author: FAULKNER, Justice.

text:
    AUTO-OWNERS INSURANCE CO., INC., a corp. v. Donna Frye RODGERS et al.
    77-122.
    Supreme Court of Alabama.
    April 14, 1978.
    Rehearing Denied July 14, 1978.

      Alan C. Livingston of Lee & Mclnish, Dothan, for appellant.
    J. Earl Smith of Smith & Smith, Dothan, for appellees.
   FAULKNER, Justice.

Auto-Owners appeals from an order, in a declaratory judgment action, finding that there was no substantial and material lack of cooperation on the part of its insured, to assist in the defense of a suit for damages. We affirm.

Ronnie Brannon operated an automobile garage in Geneva County, and as an adjunct, bought and sold used cars. He was insured by Auto-Owners under a garage liability policy, the subject of the declaratory action. While negotiating with a garage customer, John Doss McKinney, for the purchase of a certain automobile, Brannon loaned McKinney another owned by him. McKinney, operating the borrowed car, in a downpour of rain, lost control and skidded into an automobile driven by Jack Rodgers on June 17,1975. Donna Frye Rodgers was a passenger in that automobile. The Rodgers filed damage suits against Brannon and McKinney on October 15.

Rodgers’ insurer, State Farm Mutual Automobile Insurance Co., investigated the accident. When State Farm learned of the Brannon policy, its adjuster notified Auto-Owners. Auto-Owners adjuster telephoned McKinney who was, at that time, in a hospital recuperating from the injuries he received in the accident. (Even though McKinney was hospitalized for 5 weeks, no one representing Auto-Owners called upon him.) Auto-Owners, after McKinney was discharged, telephoned his home three times between 9:00 A.M. and 5:00 P.M. and each time was told by his grandmother that McKinney worked from early in the morning until after 8:00 P.M. At each call, the caller requested the grandmother to have McKinney call the Auto-Owners’ office presumably during its office hours. He did not return any calls. Having no success with his telephone calls, Auto-Owners’ adjuster went to the McKinney residence. Finding no one at home, he left his card in the door. Subsequently, the Branch Claims Manager in Pensacola, MacDonald, wrote to McKinney on three occasions, September 18, October 1, and October 27. The letters were sent by certified mail, return receipt requested, with McKinney accepting all but the last letter. On October 27, Auto-Owners wrote McKinney advising him that the company was disclaiming any coverage under the policy. McKinney refused to accept delivery of the letter. No effort was made by Auto-Owners to talk with McKinney after the suits were filed.

At the hearing on the declaratory judgment action McKinney testified, when asked the question if he would defend the suit, that he would tell what happened. At his deposition, on August 27, 1976, McKinney testified that he was now ready, willing, and able to cooperate in the defense of the action against him.

The trial court found that “the conduct of John Doss McKinney did not amount to a lack of cooperation in any substantial or material respect.”

An insured’s lack of cooperation must be substantial and material to cause a breach of the policy condition. George v. Employers’ Liability Assurance Corporation, Ltd. of London, England, 219 Ala. 307, 122 So. 175 (1929). Was there a substantial and material lack of cooperation on the part of McKinney in this case? That is the principal issue here.

Auto-Owners’ letter of September 18 to McKinney advised him that its adjuster had tried, but failed, to get his statement of the accident, and moreover, that the garage policy covering Brannon required his cooperation. An appointment for him to meet the adjuster was set for September 24, at noon, in Hartford. A copy of the letter dated September 18 to Brannon advising him of his cooperation was also sent to McKinney.

The October 1 letter to McKinney reminded him of his failure to keep the September 24 appointment, and requested him to call the insurer collect, during normal business hours within 10 days. (A reading of McKinney’s testimony produces a doubt that he would understand the meaning of normal business hours.) The October 27 letter advised McKinney of the company’s disclaimer of coverage.

We opine that McKinney’s conduct regarding these letters is insufficient to amount to a substantial and material lack of cooperation. There was neither an offer to pay McKinney’s expenses to Hartford, nor pay him for any loss of wages; the appointment was arbitrarily set for the convenience of the company; McKinney was given no alternative as to his convenience, and he was given no alternative to appear on another date that would have been convenient for him.

As for the telephone calls and visits to McKinney’s home, the evidence shows that those appear to have been made at the convenience of the insurer. The adjuster was told that McKinney worked from early in the morning until after 8:00 P.M., but all of the visits, as well as the phone calls, came between the hours of 9:00 A.M. and 5:00 P.M. There was neither an effort by the company to call or visit McKinney at his place of employment, nor any calls or visits after McKinney returned from work. We opine that McKinney’s conduct in this area did not constitute a breach of the policy.

Lastly, Auto-Owners argue that it has been prejudiced by McKinney’s alleged breach of the policy. First, the company says that it is practically impossible to locate witnesses. We answer by asking, assuming McKinney had been killed in the accident, would the company be released from its obligation to defend, just because McKinney was not present to give the names of witnesses. Obviously not. Moreover, McKinney suffered a broken neck plus other injuries received in the accident. Furthermore, the company had access to the police report of the accident, and it could have taken the Rodgers’ deposition. Here were two methods to discover names of witnesses.

The reasoning of the company as to prejudice on this ground is without merit.

Next, the company contends prejudice because it did not know whether McKinney had coverage under a policy of his. This contention is also without merit. Auto-Owners specifically disclaimed coverage because of lack of McKinney’s cooperation. Therefore, it has waived all other grounds of forfeiture. American Automobile Insurance Co. v. English, 266 Ala. 80, 94 So.2d 397 (1957).

We hold that the evidence supports the trial court’s finding that McKinney’s conduct did not amount to a lack of cooperation in any substantial or material respect.

AFFIRMED.

BLOODWORTH, EMBRY and BEATTY, JJ., concur.

JONES, J., concurs in the result.

TORBERT, C. J., and MADDOX, AL-MON and SHORES, dissent.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Donald A. FAWKES v. Sharon E. FAWKES.
    Civ. 1361.
    Court of Civil Appeals of Alabama.
    May 3, 1978.
    Rehearing Denied June 14, 1978.

      Marlin V. MacLaughlin, Jr., Montgomery, for appellant.
   WRIGHT, Presiding Judge.

This is an appeal from judgment denying modification of a foreign divorce decree. We affirm.

The parties were divorced by a court of the State of Arizona on October 6, 1975. Custody of a minor child was granted to the mother with visitation rights to the father. The father appealed. While his appeal was pending, the father removed the child to Colorado. He filed a petition for custody in the Colorado court. The Arizona appellate court affirmed the original judgment.

The father is in military service. While he was on temporary duty in Alabama with the child in his custody contrary to the Arizona order, the mother filed a petition for writ of habeas corpus in the Circuit Court of Montgomery County, Alabama. The father answered and petitioned for modification of the Arizona judgment. The matter was set for hearing on August 10, 1977, and subsequently continued at the request of the mother until September 30. The father then sought further continuance for discovery. Continuance was denied. In the meantime, the father and the child had left Alabama and returned to Colorado. At the time of the hearing on September 30, a hearing had been set in Arizona for October 11.

There was presented evidence, both oral and deposition, at the hearing on September 30. The judgment of the court denied the father modification of the Arizona judgment. It directed the father to provide bond in the amount of $3,500 conditioned upon his delivering the child to the mother in Arizona on October 7, 1977, so that it would be present in the Arizona court for the hearing on October 11. Delivery of the child was ordered made to the mother if bond was not made.

