author: ALMON, Justice.

text:
    In re BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE, a public corporation v. John E. McDonald, Jr., et al. Ex parte Board of Water and Sewer Commissioners of the City of Mobile, a public corporation.
    SC 1468.
    Supreme Court of Alabama.
    Oct. 30, 1975.
    Joe H. Little, Jr., Mobile, for petitioner.
    No appearance for respondent.
   ALMON, Justice.

Petition of Board of Water and Sewer Commissioners of the City of Mobile, a Public Corporation for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Board of Water and Sewer Commissioners of The City of Mobile v. McDonald, 56 Ala.App. 426, 322 So.2d 717.

Writ denied.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Ouida Fuqua LUNDY v. George Willis LUNDY.
    Civ. 595.
    Court of Civil Appeals of Alabama.
    Nov. 19, 1975.
    James M. Prestwood, Andalusia, for appellant.
    W. H. Baldwin, Andalusia, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a decree divorcing the parties herein. Appellant, the wife, seeks reversal because the decree does not designate with sufficient certainty the real property she is to receive. We agree.

The decree, after granting a divorce for incompatibility of temperment between the parties, made the following order:

“It is further CONSIDERED, ORDERED, ADJUDGED AND DECREED by the court that the plaintiff be and is hereby awarded the exclusive possession of the home of the parties located at Wing, Alabama, together with so much of the land as has been used for yard and garden for the remainder of her life.”

A judgment should be complete and certain in itself. Gandy v. Hagler, 245 Ala. 167, 16 So.2d 305. We have examined the pleadings and testimony in the court below and find nothing therein to delineate the boundary of the yard and garden. Although it is possible that the parties know of and could agree on the current size of the plot, the court’s decree should not leave such matters uncertain. In light of the fact that this home is located within a tract of land which has been and will continue to be farmed by the husband, the size of the yard and garden may have varied over the years. As it stands, the order is not sufficiently certain to define the wife’s right of possession, nor would it afford her protection were a third party to enter the picture.

No appeal has been taken from other aspects of the decree. The uncertain portion of the order can be made certain without disturbing the remainder of the decree by the taking of further testimony concerning the size of the yard and garden.

We therefore affirm the decree except for the part granting the home to plaintiff for life. We reverse that part of the decree only because of its uncertainty of description and remand to the trial court with direction to describe the property so that it may be located on the ground.

Affirmed in part, remanded in part with direction.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    THOMPSON-HAYWARD CHEMICAL COMPANY v. William R. PETERSON.
    Civ. 531.
    Court of Civil Appeals of Alabama.
    July 9, 1975.
    Rehearing Denied Sept. 24, 1975.

      Dunn Porterfield, McDowell, Scholl & Clark, Birmingham, for appellant.
    Huie, Fernambucq, Stewart & Smith, Birmingham, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

Two issues are raised by the argued assignments of error of appellant-employer. The first is whether or not the trial court erred in holding that the appellee-employee suffered a 25% loss of earning capacity as a result of the accident. The second is whether the trial court erred in requiring payment in a lump-sum pursuant to Tit. 26, § 279(C), par. 9, Code of Ala.1940 (Recomp. 1958), without commutation.

The tendencies of the evidence, as revealed by the record, indicate the following:

Appellee was employed as a truck driver by appellant on October 1, 1973, and was driving a load of nitric, acid. An explosion occurred during the unloading of the nitric acid and appellee was severely burned, suffering second and third degree nitric acid burns.

The attending physician, Dr. Thuss, testified that appellee had second degree nitric acid burns on his left upper extremity, including his hand, his left lateral trunk, left posterior lateral extremity, and scattered splotchy burns of his head and right upper extremity.

Appellee was treated on an outpatient basis. Appellee received his “back to work slip” on February 21, 1974, and was discharged May 14, 1974. He was seen some twenty-two times. It was necessary for skin to be grafted from the right leg to under the left arm.

Since January 1974, appellee testified he attempted employment as a truck driver and freight handler but has had to give these efforts up.

The award made to appellee was made for permanent partial disability to the body under § 279(C), par. 6. Appellant contends that all the evidence indicates that the disability is confined to the left arm and, as such, should be awarded under Tit. 26, § 279(C), par. 1. Appellant further contends that the evidence indicates that appellee is actually only temporarily partially disabled as specified in Tit. 26, § 279(B). An additional contention is that the medical testimony is to the effect that appellee’s disability is not such as to interfere with his duties as a truck driver.

The question then is whether the trial court’s award of compensation based on a 25% loss of earning capacity is supported by competent evidence.

The established rule of review in workmen’s compensation cases is, as stated in Goodyear Tire & Rubber Co. of Ala. v. Downey, 266 Ala. 344, 349, 96 So.2d 278, 282:

“ ‘On certiorari to review judgments in compensation cases, this court will not look to the weight of the evidence as to any fact found by the trial court, but simply to see if there is any evidence to support facts found by the trial court, and this rule applies when the award or compensation is denied as well as where there has been a judgment favorable to the plaintiff. Our review here on certiorari is confined to questions of law apparent upon the face of the record. * * *
“ ‘Where testimony is conflicting, but there is testimony supporting the finding of the trial court in proceedings under the Workmen’s Compensation Act, such finding is conclusive. * * ’ ” (Quoting from Bass v. Cowikee Mills, 259 Ala. 391, 393, 67 So.2d 12, 13)

The trial judge made the following detailed findings of fact:

“The Court finds that the plaintiff sustained very serious burns which covered a substantial portion of his body. The burns left disfiguring scars but all of the scars are covered by his normal clothing and, therefore, do not from a cosmetic standpoint affect his employability. The scars do, however, cause functional disability in that they are sensitive to heat and to clothing; they cause a loss of motion in the shoulder; they make it difficult for the plaintiff to sit for an extended period of time. They also rendered the plaintiff less able to perform the work of a truck driver such as loading trucks; changing tires; crawling up under trucks for the purpose of making routine repairs, .
“The defendant contends that the disability is limited to the arm, but the Court finds that the disability extends to the body as a whole and as a matter of fact the arm itself received very little injury. The inability to use the arm results from the scaring [sic] under the armpit and around the chest wall. The Court finds that the plaintiff has sustained a permanent partial disability of the body which has resulted in a 25 per cent loss of earning capacity and that he is due to be compensated on that basis.”

A review of the evidence does reveal evidence which, in light of the aforementioned rule of review, requires affirmance by this court.

The appellee testified that his loss of movement in his left arm affects his ability to drive a truck. He cannot fully raise his arm. His testimony indicates that his working skill is limited to that of a manual laborer, truck driver and mechanic. He further testified he is unable to put weight on the back of his left leg or to sit for an extended period of time due to the sensitivity resulting from the burn.

Dr. Francis Marzoni’s deposition, read into evidence, indicates the following:

Appellee is unable to raise his arm over his head and, in fact, can barely raise it to shoulder level — about 100 degrees. He has a limited ability to withdraw his arm away from his side. Appellee has a 50% physical disability of the left upper extremity, which is the whole limb and includes not only the arm but also the forearm and hand. As a result of his healed burns, appellee is sensitive to heat and sunshine. He has a 75% cosmetic disability. The loss of left extremity, in considering all duties of a truck driver other than merely driving, would affect his employment.

The deposition of Dr. William G. Thuss, Jr., admitted into evidence, reveals the following:

Appellee can only raise his arm 135 degrees from his side. Appellee has a 25% physical disability to his upper left extremity according to Dr. William G. Thuss, Jr., and a 10% loss of the upper left extremity, according to Dr. Thuss’s brother. Appel-lee’s scars are sensitive to clothes, touch, and sunlight. He does have some permanent disability now as a result of not having complete use of his arm again.

Dr. Thuss did testify that this condition should disappear eventually, but he did not know how long it would take. It would require vigorous work and pain on the part of appellee. It would be necessary to stretch the arm up to where it hurt and keep stretching it. Appellee has, on one earlier occasion, tried to stretch his arm up resulting in the skin under the arm bursting open.

Appellee’s inability to raise his arm completely would interfere with his loading and unloading a truck. It would interfere with his climbing up on the back of a trailer and unloading things or climbing up on tanks and opening and closing valves in that if he extended his arm up it would hurt him. If he couldn’t reach his hands up it would affect his employability.

We also note that during the trial the trial judge physically examined the employee.

Summarizing, as seen from the above, there is evidence, in light of the aforementioned rule of review, indicating a 25% loss of earning capacity as found by the trial judge.

The second issue raised by appellant is the trial judge erred in ordering a lump sum payment to appellee without commutation. Appellant argues that Tit. 26, § 279 (C), par. 9, Code of Ala.1940 (Recomp. 1958), which authorizes such payment is unconstitutional and that § 279(C), par. 9 should apply only to cases pending in payment at the time of its enactment, and not to cases arising after § 279(C), par. 9 became law.

These very issues have already been presented to and decided by this court. In B. F. Goodrich Company, a corporation v. Butter, 56 Ala.App. -, 324 So.2d 776 (decided May 7, 1975), this court held Tit. 26, § 279(C), par. 9, to be constitutional. Additionally, in Ex parte: Mar-Mil Steel and Supply Company, 54 Ala.App. 432, 309 So.2d 471, and B. F. Goodrich Company, supra, we held this section does not apply to cases already in the payment stage at the time of its enactment but to cases arising after it became law.

The judgment is due to be and is, therefore and accordingly, affirmed.

Affirmed.

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


text:
    In re Babette Lee STROUSSE v. Jacques STROUSSE. Ex parte Babette Lee Strousse BASCH.
    Civ. 650.
    Court of Civil Appeals of Alabama.
    Nov. 19, 1975.

      James R. Davis, Birmingham, James & Lowe, Haleyville, for petitioner.
    Whitesell & Gordon, Montgomery, for respondent.
   HOLMES, Judge.

This is a petition for writ of prohibition or other appropriate relief to be directed to the Judge of the Winston County Court of Law and Equity. This court is called upon to prohibit the trial court from allowing further hearings to be held.

