author: SUGG, Justice,

text:
    Doris Jean BURNS v. DELTA LOANS, INC.
    No. 49868.
    Supreme Court of Mississippi.
    Jan. 25, 1978.

      Barry H. Powell, A. Spencer Gilbert, III, Jackson, for appellant.
    J. H. White, Jr., Jackson, for appellee.
    Before INZER, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

The question involved in this appeal is whether a security interest in personal property under the Uniform Commercial Code may be enforced by resort to the remedy set forth in Sections 85-7-31 to 85-7-53 Mississippi Code Annotated (1972).

On January 7, 1975 Robert Burns and Doris Jean Burns executed a security agreement in favor of Delta Loans, Inc. granting Delta Loans a security interest in furniture and appliances owned by the Burns to secure a debt to Delta. Delta filed proceedings under section 85-7-31, et seq. against the Burns and upon default a judgment was rendered against the Burns on October 21, 1975 in the amount of $682.50. The judgment authorized Delta to take immediate possession of the personal property described in the judgment and provided further that the property was,

To be sold at public or private sale and the proceeds of said sale applied on the judgment of $682.50 having first paid all costs of sale, and all costs of this cause accrued and to accrue taxed against the defendant, together with interest from date of judgment .

Delta caused a writ of garnishment to issue against Doris Jean Burns on November 15, 1975 who filed a motion to vacate the judgment on December 19, 1975. Several grounds were set forth in the motion, but we will consider only the contention that a security interest in personal property cannot be enforced under section 85-7-31, et seq. because our resolution of this contention disposes of the case. The County Court denied the motion to vacate its judgment and, on appeal, the Circuit Court of the First Judicial District of Hinds County affirmed the County Court.

Section 75-9-501 Mississippi Code Annotated (1972) provides in part as follows:

When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this Part and except as limited by subsection (3) those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure.

The action authorized by sections 85-7-31, et seq. is expressly limited by section 85-7-31 to the liens set forth in sections 85-7 — 1 to 85-7-9. A security interest in personal property created by the Uniform Commercial Code is not included in the liens set forth in sections 85-7-1 to 85-7-9. It therefore follows that procedure for enforcing such liens is not an available judicial procedure for enforcement of a security interest in personal property. An action brought under section 85-7-31, et seq. to enforce a Uniform Commercial Code security interest is void and is not saved by the statute of jeofails. Section 11-7-167 Mississippi Code Annotated (1972).

Delta argues, however, that a default judgment cannot be set aside after the term in which it is rendered. The judgment in this case was rendered at the October, 1975 term of County Court and the motion to vacate was filed during the December, 1975 term of County Court. Delta relies on Evers v. Truly, 317 So.2d 414 (Miss. 1975), Hayes Produce Co. v. Taylor, 213 Miss. 217, 56 So.2d 503 (1952) and other cases holding that when a final judgment is entered during a regular term and the court adjourns, the trial court no longer has jurisdiction over the subject matter of the case.

This argument overlooks the rule that courts have inherent power to correct invalid and void provisions in their judgments. In Road Material & Equipment Co. v. McGowan, 229 Miss. 611, 91 So.2d 554 (1956) a default judgment was entered on March 8, 1951 in a replevin case awarding plaintiff possession of personal property and also awarded plaintiff a money judgment in the sum of $6,374.50. On January 3, 1956 appellee filed a motion to correct the judgment of March 8, 1951 and the Court held:

In summary, the 1951 judgment of the circuit court is void on its face insofar as it purports to give appellant, plaintiff below, a personal judgment for debt against appellee. That part of the judgment Was beyond the power of the circuit court to render in a replevin suit, in the absence of an agreement of the parties, which the 1951 judgment by default affirmatively shows did not exist.
The circuit court had the power to later amend its 1951 judgment so as to remove therefrom the provisions awarding plaintiff a money judgment against defendant. This power exists as part of the inherent power of the court to correct invalid» and void provisions in its judgment. (229 Miss. at 625, 91 So.2d at 557).

It has long been the rule in this state that where a judgment is void it may be attacked by a motion to vacate in the court rendering the judgment at a subsequent term. Horne v. Moorehead et al., 169 Miss. 362,153 So. 668 (1934), and cases cited therein. Although the county court had general jurisdiction of the subject matter, in a proper proceeding, it had no power to render a judgment for possession and for the amount of the debt in an action brought under the Enforceable Lien Statute seeking to enforce a Uniform Commercial Code security agreement.

At least two judicial remedies are available to Delta. It could have proceeded under the Claim and Delivery Statute, section 11-38-1, et seq. or under the new replevin statute, section 11-37-101 to 11-37-157 Mississippi Code Annotated (1972).

REVERSED AND RENDERED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, WALKER, BROOM and LEE, JJ., concur.

BOWLING, J., took no part.

      . The remedy set forth by Section 85-7-31, et seq. is sometimes referred to as Summons and Seizure and is also called the Enforceable Lien Statute. The question of whether Summons and Seizure violates the due process rights of a debtor is not presented by this appeal, and we express no opinion thereon. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Richard H. BROWN et al. v. Clyde ROBINSON, d/b/a Royal Realty Co.
    SC 2653.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    Rehearing Denied Feb. 3, 1978.
    Fred Blanton, Birmingham, for appellants.
    John F. Debuys, Birmingham, for appel-lee.
   FAULKNER, Justice.

Clyde Robinson, a realty agent employed by the appellants, Richard and Anita Brown, was awarded judgment for a sales commission of $14,805 and $1,697.76 interest after the Browns refused to convey land under a contract for sale. Motion for new trial was overruled. We affirm.

On December 9, 1974, the Browns contracted to sell 470 acres of land to Weyer-haeuser Company for $148,050, $50,000 to be paid at closing, $50,000 to be paid on January 10,1975, and the balance to be paid on January 10,1976. The contract provided that “[t]he grantors further agree to pay to Royal Realty Co. as agent, a sales commission of 10% of the total purchase price.”

The contract called for a merchantable title to be conveyed and further provided:

“(6) The Grantors agree to furnish to the Grantee at their expense, within a reasonable time after the date of this contract, either a title insurance binder issued by Alabama Title Insurance Company, or an abstract of title of the above described property covering a period of at least fifty (50) years, and certified as nearly as possible to the date of delivery thereof to the Grantee. The Grantee shall have .a reasonable time after delivery of such instruments in which to examine said binder or abstract and to determine whether in its opinion, title is merchantable. ... If title to said property is not merchantable, then Grantors shall have a period of ninety (90) days after receipt of notice of defects in which to remedy the same at the Grantor’s expense. If such defects are not remedied within said time, the Grantee may, at its option (1) proceed to remedy said defects and deduct all expenses thereof from the purchase price, or (2) exclude the tract not having a merchantable title from the sale contemplated, or (3) refuse to complete the sale.”

The property was encumbered with an outstanding mortgage and judgment lien, and the parties stipulated that the purchaser had knowledge of these defects on January 15, 1975. The purchaser’s local attorney negotiated a delay in foreclosure proceedings, and after a proposed release of the encumbrances, full payment was tendered on March 27. The Browns refused to convey the property.

The issues for review are:

(1) Whether Robinson was entitled to sue on the contract for sale.

(2) Whether the purchaser was responsible for the failure to close because of (a) their failure to give notice of the defects in title or (b) their late tender of payment.

(3) Whether an award of interest on the sales commission due from March 27, 1975, was proper.

I

Neither in the pleadings, at trial, nor on motion for new trial did the Browns specifically raise the issue of whether Robinson is an incidental beneficiary of the contract for sale with no standing to sue under the contract. An issue not raised in the trial court cannot be raised for the first time on appeal. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975).

II

An agent is entitled to his or her commission if the sale was consummated or through the fault of the seller was not consummated. Taylor Real Estate & Ins. Co. v. Greene, 274 Ala. 694, 151 So.2d 397 (1963); Walmore Investment Co. of Delaware v. Farrior-Jackson Realty Co., 218 Ala. 447, 118 So. 665 (1928). The Browns contend that they were not the cause of the failure of the contract for sale to be consummated, and, therefore, not liable for the sales commission. Rather, they insist, the purchaser breached the contract by failing to give notice of defects in title and by not tendering the purchase price in accordance with the contract. We disagree.

The provision of ¶ 6 of the contract giving, the sellers 90 days after notice of defects to cure the defects is clearly intended for the benefit of the purchaser. As such, this notice provision may be waived by the purchaser. LaGrave v. Jones, 336 So.2d 1330 (Ala.Sup.Ct.1976).

