author: FAULKNER, Justice.

text:
    LOEB AND CO., INC. v. D. L. MARTIN, Jr.
    SC 1524.
    Supreme Court of Alabama.
    Feb. 20, 1976.
    Norman W. Harris and William E. Shinn, Jr., Decatur, for appellant.
    W. H. Rogers, Moulton, for appellee.
   FAULKNER, Justice.

This is an appeal from an order of the Circuit Court of Lawrence County denying Loeb’s motion for new trial. We reverse.

THE FACTS

Martin entered into a forward contract to sell cotton to Loeb for 33 cents per pound. When time came to deliver, a dispute arose between Martin and Loeb as to how much cotton Loeb purchased under the contract. We set out the facts leading to the dispute.

In March, 1973, Loeb’s agent, Agnew, learned that Martin wanted to sell his cotton for 33 cents a pound. Agnew telephoned Martin and asked him if he would take 33 cents for his cotton. Martin answered yes, and stated he was going to plant about the same amount as he had in 1972. Loeb, through Agnew, had purchased a portion of Martin’s 1972 crop. During the telephone conversation, Martin and Agnew arranged a meeting place to close the trade.

When they met to discuss the terms of the contract, Agnew asked Martin how much cotton he was going to have. Martin said he was going to plant 400 acres or more. Agnew said, “Well, I will buy 400 acres.” Agnew made a handwritten memorandum of the agreement. The pertinent part of the agreement is as follows:

“SALE & PURCHASE AGREEMENT. 1973 COTTON CROP.
We confirm having purchased from D. L. Martin, Jr., Courtland, Ala. ALL COTTON PRODUCED ON 400 ACRES. PRICE 33.00^ lb. Crop Run.

At the time of the agreement, Martin had not planted his crop. Subsequently, he planted cotton in two patterns: one pattern known as “solid” pattern where rows are planted consecutively, and the other known as “two and one skip row,” where two rows are alternated with one row of idle land. Martin’s “solid” row planting was 163.2 acres, while his “skip row” planting was 342.2 acres.

Martin’s cotton allotment for 1973 was 401.9 acres. The A.S.C.S. office calculated Martin had 163.2 acres of solid row cotton, and 229.6 acres of skip row, totaling 392.8 acres of cotton. A.S.C.S. subtracted the idle land in the skip row pattern in arriving at its figure of 229.6 acres. It did not count one-third of the land used in the skip row planting.

The market price of cotton had doubled in the fall of 1973 from what it was in the spring. And, in September or October, Martin called Agnew to ask if they were going to divide the cotton as they had in 1972. Agnew replied, he guessed so, and then he asked Martin if he had planted more cotton than he sold. Martin said, “Yeah,” and told Agnew that he had planted over 500 acres. He told Agnew, “I am going to deliver you acres of land this year instead of acres of cotton.” Agnew replied, “We can’t take that.” Thus, the dispute arose.

Martin contended the contract called for his delivering all cotton produced on 400 acres of land. Loeb contended the contract meant that Martin was to deliver 400 acres of cotton. Martin eventually delivered his entire cotton crop to Loeb under protest, and reserved the right to litigate the extent of his obligation under the contract. The parties stipulated that if Martin was correct, his damages would be $12,516.25.

At the conclusion of Loeb’s evidence, the trial court directed a verdict for Martin, on his written motion. Loeb’s motion for new trial was denied.

Issues

The primary issue is whether the trial court was correct in granting the motion for a directed verdict. Another issue is whether the trial court improperly excluded evidence of customs and usage.

The Directed Verdict

Rule 50, Alabama Rules of Civil Procedure, providing for directed verdicts, is identical to Rule 50 of the Federal Rules of Civil Procedure, except for expansion of time limits therein from 10 to 30 days and express retention of the scintilla evidence rule under Subsection (e). The motion for directed verdict performs the functions of motion to exclude the evidence, demurrer to the evidence, and motion for the affirmative charge. See Committee Comments.

Professor Moore says the directed verdict is normally used in two overlapping categories of cases: First, where there is a complete absence of pleading or proof on an issue or issues material to the cause of action or defense, and second, where there are not any controverted issues of fact upon which reasonable men could differ. Moore’s Federal Practice, Yol. 5A, p. 2317. In this case we are concerned with the second category. Were there no controverted issues of fact upon which reasonable men could differ? What standard do we use to determine the absence of any controverted issues of fact?

In Brady v. Southern Railway, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943), the Supreme Court of the United States announced the standard under the Federal Rules of Civil Procedure, in the following terms:

“When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, directed verdict or . . . without submission to the jury, or by judgment notwithstanding the verdict. . . . ”

But, where there is conflicting evidence or where there is insufficient evidence, the Supreme Court says a directed verdict is improper. Wilkerson v. McCarthy, 336 U. S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). In this last cited case, Continental sued under § 4 of the Clayton Act to recover private treble damages, and alleged violations of §§ 1 and 2 of the Sherman Act, The jury returned a verdict for the defendants. The Court of Appeals had held that there was insufficient evidence to justify a jury finding, and the defendant should have gotten a directed verdict. The Supreme Court said the Appeals Court erred by failing to view evidence in the light most favorable to the plaintiffs, and by not giving them benefit of all inferences which the evidence fairly supported; it was the jury’s function to weigh the evidence and the inferences to be drawn therefrom, and to come to an ultimate conclusion as to the facts. The court ordered a new trial.

The Fifth Circuit Court of Appeals held in Herron v. Maryland Casualty Co., 347 F.2d 357 (1965), that the trial judge may grant a directed verdict only when there is no evidence, which, if-believed, would authorize a verdict against the movant. The trial judge must draw against the movant all reasonable inferences most favorable to the party opposing the motion. The case must be submitted to the jury if reasonable men may reach different conclusions. Cf. Geddes v. Daughters of Charity of St. Vincent De Paul, Inc., 348 F.2d 144 (5th Cir. 1965). And, in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) a “SUBSTANTIAL EVIDENCE OR REASONABLE MAN TEST” was set out, as follows :

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and infer-enees, and determine the credibility of witnesses.”

It will be noted that the Federal Court does not have the scintilla rule, while our Rule 50(e) retains it. This subsection specifically states that the court may direct a verdict, or enter judgment notwithstanding the verdict under this rule, whether or not the party making the motion has the burden of proof, in accordance with the scintilla evidence rule.

In Noonan v. Midland Capital Corporation, 453 F.2d 459 (2d Cir. 1972) the “Reasonable Man Test” was applied. The court said,

“We apply, of course, the accepted rule that ‘[wjhether the motion is one to direct a verdict or to set aside a verdict which the jury has returned, the test applied by the court is the same. The evidence must be viewed in the light most favorable to the party other than the movant. The motion will be granted only if (1) there is a complete absence of probative evidence to support a Verdict for the non-movant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him.’ ”

Whether the “Reasonable Man Test” or the scintilla evidence rule is applied here, the result is the same: the trial court erred in directing a verdict against Loeb. In reviewing the evidence, we find Martin saying to Agnew, “I am going to deliver you acres of land this year instead of acres of cotton,” and Agnew replying, “We can’t take that.” And, also, the agreement is subject to two interpretations. Martin’s evidence was that he intended the phrase in writing to mean, “All cotton planted on 400 acres of land,” and Agnew says he intended the phrase to mean “400 acres of cotton.” Moreover, there was evidence that it takes 3 acres of land to make two acres of cotton when the cotton is planted the skip row pattern; that Martin’s allotment for 1973 was 401.9 acres; that the A.S.C.S. office calculated Martin had 163.2 acres of solid row cotton and 229.6 acres of skip row, totaling 392.8 acres of cotton, and evidence of the 1972 crop under similar contracts. We are of the opinion the evidence was insufficient for a “one way” verdict, and the directed verdict was improper.

Evidence of Custom and Usage

In explaining the reasons for his decision to direct a verdict for Martin, the trial court said:

“What in effect has happened is, the Court has ruled, by declining to accept those witnesses as being competent to testify, in effect that there is no such thing as a custom or usage in the trade concerning to [sic] forwarding contracts with reference to cotton.”
“Well I think that is set out very well in the latest case, which we have been discussing the last day or two, that you only come into the question of concerning custom and usage, it only becomes applicable where there is an ambiguity in the contract, and in this contract, quite frankly, to me it’s pretty plain outside of the evidence, but be that as it may, I think that the defendants haven’t been able to establish by any proof, and I think, actually, their offer of proof has been quite to the contrary, that there is no such thing as a custom and usage in forwarding contracts as pertains to commodity of cotton, because that was a short lived thing in this state and in this area. I mean, that is something that is almost like mushrooms coming up and dying away forever and to never, never to come back.”

The “latest case” the trial judge was referring to in his colloquy was Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157 (1975), a case heard ore tenus. In Jewell this court said,

“It is undisputed that this contract in 1973 was the first time Jewell had ever contracted or booked his cotton crop; he was not aware of any custom or usage relating to the contracting of a cotton crop; the first time he ever heard of it was when this case came up; he was not aware of any custom or usage when he signed the contract.”

We are unable to say Martin was as un-knowledgable as Jewell apparently was. Otherwise, why would he say to Agnew, “I am going to deliver you acres of land this year instead of acres of cotton.”