Stay of the judgment pending appeal was denied by the trial court and by this court.

There are several issues stated by the father in his appeal. One of the issues relates to whether the court erred in refusing to exercise its power to modify the Arizona judgment and deferring decision to the Arizona court. This issue is the crux of the appeal and we consider its determination dispositive of the appeal. The trial court exercised the principal of comity by its judgment. It recognized its jurisdiction over the “res” but refused to exercise that jurisdiction. If this action was correct, the other issues stated are moot and the trial court must be affirmed.

The equitable power of the courts of this state to protect the welfare of a child located within the boundaries of the state is always present and may be invoked by any pleading showing on its face that a child needs protection. Ex parte Buck, 291 Ala. 689, 287 So.2d 441 (1973); Watkins v. Brannon, 54 Ala.App. 424, 309 So.2d 464 (1974). A custody order of a sister state may be modified if the welfare of a child requires. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947); Phelps, Full Faith and Credit in Divorce Proceedings, 36 Ala.Law. 556 (1975).

However, Alabama courts, as a matter of comity in the absence of an immediate emergency affecting the welfare of the child, may refuse to deal with the question of custody of children where a foreign court has rightfully assumed jurisdiction and is presently exercising it. Sappington v. Fort, 258 Ala. 528, 63 So.2d 591 (1952); State v. Black, 239 Ala. 644, 196 So. 713 (1940); Watkins v. Brannon, supra. The question of whether there is an “emergency” is a matter within the discretion of the trial judge. Watkins v. Brannon, supra.

The court heard the oral testimony and considered the various depositions. At the time of the hearing, the child was no longer residing in Alabama. Neither parent was a resident of Alabama. The Colorado court had already deferred to the Arizona court. A hearing was set in Arizona within a few days. The evidence disclosed no present threat to the welfare of the child requiring the exercise of the power of the court. This court finds no abuse of discretion in the refusal to modify the Arizona judgment nor in the enforcement of that judgment by ordering delivery of the child to the mother absent bond.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice.

text:
    Ex parte Donald A. FAWKES.
    77-620.
    Supreme Court of Alabama.
    July 21, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    C. T. HELLUMS, Sr., Individually and d/b/a Tuscaloosa Tobacco and Candy Co., Inc.; and Tuscaloosa Tobacco and Candy Co., Inc. v. James HAGER.
    Civ. 1305-X.
    Court of Civil Appeals of Alabama.
    May 10, 1978.
    Rehearing Denied June 21, 1978.

      Stanley A. Cash of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellant.
    Slade Watson of Henley & Clarke, North-port, for appellee.
   BRADLEY, Judge.

On August 10, 1976 James Hager filed a claim for compensation under the Alabama Workmen’s Compensation Act. A trial was subsequently held on the claim in the Circuit Court of Tuscaloosa County. After the presentation of evidence by both parties a judgment granting compensation was entered by the circuit court on August 19, 1977. Prom that judgment C. T. Heliums, Sr. (and d/b/a Tuscaloosa Tobacco and Candy Company) seeks review by means of a petition for writ of certiorari.

Hager’s original claim against his employer (C. T. Heliums, Sr.) was premised on four theories. The circuit court found that compensation was due under two of those theories. Heliums charges that the court erred in its findings with respect to both theories. Specifically, Heliums contends: (1) that there was no evidence presented to the circuit court which would support its conclusion that Hager suffered an injury in the course of his employment with the Tuscaloosa Tobacco and Candy Company; and (2) that there was no evidence adduced during the trial which would warrant the circuit court’s determination that Hager was suffering from an occupational disease.

Our review of the judgment in workmen’s compensation cases is limited to an examination of the record in order to determine if there is any legal evidence to support the finding of fact by the trial court and to see if the correct law was applied to such facts. Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976); City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). In accordance with this rule we will review the findings and judgment of the lower court, and if either one of the theories upon which the trial court grounds its judgment is supported by fact and law the judgment will not be disturbed.

The first issue for our consideration involves Heliums’ assertion that the trial court erroneously found that Hager sustained an injury arising out of and in the line and scope of his employment with the Tuscaloosa Tobacco and Candy Company. The precise nature of Hager’s injury was delineated by the trial court as a “twisted back, acute lumbosacral joint strain with accompanying sudden pain, and hypertrophic arthritis.”

In the case of Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948), where the latent arthritis of the claimant flared up as a result of his on-the-job accident, our supreme court held that the claimant’s aggravated arthritic condition was a compensable injury under the Alabama Workmen’s Compensation Act. Likewise, the supreme court in Davis v. Standard Oil Company, 261 Ala. 410, 74 So.2d 625 (1954), concluded that arthritis caused by an accidental injury arising out of and in the course of employment must be considered an injury and as such is covered by the provisions of Title 26, section 296, Code of Alabama 1940 (currently found in Title 25, chapter 5, section 80, Code of Alabama 1975). Consequently, if an incident occurring during the performance of claimant’s job is deemed to have caused his arthritic condition or aggravated an existing arthritic condition, the trial court may properly hold that the claimant is the victim of an accident and that he is entitled to receive workmen’s compensation benefits.

James Hager was employed by C. T. Hel-iums to sell and deliver tobacco products to various retail outlets in Tuscaloosa County.

At trial Hager testified that in late February of 1976 while unloading his truck, he picked up a box and immediately felt a stinging sensation and then numbness in his back. Within a few minutes the pain subsided and Hager continued to perform his duties for the Tuscaloosa Tobacco and Candy Company. However, a few days later, on March 3, 1976, Hager again experienced pain in his back. Hager saw a doctor on that day and the latter advised him to go home. Hager did not return to work after that date.

The orthopedic surgeon who subsequently treated Hager diagnosed Hager’s condition as “acute and chronic lumbosacral joint disease” and osteoarthritis. And when questioned as to his opinion about what caused Hager’s condition, the physician replied, “I don’t know. It could have been just wearing down; it could have been lifting something heavy. He could have arthritis there and it flared it up.”

Based on Hager’s testimony concerning the pain he experienced while lifting a box during the course of his employment, we believe that the trial court could have reasonably concluded that Hager’s physical disability was caused by an arthritic condition incurred as the result of an injury to his back suffered in an on-the-job accident or was caused by an on-the-job accident which aggravated an existing arthritic condition in his back. Moreover, the statement by the physician who treated Hager after that event provided sufficient evidence that the strain of lifting a box from his truck either caused his back condition or aggravated an existing condition.

In City of Tuscaloosa v. Howard, supra, this court noted that in order for there to be an “accident” within the intent of the Workmen’s Compensation Act, the injury suffered by the claimant must be legally caused by the performance of his duties and a causal relationship of a medical nature must exist between claimant’s injury and his job. However, the two-pronged test established in City of Tuscaloosa v. Howard must be considered in context with the “any evidence” rule under which we review workmen’s compensation cases. In the present case there was evidence to support a determination by the trial court that the twin requirements of City of Tuscaloosa v. Howard had been met. Consequently, the court’s judgment in regard to its finding that Hager suffered an accident during the course of his employment which resulted in his disability must be affirmed.

Inasmuch as the judgment of the trial court must be affirmed due to our conclusion that an on-the-job injury caused or aggravated Hager’s back condition, we pre-termit a discussion of whether Hager was suffering from an occupational disease.