The dispositive issue is whether the in-tervenor’s motion to intervene was timely filed. We answer in the affirmative and the writ is denied.

The pertinent facts appear to be as follows :

Petitioner, Babette Lee Strousse Basch, purportedly married intervenor, Harold Basch, in 1966. Sometime thereafter (apparently in 1973 or 1974) Harold Basch instituted an action in Pennsylvania to annul his marriage to petitioner, Babette Lee Strousse Basch. His action was bottomed on the premise that petitioner was at the time of her marriage to him the lawful spouse of one Jacques Strousse.

In March of 1974, petitioner, Babette Basch, made application for the substitution of lost judicial records. This application alleged that petitioner and Jacques Strousse were divorced by decree of the Winston County Court of Law and Equity on March 26, 1964; that said record of the proceedings, including the decree, have been lost, misplaced, or destroyed. The petitioner offered to reinstate the records by substituting copies in her possession. This application for the substitution of records was done pursuant to Tit. 7, § 10, Code of Ala. 1940. The Law and Equity Court of Winston County, on May 29, 1974, granted the petitioner relief and substituted the records.

On June 27, 1974, the intervenor, Harold Basch, filed with the Law and Equity Court of Winston County an untitled motion. This motion asked the trial court to set aside its May 29, 1974, order of substitution and allow Basch to intervene.

On the first day of August 1974, Harold Basch filed with the trial court a designated motion to intervene. He alleged in documents accompanying his petition for intervention that the documents substituted by Babette Basch were never part of the official records of this court.

In September of 1974, the sixth day thereof, the trial court, after a hearing verbally, ruled as follows:

“(a) That the Final Decree of May 29, 1974 was set aside;
“(b) That your Petitioner’s Motion to Stay Discovery, and Motion to Strike the Motion to Invervene filed by Harold Basch, Jr., were overruled;
“(c) That the motion to Intervene filed by Harold Basch, Jr. was granted and he would be considered a Third Party in the cause.”

The above was done in open court and transcribed by the court reported. Thereafter, in October of 1975, after rule nisi from this court, the above mentioned oral order was reduced to writing by the learned trial judge.

Able counsel for petitioner urges that the trial judge erred in permitting the intervention of Harold Basch. We disagree.

Rule 24(a)(2), ARCP, provides as follows :

“Upon timely application, anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

Suffice it to say that, to this court, the facts as outlined earlier in this opinion clearly indicate that Harold Basch falls within the ambit of Rule 24(a)(2). Put another way, to allow the substitution of the records could well defeat his annulment action previously filed in Pennsylvania, as the Pennsylvania action was bottomed on the premise that petitioner was married to Jacques Strousse at the time she purportedly married intervenor, Basch.

Therefore, the question then becomes whether the intervention motion is timely in that it was filed after judgment.

We should here point out that to this court the untitled motion of June 27, 1975, is in effect a motion to intervene and the August 1, 1974, motion is, again in effect, an amendment to the June 27 motion. Specifically, the June 27 motion contains the following language:

“(c) That your Petitioner has a right to intervene in this matter under the rules of Civil Procedure in that he entered into a purported marriage with Ba-bette Lee Strousse thinking that she was a divorced woman and a proceeding is now pending in another state and he has discovered that the said Babette Lee Strousse was never divorced from Jacques Strousse because she never obtained any such divorce in Winston County, Alabama.”

It is a well known principle of law that judgments and decrees rest in the breast of the trial court for thirty days, during which thirty day period the court may at any time set aside and vacate such judgments and decrees. Brand v. State, 242 Ala. 15, 6 So.2d 446. We therefore find no error in the trial court’s action. It is clear to this court that the petition to intervene was filed within thirty days. The fact that the trial court did not act within thirty days after the judgment of May 29 would, in this instance, be of no import.

While intervention after judgment is not favored, the Fifth Circuit Court of Appeals in McDonald v. E. J. Lavino Company, 430 F.2d 1065, 1071, a case wherein intervention was allowed, makes the following statement:

“Since the rule itself is silent concerning what constitutes a timely application, it has long been held that the determination of timeliness is a matter committed to the sound discretion of the trial court. Smith Petroleum Service, Inc. v. Monsanto Chemical Co., supra, [5 Cir.], 420 F.2d [1103] at 1115; Lumbermens Mutual Casualty Co. v. Rhodes, 10 Cir. 1968, 403 F.2d 2, 5, cert. denied, 394 U.S. 965, 89 S.Ct. 1319, 22 L.Ed.2d 567; Washington Gas Light Co. v. Baker, 1951, 90 U.S.App.D.C. 98, 195 F.2d 29, 32; Simms v. Andrews, 10 Cir. 1941, 118 F.2d 803, 806. ...”

Of further enlightenment is the following also found in McDonald, supra.

‘Timeliness’ is not a word of exactitude or of precisely measurable dimensions. The requirement of timeliness must have accommodating fexibility toward both the court and the litigants if it is to be successfully employed to regulate intervention in the interest of justice. . . . ‘the privilege of intervention stems from a desire to protect the rights of unrepresented third parties, it becomes apparent that the timely application requirement under Rule 24 was not intended to punish an intervenor for not acting more promptly but rather was designed to insure that the original parties should not be prejudiced by the in-tervener’s failure to apply sooner.’ ...” (430 F.2d at 1074)

The court in McDonald, supra, points out that in considering timeliness of the intervention Rule 1 of the Federal Rules of Civil Procedure should be kept in mind. Rule 1 of both the Federal and Alabama Rules provides that the rules “shall be construed to secure the just, speedy and inexpensive determination of every action.” This court adheres to that principle. See also Wright and Miller Practice and Procedure Vol. 7A, § 1916.

While McDonald, supra, is authority for allowing intervention after judgment, see also Sec. and Ex Com. v. U. S. Realty and Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293; Cuthill v. Ortman-Miller Machine Company, 7 Cir., 216 F.2d 336; Liston v. Butler, 4 Ariz.App. 460, 421 P.2d 542; Monroe v. Pape, D.C., 221 F. Supp. 635.

Keeping in mind the unique facts of this case, we therefore find, in this instance, where the motion to intervene was filed within less than thirty days after judgment, where intervenor was not personally served (as was the case here), where no apparent prejudice occurs to petitioner since the effect of granting the intervention will only be to make the application to substitute the records an adversary proceeding, the trial court did not abuse its discretion in allowing the intervention.

Writ denied.

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


author: SIMMONS, Supernumerary Circuit Judge.

text:
    Ulay Black GRIMES, alias v. STATE.
    4 Div. 350.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.

      J. Allen Cook, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen. for the State.
   SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent, was indicted whereby he was charged with assaulting Mildred Grimes, his wife, with intent to murder her. The jury convicted as charged, and the trial court fixed punishment at seven years imprisonment and entered appropriate judgment. Defendant promptly gave notice of appeal and made bond. Counsel for appellant is the same here as at nisi prius.

We will allude only to such evidence which we think is necessary to illustrate the nature of the case and the contentions of the parties. A full narration of the evidence would unnecessarily lengthen this opinion.

Mrs. Grimes and her husband, the defendant, had lived in Florida where they separated and she went to Georgia to live with her daughter. Defendant returned to the home of his father and mother in Cov-ington County, near Andalusia, where the alleged assault occurred.

It further appears that Mrs. Grimes came to Covington County to get “her things”, which were in possession of defendant. The separation occurred because defendant had drinking and financial problems.

When Mrs. Grimes visited the home of her mother-in-law, by whom she was welcomed, she visited promptly with her husband who was there in the home. Words ensued with reference to a wedding ring and its surrender to defendant, who at the time was under the influence of alcoholic beverages. The alleged assault followed.

Mrs. Grimes, the alleged victim, after being advised by the court of her right not to testify, elected to testify against her husband.

The trend of this testimony was that defendant, without provocation on his wife’s part, committed a very aggravated assault and battery on her person by choking and beating her and by otherwise inflicting severe bruises and bodily injuries; that he once picked up a shot-gun, which was not loaded according to defendant’s evidence, and pointed it at her, but did not pull the trigger or beat her with it; that defendant called her a vile name that reflected on her moral character; and that in connection with the use of this vile name, defendant said, “I will kill you ...”

Defendant took the stand in his own behalf and mitigated the severity of the assault and battery. He contended that the argument about the ring motivated a fight between them whereby he struck the first blow and hit her several times, but at no time did he pick up or point a shot-gun at her. He also stated that his wife protected herself against his blows by scratching and kicking and that he did not blame her for that. Defendant admitted a drinking prob-, lem and that at the time of the physical confrontation he was under the influence of alcohol.

The trend of the State’s contention and evidence was that the defendant was guilty of assault to murder as charged in the indictment.

The trend of defendant’s contention and testimony was that he was guilty only of assault and battery, a lesser offense embraced in the indictment by operation of law, and that he was not guilty of the felony charged in the indictment.

Pursuant to our duty, mandated in T. IS, § 389, Code of Alabama, Recompiled 1958, we reviewed the record and found on page 44, that defendant’s counsel on direct examination, asked his client, “Did you intend to murder her ?” The trial court sustained the State’s objection to the question. The defense thereupon rested.

We think that in the light of evidence adduced prior to this ruling that counsel for defendant expected his client to answer that he did not intend to murder his wife. The ruling precluded elicitation of this negative answer. This ruling was error.

The major accusation in the indictment alleged defendant assaulted his wife with intent to murder her. Included therein was the lesser offense of assault and battery, a misdemeanor. The jury convicted for the major offense.

The question of defendant’s intent at the time he was assaulting and beating his wife was an outstanding and material issue before the jury. If he was free of an intent to murder her, as that charge is known at common law, then he could not be guilty of the major charge in the indictment. The issue of intent was very material and relevant.