Evidence of custom and usage was admissible by virtue of U.C.C. § 2-202, Code of Ala., Tit. 7A, providing that confirmatory memoranda may be explained by course of dealing, or usage of trade. The Official Comment to U.C.C. § 2-202 says,

“2. Paragraph (a) makes admissible evidence of usage of trade to explain or supplement the terms of any writing stating the agreement of the parties in order that the true understanding of the parties as to the agreement may be reached. Such writings are to be read on the- assumption that the . . . usages of trade were taken for granted when the document was phrased. Unless carefully negated they have become an element of the meaning of the words used.”

Whether there was a custom and usage of trade was a question of fact for the jury to determine, under the present conditions. Cf. Official Comment to U.C.C. § 1-205, and Anderson’s Uniform Commercial Code, § 1-205:6, p. 175.

Reversed and remanded.

MERRILL, MADDOX, JONES, SHORES and EMBRY, JJ., concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Wyman THRASHER, as Administrator, etc. v. Margaret THRASHER.
    SC 1299.
    Supreme Court of Alabama.
    Feb. 20, 1976.
    John E. Lunsford, Birmingham, for appellant.
    Cooper & Huey, Birmingham, for appel-lee.
   JONES, Justice.

The parties to this cause, through their respective counsel, have filed a joint motion to remand, which motion is due to be, and hereby is, granted.

This case represents a noteworthy “First” in this Court. Rule 33, ARAP, provides, under limited circumstances, for a prehearing conference in the appellate courts of this State. A careful study of the excellent briefs filed by counsel indicated a common understanding of the Homestead Statutes — the single issue presented — and their application to the facts of the case at bar. The forthrightness of counsel for each of the adverse parties caused this Court on its own motion to schedule and hold a prehearing conference. Subsequently, the parties submitted a settlement agreement in writing followed by a joint .motion to remand the cause to the trial Court for the entering of a substitute final decree effecting the settlement agreement of the parties.

Motion granted and cause remanded.

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


author: MERRILL, Justice.

text:
    Charlotte Statum HOLLEMAN v. The ELMWOOD CEMETERY CORPORATION, a corporation, et al.
    SC 1209.
    Supreme Court of Alabama.
    Jan. 22, 1976.

      John D. Prince, Jr., Birmingham, for appellant.
    Spain, Gillon, Riley, Tate & Etheredge and H. H. Grooms, Jr., Birmingham, for Elmwood Cemetery Corp. and Harry W. Mueller, Jr.
    Huie, Fernambucq, Stewart & Smith, Birmingham, for Elmwood Cemetery Corp.
    Rogers, Howard, Redden & Mills and William N. Clark, Birmingham, for appel-lees Ruby Statum Perkins, H. T. Statum, Jr., Betty Joyce Hodges, Ruth Gibson, John P. Gibson, Jr., Pauline Jones, and Mrs. Mabel Lewis.
   MERRILL, Justice.

This case arose out of a family dispute over the placement of a cemetery monument in the walkway easement between two cemetery lots. The trial court found for defendants and we affirm.

Appellant, Charlotte Statum Holleman, filed a suit in equity on June 19, 1973, requesting that appellees be enjoined from the maintenance and retention of a monument within the five-foot easement separating the North (4 of Lot 129 and Lot 137, Block 10, Elmwood Cemetery, City of Birmingham, and damages, costs and fees in this regard. The complaint was later amended to include a count against appel-lees alleging grave desecration.

Appellant is owner of the North Y2 of Lot 129 (hereinafter Lot 129). Appellees, Dorothy Sexton Lambert, Ruth Statum Perkins, H. T. Statum, Jr., Betty Joyce Hodges, Ruth Gibson, John P. Gibson, Jr., • Pauline Jones and Mrs. Mabel Lewis, own Lot 137. Each of the aforementioned ap-pellees (hereinafter relatives) is related to the appellant in some degree.

Lot 137 is due north of Lot 129. The lots are separated by the easement on which the monument is situated.

Appellee, Elmwood Cemetery Corporation (hereinafter Elmwood), is the owner of the cemetery in which Lots 129 and 137 are located. Appellee, Harry Mueller, is president and general manager of Elm-wood.

Relatives originally purchased Lot 137 as an eighteen-grave lot. In order to erect a monument on the lot commemorating the families to be buried within, a number of graves would have to be sacrificed. Relatives consulted with Mueller, who allowed them to erect a monument in the easement between Lot 137 and Lot 129. (The monument is currently situated even with and parallel to the southern boundary of relatives’ lot, as a result of realignment of the monument on December 5, 1974, by Mueller. Prior to that date, the monument was three inches out of line.) This monument, including the base, is six feet six inches long, three feet eight inches high, and two feet wide, and extends two feet into the easement toward and parallel to the northern boundary of Lot 129, allowing a three-foot passageway between relatives’ lot and appellant’s lot.

The inscription on the monument reads: “Gibson-Statum.” Gibson is the married name of one of appellant’s sisters. Statum is the appellant’s maiden name.

The interments in Lot 137 are appellant’s relatives, Dr. and Mrs. H. N. Statum, her father and mother, Reverend H. T. Sta-tum, her brother, a niece, a nephew and two brothers-in-law.

In her bill of complaint, appellant alleged a conspiracy between all named ap-pellees whereby they placed a monument in the easement, which reduced the easement to appellant’s lot on the north side to three feet rather than the original and usual five feet; that appellees planted shrubs and plants around the monument which limited the access even more; that Mueller told appellant he would remove the shrubs and plants, but failed to do so; that relatives’ monument obstructed the view of appellant's lot. Appellant claimed that she experienced emotional and physical damages as a result of these actions of appellees, especially at the interment of her grandson on July 27, 1970, when the pallbearers appeared to have difficulty in placing the coffin over the grave (in Lot 129). She complained that due to the monument, all of her grandson’s floral sprays had to be placed on Lot 137 behind the monument, which obstructed the view of the sprays. Appellant claims that the emotional and physical damages alleged have continued since the date of her grandson’s interment.

The cause came to trial on December 6, 1973. On December 21, 1973, after the close of testimony, but prior to the trial court’s ruling on the matter, appellant moved to reopen the case and to amend her complaint. She alleged that one day prior to the trial, or December 5, Mueller had moved the monument slightly, in an effort to align the north side of the monument precisely on the southern boundary of Lot 137. This movement, appellant contended, resulted in the desecration of the grave of appellant’s aunt, Lora B. Gleason, who is buried in Lot 129.

On January 14, 1974, the trial court entered the first of four orders from which this appeal is brought: FINAL ORDER DISMISSING CAUSE AS TO SOME DEFENDANTS/ORDER SETTING ASIDE SUBMISSION AS TO SOME DEFENDANTS. As to relatives, the decree stated as follows:

“ONE: Plaintiff has failed to reasonably prove to the satisfaction of the Court the material allegations of her Bill as against the following Defendants: [relatives listed] and, as to these said Defendants, * * * this cause is dismissed.”

The trial judge continued the case against Elmwood and Mueller for the purpose stated in appellant’s motion to reopen. Elm-wood and Mueller delayed in answering appellant’s amended complaint, and were found in default on April 23,1974.

On May 1, 1974, Elmwood and Mueller moved to set aside default, which the trial judge so ordered. (This is the second decree which appellant challenges.) Elm-wood and Mueller then moved for a hearing on the merits of the amended complaint. It was so ordered. The hearing began on May 6, 1974, on what the trial judge termed an “emergency matter” — the need to cure the desecration of Lora B. Gleason’s grave. The trial judge concluded the hearing as follows:

“ * * * let the record show that at this hearing the sole question was whether or not Elmwood Cemetery would be willing, without any admission of liability, to erect some type of curative structure or wall which would alleviate the hole in the ground which exists, and that would be done forthwith, that is within a reasonable time. * * * ”

On October 9, 1974, Elmwood and Mueller moved to sever the original cause from the amended complaint under Rule 21, ARCP, and for summary judgment on the original complaint pursuant to Rule 56, ARCP.

On March 3, 1975, Elmwood and Mueller moved for summary judgment as to the amended complaint. That motion was set for hearing on March 7, 1975. On that date, the trial judge entered a decree which granted summary judgment on the amended complaint in favor of Elmwood and Mueller. (This is the third decree from which appellant appeals.)

On March 26, 1975, appellant appealed from the three orders or decrees previously listed. On April 22, 1975, the trial judge entered the final decree on the original complaint in favor of Elmwood and Mueller and against appellant. (This decree is the fourth of four orders being appealed.) The court found:

“Plaintiff has adequate ingress and egress to her lot. She has not been denied free and reasonable access. Elm-wood has not interfered with Plaintiff’s right to use her lot for burial and visitation purposes. The monument’s movement was a reasonable and legitimate attempt to accommodate the owner of Lot 137, in marking the burial of those persons interred within the lot, including the parents and relatives of the Plaintiff.
“There was no conspiracy as averred in Plaintiff’s complaint. The said monument does not bar the vision of Plaintiff’s lot, nor does it bar interment in said lot.
“Defendants did not deal perfidiously with Plaintiff, mislead her, nor have they done any injustice to her.”

We discuss the aspects of the case against the parties separately, because different law firms handled each aspect.

