle with defective headlights, brake lights, taillights or tag lights may avoid the payment of any penalty therefor by having the equipment repaired and inspected by any police officer of the city within seventy-two hours after receiving the citation. Upon such inspection, if the officer ascertains that the equipment is in good repair, he may make a written recommendation on the citation that the citation be voided. Any such citation presented to the magistrate on or before the date marked for court appearance shall be voided.”

The conditions for voiding a citation for minor equipment violations under a local ordinance, as stated in Paragraph 7, are essentially the same as stated in Section 45-27(c), Birmingham City Code, for voiding a citation for driving a vehicle with defective headlights, brake lights, taillights or tag lights. Paragraph 7 recognizes the authority of a municipality to void a citation under the conditions stated. The last sentence in Section 45-27(c) of the Birmingham City Code states:

“Any such citation presented to the magistrate on or before the date marked for court appearance shall be voided.”

It is my opinion that a citation for improper lights may be voided under Section 45-27(c), Birmingham City Code.

III. The verb, “void,” means to cause to be of no validity or effect, nullify, annul. Webster’s Third New International Dictionary. A citation that is voided is of no effect.

It is my opinion that a person should not be referred to court for the third or subsequent violation of improper lights if he has had these lights repaired within the allowable time with a recommendation that the ticket be voided.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ceola Hall MARTIN et al. v. Clara HINSON et al.
    77-497.
    Supreme Court of Alabama.
    Nov. 22, 1978.
    John D. Prince, Jr., Birmingham, for appellants.
    No brief for appellees.
   ALMON, Justice.

This appeal is dismissed for failure to comply with Rule 54(b), ARCP.

The appeal is from the denial of a Motion to Set Aside Orders, for Reconsideration, and for Other Relief. This motion sought to set aside the granting of Rule 12(b)(6), ARCP motions filed by three defendants. It appears from the record that there has not been any disposition of the case, with respect to the other defendants; and there was neither an “express determination that there is no just reason for delay” nor “an express direction for the entry of judgment” as required by Rule 54(b) ARCP.

Notwithstanding the filing and acceptance of an appeal bond in the circuit court, there has been no final judgment in this case to support an appeal. Chambers v. Chambers, 356 So.2d 634 (Ala.1978); Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974).

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.

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


author: TORBERT, Chief Justice.

text:
    Inez TERRELL and Charles Terrell, Jr. v. WAREHOUSE GROCERIES et al.
    77-513.
    Supreme Court of Alabama.
    Nov. 22, 1978.
    David B. Carnes of Floyd, Keener & Cusi-mano, Gadsden, for appellants.
    James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   TORBERT, Chief Justice.

This is an appeal by Inez and Charles Terrell, plaintiffs below, from a directed verdict in defendants’ favor as to Mrs. Terrell’s claim for personal injuries sustained when she slipped and fell from tracked-in rain water in defendants’ grocery store, and as to her husband’s claim for loss of consortium resulting therefrom.

Mrs. Terrell went to defendants’ store between 6:00 and 7:00 p. m. on May 14, 1976, to buy groceries and to carry a sandwich to her daughter, Teresa Norton, who was then an employee of the store. Mrs. Terrell testified that it had been raining two and a half hours before she arrived at the store. However, on deposition taken less than three months before trial, she testified that it had been raining for approximately thirty minutes. Mrs. Terrell entered the store through the front entrance. She then walked about twenty-five or thirty feet to a point near a coffee urn where her daughter was waiting for her and slipped and fell on her left knee. Although her testimony was inconsistent with her deposition, she stated that she did not see any water where she fell until after her fall. Mrs. Terrell’s daughter was the only witness to the fall and testified that she noticed some water tracked in by customers about halfway up the aisle, but did not notice any water on the spot where her mother fell prior to her fall. After her mother’s fall, she helped her up and went to the back of the store to eat. She did not tell anyone about the fall nor did she see her mother any more that day.

The store is apparently a warehouse operation and customers use crayons to mark the prices on goods as they go through the store. Upon entering the store, a customer must go down the main aisle which branches out into the various display counters about twenty-five or thirty feet from the store entrance. The coffee urn and crayons are located at the end of this main aisle where Mrs. Terrell fell. The floor is smooth concrete. There was an awning over the entrance to the store and there were two rubber mats, one just outside the entrance door and one just inside the door. Also, there was a red mat inside the building.

The complaint charged that defendant negligently or wantonly maintained the premises in an unsafe condition and failed to warn Mrs. Terrell of the dangerous condition of the premises. It is not disputed that Mrs. Terrell was an invitee and there is no contention that the floor was defective or negligently constructed. Appellants’ sole contention on appeal is that they submitted sufficient evidence of negligence on the part of defendant to allow the case to go to the jury. Appellants maintain that our cases hold that a storekeeper owes no duty to protect patrons from a slippery condition of the premises caused by rain water because a “force of moppers” would be required to make the premises safe under such circumstances. In seeking reversal of these cases, appellants argue that to exempt storekeepers from a duty of reasonable care based upon the “force of moppers” rationale is inequitable since there are viable alternative methods of making a floor safe. We do not agree with appellants’ interpretation of these cases.

An occupier of land owes an invitee the duty to exercise reasonable care to keep the premises in a reasonably safe condition but is not an insurer of the safety of an invitee. Cox v. Goldstein, 255 Ala. 664, 53 So.2d 354 (1951); F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667 (1940); W. Prosser, Handbook of the Law of Torts § 61 (4th ed. 1971). The question then is whether under the circumstances the defendant breached his duty of reasonable care.

In Cox v. Goldstein, supra, plaintiff was injured when she slipped and fell on the terrazzo vestibule of a store on a rainy day when the terrazzo was wet and slippery. There were no defects in the floor nor was there any foreign substance on the floor except rain water. In affirming a judgment based upon the giving of the affirmative charge with hypothesis, the court said:

It is not the duty of persons in control of such passageways to keep a force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several obvious reasons unnecessary to mention in detail.
There was no evidence in this case that appellees did anything or omitted to do anything which storekeepers, of ordinary care and prudence, under similar circumstances do or omit to do for the protection of their patrons.

255 Ala. at 667-68, 53 So.2d at 357. The court in Turner v. Mobile Infirmary Association, 277 Ala. 15, 166 So.2d 851 (1964), relied upon Cox in affirming the giving of the affirmative charge with hypothesis where plaintiff slipped and fell on the terrazzo floor of defendant hospital’s porch which was made wet and slippery by rain water.

In Gulas v. Ratliff, 283 Ala. 299, 216 So.2d 278 (1968), plaintiff slipped and fell on snow and ice after entering defendant’s restaurant to attend a “Christmas breakfast.” There was no substance on the floor other than tracked-in snow and water. Defendant appealed a judgment for plaintiff, contending that the evidence did not support a finding that defendant breached the duty owed to plaintiff, and therefore, the case should not have gone to the jury. The court, reversing the judgment for plaintiff, stated that when weather creates a natural hazard of this sort, a person of ordinary care is not required to keep a floor in a public place completely free of snow or water. The court went on to say:

A fall caused by snow or rain is distinguishable from a fall resulting from some other object as is usual in a slip and fall case.

. . .Since defendant did not owe the duty to remove such snow, then defendant did not breach any duty by failing to remove the snow, and plaintiff is not entitled to recover on any theory. . . .

283 Ala. at 303, 216 So.2d at 281.

This court last considered the question in Greer v. Eye Foundation, Inc., 286 Ala. 63, 237 So.2d 456 (1970). There plaintiff was injured as she was leaving work when she slipped and fell in defendant’s lobby which was wet from rain water. The court relied upon Cox v. Goldstein, supra, in affirming the giving of the affirmative charge with hypothesis. The court stated:

The burden is on plaintiff to show that defendant was guilty of negligence which proximately caused plaintiff’s injury. No presumption of negligence arises from the mere fact of injury to an invitee.
In the instant case, the offending instrumentality was water. Plaintiff appears to contend that it was rain water. There is no evidence that defendant had actual notice that the water was on the lobby floor. There is no evidence how long the water had been there. There is no evidence as to how the water came to be there other than evidence that when plaintiff got off the elevator she saw through the glass door that it was raining outside the building. There was no evidence as to how long it had been raining outside. There is no evidence that anyone brought rain water into the building, or, if it can be inferred that they did, as to when they brought it in.
We are of opinion that the evidence fails to show that defendant had been guilty of any negligence, and, therefore, that the court did not err in giving defendant’s requested affirmative charge with hypothesis.