An outstanding mortgage and judgment lien are clearly “defects” in title that justify a delay in tendering payment under the contract. See e. g., Blaxton v. J. L. Todd Auction Co., 281 Ala. 621, 206 So.2d 867 (1968); Smith v. Blinn, 221 Ala. 24, 127 So. 155 (1929).

Nor can we say that time was of the essence in this contract so that the purchaser’s delay in tendering payment was unjustified. In Mitchell v. Walker, 235 Ala. 458, 179 So. 633 (1938), this court noted that even in the absence of an express provision that time is of the essence,

“. . . when a purchaser knows of the importance to the seller of making prompt payment, and that a default will result in serious loss to him, as when he is told that unless it is made by a certain time the seller cannot carry out his contract of purchase, necessary to enable him to sell as agreed, and makes default under such circumstances, so that his seller must sell to another to enable him to carry out his contract, time is thus made of the essence, and a default without sufficient excuse justifies the seller to rescind and sell to another when it is necessary to do so, in order to save the land from forfeiture by him under a contract in which time is of the essence, and whose terms are known to him to that extent.”

However, we find the rule of Mitchell inapposite for several reasons. Although the trial court made no explicit findings of fact, the trial judge heard the evidence from which he could have concluded that the purchaser had no knowledge of the Browns’ precarious financial position until after the closing date. The reviewing court will assume that the trial court made those findings which the evidence supports and will justify the decree rendered. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970). Where the trial court makes a decree after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial court and its finding will not be disturbed unless palpably wrong. Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109 (1965).

In addition, not only did the contract fail to state that time is of the essence, but it made provision for (1) a reasonable time after the date of the contract for the Browns to supply the purchaser with a title insurance binder or an abstract of title (which was not issued until January 31); (2) a reasonable time after delivery of the title insurance or abstract for the purchaser to examine the instrument “. . . and to determine whether in its opinion title is merchantable;” and (3) in the event of non-merchantable title, 90 days is allowed after receipt of notice of defects for the Browns to cure the defects. Finally the seller testified that he defaulted because at the time the purchase money was tendered, he was no longer in the financial bind which induced him to attempt to sell the property.

In view of the defects in title, the purchaser’s delay in tendering the purchase price was justified under the contract. Therefore, the Browns are liable to Robinson for the sales commission, since they, rather than the purchaser, were responsible for the non-performance of the contract. Taylor Real Estate & Ins. Co.; Walmore Investment Co. of Delaware.

Ill

The trial court’s award of interest on the amount of the sales commission running from March 27, the date of the Browns’ default on the contract, was proper under T. 9, § 62, Code of Ala. 1940. Alabama Terminix Co. v. Howell, 276 Ala. 59, 158 So.2d 915 (1963).

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    George E. BOLDON v. Lillie G. BOLDON.
    Civ. 1278.
    Court of Civil Appeals of Alabama.
    Jan. 25, 1978.
    Billy C. Bedsole, Mobile, for appellant.
    Walter L. Davis, Prichard, for appellee.
   HOLMES, Judge.

This is a divorce case.

Appellee-wife filed suit on August 10, 1971, in the Circuit Court of Mobile County, seeking a divorce on grounds of physical cruelty and adultery.

Trial was commenced and testimony heard in February 1973. At the conclusion of the testimony, the court took the matter under submission and on July 23, 1976, entered the decree of divorce. Appellant-husband appeals.

The dispositive issue on appeal is whether the grounds of the divorce, i. e., physical cruelty and/or adultery, is supported by sufficient evidence.

At the outset, we note that this court always follows the principle that it is our duty to affirm the decree of the trial court who heard and saw the witnesses, when such decree is fairly supported by the evidence. See Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281 (1968).

As noted above, the wife in her complaint alleged adultery and physical violence as her grounds for divorce.

When physical cruelty is the ground for divorce, the law in Alabama is settled that not every occurrence of actual violence constitutes a ground for divorce. It is only actual violence, or threats inducing the reasonable apprehension of violence, of a degree attended with danger to life or health that is a ground for divorce. See McDowell v. McDowell, 284 Ala. 158, 223 So.2d 277 (1969); Stairs v. Stairs, 283 Ala. 263, 215 So.2d 591 (1968).

The courts in Alabama have also stated that the act of the husband in slapping or hitting the wife, standing alone, does not warrant a dissolution of the marital relationship, especially when the parties have continued to live together as man and wife. See Rudicell v. Rudicell, 262 Ala. 41, 77 So.2d 339 (1955); Hammon v. Hammon, 254 Ala. 287, 48 So.2d 202 (1950).

In the present case, the wife testified that the appellant-husband struck her at least once during their marriage. However, the wife testified that the incidents] occurred at least ten years prior to the separation and, further, that the separation did not arise because the husband had slapped her. The record also reveals that the couple had three children after the incidents] occurred. This is the only testimony regarding physical cruelty against the wife.

This act of violence committed more than ten years before the separation, during which time the parties lived together as man and wife and bore three children, could not warrant a dissolution of the marital relationship. See McDowell v. McDowell, supra; Rudicell v. Rudicell, supra; Hammon v. Hammon, supra.

The evidence therefore does not support a finding of physical violence sufficient to constitute a ground for divorce.

As noted above, the wife further alleged adultery as a ground for divorce. The evidence presented in support of this consisted of a “love letter” sent to the husband by another woman which had somehow been intercepted by the wife. The husband could not recall having seen the letter before and denied getting any other letters from her. The husband further denied having an affair with her or any other woman.

This court stated in Hubbard v. Hubbard, 55 Ala.App. 521, 317 So.2d 489 (1975), that the proof to support the charge of adultery must be such as to create more than a suspicion. It must be sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.

In this case, the only evidence of adultery presented was the “love letter.” There was no other evidence presented which would even infer that the husband had committed adultery. The letter does not show any adultery between the husband and another woman or even furnish any circumstantial evidence which would indicate an act of adultery between them. As we consider the evidence, there is presented nothing more than suspicion and mere speculation in support of the act of adultery.

As noted in Hubbard v. Hubbard, supra, the mere fact of suspicion and speculation as to acts of adultery is not sufficient to constitute a ground for divorce. There must be evidence presented which would lead to a necessary inference of adultery. There has been no evidence presented here which would raise such a necessary inference. Therefore, the evidence presented does not support a finding of adultery.

In view of the above, the decree of the trial court granting appellee-wife a divorce on the grounds of physical violence and adultery is not supported by sufficient evidence. This cause is therefore due to be and is reversed and remanded. In view of the above, it is not necessary or appropriate to decide other issues raised by the husband.

This opinion is not to be construed as commenting on or determining the compatibility or incompatibility of the parties to this action. See Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1973); Code of Ala. 1975 § 30-2-1 [formerly Tit. 34, § 20, Code of Ala.]. The grounds for the divorce, as set out in the complaint, tried in the court below and argued in brief before this court, were solely concerned with physical violence and adultery. Our review has been limited to these grounds. It is the law in Alabama that a case will not be reviewed in the appellate court on a theory different from that on which it was tried below. See Vulcraft, Inc. v. Wilbanks, 54 Ala.App. 393, 309 So.2d 105 (1975).

REVERSED AND REMANDED.

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


text:
    Elsie NABORS v. A. James NABORS.
    Civ. 1301.
    Court of Civil Appeals of Alabama.
    Jan. 25, 1978.
    R. Ben Hogan, III, Robert H. King, Gadsden, and Hogan, Smith & Alspaugh, Birmingham, for appellant.
    James E. Hedgspeth, Jr., of Floyd, Keener & Cusimano, Gadsden, for appellee.
   HOLMES, Judge.

This is a domestic relations case involving past due alimony and child support.

The dispositive issues are as follows:

1. Did the trial court err to reversal in allowing the father credit for child support payments while the children lived with the father?

2. Did the trial court err in finding the minor children to be self supporting and thereby relieving the father from support?

3. Did the trial court err in allocating portions of a “lump sum” award as alimony and child support?

We answer all of the above in the negative and affirm.

Viewing the testimony, as revealed by the record, with the attendant presumptions of correctness, we find the following:

The parties, after twenty-three years of marriage and four children, were divorced on February 19, 1971. Custody of the two teenage boys was awarded to the wife and the husband was ordered to pay $25 per week as combined alimony and child support. Specifically, the decree in this regard reads as follows:

“FOURTH: That the Plaintiff shall have, and is hereby awarded, the care, custody and control of any and all of the minor children of the parties who desire to live with her, subject to reasonable visitation privileges on the part of the Defendant, and the Defendant is ordered and directed to pay to the Plaintiff, as alimony and support for said children, the sum of $25.00 per week, first payment being due and payable on the 19 day of February, 1971, and a like sum on Friday of each week thereafter, pending further orders of this Court.”