I. PLAINTIFF’S CASE AGAINST RELATIVES.

On January 14, 1974, the trial court dismissed relatives as party defendants in this action, based on appellant’s failure to prove the allegations of her bill of complaint against them.

The appeal was not filed on this judgment until March 26, 1975, over fourteen months after the judgment was rendered. The statute sets a limit of six months. Tit. 7, § 788, Code.

This suit was filed prior to the effective date of ARCP. Most of the proceedings took place after that date. The parties appear to be in doubt as to whether the former rules or ARCP apply. It is not necessary to address that question. If ARCP applies, the judgment was not ap-pealable. The decree of the court on January 14, 1974 did not follow the language of ARCP 54(b) and was not appealable. The appeal is due to be dismissed because it was not a final judgment. Cates v. Bush, 293 Ala. 535, 307 So.2d 6; Cherokee County Hospital Board v. Retail, W. & Dept. St. Union, 294 Ala. 151, 313 So.2d 514.

If the former rules applied, it was undoubtedly a final judgment. An appeal could have been taken within six months, but it was not taken within that time and it is due to be dismissed. There can be no question but that the trial court’s intention was to dismiss the case against the relatives.

Apart from the question of dismissal, the trial court found that appellant “failed to reasonably prove to the satisfaction of the Court the material allegations of her Bill as against the [relatives] * *

The trial court, sitting without a jury, heard the oral testimony, and the usual presumption prevails that we will not disturb the decree or judgment on appeal unless plainly erroneous or manifestly unjust. Morris v. Morris, 290 Ala. 41, 273 So.2d 203; Morgan v. Larde, 282 Ala. 426, 212 So.2d 594. We cannot say that the judgment was either plainly wrong or unjust.

II. GRAVE DESECRATION AGAINST ELMWOOD.

As a preliminary matter, we consider the assignment of error that the trial court erred in setting aside the default judgment. It was clearly shown that Elm-wood had no notice and ARCP 55 makes it within the discretion of the trial court to set aside an entry of default. We see no abuse of discretion in the trial court’s action.

In Hogan v. Woodward Iron Co., 263 Ala. 513, 83 So.2d 248, this court held that the cause of action for damage to a grave accrues to the surviving spouse and if there is no surviving spouse then to the next of kin in the order of their relation to the deceased; and that all parties occupying the same degree of kin should join in any such suit. The reason is that it would subject the defendant to numerous suits by different parties for the same cause of action which should be settled in one suit.

Appellant, while testifying, admitted that the deceased, Lora B. Gleason, whose grave was alleged to have been desecrated, had a living sister, and that at the time of the filing of this suit, twelve other living persons were the same degree of kin to the deceased, Lora B. Gleason, and yet appellant was the only plaintiff. There was no error in the trial court’s ruling on this question.

Appellant also argues that the trial court erred in granting the motion for summary judgment which was filed on March 3 and entered on March 7, 1975, because the ten-day notice provided for in ARCP 56(c) was not given. Counsel for appellant was present in court at the hearing on March 7 and did not object or call attention, by way of oral or written objection, to the ten-day limitation. The failure to raise the question constitutes a waiver. Ikerd v. Lapworth, 435 F.2d 197 (CA 7th); Feng Yeat Chow v. Shaughnessy, 151 F. Supp. 23 (S.D.N.Y.). See Committee Comments ARCP 1, concerning our adoption of the construction of other courts to these rules.

III. TRESPASS AGAINST ELMWOOD.

This aspect of the case was the subject of much testimony, some of which was in conflict. In its final decree on this subject, the trial court set out its findings of fact which led to the conclusion that appellant was not entitled to recover.

Under the presumption attaching to the finding of the trier of fact, already stated in this opinion, we cannot say that the trial court was plainly in error, either as to its findings or its application of the law.

Appeal dismissed as to relatives; affirmed in all other aspects.

HEFLIN, C. J., and MADDOX, SHORES and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    Alice Eulene SOLINGER v. Sarah Jean SOLINGER, as Administratrix of the Estate of Elmore Rubbin Solinger, Deceased.
    Civ. 547.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1975.
    Rehearing Denied Jan. 21, 1976.

      McDermott & Deas, Mobile, for appellant.
    Bryan, Nelson, Nettles & Cox and J. F. Janecky, Mobile, for appellee.
   BRADLEY, Judge.

Plaintiff was granted a divorce from her husband, now deceased, by decree of the Circuit Court of Mobile County, Equity Division, on January 31, 1946. Included in the decree was a provision that the husband pay $15.00 per week for the support and maintenance of plaintiff and the minor child born of the marriage; the said amount to be paid to the Register of the Circuit Court.

Thereafter the husband frequently fell into arrears on these payments, and several garnishment proceedings were instituted. On October 16, 1950 the decree was modified to provide that the only payment required of the husband was $7.50 per week alimony. This modification order also determined that the husband was $150 delinquent on past installments, but withheld execution for this sum on the condition that the husband pay the $7.50 weekly.

On September 7, 1973 plaintiff filed a motion showing that the husband died on March 18, 1973, and requesting that the husband’s administratrix be substituted for the deceased for purpose of a hearing on the question of arrearages in alimony and child support. Accompanying this motion was a petition to revive:

“. . . those judgments accruing as a result of past due and unpaid alimony or child support installments not more than 20 years prior to the filing of this Petition and not less than 10 years prior

The petition alleged that no installments had been paid since May 27, 1952.

The motion for substitution was granted, and a hearing was conducted on January 28, 1974. At the hearing documentary evidence including the Register of the Circuit Court’s records of payments were introduced. The records stop with a payment of May 27, 1952. Plaintiff then attempted to testify that no payments had been made since then, and administratrix’s attorney objected to the testimony on the basis of the dead man’s statute. The objection was overruled.

Plaintiff’s claims were denied on January 10, 1975. Hence this appeal.

The trial court’s rulings are expressly grounded in the determination that there is no arrearage.

Title 7, § 582, Code of Alabama 1940, creates the rebuttable presumption that a judgment has been satisfied if ten years have elapsed since its rendition or last issue of execution. The burden of proving it has not been satisfied rests with the party who would enforce the judgment.

In the present case, plaintiff introduced two items of evidence to rebut the presumption. The first is the court record which shows no payments past May of 1952. The second is her own testimony that no payments were made after that date. The record reveals that no evidence offered by administratrix refuted or contradicted plaintiff’s evidence. The question presented is whether plaintiff’s evidence alone is sufficient to establish the existence of arrearages, when Title 7, § 582 is taken into account. If so, then the contrary decision below totally lacks support in the proofs and is erroneous.

Plaintiff’s testimony was properly accepted into evidence because it relates to a collateral matter, not a direct transaction with the deceased, Hartford Accident & Indemnity Co. v. Kuykendall, 287 Ala. 36, 247 So.2d 356; Gilbreath v. Levi, 268 Ala. 148, 105 So.2d 96.

The only other evidence in the record on the question of satisfaction is the ledger sheet from the Register in Chancery. This ledger runs on for several pages showing line-by-line entries of alimony installment payments paid into the registry by the deceased. There are no entries subsequent to May 27, 1952. This document, admitted without objection, is prima facie evidence that the Register received no payments after that date. The decree of divorce expressly orders that installments “be paid to the Register of the Circuit Court,” a provision which remains unmodified. The uncontradicted Register’s ledger shows that payments in the prescribed manner ceased in 1952. The record contains no evidence of any out-of-court payments.

In light of what transpired below, we see no evidentiary basis for the trial court’s determination that no arrearage exists. The record before us shows uncontradicted prima facie proof that the installments were in arrears for more than twenty years.

The plaintiff correctly notes that claims for installments due twenty years or more prior to the filing of plaintiff’s petition for revival are barred by the statute of limitations, Title 7, § 19, Code of Alabama 1940. The claims for installments due more than ten years but less than twenty years are not barred, by statute or by laches, Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147, but are subject to the presumption of satisfaction. We hold that this presumption has been rebutted by plaintiff’s uncontradicted showing. The installments accruing less than ten years prior to the petition are not even subject to the presumption of satisfaction. As to these recent installments the record offers no contradiction whatsoever to plaintiff’s claim.

Where all of the evidence before the trial court sitting without a jury supports the plaintiff, and none of the evidence supports the defendant, a judgment in favor of the defendant is clearly erroneous, Franklin v. State ex rel. Trammell, 275 Ala. 92, 152 So.2d 158.

In view of this error, the court’s determination that there is no arrearage must be reversed.

Reversed and remanded.

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


author: SHORES, Justice.

text:
    In re Alice Eulene SOLINGER v. Sarah Jean SOLINGER, as Administratrix, etc. Ex parte Sarah Jean SOLINGER, as Administratrix, etc.
    SC 1687.
    Supreme Court of Alabama.
    Feb. 27, 1976.
    Bryan, Nelson, Nettles & Cox and J. F. Janecky, Mobile, for petitioner.
    No appearance for respondent.
   SHORES, Justice.

Petition of Sarah Jean Solinger, as Ad-ministratrix etc. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Solinger v. Solinger, 57 Ala.App. —, 327 So.2d 721.

Writ denied.