The final issue for our consideration involves a claim by Hager’s counsel that he (the attorney) is entitled to recover an attorney’s fee for the collection of medical expenses on behalf of Hager.

To begin, we note that the attorney who represented Hager raised the issue of his fees for the first time on appeal. Moreover, the trial court awarded him $1,579.69 for his legal services and the attorney did not bring to the court’s attention the fact that he considered this award inadequate, nor did he present to the trial court a request for attorney’s fees for collecting Hager’s medical expenses. As the committee comments of Rule 4, Alabama Rules of Appellate Procedure indicate, a party has no right to raise for the first time on appeal new matter not presented to the trial court or upon which the trial court had no opportunity to pass. We perceive no real difference between an appeal and a writ of cer-tiorari insofar as this requirement is concerned. Consequently, matters presented for review on appeal or by writ of certiorari must have been placed before the trial court at some stage of the proceeding there in order for this court to consider them. That was not done in this case; hence we are under no duty to review counsel’s claim.

Having determined that the trial court did not err in rendering a judgment for Hager on the basis that an on-the-job accident resulted in his disablement, it is our conclusion that the court’s judgment must be affirmed.

AFFIRMED.

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


text:
    Ex parte C. T. HELLUMS, Sr., etc.
    77-638.
    Supreme Court of Alabama.
    July 21, 1978.
   ALMON, Justice.

WRIT DENIED.

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


text:
    Frankie Lee DAVIS v. Joanne Patricia Cody DAVIS.
    Civ. 1416.
    Court of Civil Appeals of Alabama.
    May 17, 1978.
    Rehearing Denied June 21, 1978.
    Allen W. Howell, Montgomery, for appellant.
    Joseph G. L. Marston, III, Prattville, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. Defendant husband appeals. The issues are stated to be: (1) The trial court abused its discretion in the award of alimony and child support; (2) the court abused its discretion in the award of attorney fees to the wife. This court finds the issues are not well taken and the judgment of the trial court is affirmed.

The award of alimony, child support and attorney fees to the wife in a divorce action is a matter within the discretion of the trial judge, and will not be reversed on appeal except for palpable abuse. Pruett v. Pruett, 333 So.2d 580 (Ala.Civ.App.1976). Our review of the evidence in this case indicates no abuse of discretion.

There is no unusual issue of prece-dential value in this case. We therefore present only a limited resume of the evidence. The defendant left the connubial home while the wife and two children were visiting out of town. He began living with another woman and openly continued to do so at the time of hearing. There were two small girls born of the marriage. Defendant is a Federal Civil Service employee. His net earnings are $996.73 per month. The wife had not been employed for several years, but had gained temporary employment since her abandonment by the husband. She had inherited stock of a value of several thousand dollars and had converted inherited real estate into cash. The cash had been placed on savings in her name, her husband’s name and in the names of the children.

The court gave to the wife title to the home (with its indebtedness), most of its furnishings, a Blazer automobile, the inherited stock and the remainder of the inherited cash. The husband retained a 1977 pickup truck, other vehicles and a camper. Alimony was granted in the amount of $50 per month and child support in the amount of $300 per month. In December 1980 alimony was to increase to $125 per month and child support to $400 per month. Attorney fee in the amount of $800 was awarded to the wife. The husband was required to continue payment on accrued family debts.

It is evident that the defendant must live carefully and frugally in order to meet his obligations, and pay the support and alimony directed. However, the evidence indicates that he can do it from his income. He may need to dispose of some of his personal property, such as the 1977 pickup truck, and thus reduce his indebtedness. However, he chose to travel the road he is now on. The alimony and support he is directed to pay is only about one-third of his net income. It is not more than is needed by his wife and children and is not more than he is able to pay. We affirm the judgment below.

A $300 attorney fee is given the wife on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte Frankie Lee DAVIS.
    77-609.
    Supreme Court of Alabama.
    July 21, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    DEPARTMENT OF INDUSTRIAL RELATIONS and Automatic Electric Company v. Jean H. SMITH.
    Civ. 1461.
    Court of Civil Appeals of Alabama.
    May 24, 1978.
    Rehearing Denied June 21, 1978.
    Frank D. Marsh, Asst. Gen. Counsel of Ala., Dept, of Industrial Relations Legal Division, George Cocoris, Gen. Counsel, Montgomery, for appellants.
    James D. Walker, Albertville, for appel-lee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

Claimant’s claim for compensation was denied by the Appeals Referee and the Board of Appeals for the Department of Industrial Relations. After trial de novo in circuit court, in which testimony was taken, the court refused to find claimant disqualified under Section 25-4-77(3), Code of Alabama (1975) (availability for work) or Section 25 — 4-78(2) (voluntary departure from work), but found her only partially disqualified under Section 25-4-78(3)(c) (misconduct connected with work). Claimant’s employer and the Department of Industrial Relations take this appeal.

Claimant, who resided in Scant City, Alabama (between Arab and Guntersville), worked at employer’s plant in Huntsville. On Monday, March 28, 1977, claimant’s car would not start, preventing her from driving to work or taking her two pre-school age children to the babysitter. Having no phone at her residence, she walked about a mile to the nearest phone at a store to call her supervisor. She reached the plant operator but received no answer after she was connected to her supervisor’s number. She did not leave a message. On Tuesday her brother refused her request to help start the car. On Wednesday she again walked to the store and twice unsuccessfully tried to phone her supervisor,- but left no messages. A co-worker lived about four miles from her but she did not contact him about notifying the supervisor. She did not contact her husband, who was working in An-niston that week, abqut her predicament. On Friday she was able to borrow a car and leave the children with a friend. Upon her arrival at work she was informed that her employment was terminated. Her four-day absence without notice was a violation of Company Rule 9, which states that an unexcused three-day absence without notification of employee’s supervisor is considered a resignation. Claimant had been aware of this rule. She was also aware of the union grievance procedure but did not avail herself of it after her removal from the payroll.

Employer introduced evidence that someone should have been around the supervisor’s phone to answer it at the times that she called. Claimant would have been able to leave messages notifying the supervisor of her absence.

It should initially be observed that the Unemployment Compensation Act is in the nature of insurance for the unemployed worker and is intended to be a remedial measure for his benefit. It should be liberally construed in claimant’s favor and the disqualifications from benefits should be narrowly construed. Department of Indus. Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App.1976); Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970).

Where, as here, evidence has been taken orally before a trial judge, his findings are clothed with a presumption of correctness unless plainly contrary to the weight of the evidence. Department of Indus. Relations v. Rich, 42 Ala.App. 80, 152 So.2d 692 (1963).

The first issue is whether claimant’s termination for violation of Company Rule 9, i. e., absenteeism without notice, constitutes voluntary departure from work without good cause under Section 25-4-78(2), Code of Alabama (1975). Department of Indus. Relations v. Jaco, supra, is dispositive of this question. The position of some jurisdictions that discharge for absenteeism is tantamount to voluntarily leaving employment without good cause, noted in 58 A.L.R.3d 674, 690-95, was considered but specifically rejected. As here, the trial court correctly determined that the claimant had been discharged for misconduct connected with his work under Section 25-4-78(3)(c) and entitled to reduced benefits.

The second issue is whether claimant failed to show that she was available for employment as required by Section 25-4-77(3). The burden of proof is upon the claimant to establish rights to benefits. Department of Indus. Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948).