286 Ala. at 68, 237 So.2d at 459-60.

From an examination of these cases, it appears that although a storekeeper owes a customer a duty to exercise reasonable care to maintain the premises in a safe condition, where the foreign substance is rain water tracked in by customers and in the absence of unusual accumulations, due care does not require that a storekeeper keep the floor completely free of water. When it rains, surfaces naturally become more slippery than usual — a fact with which a customer is sufficiently familiar. To require a storekeeper to keep a floor completely dry during a rainstorm or to hold him responsible for every slick place due to tracked-in rain water would impose an unreasonable standard of care and would, in effect, make him an insurer of the customer’s safety. Of course, each case must be examined in light of its particular circumstances, and where there are unusual accumulations of rain water or other circumstances, due care may require that the storekeeper take affirmative measures such as mopping, applying anti-slip compounds, or posting warnings.

In the instant case, the evidence was conflicting as to how long it had been raining. However, the eyewitness to the fall, Teresa Norton, testified that the water on the floor appeared to be tracked in by customers and went only halfway up the aisle where Mrs. Terrell fell. She did not notice any large puddles or unusual accumulations of water; in fact, she did not notice any water where plaintiff fell until after the fall. Moreover, the water was not muddy or dirty but was clear. The evidence further indicated that defendant had mats both inside and outside of the entrance way to the store as well as an awning over the entrance. The evidence was that the only substance on the floor was water and there were no abnormal accumulations but only such as might reasonably be expected to have been tracked in by customers on a rainy day. Therefore, there was no evidence of breach of duty by the defendant under these facts and the directed verdict in defendants’ favor was proper.

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    Mildred Smith GOODWIN v. William Howard GOODWIN.
    Civ. 1534.
    Court of Civil Appeals of Alabama.
    Nov. 22, 1978.
    Huel M. Love of Love, Love, Lawrence & Burton, Talladega, for appellant.

      Samuel H. Monk, II, of Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   BRADLEY, Judge.

This appeal is from a final divorce decree. The appellant, Mildred Goodwin, petitioned the Circuit Court of Calhoun County for a divorce from the appellant, William Howard Goodwin. After a hearing ore tenus, the trial court divorced the parties on the grounds of incompatibility of temperament and awarded periodic alimony to Mrs. Goodwin in the sum of $100.00 a month. In addition, Mrs. Goodwin received a property settlement. From the trial court’s decree Mrs. Goodwin appeals, contending that the periodic alimony awarded was inadequate and that her portion of the couple’s common estate was not sufficient under the circumstances of the case.

The record before us reveals that Mr. and Mrs. Goodwin were married approximately twenty-two years before they were divorced. At the time of the trial both parties were in their early fifties. The husband suffers from high blood pressure, but otherwise is in good health. Conversely, the wife’s health is poor. She has had several operations relating to the removal of one of her breasts. In addition to her mastectomy, she has also undergone surgery for the removal of a ruptured disc. Finally, she has suffered from periodic stomach problems throughout her life and as a result she has a duodenal ulcer.

The husband is a licensed pharmacist. He owns his own drugstore as well as the small shopping center complex at which the store is located. He receives rental payments from the other stores in his complex and those payments coupled with the income from his pharmacy produce a yearly sum of approximately $40,000. He testified that due to his health he intended to work less than he presently does and indicated that in the future he anticipated a yearly income of between $20,000 to $24,000.

The wife worked in the husband’s business during the couple’s marriage. Although she did not receive a salary, she was allowed to withdraw money from the business account of the pharmacy whenever she needed it. Moreover, while employed at the' pharmacy she acquired skill as a bookkeeper and is capable of continuing to work in such a capacity despite her health problems.

Because of hard work and business acumen Mr. and Mrs. Goodwin enjoyed a comfortable standard of living throughout their marriage. They also acquired several parcels of real estate during their marriage. Among the properties held by the parties at the time of the divorce were the following: three cemetery plots; a residence; an undeveloped residential lot; two automobiles; a housetrailer; a boat; five savings accounts totalling approximately $54,600; 2.13 acres of commercial real estate on which the drugstore was located; and various household furnishings, jewelry and furs.

The property division made by the trial court provided Mrs. Goodwin with the cemetery plots, one automobile, a portion of the household furnishings, and the jewelry and furs. She also received $50,144 from the savings accounts. The proceeds from those accounts were awarded to the wife as payment for any interest which she had in the drugstore and the shopping center complex in which the drugstore was located.

On the other hand, Mr. Goodwin received the remaining automobile, the housetrailer, the boat, a part of the household furnishings, and $4,500 which was held in an IRS savings account. He was also awarded all right, title and interest in the shopping center and its assets.

The court’s divorce judgment further directed that the parties’ residence and their undeveloped residential lot be sold With the proceeds from the sale being divided equally between Mr. and Mrs. Goodwin. Finally, the husband was ordered to pay his former wife $100 a month as periodic alimony and to maintain her present insurance coverage.

On appeal Mrs. Goodwin argues that the trial court abused its discretion in the division of the parties’ property. Furthermore, she contends that the amount of periodic alimony awarded is inadequate.

The trial court in granting a divorce may exercise its discretion with regard to an award of alimony or a division of property. And unless the record before this court demonstrates a plain and palpable abuse of that discretion, the judgment of the trial court is not subject to revision or reversal on appeal. Moreover, in making its determination in such matters as alimony and division of property, the trial court may inquire into such relevant factors as: the parties’ economic circumstances; the parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after their divorce; their ages, sex and health; the length of their marriage; the source (or sources) of their common property; and in appropriate situations, the conduct of the parties with reference to the cause of divorce. Roberts v. Roberts, Ala.Civ.App., 357 So.2d 150 (1977); Mitchell v. Mitchell, Ala.Civ.App., 351 So.2d 602 (1977).

Considering the above mentioned factors in the present case we cannot say that the trial court’s decision regarding the division of property between the parties was either inequitable or unjust. Indeed, the record reveals that the couple’s property was divided almost equally between them. Their largest asset, the commercial property on which the husband’s drugstore is located, was vested in the husband. However, it is subject to a mortgage indebtedness of $60,000 which the husband is obligated to pay. Moreover, the wife received $50,000 for her interest in the property, and in view of the husband’s testimony that he contributed about eighty percent of the effort in maintaining the business as well as our own recognition that without his services as a pharmacist there would not have been a significant amount of trade at the drugstore, we are not prepared to hold that the trial court plainly and palpably abused its discretion in the division of Mr. and Mrs. Goodwin’s jointly owned property.

However, although we find no error with respect to the property division, we view the trial court’s award of periodic alimony to the wife as inadequate. The evidence demonstrates the husband’s yearly income as a pharmacist to be around $34,-000. In addition, he receives approximately $6,000 to $8,000 more a year in rental income. Despite this fact, the wife was awarded only $1,200 a year in periodic alimony. Based on the husband’s present income and his future prospects for maintaining that income level, the wife’s health problems and the fact that she no longer has a residence in which to live, we believe that the trial court plainly and palpably abused its discretion in the amount awarded to the wife as periodic alimony. We are therefore of the opinion that the wife should receive the sum of $450 a month as periodic alimony.

The wife has also requested that she be awarded an attorney’s fee for the services of her lawyer on this appeal. We conclude that the request is a reasonable one and therefore award her $350 as an attorney’s fee for this appeal.

That portion of the trial court’s decree awarding the wife periodic alimony in the sum of $100 a month is reversed. All other portions of the divorce judgment are affirmed.

ATTORNEY’S FEE AWARDED.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR THE ENTRY OF A DECREE IN ACCORDANCE WITH THIS OPINION.

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


author: CATES, Presiding Judge.

text:
    Peggy Jean THOMPSON v. STATE.
    8 Div. 672.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied June 1, 1976.
    Richard A. Kempaner, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Voluntary Manslaughter: sentence, five years imprisonment.