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


author: HOLMES, Judge.

text:
    Thelma S. WILSON v. John Thomas WILSON.
    Civ. 662.
    Court of Civil Appeals of Alabama.
    Feb. 18, 1976.
    Thomas S. Melton, Opelika, for appellant.
    Phillips & Funderburk, Phenix City, for appellee.
   HOLMES, Judge.

This is a divorce case.

The only issue presented for our review is whether the trial court abused its discretion in the award of alimony in gross to the wife.

The tendencies of the evidence reveal that the parties were married in 1965. They separated for the final time in April of 1974, and the divorce was granted in July of 1975. No children were born of the marriage. The plaintiff-wife filed for divorce. The divorce was granted. She had been married several times prior to her marriage to defendant.

Prior to their marriage, the parties obtained a license to sell real estate. They both worked at this occupation with a real estate company from 1965 to 1971. The wife sold two houses during this time. However, the wife testified she assisted the husband in his real estate endeavors.

In 1971, the parties established their own real estate company. Profits from this endeavor were paid to each party. This business was started on capital provided by the husband and was conducted from a house owned by the husband for over twenty years. There was testimony that the present value of this business is zero.

One view of the evidence is that the real estate commissions for the year 1973 were approximately $12,000. One house was sold in 1974 prior to the separation and the parties’ income for 1974 was approximately $4,000. There was evidence that during the first five months of 1975, at other employment while separated from the husband, the wife earned approximately $4,000.

During the marriage, the parties acquired two pieces of property of approximately the same value, to wit, $3,000 each. Additionally, the husband is a partner in a family venture. This venture has been in existence since 1947 and consists of real estate holdings. There is some evidence that his interest in this venture is over $500,000. The income from the above is not readily apparent.

While the parties were separated in 1973, there is evidence that the wife withdrew $6,000 from a joint business checking account and, additionally, during 1973, the wife withdrew $2,100 from the business account. The $6,000 was intact at the time of the hearing. There was further testimony that approximately $30,000 was in bank accounts of the parties prior to the final separation and $20,000 in savings. The husband testified that the wife only contributed $300 of the $30,000 and that the savings were all accumulated from the aforementioned family business. However, it appears that some of the savings were accumulated during marriage. ' ,

The learned trial court awarded the wife as alimony in gross $6,000 and one of the parcels of property acquired during the parties’ marriage. This property provided approximately $50 a month income. Additionally, the wife was awarded certain personal property.

From the above, it-can be seen that the parties, during their marriage, acquired over $35,000 in various bank accounts and savings of approximately $20,000. Additionally, two parcels of land with a value of approximately $3,000 a parcel were acquired. Furthermore, there was some evi-lence that the husband had an interest in a family business. His interest in these assets apparently exceeded $500,000; these assets being acquired prior to the marriage and the income from which we cannot determine from the record.

As this court has stated on numerous occasions in discussing an award of alimony, each case must depend upon the facts and no mathematical formula can determine which is an appropriate award. See Self v. Self, 49 Ala.App. 665, 275 So.2d 345; Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159. However, alimony in gross, as was awarded in this instance, is intended as a final termination of rights resulting from the marriage, not only as to the wife’s inchoate rights in the husband’s estate, but also to any future support from him. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied 292 Ala. 721, 298 So.2d 260.

We are further mindful that in determining the amount of divorced wife’s permanent alimony, it is proper to consider wife’s income or other means of support; joint labor and capacity for work of husband and wife; their joint income; sources from which the common property came; whether their children need support ; the nature, extent and clearness of proof of husband’s dereliction; ability of each to earn money; husband’s condition in life, health, and needs; and ages of the parties. Frazier v. Frazier, 273 Ala. 53, 134 So.2d 205.

It appears the learned trial judge did not place emphasis on that portion of the husband’s estate acquired prior to the marriage. Considering all the circumstances of this case, keeping in mind the considerations as enumerated in Frazier, supra, we find the trial court’s apparent action in this regard to be within his discretion. However, there remains an estate, as revealed by the record, of a value of over $60,000 of which the learned trial court awarded some $9,000 to the wife. We find this to be an abuse of discretion, in view of all the facts as shown by the record.

This court considers that an additional award of $7,000 to the wife would be appropriate.

The case is affirmed as to that portion of the decree granting the divorce. The award of alimony in gross is reversed and the case is remanded for the entry of a judgment not inconsistent with this opinion.

Affirmed in part; reversed in part; and remanded.

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


author: WRIGHT, Presiding Judge.

text:
    Myra Maddox BINNS v. Lester MADDOX.
    Civ. 640.
    Court of Civil Appeals of Alabama.
    Feb. 18, 1976.

      Robert H. Brogden, Ozark, for appellant.
    Sterling G. Culpepper, Jr., Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment denying sums claimed as due and unpaid child support payments under a prior judgment and granting modification as to payment of child support. We affirm in part and reverse in part with direction.

Parties hereto, the parents of three children, were divorced January 30, 1967. The decree of divorce granted custody of the children to plaintiff and directed payment of child support in installments of $110.00 per month. The payments were made as ordered until defendant became totally disabled for social security purposes in 1969. At that time the children began drawing social security benefits because of defendant’s disability. Defendant at the same time was granted a disability retirement as an officer by the U.S. Army. From the beginning, the social security benefits have exceeded in amount the sum of support ordered paid by the court. At the time of the hearing in this case, the sum received by the children was $355.50 per month.

The judgment from which this appeal is taken failed to find any arrearage of support due under its prior decree, though the testimony was that no payments had been made by defendant since the children began receiving social security benefits. Appellant submits that the silence of the judgment on this issue is a denial of her request for a determination of and judgment for the amount due and unpaid. We also so construe the judgment rendered.

Therefore, the issue for our consideration is whether under the evidence and law of this state the court erred in denying judgment for the sum of past-due and unpaid installments.

In other recent cases we have held that installment payments for child support become final judgments as of the date they are due and may be collected as any other judgment. We have therein cited as authority the cases of Epps v. Epps, 218 Ala. 667, 120 So. 150; Armstrong v. Green, 260 Ala. 39, 68 So.2d 834; and others. We do not depart now from what we said in these prior cases (not yet reported), but reiterate the same here. However, the ultimate issue here is not whether such past-due installments are considered as final judgments beyond the power of a trial court to modify, but rather whether such judgments are to be considered paid and satisfied under the evidence of this particular case.

We hold that the facts of this case bring it within the rule stated in Headley v. Headley, 277 Ala. 464, 172 So.2d 29, authored by the late esteemed Chief Justice of Alabama, J. Ed Livingston, and quoting from Armstrong v. Green, supra, as follows :

“The weight of authority appears to be to the effect that proceedings to enforce a decree for the support and maintenance of a child are subject to any valid defense against the required payment. 27 C.J.S., Divorce, 321, pages 1227-1228 [27B C.J.S. Divorce, § 321(5), p. 650].”

We add the further citation of 24 Am.Jr. 2d, Divorce and Separation, Section 873.

We interpret this statement to mean that though the installments are judgments, an action for their collection may be defended by pleading a defense of payment or discharge by some means other than as expressly directed by the decree. In Headley, the sums due were credited during the months the children were in the custody of the father with the agreement of the mother.

An order of support is for the benefit of the children, even though directed paid to the mother or other custodian. If the sum directed to be paid by the father is paid by the government through social security benefits derived from the account of the father, the purpose of the order has been accomplished. The father is entitled to be credited with such payments against his liability under the decree.

In Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200, the Supreme Court of Georgia said as follows:

“[1,2] Social Security disability payments represent money which an employee has earned during his employment and also that which his employer has paid for his benefit into a common trust fund under the Social Security Act. 42 U.S.C. § 301 et seq. These payments are for the purpose of replacing income lost because of the employee’s inability to work upon becoming disabled. Thus, these payments substitute for income. Since the amount of alimony required to be paid is determined largely by income, we see no reason why, in discharging the obligation to pay the alimony, Social Security disability benefits should not be credited.”

Other cases reaching the same conclusion are Cash v. Cash, 234 Ark. 603, 353 S.W. 2d 348; Kipping v. Kipping, 186 Tenn. 247, 209 S.W.2d 27; Hopwood v. Hopwood, 169 Neb. 760, 100 N.W.2d 833; Cohen v. Murphy, Mass., 330 N.E.2d 473; Andler v. Andler, 217 Kan. 538, 538 P.2d 649. We are in agreement with the above authorities. The rule expresses the intent of Headley v. Headley, supra, and is not contrary to the law of this state that decrees for alimony and support may not be modified retrospectively. Armstrong v. Green, supra.

The second issue presented is whether the trial court erred in modifying the prior, decree by eliminating the previous order of support and directing that the amount being drawn by the children under social security be held in lieu of any further support.

We believe we understand the intent of the trial court in entering such judgment. However, it appears that the effect of the judgment is to eliminate any court-ordered support and assume that the children will continue to draw $355.50 in social security benefits. Such assumption is insufficient protection for the children. The testimony was that defendant is completing requirements for a master’s degree in psychology with expectation of employment in that field. Rehabilitation and employment may well cause removal of the classification of defendant as totally disabled under social security. If such occurs and the benefits for the children are discontinued, they will be without court-ordered support.