Judge J. Russell McElroy, Birmingham, in an elucidating and erudite treatise of the point, appearing in the Alabama Lawyer, Vol. 1, No. 3, July, 1940, says that a large majority of the Alabama decisions concerning this point hold that a witness may not testify to his own intent or other state of his mind, notwithstanding the fact that the witness’ intent or other state of mind is material. “Whence came this peculiar doctrine that has found its sole abiding place in the Court of Alabama?”

Prior to 1874, Judge McElroy says the point seems never to have been insisted upon in Alabama. In the case of Oxford Iron Company v. Spradley, 51 Ala. 171, (1874), the defendant in an action on a promissory note, pleaded that the consideration of the note was to be used for illegal purposes, to further the cause of the confederacy; and that plaintiff concurred in the defendant’s purpose; it was held that plaintiff could not testify what motives or purposes induced him to part with the consideration, as such testimony would “embarrass” the jury in their effort to find the plaintiff’s intention, and because the reception of such testimony would give the plaintiff an “advantage” over the other witnesses.

Judge McElroy collates many cases and writes at length on the history and development of the point, better known as an exclusionary rule. Judge McElroy’s splendid article and his logical argument was not persuasive in subsequent efforts of a minority of the Supreme Court to abandon this rule and permit a witness to testify as to his mental operations.

Another minority of the Supreme Court wrote in support of softening the rule and to permit the witness to testify as to his intent. We refer to McGuff v. State, 248 Ala. 259, 27 So.2d 241, wherein the majority of the Supreme Court prevailed over a scholarly opinion written by Justice Livingston (August 2, 1946) concurred in by Justice Stakely. Justice Livingston (later Chief Justice) went into the history of the rule, pointing out and collating, as well as discussing many cases that were incongruous and conflicting in applying and making exceptions to the rule.

Despite the efforts of minority members of the Supreme Court, authorities on evidence as Judge McElroy, and the discussions in Wigmore on Evidence, referred to by both Justice Livingston and Judge McElroy, the Supreme Court remained adamant and adhered to the rule that such evidence was not admissible. The adherence clashed with all the other states which had repudiated the rule and permitted such evidence by a witness.

But the Supreme Court of Alabama, in a pronouncement in Starr v. Starr, 293 Ala. 204, 301 So.2d 78, changed this rule of evidence and overruled all language in prior cases to the contrary. This was done on September 12, 1974, before the alleged commission on the instant offense. Starr, supra, was a civil case involving a witness’ testimony in a will contest. We will quote infra, from Starr.

The Supreme Court in a recent criminal case, Ex parte Tolbert, 1975, 294 Ala. 738, 321 So.2d 227, reaffirmed Starr, supra, wherein it said that this evidentiary rule no longer exists in Alabama, and held that a defendant is free to testify as to his intent and mental process to rebut any presumption arising from the prima facie section of the Worthless Check Act, which was the subject of the prosecution to which the opinion was addressed. Thus the court applied the evidentiary change to criminal prosecutions.

We quote from Starr, supra as follows:

“. . . We therefore depart from the past and follow the dictates of conscience and the wisdom of noted writers and other members of this court. We now hold that a witness, on direct examination, may testify as to his intention, motive or other physically unexpressed mental state, provided, that the testimony is material to the issues in the case. This is another area where the sound discretion of the trial judge will come into play. Thus we will not review the court’s ruling in either admitting or excluding such evidence in the absence of abuse. To the extent Lorn v. Low and other cases conflict with this point, they are hereby overruled.”

In Robinson v. Green, 148 Ala. 434, 43 So. 797, (1906), holding that the plaintiff might testify that he was detained against his will, the court said, “It was the statement of fact capable of proof by no one so well as by the plaintiff, and was not the expression of an opinion, reason or conclusion.”

That a person’s mental state is not a fact, the answer is that in Jacobi v. State, 133 Ala. 1, 32 So. 158, the court approved L. J. Bowen’s neat phrase, “The state of a man’s mind is as much a fact as the state of his digestion.”

It is to be noted that in doing an act that is the basis of a criminal charge, evidence of intent should not be isolated and considered separate and apart from other evidence illustrating the same subject. In determining what weight should be given such evidence the jury or trier of fact will consider all the evidence on the issue of intent. It is advisable for court to instruct the jury relative to such evidentia-ry consideration.

The judgment at nisi prius from which this appeal is taken is reversed and the cause remanded.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act. No. 288, Acts of Alabama, July 7, 1945, as amended ; his opinion is hereby adopted as that of the Court.

The judgement below is reversed and the cause remanded.

Reversed and remanded.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Ulay Black GRIMES v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1521.
    Supreme Court of Alabama.
    Nov. 20, 1975.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State, petitioner.
   SHORES, Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Grimes v. State, 56 Ala.App. 439, 322 So.2d 729.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


text:
    Marc Wingate HARDING v. STATE.
    1 Div. 458.
    Court of Criminal Appeals of Alabama.
    July 16, 1974.
    Rehearing Granted Oct. 1, 1974.
   Affirmed without opinion.

On rehearing, 56 Ala.App. 443, 322 So.2d 733.

Affirmed, 295 Ala.-, 322 So.2d 734.

Appeal dismissed after return to remand, 56 Ala.App. -, 322 So.2d 734.


author: CATES, Presiding Judge.

text:
    Marc Wingate HARDING v. STATE.
    1 Div. 458.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Oct. 29, 1974.
    Ian F. Gaston, J. D. Quinlivan, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Charles A. Thigpen, Sp. Asst. Atty. Gen., for the State.
   ON REHEARING

CATES, Presiding Judge.

On a consideration of the application for a rehearing the original affirmance (without opinion) is abated. The cause is remanded to the lower court for consideration of the Youthful Offenders Act.

We are constrained to this action by the cogent dictum in Morgan v. State, 291 Ala. 764, 287 So.2d 914. See also, Edwards v. State, 55 Ala.App. 544, 317 So.2d 511, Pride v. State (8 Div. 537), 55 Ala.App. 575, 317 So.2d 541, and Clemons v. State, 56 Ala.App. 275, 321 So.2d 237, all this day decided.

Accordingly, the application is granted and the cause is

Remanded with directions.

All the Judges concur.


author: JONES, Justice.

text:
    In re Marc Wingate HARDING v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1037.
    Supreme Court of Alabama.
    May 22, 1975.
    Charles A. Thigpen, Sp. Asst. Atty. Gen., Tuscaloosa, for the State, petitioner.
    Ian F. Gaston, Mobile, for respondent.
   JONES, Justice.

Petition by the State by its Attorney General for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Harding v. State, 56 Ala.App. 443, 322 So. 2d 733 (1974), on rehearing 56 Ala.App. -, 322 So.2d 733. Affirmed on authority of Clemmons v. State, 294 Ala. 746, 321 So.2d 238 [Ms., S.C. 1050 (1975)]. As stated in Clemmons, on remand, should the trial court determine that Harding is not entitled to youthful offender treatment, he has the right to renew his appeal in the Court of Criminal Appeals, which has retained jurisdiction of the cause, for a decision on the points, if any, not heretofore reviewed in that Court on the original appeal.

Affirmed.

Appeal dismissed after return to remand, 56 Ala.App. -, 322 So.2d 734.

HEFLIN, C. J., MERRILL, BLOOD-WORTH, MADDOX, SHORES and EM-BRY, JJ., and COLQUITT, Circuit Judge, sitting specially, concur.

FAULKNER, J., concurs in part, dissents in part.


text:
    Marc Wingate HARDING v. STATE.
    1 Div. 458.
    Court of Criminal Appeals of Alabama.
    Sept. 8, 1975.
   After return to remand, 56 Ala.App. 443, 322 So.2d 733, rehearing 56 Ala.App. -, 322 So.2d 733, and affirmed, 295 Ala. -, 322 So.2d 734, appeal dismissed on motion of appellant and for mootness.


author: TYSON, Judge.

text:
    Harold JONES v. STATE.
    8 Div. 645.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 1, 1975.
    Bryce U. Graham, Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen. and David Dunn, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The four-count indictment charged the appellant in two counts with the grand larceny of eight cows, the personal property of Moulton Stockyards, Inc., or alternatively with the grand larceny of said cows, the personal property of Jack Owens. Counts three and four charged the appellant with obtaining the said eight cows by false pretense from Jack Owens, and alternatively from the said Moulton Stockyards, Inc.

No demurrer was interposed to this indictment. The jury brought in a general verdict of guilty as charged in the indictment, and then assessed the value of the property described in the indictment at $1906.00. The appellant’s motion for new trial challenging the weight and sufficiency of the evidence was overruled.

Jack Owens testified that he was the owner and operator of Moulton Stockyards, Inc., in Moulton, Alabama. He said he knew the defendant, Harold Jones, and that he had been at the “Salesbarn” of Moulton Stockyards, Inc., bidding on cattle on September 14, 1973, and had been the highest bidder on eight head of cattle. Owens stated that all sales were for cash, and governmental regulations required that all cattle sold be paid for within seventy-two hours. Anyone seeking credit would have to have it authorized by him, and he did not extend any credit to Jones, nor did he authorize the delivery of the cattle to him before he'paid for them. Owens said Jones had never paid him for the cattle in question, that he still owed the full purchase price of $1906.00.

On cross-examination, Owens stated that the cattle in question had been entered in the Stockyard’s books under “Accounts Receivable,” and that this was where sales that had not been paid were kept. Owens said Jones returned five or six weeks later to discuss the matter, at which time he told the appellant he had not paid for the cattle, but did not accuse him of stealing them. At this time, the appellant claimed that he had paid for the cattle. Owens stated that sometime after this meeting he swore out a warrant for Jones’ arrest.

On redirect, Mr. Owens was shown a yellow “Purchaser’s Release,” listing the cattle in question. Across the bottom appeared the words, “Paid Cash, 9-14-73, Check cancelled,” but Owens said this was not his handwriting, and he had not authorized anyone else to write it on there.

Diane Cameron testified that she was the daughter of Jack Owens, that she had worked at the Moulton Stockyards on September 14, 1973, as a clerk with the responsibility of taking in the money and checks for the payment of cattle sold each day and giving the customers their releases. She said that for each sale a “Purchaser’s Release” was made out in quadruplicate, “a green copy for the veterinarian, a white one, which was kept on file in the office, a yellow copy for the purchaser, and a pink copy, which was sent to the barn as a load-out copy.”