The husband was also ordered to pay the house rent and all utilities for the wife. This decree was amended on March 31, 1971, to increase the amount of the payments to $42.50 and strike the provision requiring the husband to pay the wife’s house rent and utilities. These payments were to be made on each Friday.

Arthur J. Nabors, Jr. (the older of the two teenage boys) left the wife’s house and moved in with the husband in January, 1972. He continued to live with his father until October, 1973, at which time he returned to live with his mother. During the time Arthur Nabors, Jr., was living with his father, he began working and has continued to do so since returning to live with his mother. In fact, he contributes $20 per week to the wife for room and board and upkeep of the trailer.

Bobby Nabors, the other child of the marriage, also moved in with the husband in April, 1972. He continued to live with the husband until he moved to the husband’s mother’s house. In October, 1974, he returned to live with the wife and has continued to live there. Bobby Nabors also began working while he was living with his father and has continued to do so while living with his mother. He also contributes $20 per week to the wife for room and board and upkeep.

The record reveals the husband initially made some alimony and support payments to the registry of the court. However, the husband ceased making any payments once the boys began living with him. In April, 1977, the wife caused a garnishment to issue on the husband’s wages, claiming approximately $13,500 for back alimony, utilities, and rent due. The husband then filed a petition seeking a determination of the amount of arrearages and to relieve the husband of any further payments since the boys had reached majority.

After an ore tenus hearing, the trial court determined the total amount of the arrearage, giving credit to the husband for the time the minor children lived with him up through the time the children became self-supporting, i. e., the children were still living with the husband when they began working. The trial court further stated the obligation for support terminated when they were self-supporting. In order to give such credits, the court made a proportional allocation of the “lump sum” alimony and child support award, finding the wife was entitled to one-third of the amount of the award as alimony with the other two-thirds for support of the minor children.

Thereafter, the court found the husband in arrears in alimony for approximately $4,400 and ordered the amount of the garnishment to be reduced to that sum. Appellant-wife appeals.

As noted above, the wife contends the trial court erred in determining the arrear-age by virtue of having given the husband credit for the time period the children came to live with him. In support of her argument, the wife argues that installment payments for child support and alimony become final judgments as of the date they are due and are not subject to modification. Osborne v. Osborne, 57 Ala.App. 204, 326 So.2d 766 (1976); Fletcher v. Fletcher, 56 Ala.App. 492, 328 So.2d 379 (1975).

However, the ultimate issue here is not whether such past due installments are considered as final judgments beyond the power of a trial court to modify, but rather whether such “judgments” may be considered partially paid and satisfied [by way of credits applied against an arrearage] under the evidence presented in this particular case.

This court stated in Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976), that proceedings to enforce a decree for the support and maintenance of a child are subject to any valid defense against the required payment.

When an order requires divorced husband to make periodic payments for the support of children and he has supported the children while they lived with him, the wife cannot recover payments for support during that périod, nor during the period third persons were supporting the children, or the children were supporting themselves. The husband, however, is given credit for those periods in which he [or some third person] supports the child or in which the child is self-supporting. See Battles v. Battles, Ala.Civ.App., 338 So.2d 1021 (1976); Headley v. Headley, 277 Ala. 464, 172 So.2d 29 (1965); 27B C.J.S. Divorce § 321(5).

As noted above, Arthur Nabors, Jr., lived with the husband from January, 1972, to October, 1973. During that period, the husband supported the child and during which time the child also began working. Bobby Nabors lived and was supported by the husband or the husband’s mother from April, 1972, to October, 1974. He also began working during this period. Both children have continued to work and are now each paying the wife $20 per week for room and board and upkeep of the trailer.

In view of the above, we cannot say the trial court erred in giving the husband credit for the periods in which the children were supported by and lived with the husband. The husband was the one who supported the children and, therefore, the wife cannot recover payments for their support during that period. See Battles v. Battles, supra; Headley v. Headley, supra.

The undisputed evidence reveals that both children, as teenagers, started working full time after they moved in with the husband. Both children have continued to work steadily since that time and now make weekly payments to the wife for her support.

In view of these facts, the trial court did not err in finding that both children were self-supporting. As noted above, a divorced wife cannot recover payments for support of her children during the period third persons were supporting them or they were supporting themselves. Therefore, the husband was entitled to a credit for the period in which they became self-supporting. See Adcock v. Adcock, 45 Ala.App. 328, 229 So.2d 925 (1970); Probst v. Probst, 259 A.D. 1090, 21 N.Y.S.2d 294 (1940); 27B C.J.S. Divorce § 321(5); 39 A.L.R.3d 1292.

When the children returned to live with the wife, they were self-supporting and have continued to remain that way. The wife cannot recover support payments because the children are supporting themselves. By virtue of this, the husband is entitled to a credit for the period in which they were self-supporting. In this case, the period of self-support extended from the time they returned to live with the wife until each reached his majority, at which time his support obligations ceased.

To summarize, the evidence supports a finding by the trial court that the husband was entitled to a credit against the arrear-age for the period of time each lived with him. He is also to be given credit for the time in which they were self-supporting, as noted above. Finally, the appellant-wife argues that the trial court was without authority and abused its discretion in determining what proportion of the “lump sum” constituted alimony and child support. Such is not the case.

Unless the trial court has this authority to allocate between alimony and child support, the authority of the court to award credits to the father would be meaningless where an award of alimony and child support is awarded such as we have in this instance. To hold otherwise would create an anomaly in which the trial court can allow a father credits but cannot compute the amount of such credits. In essence, no credits would be allowed.

A trial court may, in a final decree, specify what part of a monetary award to the wife is alimony and what part is for child support, but a failure to do so is not improper or error. See Boyd v. Boyd, 268 Ala. 409, 108 So.2d 176 (1959).

Along the same line, where such an order provided for alimony in a “lump sum” for the support of the wife and child, the lump sum could be separated and a reasonable part of it allocated for the children’s part. The husband could then be given credit for the periods during which he [or other third parties] supported the child or the child was self-supporting. See Probst v. Probst, supra; 27B C.J.S. Divorce § 321(5).

With the court having the authority to allocate a “lump sum” between child support and alimony, the trial court did not err in finding the husband entitled to credits, to apply against his arrearage, by virtue of his support of the children and their subsequent self-support. The above being dis-positive of the issues, this case is thereby due to be and is affirmed. This court should not be understood as recommending that an award of alimony and child support payments be “lumped” together.

This opinion is also not to be construed as detracting from the law as stated in appellant’s excellent brief, i. e., past due alimony and child support payments are immune to modification. This case involved, rather, the issue of the husband qualifying for credits which can rightfully be applied against an arrearage.

AFFIRMED.

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


author: PER CURIAM.

text:
    Kenneth HAMMOND, alias v. STATE.
    3 Div. 444.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.

      Loma B. Beaty, Patrick H. Tate, Fort Payne, Jackson & Sikes, Selma, for appellant.
    William J. Baxley, Atty. Gen. and James S. Ward, Edward E. Carnes, Asst. Attys. Gen., for the State.
   PER CURIAM.

Appellant was indicted by the Montgomery County Grand Jury on August 8, 1975, on three counts:

(1) Inciting to a felony, bribery;
(2) Inciting to a felony, attempted bribery;
(3) Accepting a bribe.

The State elected to go to the jury on Count I only, and appellant was found guilty thereon and sentenced to three years in the penitentiary.

THE STATE’S CASE

A short synopsis of the evidence against the appellant is here set out in a light most favorable to the State. The appellant was the president of the Alabama Public Service Commission (hereinafter P.S.C.) from January 1973 to December 1975. Rex Moore and John Moore were majority stockholders in Tops Vending Machine Company (hereinafter Tops). During 1973 the Moores approached the appellant in order to solicit his help in securing the vending machine business in a South Central Bell Telephone Company (hereinafter Bell) plant on Adams Street in Montgomery. The Moores testified that the appellant then stated that he would have to receive $10,000.00 for his services. The Moores stated that they could not afford to pay that much.

In November 1974, Rex Moore received a telephone call from Mr. Vernon Loekard, an employee of Bell, about installing vending machines in the Adams Street plant. Rex Moore again met with the appellant at which time Moore said the appellant asked for $5,000.00 for his help in securing the vending machine business. Rex Moore replied that he could not afford to pay that amount. Subsequent to his conversation with the appellant, Rex Moore was informed by Mr. Loekard that Tops would not get the vending machine business at the Adams Street plant, however, in January of 1975, Mr. Loekard allowed Tops to install vending machines in that plant. The commission from the machines went to the Pioneer Club, an employee organization, not to Bell.