The evidence of the present income of defendant is that his minimum net income is over $1,200.00 per month. He is financially able to reasonably contribute to the support of the children should their social security benefits be discontinued. Upon becoming employed as a psychologist such income can be reasonably expected to increase. We recognize that if social security should cease, the court is open for further petition for support, but it is our opinion that the children should be presently protected from such eventuality. We find the court to have erred in removing all personal obligation of support by defendant. Under our ruling on the first issue, defendant is discharging any obligation of a court-ordered payment through the payment of the social security as long as it continues and exceeds the amount ordered by the court.

We therefore reverse the decree of the court insofar as it removes the obligation of defendant for support in a specific amount. We remand for the purpose of determining the amount of support defendant should pay in the event social security benefits should end or be decreased below the needs of the children.

Affirmed in part, reversed in part with direction.

BRADLEY and HOLMES, JJ., concur.


author: HARRIS, Judge.

text:
    Calvin BINION v. STATE.
    6 Div. 734.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.

      Walter P. Crownover and Jack Lowther, Tuscaloosa, for appellant.
    William J. Baxley, Atty: Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the second degree and his punishment was fixed at eighteen years in the penitentiary. He was represented by retained counsel at arraignment and trial. Trial counsel represents him on this appeal.

The evidence in this case was in sharp conflict. The evidence for the state tended to show an unprovoked and sudden assault upon the deceased by appellant killing him with one bullet fired from an automatic pistol. The evidence from appellant tended to show that the deceased was attempting to pull a pistol from his pocket at the time the fatal shot was fired.

On the night of October 6, 1973, the deceased, Robert Hunter, was shot and killed at the Elk’s Rest Club in Tuscaloosa, Alabama. The deceased and his wife had been invited to a birthday party at the club which was given by Mary White for her daughter. She testified that appellant had not been invited to the party. After the party was over the deceased was helping Mary White and others clean up the tables where the party was held. While they were in the process of folding the paper used as a tablecloth, appellant walked up beside Mary White and said, “I told you I’ll get you,” and then shot Robert Hunter. She further testified that Hunter did not have a weapon of any type in his hands when he was shot, in fact he was folding paper. Her testimony was fully corroborated by two other witnesses, Minor Win-lock and Dezzie Hobson, who were present at the time of the shooting. The shooting occurred at approximately 11:30 p. m.

Appellant came to the club earlier that night while the party was in progress. He had been drinking. He went to the bar and ordered a mixed drink of gin and fruit juice. He sat at a table and started playing dominoes with several persons not including the deceased. He started using profanity and was asked to leave. He refused to leave. Someone called the police and a state trooper and two other officers came to the club and told appellant to leave the club and he left. These officers stated that they smelled the odor of alcohol on appellant but he was not drupk.

Appellant testified that when he got home, he discovered that an envelope which he had been carrying was missing. He claimed it had approximately $1,000.00 in it containing cash and checks. He stated he thought he might have dropped it at the bar of the Elk’s Club, and he walked back to the club to see if he could find it. He claimed that before he left the club on orders of the officers, he saw the handle of a pistol in the pocket of the deceased. Appellant said he had his pistol on him that entire day and night. Appellant claimed that when he walked upstairs at the club, he was accosted by the deceased who cursed him, using profane words. Appellant stated that at this point the deceased was not more than two feet from him and facing him and the deceased reached to his pocket for a gun which appellant saw. Appellant stated that he stepped back and pulled his pistol and shot the deceased one time-.-

After the deceased was shot he started for the stairs and fell all the way to the bottom of the staircase. Someone helped the deceased outside and laid him partly on the pavement in front of the club and partly on the grass. An ambulance was called but the deceased died enroute to the hospital and was carried to a local funeral home where an autopsy was performed by Mr. Robert Johnson, an Assistant State Toxicologist.

Mr. Johnson testified that he traced the path of the bullet and it went through the left arm into the left chest and through the heart and lodged in the right lung. He recovered the bullet. He determined the cause of death to be a combination of shock, hemorrhage, and the direct injury to the heart.

Jerry Lee, a witness for the prosecution, testified that he was standing at the base of the stairs of the Elk’s Club when the shooting occurred. He said that his attention was attracted to the stairway by the victim falling down the stairs. He then observed appellant coming down the stairs, stuffing a gun in his pants and saw him leaving the premises.

After shooting the deceased appellant went home and got his car and went to Sumter County to his sister’s home. He returned Monday and got one of his sons to drive him to his lawyer’s office after which he surrendered to the authorities. He was asked about the pistol he used to shoot the deceased and stated he ran from the scene of the shooting and while running through a field he lost the gun.

No witness for the state testified that the deceased was armed with a pistol, knife or other weapon at the time appellant shot him and no weapon of any kind was found on his body or around his body.

A sample of blood was taken from the body of the deceased and Mr. Johnson testified that it was negative for alcohol. It developed that Mr. Johnson did not personally run the test to determine if there was alcohol in the blood of the deceased but that the test was made by one of his assistants under his supervision. Counsel for appellant moved the court to exclude Mr. Johnson’s testimony as to alcohol in the blood of the deceased on the ground that he did not have personal knowledge of the result of the test that was made. The court overruled the motion subject to the state connecting it up.

When the state failed to connect up this testimony, counsel for appellant again moved that Mr. Johnson’s testimony be excluded and the court granted the motion and charged the jury as follows:

“Yesterday Mr. Bob Johnson, the State Toxicologist, testified in this case and that portion of his testimony concerning the alleged blood alcohol level of one Robert Hunter is not to be considered by you in this case. It is not evidence in the case, nor are you to give it any consideration at all, concerning blood alcohol testimony.”

Since the court granted appellant’s motion, there is no adverse ruling of which he can complain. Conner v. State, 52 Ala. App. 82, 289 So.2d 650; Wilson v. State, 20 Ala.App. 137, 101 So. 417.

Appellant offered a number of character witnesses who testified to his general good reputation. They also testified that his reputation for truth and veracity was good and they would believe him on oath whether he was interested or not. On cross-examination they were asked if they had ever heard of certain acts of misconduct and each of them answered in the negative.

When a character witness responds in the negative to inquiries relating to the defendant’s prior misconduct, the possibility of any injury to the defendant is removed. Baldwin v. State, 282 Ala. 653, 213 So.2d 819; Helms v. State, 254 Ala. 14, 47 So.2d 276; Johnson v. State, 260 Ala. 276, 69 So.2d 854; Stephens v. State, 250 Ala. 123, 33 So.2d 245.

Conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Irons v. State, 42 Ala.App. 349, 165 So.2d 125; Bradford v. State, 35 Ala.App. 407, 47 So.2d 599; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

Appellant’s motion for a new trial was overruled and denied. In reviewing the refusal of a motion for a new trial, this court will indulge every presumption in favor of the correctness of the ruling of the trial court and the decision thereon rests largely within the discretion of the trial judge. Espey v. State, 270 Ala. 669, 120 So.2d 904; Owens v. State, 40 Ala.App. 36, 109 So.2d 141; Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Jones v. State, supra.

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

We note that the trial court charged the jury on all four degrees of homicide. This was a clear cut case for the jury’s determination.

We have held there is no legal standard by which the prejudicial qualities of improper remarks of a District Attorney in the trial of a case can be gauged. Each case must be determined on its own merits. Counsel are allowed considerable latitude in drawing their deductions from the evidence in argument to the jury. Edson v. State, 53 Ala.App. 460, 301 So.2d 226.

On most of the objections to argument of counsel there was no ruling from the trial court. The other objections were without merit.

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

Affirmed.

All the Judges concur.


text:
      In re Calvin BINION v. STATE of Alabama. Ex parte Calvin Binion.
    SC 1672.
    Supreme Court of Alabama.
    Feb. 27, 1976.
    Walter P. Crownover and Jack Lowther, Tuscaloosa, for petitioner.
    No appearance for the State.
   SHORES, Justice.

Petition of Calvin Binion for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Binion v. State, 57 Ala.App, -, 327 So.2d 729.

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


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. CATES, Presiding Judge

text:
    Charles JOHNSON, alias v. STATE.
    3 Div. 400.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.
    Jasper B. Roberts, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent, appeals from a judgment entered pursuant to a conviction for robbery. Sentence imposed ■was ten years imprisonment.

The indictment charged that the defendant “ . . . feloniously took $209.23 the property of Wanda Crosby, from her person, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same. . . . ”

It appears from the evidence that Wanda Crosby, an employee of Majik Mart, a suburban convenience store in Montgomery, was on duty September 8, 1973. She was approached in the store by two black males, later identified as defendant and Charles Williams. The latter, with a pistol which he pointed at the employee, demanded that the money on hand be placed in a sack and surrendered. The victim hurriedly complied. The two males departed forthwith, immediately after which the victim fainted.

It further appears in the record that the victim testified that during the ordeal, before the robbers left, “. . . it dawned on me to get scared.” On cross examination she testified that she wasn’t afraid with Charles Williams holding a gun on her.

Defendant, when the State rested, moved orally to exclude the State’s testimony on the ground that the State had not made out a prima facie case against the defendant as to the charge contained in the indictment. Appellant’s counsel pointed out that the victim testified affirmatively that she was under no fear when she parted with the money; that she was not afraid until after the alleged robbery took place. The court denied the motion.

It is our opinion that the denial of the motion was correct and that appellant’s contention of error is without merit.