The evidence indicated that, during her 34-week period of unemployment she unsuccessfully sought employment at two places in Arab and one in Huntsville before obtaining her present employment at West-clox in Huntsville. One of the potential employers in Arab had been referred to her by the unemployment office. She did not seek employment during the first seven weeks of her unemployment because her car was still torn up.

There is no hard and fast rule as to what constitutes availability for work. It depends upon the facts and circumstances of each case. However, it is established that a claimant must at least show that he acted in good faith and made a reasonable effort to secure suitable employment of a character which he is qualified to perform by past experience or training. Alabama Dep’t of Indus. Relations v. Anderson, 41 Ala.App. 267, 128 So.2d 532 (1961); Department of Indus. Relations v. Tomlinson, supra.

It is asserted that claimant’s unavailability for work was indicated by her making only four employment applications during the period of unemployment. Attention should be directed to Alabama Dep’t of Indus. Relations v. Anderson, supra, which illustrates that in such cases the court views all of the circumstances in determining availability. There, a claimant with limited education, living in a rural area, was held available despite her failure to make any employment applications. In the instant case the court similarly considered the totality of the circumstances and determined that the efforts made were reasonable. We cannot say that the evidence is not supportive of this conclusion.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    Ex parte DEPARTMENT OF INDUSTRIAL RELATIONS et al.
    77-618.
    Supreme Court of Alabama.
    July 21, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Clara DAVIDSON v. STATE.
    6 Div. 320.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
    Rehearing Denied June 20, 1978.

      See also, Ala.App., 351 So.2d 683.
    J. Wilson Dinsmore of Dinsmore & Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

In a two count indictment the appellant was charged with larceny and with buying and receiving stolen property. A jury found her guilty of buying and receiving stolen property. The trial judge sentenced the appellant to five years’ imprisonment. From this conviction appeal is taken.

Two questions are presented for our review: (1) Whether reversible error is committed where the trial judge fails to instruct the jury on the elements of the offense and (2) whether a conviction may be had for buying and receiving stolen property where the accused stole the property from its rightful owner.

The state’s evidence reveals that Mrs. Marie Harwood Crawford answered an ad in a newspaper offering a house for rent. On the 6th of January, 1975, Mrs. Crawford entered into a contractual arrangement for the house. She gave the appellant, who identified herself as Sue Hill, two hundred dollars in cash and received a receipt evidencing the transaction, signed by “Sue Hill”. Mrs. Crawford positively identified the appellant as the woman who signed the receipt.

On the day appointed for Mrs. Crawford to take possession of the property she went to its location at 408 13th Terrace Northwest in Centerpoint, Alabama (Jefferson County), only to find seven other couples waiting to move into the same house and one couple who had already moved in.

The defense was that the appellant never entered into any rental agreement with Mrs. Crawford and simply did not commit any crime. Mrs. Geneva Bellamy, a notary public, testified that one “Sue Hill” signed a mortgage on the subject property in her presence. However Mrs. Bellamy stated that the “Sue Hill” who signed the mortgage was not the appellant.

Mrs. Mary Beacom, a handwriting expert, testified that the signature on Mrs. Crawford’s receipt and an exemplar of the appellant’s handwriting were not written by the same person.

I

In his oral charge to the jury the trial judge stated the offenses with which the appellant was charged but did not detail their elements. The appellant contends that even without any objection this failure constitutes reversible error.

The trial court has a mandatory duty of instructing the jury orally as to the different and distinguishing elements of the offense charged.

“In Mitchell v. State, 210 Ala. 457, 98 So. 285, the court said: ‘It was the duty of the court — mandatory duty of the court— to instruct the jury orally as to the different and distinguishing elements of (the offense). Without such instructions from the court, the jury could not intelligently comply with their statutory duty. This right of the defendant to have the jury so charged by the court was valuable. The duty resting on the court to so charge the jury is imperative. The error committed by the court in refusing to do so is manifest.” Gilbert v. State, 32 Ala.App. 200, 201, 23 So.2d 22, 23 (1945).

Yet, even where the judge fails to charge the jury on the elements of the offense, this error may not be raised for the first time on appeal. To constitute ground for reversal, objection or exception to the oral charge is necessary. Mitchell v. State, 210 Ala. 457, 458, 98 So. 285 (1923).

“The partial or total failure or omission of a trial court to instruct a jury in its oral charge with reference to principles or rules of law that may be, or even are, involved in the trial, cannot be made the basis for a reviewable question on appeal. Williams v. State, 147 Ala. 10, 25, 41 So. 992; Jones v. State, 174 Ala. 85, 93, 57 So. 36. The party’s remedy in such cases of mere failure or omission is to request special written instructions according to the practice established by the statutes.” McPherson v. State, 198 Ala. 5, 7, 73 So. 387, 387 (1916).

Though the appellant raised objection to the oral charge of the trial court in his motion for new trial, this is not sufficient to invoke review by this court where no exception or objection was made at trial before the jury retired. Snider v. State, 39 Ala.App. 234, 97 So.2d 163 (1957).

II

The appellant alleges that the verdict of the jury was contrary to the law and evidence. It is argued that the appellant could not be legally convicted of buying, receiving and concealing stolen property because the state’s own evidence shows that the appellant received the goods charged to be stolen, the two hundred dollars, from their rightful owner. The appellant refers to the rule in other jurisdictions that an accused may be convicted of criminally receiving stolen property, even though he was a guilty participant in the stealing of it, where he took no part in the actual caption and asportation, but participated only before or after the fact, or in a manner not involving his presence at the taking. Liakaas v. State, 199 Tenn. 549, 288 S.W.2d 430, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956); State v. Rutledge, 232 S.C. 223, 101 S.E.2d 289 (1957).

This contention of the appellant has merit though we need not venture outside our own jurisdiction for supporting authority.

“A prior theft of property by some third person, is a prerequisite to receiving stolen goods, knowing them to be stolen, (citations omitted)
“It is essential to the crime here charged that the goods coming into the hands of the accused be stolen at the time the accused received them. Farzley v. State, 231 Ala. 60, 163 So. 394.” Freeman v. State, 39 Ala.App. 451, 452, 103 So.2d 759, 760, cert. denied, 267 Ala. 626, 103 So.2d 761 (1958).

For this reason, evidence tending to prove that the accused came into possession of the property described in the indictment solely through the burglarization of a house is insufficient to authorize a conviction of receiving stolen goods. Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940).

In the offense of receiving stolen goods, the accused is guilty of receiving goods which had been taken and carried away by another. The offense of larceny is perfected before that of receiving stolen goods can be perpetrated. Foster v. State, 39 Ala. 229, 234 (1864).

Thus Alabama law supports the general principle on this subject as stated in 136 A.L.R. 1087 at 1088, Annotation: May participant in larceny or theft be convicted of offenses of receiving or concealing the stolen property.

“It is an elementary principle of law that the principal in a theft, or the person who actually steals the property, cannot be convicted of the crime of receiving, concealing, or aiding in the concealment of the property stolen.”

The evidence in this ease shows beyond any doubt that if the appellant did obtain the charged sum of money from the owner, she actually received it directly from Mrs. Crawford (the owner). The appellant, if guilty, was guilty of the actual taking and carrying away. Since a thief may not receive stolen property from himself, the appellant cannot be convicted of receiving stolen property where the evidence shows that she actually stole the property.

We note that in a related trial the trial judge charged the jury that the count charging buying, receiving, and concealing stolen property did not apply to a similar factual situation. Davidson v. State, Ala.Cr.App., 351 So.2d 683 (1977).