Charles Price was a Bell vice president in charge of public relations. Price had frequent contacts with the appellant and other members of the P.S.C. The appellant asked Price to help Tops get its vending machines into the Adams Street plant. Price complied with the appellant’s request. In February 1975, subsequent to the installation of the vending machines, Bell filed with the P.S.C. a request for a rate increase of approximately $59 million. The final order concerning the rate increase was entered in September 1975 (after the arrest and indictment of the appellant). After the installation of the vending machines, Rex Moore said the appellant requested that the Moores pay him $300.00 per month for his help in placing the machines. The Moores refused, although they did give the appellant a total of $200.00 which he requested as expense money for two State business trips.

Some months after the machines were installed, the appellant contacted Price to have Tops’ machines removed, stating that the Moores were “a bunch of crooks.” The appellant said Price would not get what he needed unless the machines were removed. From that Price concluded that the appellant would not look favorably on the Bell request for a rate increase if the machines were not removed. At first Price did nothing, but appellant began to pressure him more and more to have the machines removed from the Bell plant. Price finally went to the Moores and told them to settle their problems with the appellant.

Rex Moore testified that because of incessant demands for money by the appellant and because of pressure from Price to settle with appellant, he informed the Attorney General of the circumstances involved in this case. Agents of the State had Rex Moore call appellant and arrange to meet in a local truck stop restaurant on July 8, 1975. Those agents wired Rex Moore with a transmitter and recorded his conversation with appellant. Based upon Moore’s complaint and the recorded conversation, a warrant for appellant’s arrest was issued on July 12, 1975, and on August 8, appellant was indicted by the grand jury. The recording was admitted into evidence and played for the jury during the trial.

THE APPELLANT’S CASE

The appellant testified in his own defense. It was his contention that the Moores were the instigators of the whole affair. He said Rex Moore offered him money to help place Tops’ machines in the Bell plant. Appellant denied ever asking the Moores for money or accepting money in connection with placing the machines in the Bell plant. He steadfastly denied ever having implied to Price that he should put pressure on the Moores in turn for a Bell rate increase. The appellant argues at length in his brief that the Attorney General prosecuted him solely for political reasons. A number of witnesses testified as to appellant’s good character.

I

Since the State elected to go to the jury on Count I only, appellant’s contention that one of the other two counts was improperly amended was thereby rendered moot. Only the count upon which appellant was found guilty is subject to appellate review.

A.

Among numerous motions and pleadings, on November 10, 1975, appellant filed a motion to quash the indictment. One ground set out in the motion to quash was that the grand jury which returned the instant indictment, “was not in compliance with the requirements of the laws of the state of Alabama in obtaining the general cross-section of the community . . . .”

The State contends that the Montgomery County Jury Commission, acting under a federal court order, was required to fill the jury box by taking every fifth name from the voting list of Montgomery County. Appellant contends that such a system fails to fully comply with Alabama statutes on establishing jury lists. The testimony did establish that every fifth name was selected from a computer printout of the Montgomery County voters list.

In support of its position, the State cites Higginbotham v. State, 54 Ala.App. 633, 312 So.2d 31 (1975). In Higginbotham, the venire was established pursuant to a federal court order relating to the Lowndes County Jury Commission. There, the federal court required the commission to examine not only the voters list of that county, but also the tax assessor’s list and the list compiled by the federal examiners, and make up a comprehensive list therefrom. The testimony in that case showed that the Lowndes County Jury Commission complied with the requirements of the federal court order and in addition thereto used every source of names available to them in Lowndes County in compiling the master list. The testimony showed that everyone twenty-one years and older was included on the list. The commission also evaluated each precinct in the county and talked to persons having knowledge of individuals living in the county for the purpose of removing ineligible persons as jurors according to the jury laws of this state.

In the instant case, the Montgomery County Jury Commission in following the federal court order ignored the state law. In the memorandum opinion issued in Penn et al. v. Eubanks et al., Judge Frank Johnson, Jr., on June 6,1973, stated, “As for the means of selecting this cross-section, this court commends for the jury commission's consideration the random jury selection plan used in all federal district courts and in many state courts. See Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1865.” (Emphasis supplied.) That court’s order stated that, “The jury commission shall examine the voting list and make an alphabetical list therefrom . . . That order did not go as far as the one issued in Higginbotham in allowing the use of other sources in selecting potential jurors.

Judge Johnson’s order and opinion relating thereto, set a minimum standard which the Montgomery County Jury Commission must meet in order to comply with federal constitutional provisions. We do not read his order to mean that the jury commission is to completely ignore the statutory requirements of Alabama law in selecting and qualifying jurors. Alabama law, if administered in good faith, provides a much better cross-section- of the community for jury selection than the federal system.

In Higginbotham, supra, the Lowndes County Jury Commission complied with both federal and state standards. In the instant case, the Montgomery County Jury Commission meets only the minimum federal requirements and thus violates the requirements of Title 30, § 21, Code of Alabama 1940 as amended. However, the violation of a statutory requirement in filling the jury roll may not be taken advantage of by a motion to quash. Title 15, § 278 and Title 30, § 46, Code of Alabama 1940. The only exceptions to the prohibitions of these sections is in case of (1) denial of a constitutional right or (2) fraud.

In addition to the motion to quash the indictment, on October 30, 1975, appellant had filed a plea in abatement to the indictment. Ground 3 is as follows:

“That the grand jury which returned the indictment against the defendant was not in compliance with the requirements of the laws of the state of Alabama in obtaining the general cross-section of the community, in that upon the information and belief, the venire from which the grand jury was drawn, was taken by a mere selection of each fifth name on the jury list of Montgomery County.”

We must now determine if the question of fraud was properly presented in the trial court below and whether an erroneous ruling was made thereon by the trial court.

Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970) holds that a system of jury selection which excludes persons who are not registered voters would not substantially comply with statutory requirements that the jury roll contain the names of every citizen living in the county who are generally reputed to be honest, intelligent and esteemed in the community for integrity, good character and sound judgment. In the Gregg case, the Alabama Supreme Court held that the method of selecting and compiling the jury roll in Madison County, making sole use of the voter registration list, is a fraud in law. To quote from Gregg:

. . Fraud used in this sense has been construed as encompassing more than criminal wiles: ‘Fraud is a relative term, it includes all acts and omissions which involve a breach of legal duty injurious to others.’ Inter-Ocean Cas. Co. v. Banks, supra [32 Ala.App. 225, 23 So.2d 874], And it has been held that ‘When it affirmatively appears that the names of a large number of citizens who possess the qualifications required by law of jurors, are intentionally omitted from the jury roll * * * that is a fraud in law that requires the quashing of a venire * *. It is not the kind of a jury box contemplated by law. Our statutes do not contemplate * * * any system or scheme of selecting other than the selection of names authorized by law * * 32 Ala.App. at p. 227, 23 So.2d at p. 875, citing Doss v. State, 220 Ala. 30, 123 So. 231.”

In Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955), the appellant there filed a motion to quash the indictment on the ground of systematic exclusion. The Alabama Supreme Court set out at length the procedure used in Alabama for compiling jury lists. It went on to hold that “there is no legal reason for quashing an indictment or venire simply because the jury commission did not put the name of every qualified person on the roll or in the jury box, in the absence of fraud (or a denial of constitutional rights). . . .*

Fikes was cited by the appellee in Gregg v. Maples, supra, as justification for excluding persons not on the voters list. In the Gregg case, the Alabama Supreme Court pointed out that Fikes is a proper statement of the law, except that the appellee had ignored the phrase, “in the absence of fraud. . .."

In Bell v. Terry, 213 Ala. 160, 104 So. 336 (1925), the Alabama Supreme Court held that the indictment in that case should not be quashed, except on a plea in abatement, sustained by proof that the grand jurors who found the indictment were not drawn by an officer designated by law to draw the same, or that the jury commissioners fraudulently filled the jury box.

In Reese v. State, 228 Ala. 132, 152 So. 41 (1933), the Alabama Supreme Court held that under our procedural statute (Title 15, § 278, of the present Code), a motion to quash the indictment was not the proper method of presenting questions going to the formation of the grand jury. Such could only be raised by a plea in abatement.