The State’s motion to strike the record is without merit and will be overruled, Johnson v. State, 269 Ala. 1, 111 So.2d 610.

Mrs. Thompson was accused of killing her husband by shooting him with a pistol. Under the State’s evidence the Thompson home was completely secured from entry, with no signs of breaking. Mr. and Mrs. Thompson were found inside. He was dead; she was in a comatose condition, wounded in the temple. A single pistol was lying nearby. The hypothesis was that she shot Thompson and herself. The State did not negative a mutual suicide pact.

The defense moved to bar the trial on the ground that the defendant was suffering from amnesia. A neurosurgeon testified — ' without contradiction — that Mrs. Thompson’s amnesia was permanent, particularly for the period at and near the time of the shooting.

The trial judge ruled that amnesia was no bar to an indictment. (R. 26). This probably is correct on the issue of guilt vel non. See Anderson v. State, 40 Ala.App. 509, at 514, 120 So.2d 397.

However, the instant record presents a due process question under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103.

When the neurosurgeon gave his opinion as to Mrs. Thompson’s loss of memory, presumptively — in the peculiar facts of this case — it became apparent that she was incompetent to stand trial because she had lost (with or without her fault) a faculty necessary to tell her lawyer about the incident. This virtually shifted the burden to the prosecution. Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, and Drope, supra.

This cause is remanded for further proceedings to determine whether or not the appellant was competent to stand trial. Under Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556, the judgment of conviction is suspended pending the further proceeding herein ordered.

JUDGMENT SUSPENDED; REMANDED WITH DIRECTIONS.

All the Judges concur.

      . See People v. Matlock, 51 Cal.2d 682, 336 P.2d 505, 71 A.L.R.2d 605 and Anno. 71 A.L.R.2d 617.


author: EMBRY, Justice.

text:
    In re Peggy Jean THOMPSON v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1896.
    Supreme Court of Alabama.
    May 6, 1977.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, petitioner.
    Richard A. Kempaner, Huntsville, for respondent.
   EMBRY, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

By quashing the writ in this case we wish to be clearly understood as not approving the statement in the opinion of the Court of Criminal Appeal’s opinion:

“When the neurosurgeon gave his opinion as to Mrs. Thompson’s loss of memory, presumptively — in the peculiar facts of this case — it became apparent that she was incompetent to stand trial because she had lost (with or without her fault) a faculty necessary to tell her lawyer about the incident. This virtually shifted the burden to the prosecution. * * *”

The neurosurgeon’s testimony made an issue for trial of the effect of Mrs. Thompson’s amnesia upon her competency to stand trial. The most widely accepted test as to when amnesia renders one incompetent to stand trial is whether that amnesia renders a defendant incapable of: comprehending his position; understanding the nature and object of the proceedings against him; participating in the conduct of his defense in a rational manner, and cooperating with counsel to the end that any available defense may be interposed. See Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974); 21 Am.Jur.2d, Criminal Law, § 63; Annot., 46 A.L.R.3d, pp. 552-553.

TORBERT, C. J., and BLOODWORTH, FAULKNER, JONES, SHORES and BEATTY, JJ., concur.

MADDOX, J., dissents.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Peggy Jean THOMPSON v. STATE.
    8 Div. 672.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.
    Earl E. Cloud, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton and G. Daniel Evans, Asst. Attys. Gen., for the State, appellee.
   AFTER REMANDMENT

BOWEN, Judge.

In compliance with our opinion and order suspending the judgment of conviction and remanding this case to the trial court with directions, the trial court submitted to a jury the issue of the competency of the appellant to stand trial.

The manner in which the proceedings were conducted and the issues framed and presented by the trial judge and both counsel for the defense and the prosecution was admirable and commendable.

The jury found that the appellant was competent to stand trial at the time of her trial on March 18, 1975. While there appears to be no question that the appellant was (and is) suffering from amnesia concerning the events that occurred at the time of the homicide, there was ample evidence that the appellant was able to comprehend her position as one accused of murder, was fully capable of understanding the gravity of the criminal proceedings against her, and was able to cooperate with her counsel in making a rational defense except to the extent that she could not remember anything about the homicide.

All the state’s evidence against the appellant was circumstantial and of a physical nature; it did not rest on the testimony of any eyewitness or upon statements attributed to the appellant. Prior to trial there was an offer of disclosure of some evidence made by the state to defense counsel.

Under almost identical factual situations the accused has been held competent to stand trial and that trial would not violate his right to due process. Arizona v. McClendon, 103 Ariz. 105, 437 P.2d 421 (1968); Commonwealth ex rel. Cummins v. Price, 421 Pa. 396, 218 A.2d 758, cert. denied, 385 U.S. 869, 87 S.Ct. 136, 17 L.Ed.2d 96 (1966).

In this state the rule was most recently expressed in the case of Davis v. State, 354 So.2d 334 at 339 (Ala.Cr.App.1978).

“Even if appellant did not in fact remember the details of the crime, he would still be competent to stand trial. Amnesia concerning the crime does not bar prosecution. A' contrary rule would unduly hamper the State’s interest in the prosecution of violators of its criminal laws and jeopardize the safety and security of other citizens. We here and now reject the notion that amnesia, standing alone and absent the three factors above mentioned, constitutes incompetency to stand trial.”

An annotation on the subject of amnesia as affecting capacity to commit crime or stand trial may be found at 46 A.L.R.3d 544 (1972).

“In determining a defendant’s capacity to stand trial, the test is whether he has the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed. “An important factor in determining the capacity of a defendant to stand trial is the defendant’s mental ability to render to his counsel such assistance as to make possible a proper defense. While the defendant’s ability to recall events so that he can furnish facts to his counsel is important, all of the cases in this annotation dealing with capacity to stand trial have recognized, either expressly or by necessary implication, that the amnesia of a defendant does not per se render him incapable of standing trial or of receiving a fair trial.”
46 A.L.R.3d at 552, 553.

The Pennsylvania Supreme Court has held that it would not be a violation of the defendant’s constitutional rights to stand trial, even though he was suffering from amnesia and all the evidence against him was circumstantial.

“This defendant (we repeat) is able to comprehend his position as one accused of murder, is fully capable of understanding the gravity of the criminal proceedings against him, and is as able to cooperate with his counsel in making a rational defense as is any defendant who alleges that at the time of the crime he was insane or very intoxicated or completely drugged, or a defendant whose mind allegedly went blank or who blacked out or who panicked and contends or testifies that he does not remember anything.”
* * * * * *
“If in fact the condition of amnesia is permanent, defendant’s contention (1) would require Courts to hold that such amnesia will permanently, completely and absolutely negate all criminal responsibility and (2) will turn over the determination of crime and criminal liability to psychiatrists, whose opinions are usually based in large part upon defendant’s self-serving statements, instead of to Courts and juries, and (3) will greatly jeopardize the safety and security of law-abiding citizens and render the protection of Society from crime and criminals far more difficult than ever before in modern history.
“Unless an accused is legally insane, the law is not and should not be so unrealistic and foolish as to permanently free, without acquittal by a Judge or a jury, a person against whom a prima facie case of murder is made out.”
(Emphasis in original.)
Commonwealth ex rel. Cummins v. Price, 421 Pa. 396, 218 A.2d 758 at 763, cert. denied, 385 U.S. 869, 87 S.Ct. 136, 176 L.Ed.2d 96 (1966).

In finding that lack of memory is an inadequate ground for holding a defendant incompetent to stand trial, the United States Court of Appeals for the Seventh Circuit commented on the plight of the amnesiac.

“In his plight the amnesiac differs very little from an accused who was home alone, asleep in bed, at the time of the crime or from a defendant whose only witnesses die or disappear before trial. Furthermore, courts, of necessity, must decide guilt or innocence on the basis of available facts even where those facts are known to be incomplete, and the amnesiac’s loss of memory differs only in degree from that experienced by every defendant, witness, attorney, judge, and venireman. How much worse off is a generally amnesiac defendant on trial for murder, for example, than one who remembers all but the dispositive fact: who struck the first blow?”
* * * * * *
“If a defendant is permanently amnesiac, furthermore, there will be no time in the future when the court can secure the benefit of his version of the facts. The choice facing the court would therefore be that of proceeding to adjudicate the defendant’s guilt or innocence on the basis of incomplete data or abandoning the adjudicatory process altogether. Note, Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109, 128-29 (1961).”
United States v. Stephens, 461 F.2d 317 at 320 (7th Circuit), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 218 (1972).