Because the evidence does not support the finding of the jury and the judgment of the trial court as a matter of law, the judgment of conviction must be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-615.
    Supreme Court of Alabama.
    July 21, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Roger Lee RANSOM v. STATE.
    6 Div. 333.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
    Rehearing Denied June 20, 1978.

      Marcus B. Poison, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at imprisonment in the penitentiary for life. Prior to trial appellant was found to be indigent and counsel was appointed to represent him. At arraignment he pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The victim was a wholesale distributor for the W. T. Raleigh Company and delivered household merchandise to retail salesmen. On the date of his murder the victim was making deliveries to salesmen using his motor home as a means of transportation.

On December 29, 1975, he made a delivery to the apartment of Reverend Jack Hanks located at 3008 29th Avenue, North, Birmingham, arriving there at approximately 5:15 p. m. that date. The victim talked with Reverend Hanks about twenty minutes after he made a delivery and collected ten dollars for the merchandise. Hanks watched the victim, Paul Emory Buffington, as he walked to his motor home parked in front of Como’s Grocery about one-third of a block from Hanks’ apartment. He saw the deceased get in his van or motor home. A few seconds later Hanks saw three men come around the corner of his apartment house and walk toward the van. He observed the door of the van open and the three men enter the van. At this time it was dark and Hanks could not tell if the three men were white or black. A short time later he saw the van drive off toward 28th Street and he did not see the victim or the three men get out of the van before it left. He further testified that he knew appellant but since it was dark he could not say that appellant was one of the three men he saw enter the van.

Willie Lee Williams testified that on December 29,1975 she lived with her family at 1543 Twentieth Street, North, in Birmingham, Alabama; that on the morning of that date she put out her garbage can for pick up. This date was on a Monday, and her garbage is picked up on Monday and Thursday of each week. Later that evening she picked up her garbage can to take it in her house and she noticed a man’s billfold was in the can. The identification in the billfold was that of Paul E. Buffington. She looked up the telephone number of the name listed and talked with a lady.. Some time later that night two police officers picked up the billfold. She stated that 1412 Twentieth Street, North is approximately 3V2 blocks from her home. .

Roy Robinson, Jr., testified that, on the morning of December 30, 1975 while walking to his work at Superior Vault located on 29th Avenue, between 25th and 26th Streets, he found a billfold with eyeglasses and three credit cards on the street next to the Quick Mart located on the corner of First Avenue and Huntsville Road. He looked in the billfold and saw the name of the deceased and he called the wife of the deceased and told her what he had found and in less than two hours two detectives came out and picked up these items.

V. E. Grissett lives next door to a vacant house and on the morning of December 30, 1975 he observed a van parked behind this vacant house next to his home at 1420 Twentieth Street, North, in Birmingham. He said that afternoon he saw some people around the van getting some little packages and saw them leave running. Around 3:00 p. m., Mr. Grissett saw a colored male who “appeared to be around 18 years old” enter the motor home and leave there running. Mr. Grissett then called the Police Department. He stated that this person “looked to be the same one” who had entered the motor home earlier that same afternoon.

W. L. Allen testified that he had been employed by the Coroner’s Office of Jefferson County, Alabama, as a deputy coroner for the last sixteen years and was so employed on December 30, 1975. On that occasion he received a call and proceeded to 1412 Twentieth Street, North, Birmingham, Jefferson County, Alabama, where he observed the body of a person later identified as Paul Buffington; that he was taken behind a house where a motor home was parked. He said the body was underneath the back porch of this house; that he attended an autopsy performed by Dr. Henry P. Santina and Pathologist Assistant Jay M. Glass. He stated that he made several photographs of the deceased on the scene and in the autopsy room; that he observed what he thought to be bullet entrance and exit wounds on different parts of the deceased’s body. He said that the number one bullet wound alone would not have caused death; that number two would have been an instantaneous cause of death. He stated that the victim died between 8:00 and 12:00 p. m.. on December 29.

Jay M. Glass testified that he was employed at Cooper Green Hospital as a Pathologist’s Assistant and was so employed on December 31, 1975, when he assisted in an autopsy performed on a body identified as that of Paul Buffington; that he observed several gunshot wounds on the deceased’s body, one in the back of the head, one in the back of the neck, one running across the back of the head and one entering the right arm. He testified that the head wound penetrated the skull transecting the brain stem at its base, which would have caused instantaneous death; that he recovered various projectiles from the deceased’s body.

Louis Evans testified that he was employed by the Police Department of the City of Birmingham as a Police Officer and was so employed during the month of December, 1975. He said that, on December 30, 1975, he was working the 3-11 shift and had occasion to go to 1412 Twentieth Street, North; that he observed that said address was a vacant house. Further he said he noticed a white mobile home was parked in the rear of the building. After a two or three minute search he located a body underneath the house, and he said he called evidence technicians.

Richard Keith Crocker testified that he was employed by the City of Birmingham as an Evidence Technician and was so employed on December 30, 1975, working the 12-8 p. m. shift. He stated that on that date he had occasion to go to 1412 Twentieth Street, North. At that location he observed a 1974 Champion Motor Home and underneath the vacant house at that address the body of Paul E. Buffington; that the scene immediately around the motor home was scattered with paper work and little assorted bottles of flavorings. He said that the inside of the motor home was completely ransacked. He stated that cases and bottles were scattered in different parts of the vehicle; that he had occasion to make thirty-nine separate photographs. He also had occasion to dust for prints in the motor home; that he did not find any latent prints on the outside of the van, but two lifts were obtained from the inside surfaces that were turned over to the I.D. Fingerprint Section of the Birmingham Police Department.

He stated that they also processed three hundred or more assorted bottles and cans and obtained twenty-one suitable latents; that they also processed some bottles and cans behind the house in the alley and obtained approximately seventeen lifts. He stated that some time later he went to Cooper Green Autopsy Room and obtained postmortem prints from thé victim and photographed the victim’s body.

Francisco Zortores testified that he lives at 6037 29th Court, North, Birmingham, Alabama, which is located in the College-ville area of North Birmingham; that his nickname is “Sonny.” He stated that he knows the defendant Roger Ransom; that he also knows Clyde Gray, Jr. The witness testified that he was at home playing cards with some fellows when a man named Lee told him that Roger wanted to see him down on the corner. He stated that Roger was on the corner of 29th Avenue and 30th Street in front of Como’s Store. He said when he got there Roger asked him if he could drive a van that was there. He said he told him yes and that he and Ransom and Clyde went in the van and looked around. He stated that he went to the driver’s seat and asked Roger for the keys; that he gave him the keys and he tried to start the engine. Once he got the engine started and the van in gear Roger told him to “go up on Druid Hills.” He stated that they drove approximately 25 minutes when Roger told him to go in an alley in the back of a house; that after the motor home was parked behind the house Clyde and Roger got out with the man; that on the drive to Druid Hills he had heard some mumbling in the back and had seen the man on his knees crouched down in the back of the van. After Roger and Clyde got out with the man, he searched the van; after he had been in the van about ten minutes he got out and went into the house. He said that when he went into the cellar Clyde and Roger were in there. He stated that Roger was on the way out. He testified that when he went into the cellar he saw the man lying face down. He got ready to go back out of the house and heard some shots. He saw a gun in Roger’s hand and heard three or four shots; that he found a little wallet with some cards in it, but that he looked at it and threw it back down in the van. He stated that after he heard the shots Roger said, “It won’t shoot,” so he told Roger to push the trigger back. He stated that Roger had got the gun from him the day before. He stated that he had found the gun some two to three weeks before but that it “wouldn’t shoot good.” He said that sometimes the trigger would hang up. He said it was a .22 pistol; that after he left the house he saw a woman in a window and yelled “there’s a lady” and ran. He said that about an hour later he and Roger and Clyde got back together and went to Norman King’s house. Then from there they went back to Roger’s house and smoked pot and played cards. He testified that Roger gave him about $14.00. He saw Roger the next day, but did not have any conversation with him about what had happened the night before nor was it discussed at any other time. He said he never did get the gun back from Roger.