This Court held in Tarver v. State, 53.Ala.App. 661, 303 So.2d 161(2), that the three essentials of robbery are: (a) felonious intent, (b) force, or putting in fear as a means of effecting the intent, and (c) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. See also our recent case Gross v. State, 56 Ala.App. 709, 325 So.2d 216, wherein the same principles of law are discussed and authorities cited.

Be that as it may, we do not think that the victim’s assertion that she was not afraid eliminated the issue of mandated fear in the statute. Fear was an alternate element of the offense. The jury could have inferred that she was not afraid pending compliance with the demand to surrender the money, but fear obtained if she did not. Evidently there was existing fear in the mind of the victim because she obeyed the robber’s order and immediately after compliance she fainted. The evidence of prompt surrender of the money and the fainting belied the victim’s assertion of bravery and left the jury to infer that the victim’s claim that she was not afraid was sheer braggadocio. The existence of fear vel non was' an issue for the jury to determine from the evidence.

The evidence was ample to support the State’s contention that appellant-defendant was an accomplice in the robbery and a principal under Title 14, § 14, Recompiled Code 1958. We omit further details.

The judgment of the trial court is affirmed.

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, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.

CATES, P. J., concurs specially; TYSON, HARRIS, DeCARLO and BOOK-OUT, JJ., join in this concurrence.

CATES, Presiding Judge

(concurring specially):

The common law expression of putting in fear does not require a chilling fright to run through the victim’s veins and thus produce a consciousness of violent duress.

* * * And when it is laid to be done by putting in fear, this does not imply any great degree of terror or af-fright in the party robbed: it is enough that so much force, or threatening by word or gesture, be used, as might create an apprehension of danger, or induce a man to part with his property without or against his consent. Thus, if a man be knocked down without previous warning, and stripped of his property while senseless, though strictly he cannot be said to be put in fear, yet this is undoubtedly a robbery. Or, if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence, this is a felonious robbery.

—Blackstone, iv Com. 243

I would not make the subjective feeling of the victim a sine qua non of putting in fear. Rather, a presented firearm with a demand for money suffices to let a case go to a jury.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., join in this concurrence.

      . See: Gross v. State, 1975, 56 Ala.App. 709, 325 So.2d 216; Brown v. State, 48 Ala.App. 456, 265 So.2d 898 (1972).


author: EMBRY, Justice.

text:
    In re Charles JOHNSON v. STATE. Ex parte Charles Johnson.
    SC 1677.
    Supreme Court of Alabama.
    March 5, 1976.
    Jasper B. Roberts, Montgomery, for petitioner.
    No appearance for the State.
   EMBRY, Justice.

Petition of Charles Johnson for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Johnson v. State, 57 Ala.App.— , 327 So.2d 733.

Writ denied.

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


author: BOOKOUT, Judge.

text:
    Troy Murphy OATSVALL v. STATE.
    I Div. 584.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.

      J. D. Quinlivan, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment.

Appellant was ably represented on appeal by court-appointed counsel different from counsel appointed in the trial of the case.

On November 21, 1974, around 9:00 or 9:15 P. M., Albert Peyer left the Admiral Semmes Hotel in Mobile and went to his car in a parking lot adjacent to the Admiral Semmes Motor Hotel. The lot was dark and lighted only by adjacent street lights. As he attempted to start his car, a man jerked the door open, put a knife to Peyer’s side and then to the rear of his left ear, and demanded money.

The man took a $20 bill, a $1 bill, and six credit cards from Peyer. He then demanded the car keys, but Peyer refuséd to give them to him and the man ran away toward the rear of the motel. Peyer drove to the.police station and reported the incident and gave the police a description of the robber. While driving to the station, Peyer saw the robber running toward Royal Street on the opposite side of the street from the motel.

The police issued a robbery report over their radio system, giving a description of the robber as a white male, approximately 6 feet tall, 150 to 175 pounds, wearing a green fatigue jacket or fatigue shirt and white slacks. Police Officer Donald Pose observed the appellant between 9:30 and 10:00 the same night within a half a block from the Admiral Semmes. Appellant fit the description which Officer Pose had just heard over his radio with the exception that appellant had red hair, whereas the description given police stated long stringy hair, either blond or dirty blond in color. Appellant was wearing a green fatigue jacket and white slacks. Peyer made a positive in-court identification of the appellant.

Officer Pose testified that he stopped the appellant, placed him under arrest and asked for identification. He said the appellant opened his wallet and gave him a driver’s license and a selective service card. The driver’s license bore the appellant’s name, but the officer did not remember the name appearing on the selective service card. Officer Pose said he noticed some credit cards in the wallet and on request, the appellant gave them to him. The credit cards were six in number, each bearing the name of the victim, Albert Peyer.

The officer asked appellant where he got the credit cards, and appellant replied that he had picked them up behind the Continental Trail ways Bus Station. At that time defense counsel asked to make a motion outside the presence of the jury. He moved for a mistrial on the ground that appellant had not been advised of his constitutional rights prior to making the statement. The court overruled the motion on the ground that the statement was not incriminating.

Appellant Oatsvall, testifying in his own behalf, stated that he found the credit cards on the sidewalk in front of Channel 10 Television Station, not behind the Continental Trail ways Bus Station. He stated that he arrived on the 9:40 P. M. bus from Pensacola, on the way to Memphis. He was on his way from the bus station to a bar when he spotted the cards on the sidewalk in front of the television station and picked them up. He said he was going to drop them in a mailbox or give them to the teller at the bus station, however, he had only gone a few steps when he was arrested with the cards in his possession. He admitted that the cards were in his wallet when the police stopped him.

The appellant testified that the officer asked for identification and that he showed him his selective service card, but did not have a driver’s license. He testified that the officer searched him, took his wallet from his pocket and found the credit cards. Appellant stated that he had only $1.00 on him when he was arrested, that he was not in town when the robbery occurred between 9:IS and 9:30 P. M. and, therefore, he did not commit it. He denied having just come out of the Viking Lounge, next to the television station, when he was arrested.

I

Appellant contends that his statement to the arresting officer that he found the credit cards on the sidewalk was inadmissible since he had not been warned of his constitutional rights prior to making the statement.

On examination of Officer Pose, outside the presence of the jury, he testified that upon observing the credit cards in Oats-vall’s wallet, he asked where Oatsvall got them. He stated:

“. . . The subject held his billfold out to me and told me that they were not his cards, that he had found them behind the Continental Trailways Bus Station.”

No objection was made to this statement at that time. It was later, in the presence of the jury, that Officer Pose related the same statement of the appellant, which brought about the appellant’s motion for a mistrial. It is not error to allow a witness to relate facts, over objection, which have already been related without objection. The time for objection would have been during voir dire examination of Officer Pose. Instead, the appellant allowed the witness to relate the statement without objection and then waited until the same facts were stated in the presence of the jury before he objected.

This Court and our Supreme Court has repeatedly held that, “[i]t is not error to allow the same facts to be again shown against objection where they have already been proven without objection.” Purser v. State, 39 Ala.App. 169, 96 So.2d 689 (1957), and cases cited therein.

The fact that the first statement was testified to out of the presence of the jury would not alter this rule, in our opinion. The purpose of the voir dire examination was for the trial judge to hear the testimony to be offered and objections thereto in a sterile atmosphere so that uncontaminated evidence would later go to the jury. We are thus not inclined to reverse the trial court where the appellant and his counsel sat silent and failed to make known their objection until the matter was subsequently repeated in the presence of the jury.

Likewise, the appellant sat silent and allowed the full statement to be given in the presence of the jury before his request for a mistrial was made. After a question is asked, and a responsive answer given, an objection comes too late, and the trial court will not be put in error absent a motion to exclude and an adverse ruling thereon. Miller v. State, 52 Ala.App. 525, 294 So.2d 774 (1974); Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974); Miller v. State, 48 Ala.App. 28, 261 So.2d 447 (1972).

Further, the statement of the appellant to the police officer was in no way incriminating. In Duchac v. State, 52 Ala.App. 327, 292 So.2d 135 (1974), we held that a nonincriminating reply to a police officer’s question was not a violation of the appellant’s Fifth Amendment rights enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. There, the police officer stopped Duchac and another on a highway and just prior to their arrest, asked them where they were from and, “. . . one of them said—I don’t know, someplace, Ohio or something.”

In Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968), the Alabama Supreme Court held that certain exhibits written by a defendant, unable to talk due to a throat wound, were not inculpatory and were admissible even though their voluntary character had not been established.

For a ruling of a trial court to constitute reversible error, it must not only be erroneous, it must also be prejudicial to the appellant. We are unable to find the prejudicial nature of appellant’s statement, as it was in no way inculpatory. Supreme Court Rule 45.

II

We conclude that the officer made a legal arrest of the appellant without a warrant pursuant to Title 15, § 154, Code of Alabama 1940. A felony in fact had been committed; and where the officer observed the appellant within a few minutes of the robbery, within a half block of the scene of the crime; and where the appellant fit the general physical description of the robber and his clothing fit the description of that worn by the robber, the officer had “reasonable cause to believe” that the appellant committed the felony. Crane v. State, 55 Ala.App. 619, 318 So.2d 315 (1975).