Therefore, we hold that the fact that the appellant suffered amnesia as to the commission of the crime does not render her incompetent to stand trial. The evidence supports the finding of the jury and the well settled law commands this result.

In view of the foregoing considerations and our previous opinion, the judgment of conviction and sentence appealed from should be affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

Because of the arguments presented by the appellant on application for rehearing, an extension of our opinion is warranted. The sole issue to be determined in considering the application for rehearing, as in our initial opinion, is whether the appellant’s inability to recall the facts of the event for which she was charged rendered her incompetent to stand trial as a matter of law. We hold that it does not.

The United States Supreme Court in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (1960), stated that the test for determining a defendant’s competency to stand trial was “ ‘whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him’ ”. Courts continue to rely on this standard for determining competency. Deason v. State, Ark., 562 S.W.2d 79 (1978). This court, too, recognizes and relies on the Dusky standard. Edgerson v. State, 53 Ala.App. 581, 586, 302 So.2d 556, 560 (1974).

The New York Court of Appeals in interpreting the New York statute concerning competency in the light of Dusky held that a defendant suffering from persisting amnesia would be found incompetent only in the situation where he had a “current inability to comprehend, or at least a severe impairment to that mental state”, and could not “with a modicum of intelligence assist counsel”. People v. Francabandera, 33 N.Y.2d 429, 435-36, 354 N.Y.S.2d 609, 613-14, 310 N.E.2d 292, 295 (1974) (emphasis added). The Court specifically rejected defendant’s argument that no person can assist in his own defense, or, no lawyer can properly represent a client who is unable to furnish facts concerning the event charged against him. 354 N.Y.S.2d at 609, 310 N.E.2d at 292.

In Dusky, just as in the case at bar, a competency hearing was ordered to determine defendant’s present competency to stand trial, not to determine defendant’s ability to recall facts concerning the events of the crime and relate them to his lawyer. Due process of law requires this separate hearing. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

Due process of law was afforded appellant at her competency hearing. Psychiatric testimony produced at this hearing was sufficient to indicate that the Dusky standard has been complied with.

Dr. Harry Kinnane, a psychiatrist, testified on direct examination: “I think she could comprehend her position to the extent that she was in a courtroom, that she was being tried for murder of her husband.” And later on cross examination:

“Q. So she understood the nature of the proceedings against her?
“A. I would say so.
“Q. And she could have a rational and factional (sic) understanding of what was going on in that room?
“A. Yes, sir.
“Q. The only thing you are saying is that she couldn’t remember that period of time that is blocked out?
“A. That’s correct.
“Q. She is a perfectly competent person except that she don’t (sic) remember what happened for some weeks surrounding May 17th, 1974?
“A. Yes.”

Another psychologist, Dr. Roger Rinn, testified on cross examination.

“Q. All right, I will ask you presently if she is able to participate of the conduct of her defense in this matter in a rational manner such as she has been to see you?
“A. Yes.”
* * * * * *
“Q. And talk to her lawyer about what happened and conveyed to him the proceedings that went on in these tests if he asked her about it?
“A. I guess so.”

Appellant’s ability to remember and relate facts concerning the experiences of her life after her release from the hospital was uncontradicted.

Other jurisdictions have relied on psychiatric examinations and evaluations to determine whether the defendant could understand the charge, whether he could understand what was going on at trial, whether he was capable of talking to his attorney about the proceedings and whether the defendant could discuss the charge with his attorney sufficiently to make his defense. State v. Willard, 292 N.C. 567, 234 S.E.2d 587 (1977); People v. Soto, 68 Misc.2d 629, 327 N.Y.S.2d 669 (1972); Jackson v. State, 548 S.W.2d 685 (Tex.Crim.App.1977). A defendant may be found incompetent to stand trial at one point in time due to his inability to assist counsel in his own defense, and later be adjudged competent if he can understand the charges, the events of the crime can be constructed from information given him from other sources, and he can follow the course of the proceedings against him and discuss them with his attorney, even though an independent recollection of the events of the crime can never be had by the defendant himself due to permanent amnesia. United States v. Wilson, 263 F.Supp. 528, 530 (D.D.C.1966).

A defendant’s ability to understand the factual proceedings as discussed in Dusky refers to his capacity to understand the trial proceedings and his ability to consult with his attorney in a rational manner, not the defendant’s capacity to understand or recall the factual events of the crime itself. Indeed, it is contradictory to suggest that a defendant could simultaneously understand the factual proceedings of the crime as it happened and have amnesia regarding those same events.

The North Carolina Court in State v. Willard, 292 N.C. 567, 234 S.E.2d 587 (1977), held that a defendant’s amnesia concerning the events of the crime would not prevent him from comprehending his position and understanding the nature of the proceedings against him, it being realized that the defendant’s available defenses would be limited if he was unable to recall the events of the crime. “We do not believe this fact alone renders him incompetent to stand trial or denies him a fair trial . . . .” 234 S.E.2d at 593. Again, the Massachusetts Court in Commonwealth v. Hubbard, Mass., 355 N.E.2d 469, 476 (1976), applying the Dusky standard found the defendant competent to stand trial, even though he had no memory of the crime in question, because he was able to consult with his lawyer about the pending charges, to understand what the trial involved and what its consequences might be, and to make intelligent decisions on the options available. In State v. Gardner, 534 S.W.2d 284, 289 (Mo.App.1976), the Missouri Court stated that “if a defendant has, in fact, developed an amnesia preventing his recollection of the day or days in question, this would not constitute a defense if defendant has sufficient present ability to consult with defending counsel with a reasonable degree of rational understanding and is possessed of a factual understanding of the proceedings against him”. Cases in accord from other jurisdictions are: Fajeriak v. State, 520 P.2d 795 (Alaska 1974); Reagan v. State, 253 Ind. 143, 251 N.E.2d 829 (1969); State v. Pugh, 117 N.J.Super. 26, 283 A.2d 537 (1971).

In no case yet reported has it been held that inability to recall the events constituting the crime charged because of amnesia constitutes mental incapacity to stand trial. United States ex rel Parson v. Anderson, 354 F.Supp. 1060, 1071 (D.Del.1972); People v. Francabandera, 33 N.Y.2d 429, 436, 354 N.Y.S.2d 609, 614, 310 N.E.2d 292 (1974); Jackson v. State, 548 S.W.2d 685, 691 (Tex.Crim.App.1977); 46 A.L.R.3d 544.

Recently, in Commonwealth v. Barry, 476 Pa. 602, 383 A.2d 526 (1978), a case similar to the one before us in that the appellant’s amnesia was caused by a gunshot wound to the head and the absence of eyewitness testimony, the Supreme Court of Pennsylvania reaffirmed the position it took in Commonwealth ex rel Cummins v. Price, 421 Pa. 396, 218 A.2d 758 (1966), by holding that the appellant’s amnesia did not deny him effective assistance of counsel nor the opportunity to present a defense.

We commend counsel for his vigorous and through representation of the appellant and understand his concern for the defendant who cannot recall the events constituting the crime charged. However the present state of the law authorizes but one conclusion. For the above reasons this application for rehearing is due to be overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.

      . “Three factors are to be considered by the trial court in evaluating an accused’s competency to stand trial, (1) the existence of a history of irrational behavior, (2) prior medical opinion, and (3) accused’s demeanor at trial.” Davis, 354 So.2d at 338.

      . “ ‘Incapacitated person’ means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense.” N.Y.Crim.Proc.Law, § 730.10(1) (McKinney 1971).


text:
    Ex parte Peggy Jean THOMPSON.
    77-763.
    Supreme Court of Alabama.
    Nov. 22, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Robert E. LEE v. STATE.
    3 Div. 868.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.

      Richard D. Shinbaum, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. Prior to trial appellant signed a written waiver of arraignment and entered a plea of not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal and requested a free transcript. He was furnished a free transcript and one of his trial attorneys was appointed to represent him on this appeal.