Sonny further testified that as he continued his exit from the cellar, he heard a total of three or four shots and saw a gun in defendant’s hand after he and defendant were outside the cellar. He recognized the gun in defendant’s hand as the one he had lent the defendant the previous day and that it was a .22 caliber pistol. He also testified that he asked the defendant why he had shot the man, and the defendant responded, “Because he could identify us.”

Norman King testified that he had had several conversations with the defendant concerning the murder. During these conversations, the defendant related the events leading up to the murder of Paul E. Buff-ington: that the defendant saw the victim at Reverend Jack Hanks’ home and that he waited for him to return to the motor home; that he entered the motor home after the victim did and that Sonny Zor-tores and Clyde Gray shortly followed and entered the motor home; that Sonny drove the motor home; that the defendant had argued with the victim over the whereabouts of the victim’s money; that the victim said he was going to remember the defendant; that the defendant dragged the victim out of the motor home and under a house; that the three men (Sonny Zortores, Clyde Gray, and the defendant) each shot the victim once. The witness further testified that the defendant told him that he had played cards the night of the murder, using money that had been taken from the victim; that “about $60 apiece” was taken from the victim. The witness was offered a gun for sale by Sonny Zortores; whereupon, the witness asked the defendant if that was the gun which he used to murder “the cracker.” The defendant replied, “Yeah”, but that the gun “didn’t work right”; that every time you shot it, you had to push the trigger back.

Judith S. Crittenden, Counsel for the witness Sonny Zortores, testified that no bargains, formal offers of plea bargaining, or concrete promises had been made between her and the State in connection with Sonny Zortores’ testimony against the defendant.

James Trammel, Birmingham Police Department, testified he was investigating a different case against Norman King before he knew that other officers were seeking him for questioning in this particular case. Officer Trammel made the decision to release King only after determining that there was no case against King, and, if pursued, prosecution would not be successful.

Robert B. Johnson testified that he was employed by the City of Birmingham Police Department as Supervisor of Scientific Investigation, which includes a unit in the Fingerprint Bureau and a small ballistics laboratory. He said he was present on December 31, 1975, at the autopsy of the victim. He said he observed the bullets and bullet fragments being removed from the victim’s body. He testified that the bullets and fragments were turned over to the coroner, who in turn turned them over to him. He determined the caliber of the bullets to be .22 shorts.

Sandy Triplett testified that she is employed by the City of Birmingham Police Department as a fingerprint technician in the Identification Bureau. She testified that in connection with the Paul Buffington homicide she had occasion to have certain latent fingerprints turned over to her by the evidence technicians. She stated she examined somewhere in the neighborhood of 150 latent prints. She was asked to make comparisons with the prints of 42 individuals; that she compared Roger Ransom’s known prints to those latents that were turned over to her. She testified that she was unable to make a comparison with latent prints against those of Roger Ransom, Clyde Gray, Jr., or Francisco Zortores. She stated she did match some of the la-tents with the known prints of a Gwendolyn Kindred.

Appellant did not testify but called Annie Brown to testify in his behalf.

Miss Annie Brown, girl friend of the defendant, lived in the same house as did the defendant, at the time of the murder. Miss Brown testified the defendant and “other guys” came into the house around 5:00 or 5:30 p. m., on December 29, 1975, where they gambled until 12:00-12:30 that night. The witness testified she remained in the same room with the defendant during this time period.

The next witness for the defense was Janie Lee Ransom, mother of the defendant. She testified she saw her son “go upstairs” the afternoon of December 29, 1975, with “some of his friends”, one of whom was Clyde Gray. She further testified that her son did not leave the house afterwards, but stayed upstairs until around midnight.

Appellant’s defense consisted solely of an alibi. We have held many times that alibi evidence is always a jury question. Harris v. State, Ala.Cr.App., 343 So.2d 567; Mullins v. State, Ala.Cr.App., 344 So.2d 539; Smith v. State, Ala.Cr.App., 346 So.2d 500; Freeman v. State, Ala.Cr.App., 350 So.2d 768.

When, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. Such conspiracy need not be proved by positive testimony, and the jury is to determine whether it exists and the extent of it, from the conduct of the parties and all the testimony. Godfrey v. State, Ala.Cr.App., 333 So.2d 182; Landry v. State, 56 Ala.App. 421, 321 So.2d 759.

The evidence in this case clearly established that State witness, Norman King, was not an accomplice to the crime charged, and therefore, his testimony could properly be considered as corroboration of the testimony of the admitted accomplice, Zortores. Summers v. State, Ala.Cr.App., 348 So.2d 1126.

This was a heinous and atrocious murder and appellant’s guilt was proved out of his own mouth by the testimony of Norman King. It took the jury only forty minutes to return a verdict of guilty as charged, with punishment fixed at life imprisonment.

We have thoroughly searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Roger Lee RANSOM.
    77-624.
    Supreme Court of Alabama.
    July 21, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Wendell PITTS v. STATE.
    8 Div. 52.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.
    Rehearing Denied June 30, 1978.

      Donald E. Holt and Joe M. Patterson, Jr., for Holt, McKenzie, Holt & Patterson, Florence.
   ON REHEARING

BOWEN, Judge.

While serving his sentence in the Lauder-dale County Jail the appellant allegedly discovered that his brother, Joe Pitts, and Carrol “June Bug” Clemmons were the two masked men who robbed Mattie Turner on February 15, 1976. The appellant had been convicted of this robbery and sentenced to ten years’ imprisonment. His judgment of conviction was affirmed by this court without published opinion. Pitts v. State, Ala.Cr.App., 8 Div. 871 (Ms. March 29, 1977). This is an appeal from the circuit court’s denial of a petition for writ of error coram nobis.

On the trial of the appellant for robbery the state’s evidence tended to show that the appellant and “June Bug” Clemmons entered the home of Mattie Turner around ten o’clock on the night of February 15, 1976, and committed an armed robbery. The testimony of Mrs. Turner was verified by Leonard Roger, a guest in her house that evening. Both Mrs. Turner and Mr. Roger positively identified the appellant as one of the robbers.

While the appellant denied any knowledge or participation in the robbery, no alibi evidence was presented. The entire thrust and basis of the defense was that Mrs. Turner was confused as to which one of the six Pitts brothers committed the robbery. Early Pitts testified that Mrs. Turner had told him that she was robbed by Joe Pitts, “the one that has a scar on his face”. Joe Pitts did, in fact, have such a scar. Deputy Sheriff Lanny Jackson of Lauderdale County testified that Mrs. Turner told him that “it was the youngest one with the scars on his face”. Though Mrs. Turner did not say his name was Joe she agreed that it was “after the other fellow came up with a name”.