On September 14, 1973, Harold Jones came to the window where she was working and said that he wanted to pay for the cattle he had just bid on. Mrs. Cameron got his bill and added up the price. The appellant then asked her for a check, but it was on an out-of-town bank, and she did not have one. He said he had one out in the truck, so she tore apart the bill and gave him his yellow copy, thinking he would be right back, but he did not on that day, or any other day, pay for all, or any part, of the cattle by cash or check. Mrs. Cameron said some writing had been added to the bottom of the appellant’s copy of the “Purchaser’s Release,” and the writing was not hers, nor did she recognize it as that of anyone else who worked in the office or “Salesbarn.” She said if Harold Jones had paid her, she would have written “Paid Cash” on the top copy of the bill, and it would have appeared on all four sheets rather than just on the purchaser’s copy.

On cross-examination, Mrs. Cameron stated that when the appellant came back several weeks later, he told her father that he had originally paid the account with a check, but after he received a call from the office notifying him that payment had not been received, he cancelled the check, returned to the office and said he paid cash.

John Moses testified that he worked at the “Salesbarn” at Moulton Stockyards. On September 15, 1973, he loaded the eight cattle in question for Harold Jones, or his brother, William Jones. Because of a close family resemblance between the brothers, Moses could not be sure which one. He said no one paid him any money at the time of the loading.

Braxton Craig testified that he was employed by Russellville Production Credit Association. On Friday, September 14, 1973, after the sale, he talked with the appellant, Harold Jones, and agreed to finance the purchase of eight cows.

Mike Sprinkle was also employed by Russellville Production Credit Association. He stated that the appellant came to his office on September 18, 1973, at which time loan papers were signed to finance the purchase of eight cows. Sprinkle gave Harold Jones a Russellville Production Credit Association check in the amount of $1906.00. Russellville Production Credit Association took a mortgage or lien on the cattle.

Jimmy Horton testified that he was a cashier with the Citizens Bank in Moulton, and that he was familiar with the appellant’s account. During his testimony several bank ledger sheets, showing the status of this account, from August to December of 1973, were introduced into evidence. These records showed a balance of $145.00 in Jones’ account on September 14, 1973, and a deposit of $1906.00 on September 18, 1973. The State also introduced a stop payment order filed by the appellant with the Citizens Bank on October 27, 1973, on a check made payable to Moulton Stockyards in the amount of $1906.00, and dated September 14, 1973. Horton stated that he had been unable to locate the check, which was the subject of the stop payment order. He also testified that a replacement check had not been issued. He also testified that the appellant had done his banking with him for the past four or five years.

The appellant’s motion to exclude the State’s evidence was overruled.

The appellant presented no evidence at trial. The motion for new trial was overruled, and also his request for the affirmative charge was denied by the trial court.

I

The appellant contends that the trial court erred in overruling his motion to exclude the State’s evidence, and then in denying his request for the affirmative charge, as well as in overruling his motion for new trial.

Larceny is the felonious taking and carrying away of the personal property of another with the intent on the part of the taker to convert it to his own use, or to deprive the owner thereof. Higgs v. State, 113 Ala. 36, 21 So. 353; Moulden v. State, 47 Ala.App. 573, 258 So.2d 915; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.

In Murchison v. State, 32 Ala.App. 427, 26 So.2d 622, former Presiding Judge Carr observed:

“Confusion and difficulty sometimes arise in an effort to distinguish the three kindred crimes, larceny, false pretenses, and embezzlement. The Massachusetts Supreme Court in Commonwealth v. Barry, 124 Mass. 325, makes the distinction very clearly. Therein the court said:
“ ‘If a person honestly receives the possession of the goods, chattels or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of the crime of embezzlement, but cannot be of that of larceny, except as embezzlement is by statute made larceny. If the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the of-fence is that of obtaining property by false pretences, provided the means by which they are acquired are such as, in law, are false pretences. If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offence is larceny.’
“The text writer in 35 C.J.S. False Pretenses § 3, p. 638, states the difference between larceny and false pretenses to be:
“ ‘The crime of obtaining money or goods by false pretenses is closely allied, or analogous, to that of larceny, and it has been said that the statutes denouncing it and like offenses were designed for the fuller protection of personal property and in aid of the laws against larceny and theft. However, the two offenses are generally distinguishable, although the distinction is very fine where the obtaining of the money or property is accomplished by fraud, trick, or device. The distinction between the crimes of obtaining by false pretenses and larceny lies in the intention with which the owner parts with the property; if the owner, in parting with the property, intends to invest accused with the title as well as the possession, the latter has committed the crime of obtaining the property by false pretenses, but if the intention of the owner is to invest accused with the mere possession of the property, and the latter, with the requisite intent, receives it and converts it to his own use, the crime is larceny.’
“This court in Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600, approved the rule of demarcation outlined above.”

Moreover, in McKinney v. State, 12 Ala.App. 155, 68 So. 518, we find:

“It is true, as insisted by appellant, that in order to constitute a taking such as will support a charge of larceny, it must have been tortiously done — that is, it must be a trespass against the owner’s possession, a taking without his consent (Dozier v. State, 130 Ala. 57, 30 So. 396); yet where his consent, or the consent of the person holding for him, is procured by means of fraud or a trick, practiced by the taker with the intent to steal, the taking is sufficient within the definition of larceny (18 Am. & Eng. Ency. Law [2d Ed.] 496, 473).”

In the case at bar, the requirement of a felonious taking is met when a person intending to steal another’s personal property obtains possession of same although by or with the consent of the owner by means of fraud or through a fraudulent intent, trick, or device. Murchison v. State, 32 Ala.App. 427, 26 So.2d 622.

Thus, where, as here, the appellant secured the possession of the eight head of cattle with the apparent consent of the owner through the device of the appellant misrepresenting to Diane Cameron that he would return immediately with a check to pay for the cattle, by such fraudulent trick or device, the crime of larceny has been committed. Illinois Automobile Insurance Exchange v. Southern Motor Sales Company, 207 Ala. 265, 92 So. 429; Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600, cert. den. 245 Ala. 47, 15 So.2d 605; Hufstetler v. State, 37 Ala.App. 71, 63 So.2d 730; Sullivan v. State, 43 Ala.App. 302, 189 So. 2d 593.

It is therefore clear, under the evidence in this cause, that the trial court correctly submitted this matter to the jury and denied the appellant’s motions.

ii

Following the conclusion of the trial court’s oral charge, we find the following :

“THE COURT: Well, I don’t understand what your objections are.
“MR. GRAHAM: I just don’t think it applies to the facts of this case, sir. I don’t think the evidence in this case would support such a charge, sir. I don’t think that—
“THE COURT: Such a charge as what?
“MR. GRAHAM: The charge that you gave as to trick.
“THE COURT: Well, which charge?
“MR. GRAHAM: The charge as to larceny by trick.
“THE COURT: Well, that’s not a — in other words, that’s just — larceny by trick, you don’t even indict people by larceny by trick. They are just indicted for larceny, and the proof may show that that’s the way it was.
“MR. GRAHAM: Well, I just want my objection sir.
“THE COURT: Well, that is what I was trying to understand. If I am wrong, then I could correct it.
“MR. GRAHAM: Well, my only objection is that there is no facts in this case that anything contained in the larceny is by trick except in the charge itself. And,- on that basis, we except to the charge.”

The exception as reserved above is not sufficient to invoke our review of the oral charge. As observed by Judge DeCarlo, speaking for a unanimous court, in Garner v. State, 53 Ala.App. 209, 298 So.2d 630, cert. den. 292 Ala. 721, 298 So.2d 633:

“. . . [W]e are compelled to follow that rule announced in innumerable decisions of our apppellate courts that, in order to put the court in error upon its oral charge, the reserved exception must designate and set out the particular part of the charge to which the exception is directed. Brock v. State, 28 Ala.App. 52, 178 So. 547; Robinson v. State, 38 Ala. App. 315, 82 So.2d 815; Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193.”

Moreover, we have examined the oral charge wherein the court instructed the jury on the subject of larceny by trick and find that such instructions were proper. Illinois Automobile Insurance Exchange v. Southern Motor Sales Company, 207 Ala. 265, 92 So. 429; Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600, cert. den. 245 Ala. 47,15 So.2d 605.

Ill

The jury retired to deliberate at 4:42 p. m., and then returned to the courtroom at 6:20 p. m. for additional instructions in their request on certain definitions within the law. Following the giving of such instructions to which no exception was taken, the jury retired to deliberate further. Shortly thereafter, the jury then returned to the courtroom a second time to advise the court as follows:

“THE COURT: Ladies and gentlemen, have you been able to reach a verdict yet?
“THE FOREMAN: No, sir.
“THE COURT: Well, I don’t want to get into speculating the evidence in the case, but I just want to tell you this: In my opinion you have enough evidence in this case to make a decision. Now, what your decision is ultimately has to be up to you and I don’t want anybody to compromise any principles, but I do hope that you have discussed the case in the light of the charge that I gave you and applied the law to it as I gave it and as you found the facts to be. Now, there is not that much dispute in the facts. And, really, the State had requested that I give you the affirmative charge in the case, which would simply be this: That if you believe the evidence that the State offered to you, then there is sufficient evidence for you to act in the case. And really and truly what it boils down to, is whether or not you believe the evidence that has been offered to you, because the Defense didn’t put on any evidence. The evidence is not in conflict that the State offered you, so it’s a matter strictly of whether or not you believe it. Of course if you don’t believe it, then you would have to return a verdict for the Defendant. And it stands on the other hand that if you did believe it, then you would have to return a verdict finding the Defendant guilty. So that is really the basis of where we are. Now, I simply mentioned that to you, not to comment on the evidence, but to comment that the only consideration really, that you would have here would be the credibility of the evidence that is offered to you, because as a matter of law I would be required if, in my opinion, the evidence was not sufficient, to take it away from you and never allow you to consider it, anyway. So, really, in essence what you are considering is whether or not the credibility of the testimony and the evidence that has been given to you, because the Defense did not offer any evidence in the matter.
“I am going to ask you to go back and to try to reach a decision for five minutes. And if you then report that you are deadlocked in five minutes, then I am just going to — I will have to discharge you. I won’t have any choice in the matter, because you have been in there for quite a while. I just wanted to give you those last instructions. So I am going to ask you to please go back and just take one vote, or however you are doing it and, then if you are still crossed,—
“MR. GRAHAM: If it please the Court, I feel like that I must take an exception to the charge. Let the record show that we except to the statements — to the charge — that the Judge has just given to the jury.
“THE COURT: All right. Okay, you may return to the jury room.”