In Thomas v. State, 277 Ala. 570, 173 So.2d 111 (1965), the Alabama Supreme Court held that a motion to quash is the proper way to challenge an indictment and trial venire on grounds of intentional racial discrimination. The Court stated:

“Sections 278 and 285, Title 15, and § 46, Title 30, Code 1940, have been held to be procedural statutes, designed to prevent quashing of indictments or venires for mere irregularities and to obviate the resulting delays in the administration of justice. Those statutes do not deny to one charged with a crime the right to present for a determination the question of whether the rights guaranteed by the Fourteenth Amendment to the Constitution of the United States have been violated. Vernon v. State, 245 Ala. 633, 18 So.2d 388 . . . .” (Emphasis supplied.)

Citing Bell v. Terry, supra, this Court in Mullins v. State, 24 Ala.App. 78, 130 So. 527 (1930) stated:

“. . . We conclude from the holding in this case that, notwithstanding sections 8630 and 8637, Code of 1923, fraud in filling the jury box may be taken advantage of either by motion to quash the venire or by plea in abatement to the indictment containing proper averments, supported by proof that the jury box was fraudulently filled. . . . ”

Sections 8630 and 8637 are found in the present Code as Title 15, § 278 and Title 30, § 46, respectively.

In Spivey v. State, 172 Ala. 391, 56 So. 232 (1911), the Supreme Court of Alabama found that where the record affirmatively shows an error was committed by the trial court in the organization of the grand jury, which is fatal to the judgment, on an indictment found by such grand jury, an objection thereto may be taken by a motion in arrest of judgment and also by motion to quash. The Court in that case stated:

. . The jury law has for a long time provided that no objection can be taken to any venire, except for fraud in the drawing or summoning; yet this objection could not be taken to an indictment, if the grand jury was drawn in the presence of and by the officers designated by law; that is, this question could not be inquired into on a plea in abatement, nor on motion to quash an indictment, if the grand jury was drawn in the presence of, and by the officers designated by law. . .."
* * * * * *
“In case the error is apparent of record, and is fatal, and goes to the organization of the grand jury which found and returned the bill, the objection is availing on motion in arrest of judgment, or by motion to quash; otherwise by plea in abatement. Ramsey v. State, 113 Ala. 49, 21 So. 209; Peters v. State, 98 Ala. 38, 13 So. 334.”

In considering the applicability of Gregg v. Maples, supra, we make the following observations:

(1) Gregg v. Maples arose from a petition for writ of mandamus to reconstitute the jury roll, not from a motion to quash an indictment.

(2) The Montgomery Jury Commission was acting under federal court order stating that, “The jury commission shall examine the voting list and make an alphabetical list therefrom . . . .” (Emphasis supplied.)

(3) Failure to comply with the state statutes, detailing the composition of the jury roll, is not a denial of a constitutional privilege.

(4) As it relates to composition of grand juries, the fraud necessary to quash an indictment is construed by us to encompass only willful and deliberate omissions of persons eligible to serve which would result in some demonstrable prejudice to the appellant.

To us there is a great difference between the body that merely accuses, via indictment, and the body that determines guilt or innocence. The requirements of due process and equal protection are more strictly observed in the trial phase (finding of guilt or innocence) than in the accusatory proceedings. For instance, in grand jury proceedings the accused has no right to be present, to confront witnesses, to cross-examine or to be represented by counsel, as he does at trial.

While grand juries and petit juries are drawn from the same jury lists, it is more important that an accused have the right to a much broader inquiry as to how the trial jury was selected than how his accusers were impaneled. There is no challenge to the petit jury composition on the grounds of fraud in the instant case. In light of Title 15, §§ 278, 285, we will not extend the rationale of Gregg v. Maples, supra, to apply to the instant challenge of the grand jury. We hold to the rationale expressed in Higginbotham, supra. If the application of “fraud in law” as expressed in Gregg v. Maples, is extended to challenges of grand juries by motions to quash, it must be done by the Supreme Court, not by this Court.

Here, the appellant has failed to demonstrate how he was prejudiced by an indictment returned by a grand jury drawn from a list containing names of 6,070 voters of Montgomery County. Prejudice in jury selection (grand or petit) must be established by the appellant. Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678 (1976).

B.

As to exclusion of nineteen and twenty year olds from the jury roll, we have previously disposed of that argument in favor of the State in Giddens v. State, Ala.Cr.App., 333 So.2d 615 (1976). Also see: Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1975).

II

The appellant moved to exclude the State’s evidence at trial, arguing that a fatal variance existed between the indictment and the proof produced. The appellant now contends the trial court erred to reversal in denying his motion to exclude. The indictment was, to say the least, complex. Count I of the indictment, upon which the verdict of guilty was based, was drawn by using a combination of two statutes, since no Code form existed for the specific offense charged.

Act No. 232, Acts of Alabama 1967, approved August 16,1967 (Title 14, § 326(al)-(a4), Code of Alabama, 1973 Cumulative Pocket Part) establishes the crime of inciting to a felony. The specific felony which Count I alleges that the appellant incited is bribery (Title 14, § 63, Code of Alabama 1940). Count I charges:

“The Grand Jury of Said County charge that, before the finding of this indictment, Kenneth Hammond, alias Ken Hammond, alias ‘Bozo’ Hammond, whose true name is unknown otherwise than stated, did unlawfully incite, towit: John Moore, Rex Moore or Charles Price to a felony, towit: Bribery of an executive, legislative or judicial officer, in that the said Kenneth Hammond, alias Ken Hammond, alias ‘Bozo’ Hammond, induced, procured or caused, or made an effort or endeavor to induce, procure or cause the said, towit: John Moore, Rex Moore, or Charles Price to corruptly offer, promise or give to an executive, legislative or judicial officer, towit: Kenneth Hammond, President, Public Service Commission, State of Alabama, after his election to said office, a gift, gratuity or thing of value, towit: money or proceeds from or in connection with operation of certain vending machines in, towit: South Central Bell Telephone Company buildings, Montgomery, Alabama, in the amount of, towit: $10,000 with the intent to influence the act, vote, opinion, decision or judgment on a cause, matter or proceeding then pending or which may be by law brought before the said Kenneth Hammond sin his official capacity as President, Public Service Commission, State of Alabama, to wit: a telephone rate or charge increase required by South Central Bell Telephone Company styled, towit: South Central Bell Telephone Company, Petitioner: Petition For Approval of New Schedules Of Rates And Charges For Intrastate Telephone Service, Alabama Public Service Commission Docket 16966, contrary to law and against the peace and dignity of the State of Alabama.”

The State drafted the indictment and is bound by its wording.. It charges incitement to bribery by three alternatives alleged in the disjunctive. We summarize Count I of the indictment as charging that the appellant incited, Rex Moore, or John Moore, or Charles Price to:

(1) Corruptly offer, promise or give;
(2) To appellant as an executive, legislative or judicial officer;
(3) A gift, gratuity, or thing of value;
(4) With intent to influence appellant’s vote;
(5) On a pending Bell rate increase.

A major problem in testing Count I against the appellant’s allegation of variance, is the use of the disjunctive, “or.” When criminal conduct is alleged in an indictment in the disjunctive, we must view the proof against each disjunctive allegation separately.

We summarize the elements of bribery, enumerated in Title 14, § 63, as follows:

(1) To corruptly offer, promise or give;
(2) To any executive, legislative or judicial officer;
(3) Any gift, gratuity, or thing of value;
(4) With intent to influence his act, vote, opinion, decision or judgment;
(5) On any cause, matter or proceeding then pending or which may be brought before such officer in his official capacity.

A.

The first two alternatives of Count I are not sustained by the proof. Although the jury could reasonably find that appellant incited the Moores to offer him money, there is absolutely no proof that the offer was for the purpose of influencing appellant’s vote on the Bell rate request. There was not one iota of evidence that the Moores had any interest whatsoever in the rate request. The Bell rate request was never mentioned in any conversation between appellant and the Moores. If Count I is sustained by the proof, it must be on the third alternative concerning Charles Price.

B.

It is clear that Price acted on several occasions with the intent to influence appellant’s official actions as such actions related to Bell’s business. However, there is no evidence that Price was incited to pay any money to appellant. For Count I to stand as it relates to Price, the evidence must prove that appellant incited Price to give him, “any gift, gratuity or thing of value” in order to influence appellant’s vote on the rate request. The question then is whether the doing of an act may constitute the giving of a thing of value, within the meaning of the bribery statute.

“A gift or gratuity will not support an indictment for soliciting or accepting a bribe unless the thing requested or accepted was something of value to the person seeking or obtaining it.” However, the doing of an act which will ultimately result in a payment being made to the appellant is considered a thing of value in the law. Commonwealth v. Hayes, 311 Mass. 21, 40 N.E.2d 27, 31 (1942); Commonwealth v. Hurley, 311 Mass. 78, 40 N.E.2d 258 (1942).