Joe Pitts admitted that he and Clemmons were at Mrs. Turner’s house for fifteen or twenty minutes on the afternoon of the day of the robbery. However he stated that he did not return that night and did not rob Mrs. Turner. He did not know if the appellant went to Mrs. Turner’s that day.

Wendell Pitts, the appellant, testified that he did not commit the robbery and denied ever going to Mrs. Turner’s that Sunday.

(Direct Examination of Wendell Pitts)
“Q. Were you at her house, I will ask you this question, were you at her house at anytime on the Sunday she claims she was robbed which has been identified as the 15th day of February, 1976?
“A. No, sir. I was not.
“Q. Were you there sometime in the afternoon?
“A. No, sir.”
* * * * * *
“Q. Were you down there around her house with June Bug anytime that afternoon?
“A. No, I wasn’t. It was my brother that was with him.”

At the evidentiary hearing in support of the petition for writ of error coram nobis new witnesses were presented to impeach Mrs. Turner’s identification of the appellant. The appellant’s trial attorney, Bryce U. Graham, testified that he investigated the case thoroughly and had no additional information “regarding guilt or innocence per se” that was not presented at trial until after the judgment was affirmed.

The appellant’s sister, Reba Phillips, testified that her brother Joe Pitts confessed to having robbed Mrs. Turner after the appellant was already in jail and the judgment of conviction had been affirmed on appeal.

Joe Pitts, after being advised of his constitutional rights by the court and appointed counsel, freely admitted the commission of the robbery for which his brother stood convicted. He admitted that he perjured himself at the original trial and verified the authenticity of a written confession he had made for the attorney of the appellant. Other witnesses verified facts contained in this confession which would tend to incriminate Joe Pitts. Archie Brown stated that several days before the robbery Joe borrowed two rifles similar to the ones used in the robbery. Mrs. Nell Brown testified that on the night the robbery occurred, and at a time which was after the robbery had been committed, Joe paid her forty dollars he owed her.

The evidentiary hearing was continued to permit the presentation of further testimony. Upon commencement of the hearing it was stipulated that Carrol “June Bug” Clemmons was in the Lauderdale County Jail awaiting trial on the robbery charges. After the first evidentiary hearing Joe Pitts had been indicted for perjury and robbery arising from the same factual situation as the robbery for which the appellant was convicted. He pled guilty in both cases and was sentenced to ten years for robbery and two years for perjury.

The trial judge denied the petition “inasmuch as the Defendant-Petitioner has failed to meet the burden of submitting clear, full, and satisfactory proof of his assertions on which relief should be granted”.

The office of the writ of error coram nobis, under Alabama law, is to bring to the attention of the court for correction an error of fact, one not appearing on the face of the record, unknown to the court or party affected, and which, if known in time, would have prevented the judgment challenged, and serves as a motion for a new trial on the ground of newly discovered evidence. Tillis v. State, 349 So.2d 95 (Ala.Cr.App.), cert. denied, 349 So.2d 100 (Ala.1977); Groce v. State, 48 Ala.App. 709 at 710, 711, 267 So.2d 499 (1972).

Under the decisions of this court and the Alabama Supreme Court,

“coram nobis is not some ‘probable cause’ hearing at which the trial judge determines whether the petitioner/defendant should be accorded a new trial so that the trier of fact will have the benefit of the additional testimony.
“To the contrary, these decisions clearly show that the trial judge must ‘believe’ the testimony and that the burden on petitioner is to submit clear, full and satisfactory proof of his assertions for relief.”
Seibert v. State, 343 So.2d 788 at 790 (Ala.1977).

The mere existence of a confession of guilt by one other than the applicant for the writ of error coram nobis will not furnish a sufficient reason for its issuance. Ex parte Fewell, 261 Ala. 246, 73 So.2d 558 (1954); Ex parte Reliford, 37 Ala.App. 697, 75 So.2d 90 (1954).

The discovery, at a time subsequent to the date of the trial, that testimony which was introduced thereat was perjured may not be sufficient to support a granting of the writ or a motion for new trial. Taylor v. State, 266 Ala. 618, 97 So.2d 802 (1957); Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied, 295 Ala. 430, 325 So.2d 539 (1975); Wallace v. State, 41 Ala.App. 65, 124 So.2d 110, cert. denied, 271 Ala. 701, 124 So.2d 115 (1960). “Those experienced in the administration of criminal law well know the untrustworthy character of recanting testimony.” Ex parte Burns, 247 Ala. 98 at 100, 22 So.2d 517, 519 (1945).

“[Rjecanting testimony is exceedingly unreliable, and is to be regarded with suspicion; and it is the right and duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.” 24 C.J.S. Criminal Law § 1454, p. 187.

The burden upon the petitioner seeking a writ of error coram nobis to establish his rights of relief by clear, full, and satisfactory proof, necessarily includes, as to a claim of falsity of testimony, the requisite proof not only that the testimony was false but also that if the truth had been made known to the judge and jury at trial the judgment complained of would not have been rendered. Turner v. State, 52 Ala.App. 334, 292 So.2d 143 (1974).

The writ is not intended to relieve a defendant from his own negligence. Facts known to the accused at the time of trial, and not brought to the court’s attention through his negligence, afford no ground for relief. Adams v. State, 281 Ala. 432, 203 So.2d 448 (1967); Eagen v. State, 280 Ala. 438, 194 So.2d 842 (1967).

In contrast to his testimony at trial, at the coram nobis hearing the appellant testified that he had been to Mrs. Turner’s on the afternoon of the robbery. In stating what his brother Joe told him in confessing the robbery, the appellant testified:

“Well, he (Joe) just said the day after, the night after we was there that day, they went back and robbed her.”
* * * * * *
“Well, he just said the day after — the night after we was there that day — we was at Mattie’s and we went from Mattie’s to Nellie’s. I took him to get his car and he was on the way back there, back after Clemmons or going somewhere and met up with him.”

In his written confession, Joe Pitts stated:

“On the date of Sunday, February 15, 1976,1 was with Wendell Pitts and Carrol Clemmons, Jr. somewhere in the afternoon around 4:30 P.M. and we stayed there (Mattie Turner’s) a few minutes. There were several negros present including some boys I understood to be Rogers. I know this because one of the billfolds had the identification of a Roger boy in it. We all had a drink of whiskey and beer there and left and went to Nellie’s place. We got a beer there and when I paid for this, I didn’t have any more money. Wendell and I went outside and Wendell said he had to go home. We asked Carrol if he was ready and he did not come out, so Wendell and I left together in Wendell’s car, a 1967 Ford, 4-door white. We left Carrol there at Nellie’s. There was a boy (L. C. Vaughn) there who lived close to Nellie. He was in a white, 1964 2-door hardtop. Carrol was talking to him when we left. He worked at Godsey Tire. Wendell drove me to Bluff Creek Spring where I picked up my car, a 1967 Olds, Delta 88, 4-door light green. When we left there it was getting dusky dark.”

Joe then met Clemmons and the two men decided to rob Mattie Turner. Joe stated that they drove to Mattie’s in his green Oldsmobile though, at trial, all the testimony indicated that the robbers escaped in a white automobile. After the robbery Joe returned Clemmons to Vaughn’s white Ford on the top of Bluff Creek Hill. Vaughn was in his automobile “passed out”.

Vaughn testified that he passed out at Nellie’s after drinking, that Clemmons was driving his automobile and that the last thing he remembered before he blacked out was Clemmons saying he was going to get some money. The next thing Vaughn remembered was Clemmons jumping out of the car and running off when the police came the same night of the robbery.