The appellant asserts that the request of the court to consider the matter one further time constitutes reversible error.

We do not agree. As noted in Martin v. State, 29 Ala.App. 395, 196 So. 753, it is never improper for the court to urge upon the jury the duty of trying, to reach an agreement so long as the court does not suggest which way the verdict should be returned. Authorities cited.

As may be seen, the jury had only deliberated a short time before the above request was made of them. Under these circumstances, we feel that such was entirely proper. Mac Swafford v. State, 46 Ala. App. 187, 239 So.2d 329; Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181; Martin v. State, supra.

We have carefully examined this record and find same to be free from error. The judgment of the trial court is due to be and the same is hereby

Affirmed.

HARRIS, DeCARLO and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.

      . The trial court set sentence at three years imprisonment in the penitentiary.


text:
    In re Harold JONES v. STATE. Ex parte Harold Jones.
    SC 1504.
    Supreme Court of Alabama.
    Nov. 20, 1975.
    Bryce U. Graham, Tuscumbia, for petitioner.
   SHORES, Justice.

Petition of Harold Jones for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jones v. State, 56 Ala.App. 444, 322 So.2d 735.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


author: DeCARLO, Judge.

text:
    Danny Bay BOZEMAN v. STATE.
    6 Div. 832.
    Court of Criminal Appeals of Alabama.
    April 1, 1975.
    Bill Fite, Hamilton, for appellant.
    No brief for the State.
   DeCARLO, Judge.

Pursuant to the decision of the Alabama Supreme Court in Armstrong v. State, 1975, 294 Ala. the 100, 312 So.2d 620, we remand cause to the Circuit Court of Marion County with directions to carry out the probation revocation of appellant in the manner laid down in Armstrong, supra,

Remanded with directions.

All the Judges concur.

Affirmed without opinion after return to remand, 56 Ala.App.-, 322 So.2d 741.


text:
    Danny Ray BOZEMAN v. STATE.
    6 Div. 832.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
   After return to remand, Ala.Cr.App., 56 Ala.App.-, 322 So.2d 741, affirmed without opinion.


text:
    Oliver CARTER, Jr. v. STATE.
    6 Div. 894.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.

      Charles H. Moses III, Birmingham, for appellant..
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Asst. Atty. Gen., Birmingham, for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of rape and a sentence to the penitentiary for ten years.

According to the testimony of the alleged victim, she was awakened by an intruder in her apartment about 3:00 A.M., March 1, 1975. She was sleeping alone in a bed. The only other occupants of the apartment at the time were her two children of the ages of six and three years, who were sleeping in an adjoining room. She had been recently divorced. She went to bed the evening before at about nine or ten o’clock after she had put the children to bed. She left the window of their bedroom slightly cracked; she went to bed in the nude as was her custom; she was awakened by being poked with a sharp object, which she did not identify at the time but testified that it had the appearance of a letter opener. When she turned over and saw the intruder she observed that he had a handkerchief across the lower part of his face. There was conversation between them as to who else was in the apartment. The man climbed in bed with her and had intercourse with her; she did not resist. She was positive in her identification of defendant; she had never seen him before. Promptly after he left through a door, she locked the doors and closed and locked the windows and checked the children, whom she found asleep. She then went into the bathroom, took a hot bath and went through a feminine cleansing process. She put on her clothes, bundled up her children, got in her car and went to a pay phone booth and called her ex-husband. There was no phone in her apartment. When her ex-husband arrived they took the children to her mother’s home; then she and her ex-husband went to the police station and reported the incident to the police.

Defendant did not testify, but members of his family testified to the effect that on the night of the alleged crime he went to bed at a place some four miles from the scene of the crime, approximately an hour prior to its commission, and that he had no means of transportation sufficient to place him there at the time the crime was com- ■ mitted.

Appellant does not contend that the failure of the woman to physically resist precluded a conviction. The rule has been stated time and again to the contrary. We apply here what was said in Rudolph v. State, 275 Ala. 115, 152 So.2d 662:

“The offense of rape is complete when the woman is made to yield through fear. Hooper v. State, 106 Ala. 41, 17 So. 679. The evidence in this case clearly supports a finding that the prosecutrix yielded to her assailant because of fear that her life was in danger. The evidence was not only sufficient to take the case to the jury on the charge of rape, but was amply sufficient to support the verdict of the jury.”

Appellant’s counsel, who was appointed to defend him on the trial and to represent him on appeal, in view of his indigency, has ably argued here as he contended there that “the circumstances of her divorce and . . . relationship with her former husband, which appeared to be close in view of her calling upon him immediately following the claimed rape” justified his efforts to explore and bring before the jury “the possible bad actual character for chastity of the prosecuting witness.” The only cases relied upon by appellant are McQuirk v. State, 84 Ala. 435,4 So. 775 (1888); Stone v. State, 243 Ala. 605, 11 So.2d 386 (1943); Brown v. State, 50 Ala.App. 471, 280 So.2d 177, cert. denied 291 Ala. 774, 280 So.2d 182 (1973). No support for the position of counsel for defendant-appellant is to be found in the cases cited, singly or collectively. All three recognize the principle that the general reputation of the prosecu-trix for unchastity can be shown by defendant in a rape case. Such was not sought to be shown here. What was held in McQuirk and Stone is stated in McElroy, Law of Evidence in Alabama, § 32.-01:

“Evidence of specific acts of unchastity by the prosecutrix with third person is not admissible as tending to prove her bad character for chastity. McQuirk v. State, 84 Ala. 435, 4 So. 775; Stone v. State, 243 Ala. 605,11 So.2d 386.”

In Brown v. State, supra, it was held that the trial court should have allowed testimony showing the general reputation of the prosecutrix for unchastity, but it was not held that defendant could inquire into the question of specific acts of intercourse with third persons. One reason for refusal to allow such an inquiry is stated in Stone v. State, supra, [2, 3] as follows:

“ . . . The basis of such rule, we take it, is the same as in other cases, the unwisdom of opening the door to collateral issues tending rather to hinder than promote justice. . . . ”

We can think of no type of' case in which the reason for the rule could be more persuasive than in this case, in which commendable fidelity on the part of the prose-cutrix to her ex-husband and on the part of him to her and on the part of both to their children was displayed.

In the closing argument of the State the following occurred:

“MR. TUCKER: She testified she did not willingly submit to this but that everything done there was because she was afraid for her own safety and the safety of her children.
“MR. MOSES: We object to that. There is no evidence of that in the testimony.
“THE COURT: Ladies and gentlemen, either lawyer can argue any inference of what they draw from the evidence. What they say in the case is not evidence. Ladies and gentlemen, you have listened to it, make up your own minds what the evidence is; so I will overrule the objection with that admonition.”

Appellant urges that the action of the trial court in this particular respect was erroneous. We do not agree. There was not involved any effort upon the part of counsel for the State to assert a fact not shown by the evidence. He had the right to argue “proper inferences from the evidence” and “to draw conclusions from the evidence based on his own reasoning.” Adams v. State, 291 Ala. 224, 279 So.2d 488; McLaney v. Turner, 267 Ala. 588, 140 So.2d 315. The same principle, in essence, has been applied to numerous criminal cases, as well as civil cases, a few of which are: Braden v. State, 49 Ala.App. 97, 268 So.2d 877; Davis v. State, 49 Ala.App. 587, 274 So.2d 360, cert. denied 290 Ala. 364, 274 So.2d 363; Cazatas v. State, 43 Ala.App. 6, 178 So.2d 562, cert. denied 278 Ala. 708, 178 So.2d 565; Mitchell v. State, 52 Ala.App. 174, 290 So.2d 241. The statement we think, was so clearly an argumentative conclusion that was fully justified by testimony of the prosecutrix that the trial judge could well have overruled defendant’s objection without admonition, but it was better for him to qualify his ruling as he did and admonish the jury accordingly. In this circumstance, justice was well served without the possibility of any prejudice to defendant.

In closing argument of the State, the record contains the following:

“MR. TUCKER: . . . but I think he has totally failed to prove to you she was a willing participant in the alleged rape — ”

The record does not contain any of the preceding context. To the quoted statement, defendant’s counsel objected, stating:

“The burden of proof — .”

Whereupon the court stated:

“Sustained. Ladies and gentlemen, the burden of proof is not on the defendant.
The burden of proof is on the State in this case, which I am going to get to in a few minutes.”

Appellant’s counsel here argues that the above quoted comment of State’s counsel “had the effect of raising in the jury’s mind the question of the failure of the defendant to take the stand in his own defense.”

We do not know who was the antecedent of the pronoun “he,” but we are not inclined to think that counsel for the State was personalizing defendant. In general such argument — closing argument — should be largely, if not exclusively, a reply to argument of counsel for defendant. We see little, if any, basis for the contention that it amounted to a comment on the failure of defendant to take the stand. Counsel for defendant evidently did not so consider it at the time the argument was made, and we cannot believe the jury was more discerning than he. The court sustained objection on the ground assigned by counsel, upholding counsel for defendant as to the particular position, and we fail to see that any injury to defendant resulted.

We have gone beyond the contentions made by appellant by searching the record for any unasserted error prejudicial to him and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted by the Court. The judgment below is hereby

Affirmed.