The evidence presented by the State made out a clear case of murder in the first degree with no mitigating or extenuating circumstances. He shot an unarmed man with a twelve gauge pump gun three times while the victim was sitting in a chair or bench on the front porch of a house at 1532 West Fifth Street located in the Oak Park area of the City of Montgomery. The homicide took place around ten o’clock on the night of August 7, 1977. Appellant did not testify, nor did he offer any evidence in his behalf.

At the conclusion of the State’s case appellant filed a written motion to exclude the State’s evidence on the following grounds:

1. The State failed to prove venue.
2. The State failed to present a prima facie case.
3. The State failed to sustain the burden of proof.
4. The testimony is insufficient to overcome the presumption of innocence.
5. There is a fatal variance in the allegations of the indictment and the proof.

The trial court overruled and denied the motion to exclude.

Mattie Pearl Fuller testified that, on Sunday night, August 7, 1977, she. lived with her husband and daughter at 1532 West Fifth Street in Oak Park and had lived at this address for approximately five years. She stated that appellant, the deceased, James Landon, and Willie Lewis Calhoun were sitting on her porch talking; that she did not hear any argument but she did hear appellant tell the deceased to get off the porch. After hearing this statement she went inside her house to look at television. About ten minutes later she heard three shots. She sat for a few moments and started to walk back to the front porch. She looked through the screen and, “I saw James laying across my door, and I saw Robert get in his car and leave.” She further testified that appellant lived at 1544 West Fifth Street which was three houses from the scene of the shooting. She stated she did not see the deceased with a weapon of any kind at the time the three men were sitting on her porch.

Jenny Knight testified that she lived on West Fifth Street and that she knew both appellant and the deceased. Appellant lived in the next house from her home. The houses on West Fifth Street are very close to each other. She further testified that she rented a room to a girl by the name of Lonnie Fitzpatrick and they were both on her front porch on the night of August 7, 1977. She stated that while she and Lonnie were standing on her front porch she saw appellant enter his house and return with a shotgun; that he went to the side of his car which was parked in his yard close to a tree. She saw appellant put the gun to his shoulder when he was close to the tree. She stated that the front porch of Mattie Fuller’s house was about fifty feet from the place where she saw appellant throw the gun up to his shoulder. When appellant placed the gun to his shoulder Jenny Knight ran inside her house and three or four minutes later she heard three shots. After the shots were fired she came out of her house to look and she saw appellant going back inside his house with his gun. Moments later she saw appellant come from his house and get in his car and put the gun down beside him in the car. She observed him as he drove slowly down the street. She was shown State’s Exhibit No. 2 and identified the photograph as the car that appellant drove away from the scene of the homicide and stated that it was his car.

On cross-examination she testified that she had not seen appellant ‘“since he did what he did.” She further stated that she did not see appellant actually fire the gun, saying “I did not see him fire it, but I seed him when he throwed it up. And when it was fired, who else could have fired it but him.” She testified that the shooting occurred at about ten o’clock on the night of August 7, 1977.

Lonnie Fitzpatrick testified that on August 7, 1977, she was living with Jenny Knight at 1544 West Fifth Street. They were sitting on the front porch together and she saw appellant with a shotgun in his hand. She saw him go in his house and come out with the shotgun; that a man came up to appellant and was trying to talk to him but appellant told the man to get back. She identified this man as Willie Lewis Calhoun. She said that appellant told Calhoun to stand back and then he threw the shotgun up; that he was near a tree when appellant threw the gun up and that in her judgment Mattie Fuller’s front porch was thirty, thirty-five, or forty feet away from the place where appellant threw up the gun. When she saw appellant throw up the gun she ran into the house and got as far as the bedroom when she heard three shots. After the firing ceased she came back to the porch and saw appellant backing out of his driveway. This witness also identified State’s Exhibit No. 2 as a photograph of appellant’s car and the one he drove away from his home after the shooting.

On cross-examination this witness stated that appellant’s car was a Buick and it was parked in his yard before the shooting. She described the car as a white Buick with a white vinyl top.

Willie Calhoun testified that he lived at 1520 West Fifth Street in Oak Park, and that he knew both appellant and the deceased; that on the night of August 7, 1977, he was on Mattie Fuller’s porch with the appellant and the deceased. Calhoun said he had been there about ten minutes when appellant made a statement to the deceased coupled with an ugly word. He quoted appellant as saying to the deceased, “I am tired of you so and so with me. Said I am going to settle this once and for all.”

From the record:

“A. Well, he walked off the porch, and I sat there a few minutes, and I went on behind him. When I got there he was coming out of the house with his shotgun.
“Q. Who was?
“A. Mr. Lee.
“Q. And whose house did he go to?
“A. He went to his house.
* * * * * *
“Q. Did you see him come out the house?
“A. Yes.
“Q. What did he have with him?
“A. A shotgun.
“Q. Did you say anything to him?
“A. I begged him — I told him — I said, Jessie come here and let me talk to you. I said, don’t do that. He said, get back. He said, you better get back. So naturally, Pm going to get back.
“Q. And did he stop some place?
“A. He stopped there and aimed at him.
“Q. Where did he stop?
“A. Out there by that tree in his yard.
“Q. The tree in his yard?
“A. That is right.
“Q. In ycur judgment, how far would that tree be from where Mr. Landon was?
“A. I would say forfy-nine or fifty feet.
“Q. And when Mr. Lee stopped, what did he do with that gun?
“A. He click click, (indicating) And he shot three times.
* * * * * *
“Q. Did you see what he hit with the shotgun, if anything?
“A. I saw Mr. Landon.
“Q. What happened to Mr. Landon?
“A. He cradled over like this.
“Q. Did you see Robert E. Lee shoot Mr. Landon?
“A. I did.
“Q. How many times did he shoot him?
“A. Three times.
“Q. And what was Mr. Landon doing when Mr. Lee shot him?
“A. Sitting down.”

On cross-examination this witness testified that appellant told the deceased to pull his knife and the deceased put his hand in his pocket and stood up but he did not pull a knife. The witness testified that appellant walked away and the deceased sat back down. The deceased did not have his hand in his pocket at the time he was shot and killed. He further stated that he did not see the deceased with a weapon of any kind and he did not say a word to appellant before he was shot.

Several officers from the Montgomery Police Department took part in the investigation of this homicide. They went to the scene of the shooting and learned that appellant did the shooting. A radio dispatch was broadcast for appellant and a description of the automobile was given over the radio. The radio dispatch also stated that a shotgun was used in shooting the deceased.

Police Officer Joseph Hardy, Jr., acting in response to the police radio dispatch, went to Sayre Street and found the automobile parked about fifty feet out in the intersection of Sayre Street near the intersection of Elizabeth Street. No one was in the parked vehicle. Officer Hardy found appellant in a house near the intersection of these streets. He asked appellant his name and he told him. He placed appellant under arrest and put him in his patrol car. Appellant told the officer that the parked car belonged to him. After putting the appellant in the patrol car Officer Hardy walked to appellant’s car and looked through the car window and saw a shotgun lying flat on the front seat. The officer retrieved the shotgun and carried it to the patrol car. Hardy did not ask appellant any questions other than his name and who owned the parked vehicle. Hardy scratched his initials on the gun, his badge number and the date. At this point the City detectives arrived and they took over the investigation.

Hardy further testified that the shotgun was lying on the front seat of the car and was in plain view; that he did not have to open the car door to see the shotgun and he did not conduct a search of the automobile. He carried the gun to Police Headquarters and impounded it; that ended Hardy’s connection with this case.

Appellant moved the Court to suppress the shotgun as evidence on the ground that the arrest was illegal. The Court denied the motion.

Photographs were taken of the murder scene and the body of the deceased before he was carried to the funeral home. These were introduced into evidence over appellant’s objections.

The investigating officers found three spent shotgun shells near a tree in appellant’s yard where the witness Calhoun testified appellant was standing when he fired three times at the deceased. The spent shells and the shotgun were turned over to a Criminalist in the Department of Toxicology. This witness, Tom Hopen, test-fired the gun and compared the spent shells with those used in test-firing the gun. He definitely determined that one of the spent shells was fired from the gun belonging to appellant and stated the other two spent shells had the same characteristics as the one that was actually fired by the gun.