A consideration of the testimony of Bryce U. Graham convinces this court that he had no information, other than that disclosed by the state’s witnesses, that the appellant was at Mattie’s with his brother and Clemmons on the afternoon of the robbery.

Repudiated testimony, especially where admitted to be perjured, is to be regarded with suspicion and caution. A petitioner will be hard pressed to convince this court of the error of a trial court in denying a petition for writ of error coram nobis where the recanted testimony of an admitted perjurer which appears to exculpate the accused also indicates that the accused swore falsely at trial. If the confession of Joe Pitts is a true account of events, then the appellant is guilty of perjury at his trial. However if the trial testimony of the appellant is true and he did not go to Mattie’s that Sunday, Joe Pitts has fabricated his confession or at least a portion thereof. Thus, it appears that either the appellant testified falsely at trial or that he was attempting to defraud the court in the coram nobis hearing.

Furthermore, if we are to believe the facts as related by Joe Pitts, as the appellant would have us do, it appears that the appellant failed to use due diligence and failed to make every reasonable effort to produce all his evidence at the trial. This neglect can only be attributed to the appellant and he must bear the burden for the deception. This, in itself, constitutes grounds for denying the petition. Mathis v. State, 281 Ala. 424, 203 So.2d 442 (1967); Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966). Effective representation and defense demands that a client disclose all known facts to his lawyer.

At a hearing on a petition for writ of error coram nobis, the credibility of witnesses and the weight to be given their testimony are for the trial judge. Seibert, supra. This court is most reluctant to overturn and disregard the trial judge’s finding that the petitioner failed to establish his right to relief by clear, full, and satisfactory proof where repudiated and perjured testimony is involved.

The law abhors perjured testimony and views with suspicion recanted statements made by a witness under sacred oath. Under the facts of this case the trial judge acted well within the bounds of his judicial discretion in finding that the appellant had not convinced the court of his right to relief.

Appellant’s request for oral argument was denied by this court due to the failure of his retained counsel to comply with the time limitations for the filing of his brief under Rule 31 of the Alabama Rules of Appellate Procedure. However that brief was considered in reaching our decision affirming the judgment without opinion.

We have carefully reviewed the record on appeal including the record submitted on the appellant’s conviction for robbery. Our study convinces us that under the law the action of the trial court must stand.

APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


text:
    Lynn SMITH, as Administrator, etc. v. THROWER NURSERY, INC.
    77-368.
    Supreme Court of Alabama.
    June 23, 1978.
    R. Ben Hogan, III, of Hogan, Smith & Alspaugh, Birmingham, for appellant.
    W. J. Sullivan, Jr. and Eugene P. Stutts, of Sadler, Sadler, Sullivan & Sharp, Birmingham, and also for St. John & St. John, Cullman, for appellee.
   FAULKNER, Justice.

This is an appeal presenting a question of election procedures for employers of farm laborers under the Workmen’s Compensation Act. The trial court held that under § 25-5-50, Code of Ala.1975 (formerly Tit. 26, § 263) absolute compliance with technical filing requirements is not necessary for an effective election of coverage by an exempt employer where the employer’s actions clearly and consistently manifest an intent to come under the Act. We affirm.

On July 30, 1975, Dana Smith, a 12 year old girl, was killed in an automobile accident while working for Thrower Nursery, Inc. Since 1973 employees of Thrower had been told by Thrower that they were covered by workmen’s compensation and notice of coverage had been posted at the place of business. Thrower had paid premiums for coverage to its insurer which handled and paid eight separate claims to injured employees and properly reported these to the Department of Industrial Relations. Records in the Department of Industrial Relations show that Thrower had filed WCC Form 8 with that department (entitled “Notice of Compensation Coverage”) prior to the fatal accident but had not filed WCC Form 12 (entitled “Employer’s Notice of Election to Accept the Provisions of the Workmen’s Compensation Law of Alabama, as amended”) until sometime after the accident. On August 5, 1975, Thrower’s insurer paid Lynn Smith, father of the deceased girl, $1,000 as required under the Act for the death of his daughter. Nine months later Smith filed suit against Thrower alleging negligence in the death of Dana Smith; he later amended that suit to include a count based on the Alabama Employer’s Liability Act, § 25-6-1, et seq., Code of Ala.1975 (formerly Tit. 26, § 326). Thrower filed a Bill for Declaratory Judgment asking the trial court to declare it immune from any further civil liability because of applicable provisions of the Workmen’s Compensation Act. The trial court rendered judgment for Thrower finding that Dana Smith was a farm laborer at the time of the accident, Thrower was subject to the Workmen’s Compensation Act based on its substantial compliance with § 25-5-50, and Mr. Smith had already been compensated under the Act for the death of his daughter, thus precluding any suit based on common law or other statutory liability. The trial court stated that the provisions of § 25-5-50 relevant to filing written notice with the Department of Industrial Relations of an election to come under the Workmen’s Compensation Act are merely directory. It is from that judgment that Mr. Smith appeals.

Section 25-5-50 reads in pertinent part as follows:

“This article . . . shall not be construed or held to apply ... to farm laborers whose employers have not filed an election to become subject to his chapter . . . . [A]ny farmer . may accept the provisions of this article . by filing written notice thereof with the department of industrial relations, a copy thereof to be posted at the place of business of said employer . . ”

In § 25-5-3, Code of Ala.1975 (formerly Tit. 26, § 265) the Director of the Department of Industrial Relations is delegated authority to prepare and distribute “such blank forms and literature as he shall deem requisite to facilitate or promote the efficient administration of . this chapter.” Pursuant to § 25-5-3 the director drafted WCC Form 12 to be used when filing an election of coverage under § 25-5-50. While we recognize the director’s authority to draft such administrative aids, we think that workmen’s compensation for farm laborers should not be controlled by whether or not this exact form (WCC Form 12) appears in the files of the Department of Industrial Relations. Substantive rights should not turn on such a “hyper-technicality” absent the clearest indications from the body which drafted the applicable statute or rule. Where an employer has clearly manifested his intent to elect coverage and the concerned parties have at all times acted as though coverage was in effect, these actions should control. As Prof. Larson points out in his treatise on workmen’s compensation, “[W]hen the question is what will amount to affirmative election of coverage, most courts are less exacting as to formalities and will accept any realistic evidence of intent to accept coverage, such as actual payment of compensation or the taking out of workmen’s compensation insurance.” 2A A. Larson, The Law of Workmen’s Compensation, § 67.10 (1976). While a single act of taking out insurance or paying a claim may not be sufficient evidence of intent, a consistent pattern of behavior on the part of the employer, his employees, and the Department of Industrial Relations will suffice. In this case the record reveals that the Department of Industrial Relations did have notice by the filing of WCC Form 8 of Thrower Nursery’s attempt to come under the Act. Evidence presented to the trial court showed that employees had been told they were covered by the Act and had seen a notice to that effect posted on the employee bulletin board. Thrower not only paid premiums for workmen’s compensation coverage but also paid eight separate claims to injured employees prior to the death of Dana Smith. In handling these claims the employer, the insuror, and the Department of Industrial Relations all acted as if an effective election of coverage had occurred. Such clear and consistent evidence of election of coverage suffices under § 25-5-50, even though the correct form was not on file with the Department of Industrial Relations.

AFFIRMED.

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

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      . The amount represented Burial Benefits, the maximum amount payable under the Act for the death of this minor child.