All the Judges concur.

      . No light was on in the bedroom, but, according to the steadfast testimony of the victim, the light from the bathroom was suffi-eient for her to observe clearly distinguishing features of the intruder and to identify him as the defendant.


text:
    John PERRY v. STATE.
    6 Div. 963.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Jackie M. McDougal, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and David L. Weathers, Asst. Atty. Gen., for the State, appellee.
   CATES, Presiding Judge.

Perry, convicted of assault with intent to murder and sentenced to four years imprisonment, appeals.

I

According to the State’s evidence, which the verdict impliedly adoptfed as credible, Perry twice cut Charlie Robinson. Perry testified that Robinson came at him with a drawn pen knife and that he pulled his case knife and Robinson ran into it.

We consider that the jury had before them a description of Perry’s knife and his two encounters using it. Hence, malice being a conclusion of fact there was evidence from which the jury could infer it beyond a reasonable doubt.

II

The court reporter shows that the jury was polled. On being asked by the clerk if the verdict was hers, the first juror polled replied, “No, it isn’t.” The other eleven adhered to the verdict. The record then shows:

“THE COURT: The juror that answered in the negative, this not being her verdict, the law of Alabama requires a unanimous verdict. Did you understand the question ?
“JUROR LAMB: It was my verdict.
“THE COURT: It is your verdict? All right.
(Trial concluded and jury excused)”

Ground 8 of the appellant’s motion for new trial claimed error for the Court’s failing and refusing to grant a mistrial because of the initial response. However, the record sent up to us reveals ho motion for a mistrial was made.

Moreover, the appellant should, as a condition precedent to any proper motion for a mistrial, have first suggested that the court order the jurors to retire and deliberate further as the Code, T. 30, § 101 requires. See Ray v. State, 39 Ala.App. 257, 97 So.2d 594. In McAlpine v. State, 117 Ala. 93, 23 So. 130, the statement of the case refers to the defendant’s “challenging” a verdict because of an initial equivocal vote by one juror in open court. That case approved the trial judge’s asking a second question to get an unequivocal answer.

In other words, sending the jury back for further deliberation should only be resorted to if the trial judge is reasonably satisfied that one or more of the jury do not stick by the verdict handed up by the foreman. If we had a videotape of the transaction perhaps we might then see whether the changing juror was puzzled by the clerk’s question, or whether the roll call showing eleven affirmances stampeded her into recanting.

However, without the matter having been called to the judge’s attention before he discharged the jury, there is nothing presented for review by us.

Ill

Defendant’s refused Charge No. 12, as to lesser included offenses, differs materially from Charges D and M approved in Stovall v. State, 34 Ala.App. 610, 42 So.2d 636. Moreover, the last clause is garbled as though it was the product of the “dictated-but-not-read” syndrome.

We have considered the entire record under Code 1940, T. 15, § 389. The judgment is

Affirmed.

All the Judges concur.

      . “When a verdict is rendered in either a civil or criminal case, and before it is recorded, the jury may be polled, on the requirement of either party; in which case they must be asked severally if it is their verdict; and if any answer in the negative, the jury must be sent out for further deliberation.”


author: BOOKOUT, Judge.

text:
    Otto MAYES, Jr. v. STATE.
    4 Div. 381.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.

      Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appellant was convicted by a jury under a two count indictment, charging second degree burglary in one count and grand larceny in the other. The jury returned a general verdict of “guilty as charged” and the trial court rendered the following judgment:

“The court adjudges you guilty of the offense of burglary in the second degree and grand larceny, both. The court sentences you to imprisonment in the penitentiary of Alabama for six years.

I

The sole contention of appellant is that the trial court should have referred the sentence to one of the counts, where there was a general verdict, and failure to do so is ground for reversal. We do not agree.

This court has conclusively held that a general verdict of guilty on a two count indictment charging second degree burglary and grand larceny is valid where the evidence would sustain a verdict of guilty under each count and the sentence imposed is no greater than could have been imposed on any one of the counts. Knight v. State, 50 Ala.App. 457, 280 So.2d 163 (1973).

In the instant case, the evidence would support a conviction on either count and the sentence imposed was no greater than could have been imposed on any one of the counts.

II

There was no motion to exclude the state’s evidence, no request for the affirmative charge, no exception to the court’s oral charge, and no motion for a new trial. It is therefore not incumbent upon us to recite the facts and rule on the sufficiency of the evidence. Moore v. State, 50 Ala.App. 616, 282 So.2d 56 (1973). In this state of the record, the sufficiency of the evidence and verdict of the jury are not subject to review. Twitty v. State, 50 Ala.App. 246, 278 So.2d 247 (1973); Wilcox v. State, 54 Ala.App. 474, 309 So.2d 510 (1975).

Affirmed.

All the Judges concur.


author: HARRIS, Judge.

text:
    Algie McCALL v. STATE.
    3 Div. 396.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and, in accordance with the verdict of the jury, sentenced to fifteen years in the penitentiary. At arraignment, in the presence of his court-appointed attorney, he pleaded not guilty. He was furnished a free transcript and new counsel was appointed to represent him on this appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment. ALGIE McCALL, alias ALGIE LEE McCALL, whose name is to the Grand Jury, otherwise unknown, feloni-ously took one 1969 Chevrolet automobile, VIN 164479DO36202, a better description of which is unknown to the Grand Jury, of the value of $800.00, the property of Burt Rudolph, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

The facts are undisputed. Appellant did not testify nor did he offer any testimony in his behalf.

The victim, Bert Rudolph, testified that he got off work at noon on April 27, 1974, and went to one Robert Gilmore’s house that afternoon where he met appellant for the first time. Gilmore’s wife asked Rudolph to take McCall home. He took him to Jeff Davis Street so appellant could “get some money and pay you.” Appellant went to the front porch of someone else’s house but couldn’t get in. He then went to the back of the house. When appellant came back around the corner of the house,' Rudolph saw a sawed-off shotgun behind his back. The gun had a wood stock with a broken piece on the left-hand side. When appellant got to the car, he stuck the gun in the window. Rudolph grabbed the gun and they tussled. He took the gun from appellant and removed a shell from it. He put the shell in his pocket and threw the gun on the bank. Rudolph got back in his car but appellant stuck the gun back in the window of the car and told him to get out. Rudolph got out and ran. Appellant got in the car and drove up and down the street with the gun out the window. Rudolph’s car was a 1969 Chevrolet, maroon over white. He had a Montgomery County license tag on his car. The number was 3-45499. Rudolph stated he threw the gun down because he was scared.

Detective T. J. McLain of the Montgomery Police Department testified that he received a robbery report from Bert Rudolph on April 27, 1974. He put out a radio broadcast giving a description of the stolen automobile. Later that evening he received a call from the Prattville Police Department advising they had the suspect and the automobile. He picked up Rudolph and carried him to Prattville. He stated he did not detect any sign of alcohol on the person of Rudolph.

Mr. J. R. McGowin testified that he was employed by the Prattville Police Department and he picked up the radio broadcast concerning the stolen automobile. While answering a call about a disturbance 'at a local house, he found appellant in Rudolph’s car. He saw a sawed-off shotgun lying on the front seat in plain view. He placed appellant under arrest and stated he was highly intoxicated at that time.

Detective K. A. Hitson of the Montgomery Police Department testified that he saw Rudolph after appellant’s arrest and he did not appear to have been drinking. This was around 10 :30 that night. To the same effect was the testimony of Detective J. D: Foster who saw Rudolph around 10:00 that night.

The state rested and appellant made a motion to exclude the state’s evidence on the ground that a prima facie case had not been made out. This motion was overruled. There was no error in overruling the motion to exclude. Young v. State, 283 Ala. 676, 220 So.2d 843. The evidence was clearly sufficient to submit the question of appellant’s guilt to the jury.

The three essential elements of the offense of robbery are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away of the property of another from his person or in his presence, all three elements concurring in point of time. Douglass v. State, 21 Ala.App. 289, 107 So. 791; Hardis v. State, 28 Ala.App. 524, 189 So. 216; Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382.

It is, of course, essential to a conviction of robbery “that the taking (here the automobile) should, at the time of manucaption, have been with a larcenous intent.” Kennedy v. State, 208 Ala. 66, 93 So. 822. The question of intent was for the jury and the verdict of the jury resolved this issue against appellant. Root v. State, 247 Ala. 514, 25 So.2d 182; Lambert v. State, 48 Ala.App. 600, 266 So.2d 812.

Appellant contends that this case should be reversed due to the following occurrence during the District Attorney’s closing argument:

“The Defendant: Are you calling me a thug. I’ve got two cars.' Why would I steal any cars ?
“The Court: We won’t have any more remarks by the Defendant.
“Mr. Teague: We don’t have any evidence about two cars.”

It is not clear from the record what the District Attorney said. The record is clear that there was no objection made, nor a ruling of the trial court invoked in the instant case.

In Brown v. State, 50 Ala.App. 471, 280 So.2d 177, this court said:

“It is generally held that improper argument of counsel is not subject to review unless there is due objection or a motion to exclude, and a ruling thereon by the court, or a refusal of the court to make a ruling. Nichols v. State, 267 Ala. 217, 100 So.2d 750; White v. State, 40 Ala. App. 378, 114 So.2d 325. An exception to this rule exists in the case of ineradicable harm, and if this occurs, it should be brought to the trial court’s attention by a motion for a new trial. Alday v. State, 42 Ala.App. 21, 151 So.2d 220.
The appellant made an objection, but failed to pursue a ruling, and in the absence of the court’s refusal to act or a ruling being invoked, this court has nothing to consider.”

The only difference in Brown, supra, and this case is that an objection was made in Brown and no objection was made in the instant case. We note here there was no motion for a new trial.

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

Affirmed.