Dr. Richard Roper, State Toxicologist, performed a post-mortem examination on the body of the deceased. He found a pattern of penetrating wounds over the face and chest of the deceased. These wounds numbered ninety. In summary he stated:

“On examining the organs of the chest and abdomen or stomach area, I found penetrating wounds through the heart, through the aorta, which is one of the major arteries out of the heart, the major blood distributor. Wounds through the carotid artery, or the right carotid artery, which is the main artery on the right side, up to the face and brain. And wounds in the lungs. The chest cavity was filled with blood.”

Dr. Roper gave his opinion that the cause of death was the result of acute internal hemorrhage, or massive internal bleeding, subsequent to a shotgun wound to the body. He stated that the pattern of shots indicated they were fired from over twenty feet away.

During the testimony of Tom Hopen the State identified and introduced into evidence the clothing the deceased was wearing at the time he was shot. He stated that he received the clothing from Detective Totty. It developed that the clothing had been cut at the time Mr. Hopen received it, and there was no testimony as to when or by whom it was cut. Upon motion of appellant the Court excluded all the clothing as evidence in the case. In doing so the Court explained to the jury:

“Ladies and Gentlemen, the only reason the Court ruled like that is because of this cutting. So do not consider anything at all about the clothing. The reason the Court has done that is because it was pointed out that the clothing had a cut on there that was not established, so the Court does not feel that it should be admitted; and the Court will instruct you not to consider anything at all about the clothing.”

Appellant’s automobile was impounded the night of the homicide and the next morning Detective Totty was told by Detective Mobley to “process” the car and to take all physical evidence that might have any connection with the case. In the course of “processing” the car Detective Totty found a shotgun shell. He stated the plastic part was pushed down into the crack between the back area and the seat area. He said one could see the gold metal sticking out and it was obvious. He took a photograph of the interior of the car showing the shell. This photograph was identified as State’s Exhibit No. 16 and was offered into evidence. Appellant objected to the photograph on the ground that no search warrant had been obtained to search the impounded car. The Court sustained the appellant’s objection and the photograph was excluded.

The night of the homicide Detective R. D. Mobley interviewed appellant in the Detective Office at Police Headquarters. Before interrogating him Mobley read him the Miranda rights and warnings and appellant signed a waiver of rights form which was witnessed by Mobley and Detective McRae. Mobley testified that, “The rights were given to the defendant at eleven forty-four p. m. The formal statement was started at eleven fifty-five p. m., and it did not take over approximately ten minutes for the statement.”

The hearing concerning the Miranda rights and the statement made by appellant was had out of the presence and hearing of the jury. The rights form signed by appellant is as follows:

“At the top, it had his name, Robert E. Lee. The place, the Police Department, Detective Office. The date, August the seventh, 1977. The time, eleven forty-four p. m. Charge, murder. Says before asking you any questions, I must explain to you that you can remain silent, that anything you say can be used against you in Court, that you can talk to a lawyer first and that you have the right to the advice and presence of a lawyer even though you cannot afford to hire one. If you cannot afford to hire a lawyer and want to have one present during interrogation, the Court will appoint one before we question you. If you want to answer questions now, you can do so, but you can stop answering at any time. And my signature. And it says I fully understand the foregoing statement and do willingly agree to answer questions. I understand and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.
“Q. Whose signature appears beneath that?
“A. Robert E. Lee.
“Q. Did you see him put it there?
“A. Yes, Sir.
“Q. Did he at any time ask to speak to a lawyer?
“A. No, Sir.
“Q. Did at any point prior to the interview or upon the commencement of the interview, did he ever tell you that he did not want to talk to you?
“A. No, Sir.
“Q. Did you force, threaten or coerce him to get him to talk to you?
“A. No, Sir.
“Q. Did you offer him any reward, hope of reward, or promise or hope of lenient treatment to get him to talk to you?
“A. No, Sir.
“Q. Did he appear to understand his rights?
“A. Yes, Sir.
“Q. Did you give him a copy to read along with when you read him his rights?
“A. Yes, Sir.
“Q. And after that did you take a statement from him?
“A. Yes, Sir, I did.
“Q. Was that a written statement or an oral statement?
“A. I took an oral at first, and then a written statement from him.
“Q. Then it was reduced to writing?
“A. Yes, Sir.
“Q. And he signed it?
“A. Yes, Sir.
“Q. And you signed it?
“A. Yes, Sir.
“Q. And you saw him place his signature there?
“A. Yes, Sir, I did.”

At the conclusion of the voir dire hearing the Court ruled that appellant voluntarily signed the waiver of rights form. The Court further found that no promises were made to appellant to get him to make a statement concerning the shooting, and no threats, rewards, or other inducements were made against him, or held out to him, to get him to make a confessory statement. In short, the Court ruled that appellant freely, voluntarily and understandingly signed the statement.

Back before the jury the State laid the proper predicate and the confessory statement was admitted into evidence.

The statement reads as follows:

“August 7, 1977
Sunday
11:55 P.M.
“This is a statement taken from Robert E. Lee concerning the death of James Landun. This statement is taken by Det. R. D. Mobley.
“He told me, he said the next time that me or you cross that it will be me or you and thats it. Then he got up and he went in his pocket and so all I did was backed up and turned around and then I went and got mine and so then I did some shooting. Then I got in my car and I left.
“Q. What was the man’s name that you shot?
“A. All I know is they call him red, that’s all I know.
“Q. Did you see a knife or any other weapon in his hand?
“A. No when he went in his pocket I just backed off.
“Q. Where was he when you shot him?
“A. He was sitting in a chair in a lady named Mattie Fuller’s front porch.
“Q. What did you shoot him with?
“A. A shotgun.
“Q. How many time did you shoot him?
“A. I don’t know.
“Q. Where was your shotgun at when you went and got it?
“A. In my house.
“Q. Where were you standing when you shot him?
“A. I don’t know.
“Q. What were yall arguing about when he said that it would be you or him next time?
“A. I think I have answered enough questions for you.
“Q. Is there anything else that you would like to add to this statement?
“A. That’s all.
“I have read or had this statement read to me and it is true and correct to the best of my knowledge.
“Wit, /s/ E. D. Moblev
Det. E. D. Mobley
/s/ Eobert E. Lee
Eobert E. Lee”

Appellant contends that this case should be reversed for two reasons: (1) that the confession was inadmissible because it was the fruit of a poisonous tree, and (2) it was improper to admit the bloodstained clothing of the deceased over appellant’s objection and then to later exclude the clothing. We do not agree with either contention.

Appellant bottoms his first contention on the fact that the arresting officer asked appellant his name and if the car parked on a public street belonged to him, all without advising him of his constitutional rights.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court said:

“Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-seene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.”

Not by the broadest stretch of the imagination can it be said that the arresting officer elicited an admission or confession from appellant concerning the shooting of the deceased. It is clear in this case that the only confession made by appellant was at Police Headquarters after he had been fully informed of his constitutional rights. The actions and conduct of the arresting officer were limited to an on-the-scene investigation in an effort to obtain evidence in the field to be used at appellant’s trial.

As to appellant’s second contention, we hold that when it was shown that the clothing worn by the deceased at the time he was shot and killed had been cut or otherwise altered after being removed from his body the trial court properly excluded it from the jury’s consideration. No error intervened here.

This was a cold blooded and senseless killing. The evidence presented by the State was so convincing that it took the jury only eleven minutes to return a verdict.

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

The judgment of conviction is affirmed.

AFFIEMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Tyrone P. GRAY, alias v. STATE.
    3 Div. 880.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    L. Wayne Collier, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen. for the State, appellee.
   TYSON, Judge.

The appellant was indicted by the Montgomery County Grand Jury for securities fraud under § 8-6-17, Code of Alabama 1975. Appellant’s trial resulted in a verdict of guilty with a fine of $5000.00 assessed by the Jury. The trial judge sentenced the appellant to a three year prison term. Subsequently, the trial judge granted a suspension of sentence upon the conditions that appellant be placed on probation for ten years, that appellant serve one year in the penitentiary, that appellant make restitution to defrauded investors, and that appellant pay the fine assessed by the jury. Appellant gave oral notice of appeal (R. p. 246) and filed a timely motion for new trial, which was denied (R. p. 248). Hence, this appeal is properly before this Court for review.