III

On cross examination of the appellant, out of the presence of the jury, the following occurred:

“THE COURT: All right. Now, are you going to try to impeach him — what are you going to ask-him ?
“MR. HALE: I was going to ask him if he was convicted in Florida in 1969 for larceny — auto theft.
“WITNESS: I sure was.
“THE COURT: What is your objection to that, Mr. Kulakowski ?
“MR. KULAKOWSKI: Judge, I believe that the rules of evidence require a certified copy of the conviction.
“THE COURT: I’m going to overrule the objection; and, Mr. Oatsvall, all I can tell you is that you are under oath and that you should answer that question truthfully. Bring in the jury, Pat.
“MR. KULAKOWSKI: Judge, I’m going to object on the grounds that the proper method of impeachment in Alabama is to have some kind of evidence other than that rap sheet that he keeps waving around.”

The question was then answered in the affirmative in the presence of the jury without further objection. Appellant was in error on his interpretation of the law in his above objection. It is in the instance of proving prior convictions to enhance punishment that a certified copy of a minute entry is necessary. However, even in that instance, a prior conviction may be proven by the testimony of the defendant himself. Patton v. State, 39 Ala.App. 308, 98 So.2d 621 (1957); Wright v. State, 38 Ala.App. 64, 79 So.2d 66, cert. denied 262 Ala. 420, 79 So.2d 74 (1954). Title 7, § 435, Code 1940.

For the first time on appeal, appellant objects that a proper predicate was not laid for the above testimony, in that the question to him was not phrased so as to establish that the prior conviction was a crime involving moral turpitude and was not a conviction under a municipal ordinance. It has long been held in this state that specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not assigned. Roynica v. State, 54 Ala.App. 436, 309 So.2d 475, cert. denied 293 Ala. 772, 309 So.2d 485 (1974); Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974); Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973); Rule 33, Circuit and Inferior Court Rules, Vol. 3, Code of Alabama 1940.

IV

The appellant moved to exclude the State’s evidence at the end of the State’s case in chief and also requested the affirmative charge. The trial court overruled and denied such requests.

Where the evidence raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude or refusal to give the affirmative charge does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Drummond v. State, 37 Ala.App. 308, 67 So.2d 280 (1953). A conflict between the State’s case and the appellant’s alibi presents a question for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969); Price v. State, 53 Ala.App. 465, 301 So.2d 230 (1974).

There was no objection to the trial court’s oral charge, however, appellant filed 40 written requested charges, of which 12 were given and 28 were refused. We have reviewed each of the refused charges and find most to be repetitions of the oral charge or given charges. The remainder were affirmative in nature, abstract, incorrect principles of law or not hypothesized upon the evidence. Lebo v. State, 55 Ala.App. 624, 318 So.2d 319, cert. denied 294 Ala. 763, 318 So.2d 324 (1975); Cannon v. State, 53 Ala.App. 509, 301 So.2d 272 (1974); Duchac, supra; Title 7, § 273, Code of Alabama 1940.

Affirmed.

All the Judges concur.


text:
    In re Troy Murphy OATSVALL v. STATE of Alabama. Ex parte Troy Murphy Oatsvall.
    SC 1676.
    Supreme Court of Alabama.
    March 5, 1976.
    J. D. Quinlivan, Jr., Mobile, for petitioner.
    No appearance for the State.
   FAULKNER, Justice.

Petition of Troy Murphy Oatsvall for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Oatsvall v. State, 57 Ala.App.-, 327 So.2d 735.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, ALMON and SHORES, JJ., concur.


author: CATES, Presiding Judge.

text:
    Alonzo SMITH v. STATE.
    I Div. 632.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.

      Taylor D. Wilkins, Jr., and T. M. Brant-ley, Bay Minette, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

First degree murder: sentence, life imprisonment.

I

About 9:30 or TO :00 p. m., May 12, 1975, according to the State’s evidence, De-constant Williams, was by the door at Percy Dale’s place on Young Street in Fair-hope. Smith drove up, got out of his car, walked up to Williams and slapped him to the ground.

“Q. What happened then?
A. Deconstant got ready to grab Alonzo and he went for his back pocket and he turned to run and that is when he shot him the first time.
Q. What happened then ?
A. Deconstant was .still trying to run and Alonzo went behind him and shot the second time.
Q. Then what happened?
A. I told Deconstant not to go up on the hill; somebody might not find him; I knowed he was hurt and he fell down and skinned his nose; he fell on the brick and skinned his face.
Q. Did he ever get up ?
Á. No, sir.
Q. Did he say anything?
A. No sir; I tried to talk to him.
Q. He never did talk to you ?
A. He couldn’t say nothing.
Q. At the time Alonzo Smith came up and went up to Deconstant Williams were any words exchanged between them at that time?
A. I didn’t hear any words; I could not say.
Q. Did you ever see any kind of weapon or anything at all in the hands of Deconstant Williams?
A. No, sir.
Q. Where did Alonzo Smith have the gun, or where did he get the gun from?
A. He got it from his back pocket.
Q. Which back pocket, do you know?
A. Right.
Q. He reached in his pocket and got the gun ?—Is that right ?
A. Yes, sir.
Q. At what point did Deconstant turn and run?
A. He turned to his right and he was fixing to grab Alonzo.
Q. Fixing to grab him ?
A. Yes, sir.
Q. Alonzo got the gun ?
A. When he turned he got ready to try to run.
Q. How far was Deconstant from him when the first shot was fired ?
A. About as far as from me to you.
Q. Alonzo followed him?
A. He was running behind him.
Q. How far was he from him when the second shot was fired ?
A. About the same distance, because he was running right behind him.”
-Testimony of State witness, Bobby Lee Stanley, on direct.

Other witnesses testified also to seeing this. Admittedly, there were discrepancies. After an overall consideration, we cannot say as a matter of law that the verdict of the jury was wrong.

II

At the conclusion of the oral charge defense counsel took two exceptions to it. The first exception claimed that the court had equated reasonable doubt with “substantial doubt”.

Pretermitting whether the ground for the exception recited was sufficient in detail or substance as embracing the language used by the court, we have examined the oral charge as to reasonable doubt. From this examination,—though we will neither adopt nor disapprove some of the expressions as to hung juries—we consider no substantial right of the appellant was infringed. See also Hall v. State, 54 Ala.App. 198, 306 So.2d 290.

Ill

Appellant in brief argues that the court below erred in refusing his written requested charge, No. 10, which reads:

“The jury are instructed that the Defendant cannot be convicted, unless the evidence is inconsistent with any reasonable theory of innocence.”

This charge fails to use the introductory predicate of “from (or after) a consideration of all the evidence.” Ordinarily a trial judge will not be put in error for refusing a charge which omits this fundamental direction. Though, as with nearly all rules, this one has its exceptions, e. g., lesser included offenses.

Consistency, with innocence, is ordinarily abstract where there is direct testimony of the criminal act seen by a witness (Wig-more’s Autoptic Proference as contrasted with circumstantial evidence).

Appellant correctly cites Sanford v. State, 143 Ala. 78, 39 So. 370, as approving this charge (there # 16); see also, Cagle v. State, 211 Ala. 346, 100 So. 318. However, in Sanford, supra, the antecedent authority, Bowen v. State, 140 Ala. 65, 37 So. 233 (Charge #5), clearly related to a circumstantial evidence case. Here, Charge #10 was refused without error.

IV

Exception was also taken to part of the oral charge wherein the trial judge referred to the jury’s duty to attempt to reconcile testimony; we quote :

“ * * * I remember a test that a Psychology teacher had; he had a man running through the class dressed in a weird outfit. Ordinarily everybody would notice the outfit, and a gun shot and scared us to death, and then he asked us to go out and write an account of what happened. There were 30 or 40 people in the class and you would not believe the discrepancies and difference in the account; some of them had the man clothed entirely different from the clothes he had on when he came through. You don’t say a person has deliberately sworn falsely, because he may differ from somebody else in some of the details, but did he deliberately swear falsely as to a material fact in the case, and you are the sole judges of that. If you believe a witness swore falsely as to a material fact, you can disregard all of his testimony, or you can accept what you believe true and disregard that part you believe untrue and not worthy of belief.
“The law says the jury should attempt to reconcile the testimony of all of the witnesses and that is what I told you just now how testimony will vary, and if you are unable to reconcile testimony of one witness with another, you disregard his testimony. If something is so different from what you believe you don’t have to consider that.”

This was not subject to proper exception.

The judgment is

Affirmed.

All the Judges concur.

      . Hints as to a deadlocked jury may plant a seed of suggestion.


text:
    Eugene HOLLIDAY v. STATE.
    6 Div. 136.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    Thomas Nicholson, Jasper, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., Montgomery, for the State.
   HARRIS, Judge.

Appellant was indicted for burglary in the first degree. With counsel present at arraignment he pleaded not guilty and not guilty by reason of insanity. The case proceeded to trial before a struck jury. After the State had put on several witnesses, appellant and his attorney approached the bench and made known to the Court that appellant and his attorney had reached an agreement with the prosecution that appellant desired to plead guilty to burglary in the second degree and receive a sentence of ten years in the penitentiary.