12 Am.Jur.2d, Bribery, § 7, states:

“It seems that a bribe must involve something of value that is used to influence action or nonaction. Value, though, is determined by the application of a subjective, rather than an objective, test, and the requirement of value is satisfied if the thing has sufficient value in the mind of the person concerned so that his actions are influenced.”

It was held in Ohio in Scott v. State, 107 Ohio St. 475, 141 N.E. 19 (1923) that it is impossible to establish value which is universal, and further that, “the test of the value must necessarily be the desire of some person or persons, not necessarily of most persons or all persons, for the thing in question.”

We held in McDonald v. State, 57 Ala.App. 529, 329 So.2d 583, cert. quashed, Ala., 329 So.2d 596 (1975) that giving or promising to give sexual favors in exchange for official action was a sufficient thing of value to support a charge of bribery.

11 C.J.S., Bribery, § 2, p. 845, states: “In order to constitute the offense there must be the promise, gift, or acceptance of money or other thing of value, not necessarily of pecuniary or intrinsic value, but value in the sense of a personal advantage of some sort to be derived by the recipient.” (Footnotes omitted.)

In Caruthers v. State, 74 Ala. 406 (1883), our Supreme Court held that the promise of a defendant to a juror to chop cotton for a week if the juror would clear him constituted a gratuity or a thing of value. The Court stated:

“The substance of the offer or promise proved to have been made by the defendant to the juror, Bell, was that he would ‘chop cotton a week,’ if the juror would clear or acquit him. This, in our opinion, was ‘a gift, gratuity, or thing of value,’ within the meaning of the statute. The word thing does not necessarily mean a substance. In its more generic signification it includes an act, or action. So, the word gratuity embraces any recompense, or benefit of pecuniary value. . The evil of the offense is its tendency to pervert the administration of justice, by tempting jurors to act contrary to the known rules of honesty and integrity. The promise of the defendant to give his labor or services, as a reward for the corrupt violation of the juror’s sworn duty, is a ‘gift, gratuity, or thing of value,’ within the signification of the statute.”

A similar explanation is found in Commonwealth v. Albert, 310 Mass. 811, 40 N.E.2d 21, 26 (1942):

“A promise to do an act that would result in a pecuniary gain to the defendant would undoubtedly come within the scope of the statute. . . . It is enough if a reward or personal advantage will accrue to the officer for the performance of the act and that he considers the value of that which he will receive so highly as to permit it to influence his official conduct . . Of course, if all the officer intended from the performance of the act was the self-satisfaction arising from the fact that he is empowered to command obedience or the sentiment that comes from conferring a kindness upon another, then he would not receive anything to which the law would attach value. . . ”

If appellant, in ordering Price to have the machines removed, was acting out of revenge, or for the self-satisfaction he would receive by punishing the Moores for not meeting his earlier demands, then “he would not receive anything to which the law would attach value.” However, the jury heard the witnesses and observed their demeanor. They listened to the testimony of the Moores, Price and of the appellant. “It could properly be found upon the evidence together with the inferences, which need not be necessary or unescapable so long as they were reasonable and warranted, that it had been proved beyond a reasonable doubt,” that the appellant intended that his threat, transmitted through Price, would cause the Moores to give in and pay him money. Commonwealth v. Albert, supra. Price’s action could thus be considered “a thing of value” to appellant.

C.

Appellant contends that he is not an executive, legislative, or judicial officer within the meaning of the bribery statute and, therefore, could not legally be convicted under Count I of the indictment. The Constitution of Alabama 1901 sets out the members of the executive, legislative and judicial departments, respectively in Article 5, § 112, Article 4, § 44 and Article 6, § 139, et seq. Neither the P.S.C., nor the position of president of -the P.S.C. is listed in the above articles of the Constitution. However, the State contends that appellant comes within the purview of the bribery statute because, as president of the P.S.C., he performed executive, legislative and judicial functions.

We find no Alabama cases directly in point, however, we are persuaded by authority of cases from a number of other jurisdictions.

Most persuasive is Weil v. Black, 76 W.Va. 685, 86 S.E. 666 (1915). There, the Supreme Court of West Virginia, in interpreting a bribery statute similar to Alabama’s held that a member of the Public Service Commission was a legislative or judicial officer within the meaning of that statute. The State quoted in its supplemental brief what we believe to be the heart of the reasoning expressed in Weil v. Black:

“Members of the public service commission are included in the descriptive terms of the above statute ‘any executive or judicial officer.’ Those are general terms, intended to include all public officers whose duties are either judicial or executive. The term ‘executive’. is not there limited to the officers enumerated in section 1, art. 7, of the Constitution, as constituting the executive department of the state government, but it is designed to embrace all officers, whether elected or appointed, whose duties pertain to that branch of the government. Being public officers, whose jurisdiction extends over the whole state, it necessarily follows from the apportionment by the Constitution of all the powers of government among three departments, denominated therein as the legislative, the executive, and the judicial departments, that the duties of all public officials must fall within some one of those three departments. A fourth department, having powers distinct from the three named, could not constitutionally exist. That the public service commissioners are not included in the terms ‘members of the Legislature,’ must be admitted; that they are included in one or the other of the terms ‘executive or judicial officers’ we think is clear, and it is sufficient, for the purposes of this writ of error, to class them under the head of executive officers. If their duties are so varied that some of them may properly be classed as executive or ministerial, and others as judicial, they could, for purposes of the bribery statute, be classed under either of the two departments. In so far as they are empowered to investigate rates and charges of public service corporations, and to determine their reasonableness or unreasonableness, they would seem to be performing a quasi judicial function, while, in ascertaining what is a just rate for services to be rendered by such corporations, and prescribing such rate, as a rule to be obeyed in the future, their action would seem to partake somewhat of a legislative character; and in compelling obedience to its orders, by proper proceedings in court, as section 5 of the act creating it requires it to do, its duties are ministerial, coming clearly within the functions of the executive department of government.”

We take judicial notice that there are scores of officers not listed in the Constitution under any one of the three branches of government. We do not construe this circumstance to have created a fourth branch of government. As stated in Peoples v. Salsbury, 134 Mich. 537, 544, 96 N.W. 936, 938 (1903):

“The scheme of our government divides all governmental functions into three classes of powers, viz., the legislative, the executive, and the judicial; and the officers who perform these respective functions must be included in the three classes of officers who exercise these powers. It is difficult to conceive of an officer exercising any of the powers of government not being within one of these classes; and, when an officer cannot be classed with the legislative or judicial, he must come within the executive class, for, in a sense, all officers execute the laws. . . ”

Of similar import are: Davis v. State, 70 Tex.Cr.R. 524, 158 S.W. 288 (1913); State v. Womack, 4 Wash. 19, 29 P. 939 (1892); Sheely v. People, 54 Colo. 136, 129 P. 201 (1913); State v. Emory, 55 Idaho 649, 46 P.2d 67 (1935).

While appellant, as president of the P.S.C., was certainly not a member of the legislature, he still performed legislative functions since rate making is such a function which could be exercised by the legislature or delegated by it to the P.S.C. See: Walker v. Alabama Public Service Commission, 292 Ala. 548, 297 So.2d 370 (1974); Murray v. Service Transport, Inc., 254 Ala. 683, 49 So.2d 221 (1950); State v. Southern Bell Telephone and Telegraph Company, 274 Ala. 288, 148 So.2d 229 (1962).

Although Article 5, § 112, does not list members of the P.S.C. as being members of the executive department, it could not be seriously argued that such officers do not perform duties normally associated with the executive branch of government. Therefore we find that appellant, as president of the P.S.C., was an executive, legislative or judicial officer within the meaning of our bribery statute, Title 14, § 63, supra.

Of the three alternatives charged in Count I, the State totally fails to prove two and barely proves the third. While the evidence at the trial may prove a series of highly questionable transactions between appellant, Price and the Moores, for the purpose of this appeal, such conduct can only be viewed in the context of the statute and the specific wording of the indictment. A complex and many-faceted count is the basis for depriving appellant of his liberty. We have been presented with a hodgepodge of facts and are told that upon one theory or another, they substantially prove every material allegation of the indictment. In order to find one theory or one alternative which would support the instant conviction, it has been necessary to fit facts together like connecting pieces of a complex jigsaw puzzle. When the task is completed, we find only one theory from which a jury could draw an inference of guilt. The evidence that appellant incited Price to bribe him, pursuant to the wording of Title 14, § 63, is far from overwhelming. Yet, we find it to be sufficient to meet the bare minimum standards to support the verdict of the jury.