The State presented the testimony of sev-en witnesses, Walter Berry, Jason Overby, Joyce Blackburn, James Harris, Arnold Kidd, Abe Boykins, and Ben Davis, each of whom was an investor in a proposed bank, the United Memorial National Bank. The witnesses’ investments ranged in amounts from $125.00 to $5,000.00. Each investor intended to purchase stock in the proposed bank with his or her investment, such stock to be issued after the bank had been granted a charter from the United States Government. From the testimony, it appeared that the investors had been contacted either in person or through the media and encouraged to invest in the proposed bank which was organized to serve the local black community. The investors’ testimony showed that their investments were made during the years 1973 to 1975. During this period of time, investors received periodic correspondence from the appellant, Chairman of the Board which was organizing the bank, which purported to report on the progress of the sale of stock. In one piece of correspondence an opening date for the bank was targeted for October, 1976. However, some of the investors testified that they began to become concerned when they no longer received correspondence from appellant. Others’ suspicions were aroused when they noticed the absence of a listing for the bank in the new telephone directory in February of 1977. Efforts to get in touch with appellant by mail went unanswered. In the end, complaints were made to the various State agencies having jurisdiction to conduct an investigation. Each investor testified that his or her money had not been refunded, nor had any stock certificates been issued to any investors. The receipts which some of the investors received were signed by appellant. Other investors who did not receive receipts for their investment noted that appellant endorsed their checks and deposited the checks in Central Bank of Montgomery. The receipts and cancelled checks, or copies thereof, were received into evidence by the trial judge.

Henry McLain testified that he was a member of the Board of United Progressors, Incorporated, the parent organization of the United Memorial National Bank. The Board was composed of ten members with appellant having been chosen as Chairman because of his experience in the banking business. Henry McLain functioned as Secretary of the Board by taking minutes of the weekly meetings. According to the witness, Board members initially paid a $1,500.00 fee, then $30.00 a month, and later $50.00 a month to the corporation to cover office expenses, advertising costs, and business travel expenses (R. p. 92). These funds were maintained in a checking account in the name of United Progressors, Incorporated at Central Bank of Montgomery. The Board authorized appellant and Reverend McKinney, another Board member, to sign checks jointly in order to draw funds from the account. Appellant was never authorized by the Board to draw a salary for his services. Neither was the appellant authorized to pay any of his personal expenses with checks drawn on the account of United Progressors, Incorporated.

The Board had established an escrow account at First Alabama Bank where all investors’ funds were to be deposited. When the funds reached the requisite amount of $1,250,000.00, the bank would be issued a charter by the United States Government and could distribute stock to the investors (R. p. 90). However, until that amount was collected through stock subscription agreements, investors’ funds were to be deposited only in the escrow account at the First Alabama Bank. The Board never authorized appellant to deposit investors’ funds in the account at Central Bank in Montgomery (R. p. 90). Henry McLain’s testimony revealed that appellant had sole responsibility for depositing funds received from investors. However, Henry McLain could not recall appellant ever having made a financial report to the Board on the status of the funds in the escrow account (R. p. 93).

Henry McLain testified that, in October, 1976, permission to sell stock in the proposed bank was withdrawn by the United States Government. Each Board member received a copy of the letter from the Comptroller of the Currency withdrawing permission to organize the bank. At a subsequent board meeting, Henry McLain recalled that appellant told the Board that the Comptroller’s letter “didn’t mean very much” because an extension of time would be granted pending an appeal from the Comptroller’s decision (R. p. 96). According to Henry McLain, appellant went to Washington sometime after receipt of the Comptroller’s letter. When he returned, appellant told the Board that an extension of time had been granted, but he had nothing to that effect in writing from the Comptroller’s office.

Subsequent to appellant’s trip to Washington, the Board members stopped selling stock in the bank because a contact had been made with a prospective investor who apparently was interested in purchasing the remaining balance of unsold stock (R. p. 112). The Board authorized appellant to pursue this possibility further. Afterwards, the Board members had no further contact with appellant, who was traveling with the prospective investor in parts unknown.

Leon McLain, brother of Henry McLain, testified that he had been a member of the Board of United Progressors, Incorporated since its inception in 1972, Leon McLain noted that appellant was the only member of the Board with any experience in the business of banking. Leon McLain testified that two accounts were set up in two different banks. The United Progressors’ account at Central Bank was where the Board members’ monthly fees were to be deposited for use in covering operating expenses. The other account was set up as an escrow account at First Alabama Bank. It was this account alone into which investors’ funds were to be deposited. Leon McLain recalled that appellant had complete control of depositing investors’ funds and Board members’ monthly fees into the two respective accounts. Leon McLain could not recall ever having seen a financial report from appellant on the progress of the fund raising effort. Appellant told Leon McLain that, if he so desired, he could inspect the bank records at the bank. However, Leon McLain never made an inspection of the bank records.

According to Leon McLain, Reverend McKinney was the Treasurer of United Progressors, Incorporated. However, the bank statements containing cancelled checks signed in blank by Reverend McKinney were sent to the office of United Progressors, thereby escaping Reverend McKinney’s scrutiny (R. p. 127).

Robert Ziner testified that he was a national bank examiner employed by the Comptroller of Currency in the Treasury Department of the United States Government and that he had been so employed since 1968. In examining the records of national banks, Mr. Ziner’s function was stated to be that of determining asset quality, asset and liability validity, the liquidity of the bank, and compliance with the law. Mr. Ziner was qualified as an expert in his field.

In August, 1976, Mr. Ziner conducted an examination of the records of the United Memorial National Bank in organization. Mr. Ziner’s examination began with a review of the records of the escrow account at First Alabama Bank. Mr. Ziner noted there were some cancelled checks from the escrow agent, payable to the appellant, ostensibly representing stock subscription refunds (R. p. 136). Mr. Ziner next reviewed the records given to him by appellant at the proposed bank’s office. Mr. Ziner stated that these records were very difficult to work with because investors’ funds had been commingled with the funds on deposit at Central Bank (R. p. 137). Nevertheless, Mr. Ziner was able to detect irregularities. Funds removed from the escrow account for the purpose of refunding stock subscriptions had been used for other purposes. Further investigation revealed that the amount of funds deposited in the escrow account was considerably less than the amount which should have been deposited, according to the ledger showing total stock sales. According to Mr. Ziner, over $70,-000.00 was paid by investors for capital stock, all of which should have been deposited in the escrow account. However, Mr. Ziner found that only $44,000.00 was deposited in the escrow account. The escrow account records and the stock ledger list were in further conflict with regard to the amount certain individual investors were supposed to have paid in as an investment.

Richard Payne, an examiner for the Alabama Securities Commission, testified that he became involved in the investigation of the United Memorial National Bank in organization as a result of numerous investors’ complaints to the Commission. Mr. Payne’s testimony with respect to discrepancies between the escrow account records and the stock ledger list substantially corroborated that of Mr. Ziner. Mr. Payne’s information, however, was obtained through the execution of a search warrant on the office of the United Memorial National Bank in June, 1977. By the use of a subpoena, Mr. Payne discovered the records of the United Progressors, Incorporated at Central Bank. These records revealed appellant had used investors’ funds to pay for his personal expenses, such as mortgage payments on his personal residence, installment payments for furniture in his personal residence, installment payments for his personal automobile, and payments for utilities at his personal residence (R. p. 171). The trial judge admitted, over objection by the defense, various documents into evidence obtained through the search warrant executed in June, 1977, and through the subpoena in December, 1977. The State showed the proper chain of custody for all items received into evidence.