All the Judges concur.


author: PATTERSON, Justice:

text:
    Rhea LEE, Appellant, v. STATE of Mississippi, Appellee.
    No. 48795.
    Supreme Court of Mississippi.
    Dec. 8, 1975.
    John C. Webb, Thomas R. Trout, Green-ville, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before RODGERS, PATTERSON and SUGG, JJ.
   PATTERSON, Justice:

Rhea Lee was indicted and convicted in the Circuit Court of Washington County of forcible rape. He was sentenced to life imprisonment in the state penitentiary, and now appeals. The contentions for reversal are:

(1) The defendant was entitled to be notified prior to trial by the indictment that he would be required to defend a charge of rape of a mentally incompetent victim;

(2) The verdict of the jury was contrary to the law and evidence;

(3) The trial court erred in sentencing appellant to life imprisonment.

The appellant’s first thesis for reversal is that the prosecuting attorney in his opening statement remarked that the victim was “mentally retarded” thereby lessening the quantum of evidence necessary to prove that force was used to commit the crime. He contends that once “mental retardation” was called to the jury’s attention, it could reach a guilty verdict from testimony which showed inability to consent rather than by proof of force as charged in the indictment.

Forcible ravishment of a female without her consent and sexual intercourse with a female mentally incapable of giving consent because of tender years or mental incapacity are separate and distinct crimes. Wilson v. State, 221 So.2d 100 (Miss.1969). The statutory crime of rape by force requires testimony that the victim resisted the rapist’s advance with every resource reasonably available to her. Rogers v. State, 204 Miss. 891, 36 So.2d 155 (1948); Richardson v. State, 196 Miss. 560, 17 So. 2d 799 (1944), and Anderson v. State, 82 Miss. 784, 35 So. 202 (1903). To the contrary, intercourse with a female unable to consent because of tender years or mental incapacity establishes the common law crime of rape, the essential element being the inability to consent rather than the requirement of force. Bonner v. State, 65 Miss. 293, 3 So. 663 (1888), noted this distinction, stating:

“. . . When the offense is charged to have been done forcibly and against the will, the principle that a child of tender years cannot consent, should not be invoked. If the offense is against a child under the age of 10 years, and it is desired to avoid the necessity of proving that it was committed forcibly and against her will, the indictment should be drawn so as to accomplish that end. To charge one with an act which is unlawful, because it is done with force and against the consent of another, and to convict him without proof of these essential elements of the crime, or to dispense with or supply such proof on such charge, on the theory that, if there was consent, the party had not capacity to give it, would be a proceeding wholly inconsistent with the justice and fair dealing which should and does characterize the administration of public law.” (65 Miss, at 296, 3 So. at 664-65).

The phrase “mentally retarded” was first mentioned in the opening statement by the prosecution and was immediately objected to by defense counsel. The prosecuting attorney, in the absence of the jury, acknowledged his use of the term but added, “there has been no statement whatsoever of mental incompetency. There has been a statement of mental retardation. In my opening statement, I further intend to show that she went through the ninth grade in school, which would not show that she is mentally incompetent.” The court overruled the objection reasoning that the victim’s mental retardation was not of such degree as to affect her ability to give consent. We are of the opinion the objection was properly overruled; however, it does necessitate a close scrutiny of the record to determine whether the appellant was prejudiced by evidence directed to incapacity to consent rather than forcible rape as charged in the indictment.

A repetition of the sordid details revealed by this record would serve no useful purpose. The prosecutrix’ testimony, corroborated by her mother and medical examination, proved beyond doubt that she had recently had intercourse. Her testimony was more than sufficient to establish that intercourse occurred without her consent and was perpetrated with force and threats sufficient to cause a reasonable person to fear for her life since some of the threats were accompanied by the display of a deadly weapon. Moreover, there was ample evidence that the prosecutrix, though physically impaired, resisted to the utmost of her ability. Fields v. State, 293 So.2d 430 (Miss.1974); Wilson v. State, 264 So.2d 828 (Miss.1972). The conflict in the prosecutrix’ testimony given at the preliminary hearing and that at the trial, not being of material significance, was properly resolved by the jury. Murphree v. State, 228 So.2d 599 (Miss.1969).

Our review of the record does not reveal that the state relied upon or attempted to prove mental incapacity of the prosecutrix to give consent in order to establish the state’s case. To the contrary, we find the state offered evidence of force, consistent with the indictment, to prove the crime charged. We conclude there was ample, competent evidence to support the jury’s verdict. We, therefore, conclude the appellant’s first two assignments of error are without merit.

The appellant next contends the sentence of life imprisonment by the court was beyond the limits of Mississippi Code Annotated section 97-3-65 (Supp.1974). With regard to punishment it states:

“. . . upon conviction shall be imprisoned for life in the state penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the state penitentiary for any term as the court, in its discretion, may determine.”

With this contention we agree. The jury returned a verdict of guilty. It did not fix the penalty at life imprisonment in the penitentiary thereby, in accord with the statute, leaving the question of sentence within the court’s discretion. The issue presented is whether a trial judge under this section may impose a sentence of life when the jury has “failed” to do so. We think not. In Bullock v. Harpole, 233 Miss. 486, 102 So.2d 687 (1958), we had this to say concerning a similar statute:

“It can be readily seen, as stated in the Dickerson case, supra [Dickerson v. State, 202 Miss. 804, 32 So.2d 881], that the statutes place the death sentence within the sole province of the jury, and no such sentence can be imposed by any judge unless he has the authority of the jury therefor.” (233 Miss, at 494, 102 So.2d at 690.)

The statute before us places the imposition of a life sentence within the sole province of the jury and, in our opinion, no such sentence can be imposed by a judge unless he has the authority from the jury so to do. The statute presupposes, absent a jury recommendation of life imprisonment, that the judge will sentence the defendant to a definite term reasonably expected to be less than life. We therefore affirm and remand for proper sentence.

Affirmed and remanded.

GILLESPIE, C. J., and INZER, SMITH, ROBERTSON, WALKER and BROOM, JT., concur.


author: WALKER, Justice, for the Court:

text:
    David B. CLARK v. RANKIN COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Lonnie C. Johnson.
    No. 49084.
    Supreme Court of Mississippi.
    Nov. 17, 1975.

      J. Edward Rainer, Pearl, for appellant.
    McLaurin & Nicols, Brandon, for appel-lees.
   WALKER, Justice, for the Court:

This appeal is by David B. Clark, the unsuccessful candidate for representative, District 28-B-2 in Rankin County, Mississippi, from the judgment of a Special Tribunal, consisting of a Judge named by the Chief Justice of the Supreme Court and the Election Commission of Rankin County, as provided for by Mississippi Code Annotated sections 23-3^15 et seq. (1972), dismissing his petition and affirming the action of the Democratic Executive Committee declaring the contestee, Lonnie Johnson, to be the duly elected Democratic nominee for the office of representative, District 28-B-2, Rankin County, Mississippi.

In his petition to the Democratic Executive Committee, Clark charged numerous violations of the provisions of the Mississippi Corrupt Practices Law of 1935 [now Mississippi Code Annotated sections 23-3-1 through 23-3-71 (1972)], and alleged that it was impossible to arrive at the will of the voters, and that if certain boxes were thrown out he would be the Democratic nominee. The petitioner concluded with the prayer that he be named the nominee, or in the alternative that a new election be held in all or in the contested boxes.

This appeal focuses upon the results of the West Brandon precinct where Lonnie C. Johnson received 606 votes to David B. Clark’s 313, and the North Brandon precinct where Johnson received 405 votes to Clark’s 272. If the results of these precincts are thrown out, the outcome of the election would be changed and a new election required.

The bill of exceptions now before' us and its contents, which were agreed to by the parties, states, in part, as follows:

1.That the Rankin County Democratic Executive Committee certified Lonnie C. Johnson to be the nominee for Representative, Post 28 B-2 over David B. Clark by a vote of 6,985 to 6,752. That this Court threw out 210 votes which were cast in erasible (sic) pencil at the East Brandon box, 155 of which were cast for Lonnie C. Johnson and 55 of which were cast for David B. Clark. That the Court threw out two ballots in the Springhill box both of which were cast for Lonnie C. Johnson. Thus, Lonnie C. Johnson now has 6,828 votes over David B. Clark’s 6,697.
2. At the North Brandon precinct votes were counted in the Chancery Clerk’s office while the election was being conducted in the Board of Supervisor’s room separate from the Chancery Clerk’s office.
3. That at the West Brandon Precinct votes were being counted in a room adjacent to a room where the election was being conducted, and the counting took place while the election was being condticted in the said adjacent room.
5. That the established custom has been in every election for the past sixteen years in the North Brandon precinct that the counting be done as was done in this instance. (Emphasis added).

The contestant Clark strenuously argues that the counting of ballots in a room separate from where the election was being conducted and while voting was still in progress, was such a radical departure from the fundamental provisions of the Corrupt Practices Law as to render the returns from the West Brandon precinct and the North Brandon precinct void. We agree with this contention.

It is readily apparent and implicit from a reading of paragraphs 2 and 3 of the bill of exceptions that there was a complete radical departure from several provisions of the Corrupt Practices Law which prescribes in detail the time for opening the ballot box, the manner of counting the ballots, as well as who shall be present.

Mississippi Code Annotated section 23-3-13 (1972) provides in part:

And when the polls shall be closed, the managers shall then publicly open the box and immediately proceed to count the ballots, at the same time reading aloud the names of the persons voted for, which shall be taken down and called by the clerks in the presence of the managers. During the holding of the election and the counting of the ballots, the whole proceedings shall be in fair and full view of the voting public, without unnecessary interference, delay or encroachment upon the good order of the duties and proceedings of the managers and other officers of the election. And candidates or their duly authorized representatives shall have the right to reasonably view and inspect the ballots as and when they are taken from the box and counted, and to reasonably view and inspect the tally sheets, papers and other documents used in said election during the proceedings, but not including, of course, the secret ballots being voted and placed and held in the box.