III

As one ground of his motion to quash the indictment, appellant complains that he was denied a fair trial due to prejudicial pretrial publicity. Appellant proved, through witnesses, that there was substantial pretrial publicity. He did not, however, prove that it prejudiced his right to a fair trial. The voir dire examination of the jury panel shows no prejudicial effect upon the jury resulted from the publicity. We find no error on the part of the trial court in its ruling against the appellant in this regard. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Mathis v. State, 52 Ala.App. 668, 296 So.2d 755 (1973) cert. quashed 292 Ala. 732, 296 So.2d 764; Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975); Yeomans v. State, 55 Ala.App. 160, 314 So.2d 79 (1975).

IV

Appellant contends that the trial court erred in refusing to grant his motion to produce certain evidence presented to the grand jury. He likewise contends that there was no legal evidence before the grand jury. The record reflects that Rex Moore and John Moore testified before the Grand Jury which indicted appellant. It has long been law in Alabama that where it appears that witnesses were examined before the grand jury, inquiry into the sufficiency of the evidence there presented is not permitted. Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966); Washington v. State, 63 Ala. 189 (1879). See also: State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779 (1974); Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1974). We find no error in the trial court’s refusal to open the grand jury records to appellant. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972).

Neither was appellant denied a constitutional right when the State nol pressed the charges in the county court immediately prior to his preliminary hearing and then proceeded in circuit court by way of indictment. It has long been held that an accused has no absolute right to a preliminary hearing in Alabama after an indictment has been returned by the grand jury. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Campbell v. State, 278 Ala. 114, 176 So.2d 242 (1965); Johnson v. State, Ala.Cr.App., 335 So.2d 663 (1976) cert. denied Ala., 335 So.2d 678.

V

The appellant contends that the trial court erred in admitting into evidence the tapes and transcripts of conversations between the appellant and Rex Moore. The tapes were obtained without a warrant, which the appellant contends violates the United States and Alabama Constitutions.

A.

A review of the so-called “bugged agent” cases leads us to the inescapable conclusion that the lack of a warrant in this case did not violate the Fourth Amendment to the United States Constitution. On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). The above cases are also persuasive authority regarding the interpretation of the Alabama Constitution, but they are not binding.

Article 1, § 5, Constitution of Alabama 1901, reads as follows:

“That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation.”

Recently the Supreme Court of Michigan was faced with a case very similar to the case before us. There, a law enforcement officer, without a warrant, simultaneously monitored a conversation between a defendant and an informant. The defendant contended that the law enforcement officer’s testimony concerning the conversation should have been excluded under the Michigan Constitution. The Michigan Supreme Court agreed and held that a search warrant should have been issued prior to the institution of the participant monitoring procedure. People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975).

Article 1, § 11, Constitution of Michigan 1963, which is almost identical to the aforementioned provision in the Alabama Constitution, reads as follows:

“The persons, houses, papers, and possessions of every person shall be secure from unreasonable searches and seizures. No warrants to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. . ."

While we express no opinion as to the efficacy of the above argument, we believe it is worthy of consideration. Especially noteworthy is the following statement from Beavers:

“Participant monitoring is practiced extensively throughout the country and represents a vitally important investigative tool of law enforcement. Equally significant is the security and confidence enjoyed by our citizenry in knowing that the risk of intrusion by this type of electronic surveillance is subject to the constitutional protection against unreasonable searches and seizures. By interposing the search warrant requirement prior to engaging in participant monitoring, the risk that one’s conversation is being intercepted is rightfully limited to circumstances involving a party whose conduct has provided probable cause to an independent magistrate to suspect such party’s involvement in illegal activity. The warrant requirement is not a burdensome formality designed to protect those who would engage in illegal activity, but, rather a procedure which guarantees a measure of privacy and personal security to all citizens. The interests of both society and the individual should not rest upon the exercise of the unerring judgment and self-restraint of law enforcement officials. Our laws must ensure that the ordinary, law-abiding citizen may continue to engage in private discourse, free to speak with the uninhibited spontaneity that is characteristic of our democratic society.”

The State contends that a warrant is not required to surreptitiously record a conversation if one of the parties is a willing participant in the recordation procedure. The State cites Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858 (1969) as being dispositive of the issue. We do not agree. Alonzo appears to be clearly distinguishable on its facts. In Alonzo it was held that a warrant was not necessary in order for a private citizen to record telephone conversations in which he participated. In the present case, as in Beavers, supra, the police instigated, encouraged, and participated in the recording operation. Alonzo discloses no such police involvement.

The constitutionality of warrantless recording operations, which are instigated by law enforcement officers, must ultimately be based on public policy considerations. These policy considerations, which include numerous intangible factors, are adequately set out in On Lee, Lopez, Osborn, White, supra, and the vigorous dissents thereto. Also see: Amsterdam, “Perspectives on the Fourth Amendment,” 58 Minn.L.Rev. 349 (1974); Kamisar, LaFave and Isreal, Modern Criminal Procedure, pp. 416-60. By the proceeding digression, we should not be construed to imply that the law enforcement agencies of Alabama have acted in any way inconsistent with the Alabama Constitution. We merely point out that the constitutionality of the use by the State of “bugged” agents, absent a warrant, has not been conclusively decided under the Alabama Constitution by our Supreme Court.

Based upon the federal decisions cited above, and based upon the very slight analogy Alonzo affords (see dissent, relying upon Lopez, supra) we find that no constitutional duty was breached by the failure of officers to obtain a warrant to tape record appellant’s conversation with Rex Moore in the instant situation.

B.

The electronic tape recording of the July 8, 1975, conversation between Rex Moore and appellant was introduced into evidence over vigorous objection, as was the stenographic transcript of the recording. That transcript was typed by a secretary in the Attorney General’s Office under the direct supervision of one of the investigators who overheard the conversation as it was being recorded. It was authenticated by both. See: People v. Albert, 182 Cal.App.2d 729, 6 Cal.Rptr. 473 (I960).

Appellant contends the recording contained inaudible portions and that the typed transcript furnished by the State supplied words which were not audible on the tape. We have carefully listened to the recording and compared it to the State’s transcript, and there are inaudible portions in the tape where words or phrases are supplied in the typed transcript. They are, however, minor in nature and served to only east slight doubt upon the weight which should be given the recording by the jury. See: Tumminello v. State, 10 Md.App. 612, 272 A.2d 77 (1971).

Because the recorded conversation took place in a popular truck stop restaurant, the recording is replete with background noise of dishes clattering, customers and waitresses conversing, a baby crying, and the muffled roar of truck engines. Rex Moore’s voice and his foul language come in loud and clear, as he had the microphone on his person. The appellant’s voice is faintly heard for the most part, and altogether unheard in other parts. The tape recording is of poor quality and, without the Attorney General’s transcript to follow as it is played, the recording would shed very little light on the transaction, other than showing that Moore and appellant met and discussed something.

The question before us is whether admission of the recording and transcript violated any rules of evidence. We think not. First, the recording was played outside the presence of the jury for the circuit judge. Both sides had an opportunity, in camera, to point out objections to the recording or explain away ambiguities. Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965); Wright v. State, 38 Ala.App. 64, 79 So.2d 66 (1954). Secondly, the trial judge, after review, ruled the recording and transcript were admissible for whatever weight the jury wished to give them; a ruling which is subject to our limited review only as to abuse of discretion. Thirdly, the recording was not the only evidence offered, and other witnesses corroborated the substance of the conversation recorded. Wright, supra. Fourthly, the appellant testified that the recording was basically true and correct. We, therefore, find the recording and transcript thereof to be admissible for whatever weight they may have been accorded by the jury. Lykes v. State, 54 Ala.App. 7, 304 So.2d 249 (1974).

VI

There was no exception or objection to the trial court’s oral charge to the jury. The trial judge refused eleven written requested charges proposed by the appellant, and gave twenty-five. We have carefully examined each of the refused charges and find they were either affirmative in nature, and thus properly refused under the evidence, or were incorrect statements of applicable law, abstract in nature under the evidence, or fully and substantially covered in the given charges or in the court’s oral charge. No error resulted in their refusal. Title 7, § 273, Code of Alabama 1940; Lebo v. State, 55 Ala.App. 624, 318 So.2d 319 (1975).