Mr. Payne identified a copy of the letter, dated October 5, 1976, from the United States Comptroller of the Currency which revoked permission to organize the United Memorial National Bank, and which ordered the refund of subscribers’ funds. Mr. Payne next identified a bank statement, dated November 30, 1976, which showed a $19,000.00 deposit during the previous thirty day period to the account of United Progressors, Incorporated at Central Bank. This deposit represented a transfer of the last remaining funds in the escrow account at First Alabama Bank. As he examined the microfilmed cancelled checks, dated subsequent to the $19,000.00 deposit, Mr. Payne recorded all the information from each check on a list, which was admitted into evidence over defense counsel’s objection. Mr. Payne identified check number 1128 as one of the checks drawn on the United Progressors, Incorporated account subsequent to the $19,000.00 deposit. The check was payable to the order of appellant and marked with the notation, “Cash refund: Ruth Barber, $250.00; James Harris, $1,200.00; A. Boykins, Jr., $800.00; Ben Davis, $125.00; Jason Overby, $625.00” (R. p. 179). The check, dated November 9, 1976, was signed jointly by appellant and Reverend McKinney in the amount of $3,000.00. Mr. Payne was allowed to testify over objection that all of the people listed on the check told Mr. Payne that they had received no refunds whatsoever on their stock subscriptions. Bank statements revealed that by May, 1977, the balance of the United Progressors, Incorporated account had dwindled to $70.00.

Reverend Eddie McKinney, Treasurer of United Progressors, Incorporated, testified that his primary function in that capacity was to co-sign checks drawn on the account at Central Bank. Reverend McKinney did not handle any funds received through the sale of stock, nor did he ever make deposits to the account at Central Bank. Reverend McKinney never examined the records at Central Bank and never examined the can-celled checks contained in the monthly statement of the United Progressors, Incorporated account. Reverend McKinney testified further that he did not have any responsibilities with respect to the escrow account at First Alabama Bank. Reverend McKinney recalled one occasion when he signed five or six blank checks at appellant’s request (R. p. 197). Reverend McKinney did not remember signing any check made payable to appellant for $3,000.00, nor could he remember signing checks payable to a local furniture store. When Reverend McKinney was shown checks with his name on them, used to pay appellant’s apartment rent, automobile installment payments, and other personal expenses, he denied the signatures on the checks, saying they were forged.

John Wright, appellant’s landlord, identified a check payable to him and endorsed by him used by appellant to pay the rent on appellant’s personal residence. When Mr. Wright questioned appellant about the account on which the check was drawn, appellant responded that he was organizing a bank and that this check was for his living expenses (R. p. 208). At the conclusion of Mr. Wright’s testimony, the State rested its case.

Outside the presence of the jury, the defense moved to exclude the State’s evidence and requested a directed verdict for the defendant. The trial judge heard argument from both sides on the motions. Subsequently, the motions were denied, and the jury was returned to the courtroom to hear evidence for the defense.

Sam Cook, a member of the Board of United Progressors, Incorporated, testified that he was involved with the introduction to the rest of the Board, in late 1976, of one Mrs. Moore, a prospective investor in the United Memorial National Bank, who was interested in purchasing the remaining unsold stock. At the time of Mrs. Moore’s initial contact with the Board, stock sales had decreased substantially. The prospect of Mrs, Moore’s investment had the effect of removing the incentive for the Board members to solicit any further stock subscriptions. Thus, virtually no stock was sold after this time, and the appellant was authorized by the Board to pursue the possibility of securing Mrs. Moore’s investment.

Following Mr. Cook’s testimony, the defense rested its case. Thereafter, the trial judge delivered his oral charge to the jury.

I

Appellant contends that error to reversal occurred when the trial judge admitted into evidence items seized during the execution of a search warrant on the premises of the office of United Progressors, Incorporated. The seized evidence was primarily docu- . mentary in nature, including cancelled checks, bank statements, business records, and correspondence, the property of United Progressors, Incorporated.

As stated in Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973):

“ . . . [T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. . . ”

See also, Cross v. State, Ala.Cr.App., 351 So.2d 698 (1977); Lewis v. State, Ala.Cr.App., 335 So.2d 426 (1976); Barbosa v. State, Ala.Cr.App., 331 So.2d 811 (1976).

Thus, we find no violation of appellant’s rights under the Fourth Amendment to the United States Constitution by the trial judge’s admission of said evidence and subsequent testimony pertaining thereto. The evidence in this case fails to meet the requirements of Brown, supra. Hence, appellant has no standing to challenge the legality of the search.

II

Appellant argues that it was reversible error to admit into evidence a memorandum prepared by Alabama Securities Commission Examiner Richard Payne. From a careful reading of Mr. Payne’s testimony, we are clear to the conclusion that the memorandum in question was admissible as a record of the witness’ past recollection.

Mr. Payne’s testimony establishes that he prepared the memorandum in the form of a list of all the information on all the cheeks drawn on the escrow account and on the account of United Progressors, Incorporated. Mr. Payne stated that he recalled when he made the memorandum, and that it was accurate at the time it was made. Finally, the witness testified that without the memorandum he would have no independent recollection of the information contained therein (R. p. 182). Such testimony satisfies the requirements for admission of a record of the witness’ past recollection. Franklin v. State, 38 Ala.App. 274, 82 So.2d 316 (1955); Gamble, McElroy’s Alabama Evidence, § 116.03 (3rd Ed., 1977), and authorities therein cited.

III

Appellant argues that during the following colloquy the trial judge erroneously admitted inadmissible hearsay evidence (R. p. 179):

“Q. Have you had personal contact with each of the persons named on this check, Mr. Payne? [Ruth Barber, James Harris, A. Boykins, Jr., Ben Davis, Jason Overby]
“A. Either in person or by telephone, yes.
“Q. Have you found that any of these people have received any money back?
“MR. COLLIER: Your Honor, that would call for a hearsay answer.
“THE COURT: Overruled.
“A. They have all advised me that they have not received any refunds whatsoever.”

The record reveals that James Harris, A. Boykins, Jr., Ben Davis and Jason Overby testified that they had received no refunds. Furthermore, these witnesses were subject to extensive cross and re-cross examination by appellant’s counsel. Hearsay does not include statements of witnesses in the present trial subject to cross examination by the party against whom the statements are offered. Gamble, McElroy’s Alabama Evidence, § 242.01(1) (3rd Ed., 1977), and authorities therein cited.

IV

Appellant argues that the trial judge erred to reversal in overruling motions to dismiss the indictment, exclude the State’s evidence and the motion for directed verdict. Appellant submits that the indictment does not allege, and the State’s proof does not show, that the conversion of funds was connected with the sale of stock. The indictment in this case tracks the language of § 8-6-17, Code of Alabama 1975. It reads as follows (R. p. 236):

“Tyrone P. Gray, alias Tyrone Gray, whose name is otherwise unknown to the Grand Jury did, willfully and unlawfully, in connection with the offer, sale or purchase of a security, to-wit: capital stock issued by the United Memorial National Bank (hereinafter referred to as ‘said stock’), In Organization, directly or indirectly, (1) employ a device, scheme or artifice to defraud or (2) engage in an act, practice, or course of business which operated or would have operated as a fraud or deceit upon a person, as follows, to-wit: that said Tyrone P. Gray willfully and unlawfully converted to his own personal use monies paid for the purchase of said stock by securities purchasers, to-wit: James V. Harris, Abe Boykins, Jr., Jason B. Overby, Arnold W. Kidd, Walter Berry, Ruth Barber, Ben Davis, and Joyce M. Blackburn, to-wit: $9,750.”

The first part of appellant’s contention is rebutted by the language of the indictment “ . . . in connection with . .” The form of the indictment was proper. Manson v. State, Ala.Cr.App., 349 So.2d 67 (1977).

The second part of appellant’s contention is rebutted by a careful examination of the evidence presented by the State. The testimony at trial showed that appellant was in charge of depositing investors’ funds in the escrow account. The proof showed that appellant commingled investors’ funds with funds to be used for the operating expenses of United Progressors, Incorporated. Without Board authorization, appellant used the funds in the operating expense account at Central Bank for his own personal expenses. Moreover, investors’ demands for refunds were not met and, in some cases, their inquiries went unanswered.

This Court finds that the evidence in this case was sufficient to support the jury’s verdict. Appellant’s actions and transactions continued over a substantial period during which time numerous sales of stock were consummated. In the language of the statute, the proof was sufficient to show appellant “employed a device, scheme, or artifice, to defraud,” or that he “engaged in an act, practice, or course of business which operated as a fraud or deceit.”

After careful review of the record in this case, we find same to be free of error. We note special approval of the principles of restitution embodied in the trial judge’s conditional suspension of sentence. This case is due to be and is hereby

AFFIRMED.

All the Judges concur.