The above statute was violated in the following particulars: (1) The ballot box was not only opened prior to the time prescribed for closing of the polls but was opened while the election was still in progress. Section 23-3-13 provides “ . when the polls shall be closed, the managers shall then publicly open the box and immediately proceed to count the ballots, at the same time reading 'aloud the names of the persons voted for, which shall be taken down and called by the clerks in the presence of the managers.” There is no provision in the law which permits a ballot box to be opened and for counting to begin while the election is still in progress. To do so is a total departure from a mandatory feature of the Corrupt Practices Law specifically designed to insure the secrecy of a voter’s ballot and to guard against the opportunity for fraud in the counting of the ballots. If such procedure were permitted, there would be nothing to prevent opening the box immediately after the balloting begins and counting each ballot as it is cast. This would violate the fundamental principle of the right to cast a secret ballot. Moreover, the transfer of a portion of the ballots from the ballot box to an adjoining room for the purpose of counting would give rise to untold opportunities for persons so inclined to corrupt the election process at that box; (2) the holding of the election and the counting of the ballots were not in fair and full view of the voting public, because the election was being conducted in one room and the counting was simultaneously being done in a separate room; (3) a candidate could not oversee the counting of the ballots and observe the conduct of the election at the same time. If this practice were permitted (separating the ballots for counting while the election is in progress), there would be nothing to prevent the ballots from being counted simultaneously in several separate rooms making it virtually impossible for a candidate to have enough poll watchers to look after his interest; and (4) the ballots were separated thereby making it impossible for the managers to both watch the election process and be present at the counting of the ballots as the law requires.

In the case of Briggs v. Gautier, 195 Miss. 472, 15 So.2d 209 (1943), this Court stated:

That is to say, the managers, and not one manager, are required to count the ballots and also that whatever is done by the clerks is to be in the presence of the managers, and not in the presence of only one manager. (195 Miss, at 481, 15 So.2d at 211).

The Court went on to say:

Moreover, it is further required that ‘during the holding of the election and the counting of the ballots the whole proceedings shall be in fair and full view of the voting public . . . .’ This evidently means that the voting public at the particular precinct is entitled to have a fair and full view of the counting and calling of the ballots as well as the holding of the election, which would be impossible if the ballots are divided for counting and some of them are being counted and called aloud at one place by one of the managers while the others are being counted and called elsewhere by the other two managers. (195 Miss, at 481, 15 So.2d at 211).

The manner in which the boxes at the West Brandon precinct and North Brandon precinct were counted cannot be condoned.

When, as in this case, there has been a total departure from the mandatory provisions of the Corrupt Practices Law with respect to the time, manner and conditions under which the ballots were counted, the contestee cannot successfully claim that the contestant has failed to show the will of the electors could not be ascertained or has not shown the existence of fraud in connection with such counting. The departure complained of deprives him of the very means by which the fraud could be detected if any exists. Briggs v. Gautier, supra.

We have held in a number of cases that where there has been a radical departure from the mandatory provisions of the Corrupt Practices Law the result of the particular precinct or precincts in question is void. Wallace v. Leggett, 248 Miss. 121, 158 So.2d 746 (1963) ; Ulmer v. Currie, 245 Miss. 285, 147 So.2d 286 (1962); May v. Layton, 213 Miss. 129, 56 So.2d 89 (1962); Briggs v. Gautier, supra.; Harris v. Stewart, 187 Miss. 489, 193 So. 339 (1940); Hayes v. Abney, 186 Miss. 208, 188 So. 533 (1939).

We therefore hold that opening a ballot box and removing the ballots or a part of them to a separate room for the purpose of counting while the election is still in progress is such a radical departure from the fundamental principles of the Corrupt Practices Law with reference to when and in what manner the votes are to be counted, as to render the election void as to that particular precinct. The Corrupt Practices Law was designed to insure not only that ballots would be legally cast, but also that they would be fairly counted.

The appellee contends that Clark cannot complain of the vote counting procedure employed at the two precincts in question since it has been the established custom in every election for the past sixteen years that the counting be done as was done in this instance. That contention is without merit. When established custom is a radical departure from mandatory provisions of the Corrupt Practices Law, the law and not the custom must prevail. There is nothing in this record that would estop Clark from asserting the position he has taken.

It is not necessary for us to decide whether a new election should be called for these two boxes alone or for the entire representative district, since the case did not reach this Court, in time to have a primary election to determine the party’s nominee prior to the November general election. Under such circumstances, Mississippi Code Annotated section 23-3-55 (1972) mandates what shall be done. That section provides in part as follows:

When no final decision has been made in time as hereinabove specified [in this .case for the general election], the name of the nominee declared by the party executive committee shall be printed on the official ballots as the party nominee, but the contest or complaint shall not thereby be dismissed but the cause shall nevertheless proceed to final judgment and if the said judgment be in favor of the contestant, the election of the contestee shall thereby be vacated and the governor, or the lieutenant governor in case the governor he a party to the contest, shall call a special election for the office or offices involved, if the contestee has already entered upon the term he shall vacate the office upon the qualification of the person elected at said special election, and may be removed by quo war-ranto if he fail so to do.

This Court has had occasion to construe the above section a number of times. Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697 (1952) involved a primary election contest for the office of supervisor. The Special Tribunal ordered the calling of a special primary election in one of the four precincts in the district on November 14, 1951, which was after the date of the November general election. This Court reversed that judgment and ordered a special election commenting “ . . . it was too late to hold a special primary election . and a special election should have been ordered to be held in the entire district in the manner provided in Section 3187, Code of 1942 [now Mississippi Code Annotated section 23-3-55 (1972)].” (213 Miss, at 233, 56 So.2d at 702).

Smith v. Deere, 195 Miss. 502, 16 So.2d 33 (1943) held that if the general election has already taken place, Section 15, Subdivision (f) of the Corrupt Practices Act, Chapter 19, Mississippi General Law of 1935, Extraordinary Session [now section 23-3-55] requires the Governor to call a special election for the office involved. To the same effect is Blakeney v. Mayfield, 226 Miss. 53, 83 So.2d 748 (1955), suggestion of error overruled, 84 So.2d 427 (1956) and May v. Layton, 213 Miss. 129, 56 So.2d 89 (1952).

Also see Harris v. Stewart, 187 Miss. 489, 193 So. 339 (1940) and Briggs v. Gautier, 195 Miss. 472, 15 So.2d 209 (1943) which involved situations where it was possible to call another primary election before the November general election.

In justice to the contestee, Lonnie C. Johnson, and to the election officials, it should be said that there is no fact or circumstance in the case at bar that would indicate any wrongful or fraudulent purpose either in the manner in which the votes were counted or in the conduct of the election. The question before us merely involves the validity or invalidity of the election at the two precincts in question in view of the total departure from the requirements of the statute.

The judgment of the Special Tribunal is reversed and a special election shall be called in accordance with Mississippi Code Annotated section 23-3-55 (1972).

Reversed and special election to be called.

All Justices concur.


author: GILLESPIE, Chief Justice.

text:
    Billie Mae BABERSON v. STATE of Mississippi.
    No. 48674.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    Rehearing Denied Dec. 15, 1975.

      R. Jess Brown, Everett T. Sanders, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   GILLESPIE, Chief Justice.

Billie Mae Baberson was convicted by the Circuit Court of Clay County of manufacturing a controlled substance (marijuana) and was sentenced to serve ten years in the penitentiary and to pay a $5,000 fine. She appeals to this Court and says that the trial court committed reversible error in admitting into evidence certain marijuana plants which were found in the back yard of her residence.

The facts giving rise to Baberson’s arrest and conviction are as follows. On February 15, 1974, Officers Sam McNeel and Sam Hollingsworth of the Clay County Sheriff’s Department went to Baber-son’s house to arrest her pursuant to an arrest warrant issued by a justice of the peace in Lowndes County. Upon arriving at her house, the officers went upon the front porch, knocked, and called her, but received no answer. Officer McNeel then left the front porch and proceeded to the back of the house, where he also failed to get an answer; therefore the arrest warrant was not served. But while going around to the back, he observed, in plain view, what appeared to be marijuana plants in three tin tubs. He then called Officer Hollingsworth, who had remained on the front porch, and the two of them agreed that the plants were indeed marijuana plants. They did not confiscate the plants then, hut decided to get a search warrant. Pursuant to this end, they left the premises and conferred with Bill Ladd, who, along with Sam McNeel, signed the affidavit for the search warrant. The officers stated in the underlying facts and circumstances in support of the affidavit that they went to Baherson’s house to question her about a murder in Neshoba County. However, as has already been stated, they testified at the trial that their purpose for going to the house was to serve an arrest warrant on her. In any event, the officers obtained a search warrant, returned to the premises, confiscated the marijuana, arrested Baberson, and charged her with the offense for which she was convicted.

Baberson argues that the marijuana was erroneously admitted into evidence against her because it was seized pursuant to a search warrant, supported by either false information, or information obtained by the officers when they were trespassers upon her property. Additionally, she argues that the underlying facts and circumstances submitted in support of the affidavit were insufficient to justify the issuance of a search warrant.

As we view the case, the dispositive issue is whether the officers' initial entrance upon the premises was legal, for it follows that if their entrance was legal, they had a right to confiscate the marijuana, which was in plain view, without first obtaining a search warrant.

Officer McNeel testified clearly that he and Hollingsworth went to Baberson’s house to serve her with an arrest warrant from Lowndes County. Baberson makes no claim as to the invalidity or the nonexistence of the arrest warrant. (The warrant was introduced into evidence on the motion to suppress, but not in the case in chief.) Rather, argument is made that if the officers came to her house to execute an arrest warrant as testified to at the trial, then they could not have come to talk to her about a murder in Neshoba County, as stated in the underlying facts and circumstances supporting the affidavit for the search warrant. It suffices to say that the two statements are not mutually exclusive of each other. Thus, there being no evidence that the arrest warrant was illegal or invalid, it follows that the officers were legally on the premises and were entitled to seize the marijuana plants which were in plain view. It also follows that the legally seized marijuana was properly admitted into evidence during the trial. Campbell v. State, 278 So.2d 420 (Miss.1973).

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.