We have reviewed the record, consisting of six volumes containing 323 pages of pretrial testimony on motions and pleadings and 723 pages of testimony on the merits and trial court records. We have also examined the numerous exhibits accompanying the record. The appellant raised 58 issues in his original brief and reply brief which have been considered by this Court. After receipt of briefs, we directed that supplemental briefs be filed expanding on three crucial issues. Those issues have been addressed in this opinion along with certain other issues raised by appellant which merited serious consideration. Our review convinces us that, although many close questions of law arose, the trial court committed no error prejudicial to the appellant.

AFFIRMED.

All the Judges concur except HARRIS, J., concurs in the result only.

BOWEN, J., not sitting.

      . “Jury list” as used in the plea in abatement is apparently a typographical or clerical error, since all the argument before the trial court and on appeal on this point refers to selection of every fifth name from the “voters list.” All parties and the trial court treated the plea as an objection to selection from the voters list.


author: BEATTY, Justice. FAULKNER, Justice

text:
    In re Kenneth HAMMOND v. STATE of Alabama. Ex parte Kenneth Hammond.
    SC 2515.
    Supreme Court of Alabama.
    Dec. 16, 1977.
    Rehearing Denied Feb. 10, 1978.

      John W. Kelly, III, of Jackson & Sikes, Selma, Loma B. Beaty, Patrick H. Tate, Fort Payne, for petitioner.
    William J. Baxley, Atty. Gen., and James S. Ward and Edward E. Carnes, Asst. At-tys. Gen., opposed, for the State.
   BEATTY, Justice.

The petition for writ of certiorari to the Court of Criminal Appeals is quashed as improvidently granted.

WRIT QUASHED.

TORBERT, C. J., and BLOODWORTH, MADDOX, JONES, ALMON and SHORES, JJ., concur.

FAULKNER and EMBRY, JJ., dissent.

FAULKNER, Justice

(dissenting).

By quashing the writ the majority of this court lets stand the judgment of the Court of Criminal Appeals. I would reverse and remand because, in my opinion, Hammond has been denied due process of law, under the 14th Amendment to the Constitution of the United States.

Kenneth Hammond, while serving as a Commissioner on the Alabama Public Service Commission was indicted for inciting to a felony — bribery. Under Count 1 of the indictment the case went to the jury, charging Hammond in the disjunctive with inciting Rex Moore or John Moore of Tops Vending Company, or Charles Price of South Central Bell Telephone Company, to:

1. Corruptly offer, promise or give
2. To Hammond as an executive, legislative or judicial officer;
3. A gift, gratuity, or thing of value, to-wit money or proceeds from or in connection with the operation of certain vending machines in, to-wit South Central Bell Telephone Company buildings, Montgomery, Alabama, in the amount of to-wit $10,000.
4. With intent to influence Hammond’s vote, opinion, decision or judgment on a cause, matter or proceeding pending before him in his official capacity as President, Public Service Commission, to-wit a telephone rate or charge increase requested by South Central Bell Telephone Company.

Hammond was convicted by a jury, and the trial court sentenced him to three years in the penitentiary. On appeal to the Court of Criminal Appeals, affirmed. We granted certiorari on the alleged ground of whether Hammond received constitutional due process of law by being convicted without substantial evidence on all elements of the crime to support the conviction. The majority did not write an opinion giving their reasons for affirmance, yet it is obvious that the Court of Criminal Appeals had grave doubts about this case. The court said:

“A complex and many-faceted count is the basis for depriving appellant of his liberty. We have been presented with a hodge-podge of facts and are told that upon one theory or another, they substantially prove every material allegation of the indictment. In order to find one theory or one alternative which would support the instant conviction, it has been necessary to fit facts together like connecting pieces of a complex jigsaw puzzle. When the task is completed, we find only one theory from which a jury could draw an inference of guilt. The evidence that appellant incited Price to bribe him, pursuant to the wording of Title 14, § 63, is far from overwhelming. Yet, we find it to be sufficient to meet the bare mini mum standards to support the verdict of the jury.” (Emphasis added.)

Further, the court said:

“The first two alternatives of Count 1 are not sustained by the proof. Although the jury could reasonably find that appellant incited the Moores to offer him money, there is absolutely no proof that the offer was for the purpose of influencing appellant’s vote on the Bell rate request. There was not one iota of evidence that the Moores had any interest whatsoever in the rate request. The Bell rate request was never mentioned in any conversation between appellant and the Moores. If Count 1 is sustained by the proof, it must be on the third alternative concerning Charles Price.”

The majority, by quashing the writ, agrees with the Court of Criminal Appeals. By doing so, they have introduced a new standard of evidence to support a conviction — bare minimum standards — in the field of criminal law. This is a dangerous departure from the substantial evidence rule, and the “bare minimum standards” violate Hammond’s constitutional rights. In Ex Parte Grimmett, 228 Ala. 1, 152 So. 263 (1963) this court held that there must be substantial evidence to prove all the elements of the charge. The scintilla rule of evidence applicable in civil cases does not apply to criminal cases because the presumption of innocence, shielding every prisoner at bar, is not overcome by a mere scintilla of evidence.

Here, there was no evidence at all that Hammond was offered, promised, or given any gift, gratuity, or thing of value to influence his vote on a pending rate case. This court held in Clemons v. City of Birmingham, 277 Ala. 447, 171 So.2d 456 (1965) that it is a violation of due process of the 14th Amendment to the Constitution of the United States to convict and punish a person without any evidence at all of his guilt. Where is there any evidence at all of guilt here that Hammond incited Charles Price to bribe him to vote favorably on a pending rate case?

Price testified that in 1974, Hammond told him that he had friends in the vending machine business and wanted to know whether machines could be put in some of Bell’s buildings. He and Hammond discussed, on several occasions, whether the machines (Moore’s machines) had been placed in Bell’s buildings. Finally, the machines owned by Moore were placed in the buildings in January, 1975. Two or three months later, he testified, Hammond told him to take out the machines. On direct examination Price testified:

“Q. Did you bring the subject up about these vending machines or did Mr. Hammond?
“A. Mr. Hammond.
“Q. Tell the court and the jury, then, what was said at that time, on that occasion, with reference to these vending machines by the defendant?
“A. Well, he started asking me to take them out. I said, “Well my Lord, you were after me a number of weeks to put them in and they’ve been in two or three months and why do you want me to take them out? And, as I recall, he said, ‘They are a bunch of crooks and get the machines out.’
“Q. Did you take them out or take any steps to get them taken out?
“A. Not immediately, this went on, you know, several times, and finally it got right obvious he was pushing pretty hard and I needed to do something.
sf: sft sfc * s}: ‡
“Q. Calling your attention up then to the latter part of June, or the first part of July, had you done anything up to that point, say, the first of July, that — with reference to getting them out?
“A. I’m not sure just when the date was that I went out to see the Moores, but it was around that time, and I’m not sure when it was. It was right around the first of July.
“A. Did Mr. Hammond say anything to you about- — with reference to — to refresh your recollection, that you had talked long enough, that you better have some action on them?
“A. Yes, sir. As I recall, the last conversation I had before I went out to see them, that he told me then, he said, ‘We been talking about this for a long time. We are not going to get along, and I mean for you to get these machines out.’ ”

It is this evidence that the State must rely on to support the inciting of the bribery charge as it related to Price. To this the Court of Criminal Appeals responded (the court had already said that “there is no evidence that Price was incited to pay any money to appellant [Hammond]’’): “If appellant, in ordering Price to have the machines removed, was acting out of revenge, or for the self-satisfaction he would receive by punishing the Moores for not meeting his earlier demands, then ‘he would not receive anything to which the law would attach value.’ However the jury heard the witnesses and observed their demeanor. They listened to the testimony of the Moores, Price and of the appellant. ‘It could properly be found upon the evidence, together with the inferences which need not be necessary or unescapable so long as they are reasonable and warranted that it had been proved beyond a reasonable doubt,’ that appellant intended that his threat, transmitted through Price, would cause the Moores to give in and pay him money . Price’s action could thus be considered ‘a thing of value’ to appellant.” (Emphasis added.) This is, indeed, a bizarre holding, yet the majority of this court has approved it without saying why.

It must be remembered that Hammond was charged with inciting Price to corruptly offer, promise, or give him $10,000, with intent to influence his vote on a rate case pending before the Public Service Commission. The proof just does not agree with the charge.

It is my opinion that Hammond has been denied due process of law. I am shocked that a “bare minimum standard of evidence to sustain a conviction” rule adopted by the Court of Criminal Appeals, has been approved by a majority of this court. Is one class of defendants subject to the “substantial evidence rule” and holders of a political office subject to the “bare minimum standard” rule? What has happened to that saying, “Equal justice under the law” without regard to that person’s persuasion?

I would reverse and remand for a new trial.

EMBRY, J., concurs.