Mrs. Violet Harper testified that on November 10, 1974, she lived on Highway 78 in Walker County about six or seven miles from Birmingham, Alabama; that between five and six o’clock on the afternoon of that date she was alone in her home and was. in the back room ironing some clothes. She had just taken a bath and had on a nightgown and a pair of underpants. She had both the back door and the front door to her home securely locked.

She heard a knock on the front door and she went to the front and lifted the night latch to see who was there. She saw a black man standing on the porch near the front door. This man asked her if she knew someone whose name she could not recall, who was supposed to live around Sipsey or the Blackwater area. She told him she did not know such person but if he would go to a supermarket about two miles down the road, they could probably tell him exactly where they lived. She said the black man turned as if to walk off the porch and then hesitated and looked at her and asked if she had a cigarette. She told him no as she did not smoke, and she immediately closed the door. At that time she didn’t see a car parked in her driveway. She went to a front window to see if the man was leaving and saw him going at a fast pace to the rear of her home.

At this point she went back to the front door and unlocked the door to leave the house. Her back door had three glass panels and while she was trying to unlatch the three latches on the front screen, she heard the glass break in the back door. As she was trying to get the last latch on the front screen open, the man grabbed her by the arm and said, “No, you don’t.” He jerked her backwards and she fell flat on her back and the man put his knee on her stomach and removed her underpants. She kept begging him not to hurt her and that he could have her money and everything in the house he wanted. He told her all he wanted was _ and took his hand and tried to force himself into her but he had difficulty penetrating her. He took off his pants, underclothes and shoes and tried to penetrate her again without success. He then took her by one arm and leg and dragged her to the bedroom where he pushed her flat on her back on the bed and got over her and again tried to penetrate her but failed. He then told her he was going to his car and get some whiskey and was going to spend the night with her. He told her if she tried to leave the bedroom, he would kill her.

She further testified that he smelled strongly of the odor of alcohol and was staggering around when he was trying to put his clothes back on. After he got his clothes on, he went out the back door and she managed to unhook the last latch on the screen door, and jumped off the porch and ran down Highway 78 to a neighbor’s house where she collapsed in the yard. The neighbors came to her and she told them what had occurred. She had on only her nightgown and the neighbors carried her back to her home and helped her dress and carried her to a local hospital.

She stated as she was running from her house, she saw a maroon colored Chevrolet parked in her driveway. Someone called the Police and Sheriff’s Departments but she did not know who made the calls.

Appellant left the scene of the crime and wrecked his automobile. Officers went to the scene of the accident and arrested appellant and carried him to the Sheriff’s Office where he was given the Miranda rights and warnings. He signed a waiver of rights form and stated he did not want a lawyer. He made a statement to the officers in which he admitted breaking into the home of the victim.

A very extensive voir dire hearing was held out of the presence and hearing of the jury to determine the voluntary character of the confession. At this hearing the Miranda rights were read from a card carried by the Deputy Sheriff and also the pre-Mi-randa predicate was laid. At the conclusion of this hearing the Court ruled the confession was knowingly, intelligently and voluntarily made.

Before accepting appellant’s plea of guilty the Court advised him of his Boykin rights, not once but twice. Appellant, his attorney and the trial judge signed an Ireland form which contained each and every right compelled by Boykin before the guilty plea was accepted. He was informed of his right to a public trial by jury, the right against compulsory self-incrimination, the right to be confronted by witnesses against him and to have witnesses in his behalf, and the minimum and maximum sentences that could be imposed.

During the colloquy between appellant and the Court, appellant told the Court that he fully understood his rights and he wanted to plead guilty to burglary in the second degree knowing full well that he was going to get ten years in the penitentiary. It was also clearly understood that he was not going to get probation but he had a right to apply for probation. All of these matters, including the Boykin rights, are clearly set forth in the minute entry.

Upon authority of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and Twyman v. State, 293 Ala. 75, 300 So. 2d 124, this case is affirmed.

Affirmed.

All the Judges concur.


text:
    Robert ARD v. STATE.
    4 Div. 372.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    J. Ronald Storey, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Donald M. Phillips, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was found guilty of carnal knowledge of a girl under the age of twelve years, and his punishment was fixed by the jury at imprisonment in the penitentiary for thirty years. Defendant was approximately twenty-four years of age at the time of the alleged offense and the girl was nine.

There was positive identification of defendant by the girl. They lived in the same neighborhood. He lived with his father and mother. She said that after getting home from school about 4:00 and after having gone to play at some friends’ house and was returning home, defendant came out in the road near the garage of defendant’s father and “grabbed me and took me into the garage and laid me on the side . . . and he pulled down my pants and put his you-know-what in it . . .” She said she screamed, that defendant’s mother came out of her house and defendant let her go, and she ran home. She testified defendant hurt her and when asked where he hurt her, she pointed to between her legs and said that he hurt her down between her legs. She said defendant held her down (indicating) and had his knees on the ground, that he “put his you-know-what in my thing, down between my legs.”

According to a stipulation agreed upon between the parties, the girl’s older sister would have testified if she had been present that the girl had come home crying, her face was red, her hair was messed up and her clothes were kind of ruffled. The older sister then called the police and called their mother. Their mother, who was at work at the time, testified that she came home immediately and found that the girl was “in a state of hysterics, she was crying so” and that the “button was off of her jeans, her jeans were unzipped, the bottom three buttons on her blouse were unbuttoned.” She said there was hair on the girl’s zipper and on the buttons of her blouse.

A police officer testified that upon receiving the call from the girl’s sister he and another officer went to the girl’s home where he found her “very upset, crying, vomiting, trying to vomit, and the button on the front of her pants had been torn off and her pants were open.”

Two young girls in the neighborhood testified that they saw the girl running toward her home crying. One said she saw a man with “long hair and different colored pants on” running from the garage. The other said she saw the girl and “heard her scream when she came out of the garage.”

There was testimony by one of the officers that when they arrived at the Ard home, they noted that defendant was sitting down at the table but ran therefrom to another part of the house, that defendant’s mother came to the door and stated that he was not at home, but upon their insistence that he was there, he came forth and was arrested.

Defendant stoutly denied his guilt from the time of his arrest and throughout the trial of the case, taking the stand, stating that he was away from the house and the neighborhood for two or three hours in the early part of the afternoon, but was there playing volleyball in the yard a great part of the time. He was substantially corroborated by his father, his mother, two brothers, a sister, a sister-in-law, a brother-in-law and an unrelated neighbor. There was testimony by most of them to the effect that the charge against him was inconsistent with their observation of and contacts with him during the afternoon. Some of their testimony indicated that the girl could have been sexually molested by a couple of fifteen or sixteen-year-old boys with whom she was playing near the garage. There was also some evidence of her having been “messing” around in the garage on occasions before the afternoon of the alleged crime and that defendant’s father had run her and others out of the garage.

Appellant takes the position that there was not sufficient evidence of the offense of carnal knowledge of a girl under twelve or of the statutory equivalent of the abuse of “such girl in the attempt to have carnal knowledge of her.” Code of Alabama, Title 14, Section 398. Convictions have been allowed to stand for no more than the evidence shows took place in this case. Any injury to the private parts of a girl is an abuse to which the statute refers. The mere hurting of the private parts of the girl, even though they are not bruised, cut, lacerated or torn, is sufficient. Castleberry v. State, 135 Ala. 24, 33 So. 431; Dawkins v. State, 58 Ala. 376; Huggins v. State, 41 Ala.App. 548, 142 So.2d 915, cert. denied, 273 Ala. 708, 142 So.2d 918.

Although terms could have been used to have shown with greater certainty that there was penetration or abuse of the private parts, we cannot accept the apparent thesis of appellant that the reference of the girl to a point between her legs can be reasonably reconciled with the penetration or abuse of the anus. In the first place, the term “between my legs” as used by the girl is not an expression in ordinarily referring to the part of the body suggested by appellant. Furthermore, the expression “between her legs” is also that of the court reporter in reporting the place to which the girl pointed when she was on the witness stand. The court charged the jury as to the necessity that there be penetration or physical abuse of “the genital organs or the sexual organs.” The jury saw the girl pointing. We see no possibility, certainly no probability, of any mistake on the part of the jury or the trial judge as to this particular question.

A much sounder argument is to be found in appellant’s brief to the effect that there is strong evidence of defendant’s innocence, that is, that if anyone sexually abused the girl, he was not the one that did so. This is another case of a meeting of irreconcilables. The case for the defense was strong. On the other hand, it is •difficult to believe that this nine-year-old girl did not truthfully identify the defendant. It is when some witnesses have steadfastly testified one way and others the other, some false and some true, and when the difference in their testimony cannot be reasonably reconciled, that a jury is in a better position than anyone else to ■ determine which witnesses have spoken the truth and which have testified falsely and base their verdict upon the true testimony. The case was tried without any apparent attempt to obtain a verdict on the basis of either sympathy or prejudice. As much as the record of the testimony of defendant and members of his family might appeal to us as truthful, we cannot say that the verdict of the jury who looked the witnesses in the eye was clearly wrong and unjust or that the trial judge was not justified in overruling defendant’s motion for a new trial.

We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Honorable LEIGH M. CLARK, Supernumerary Circuit Judge, 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 as that of the Court. The judgment below is hereby

Affirmed.

CATES, P. J., and HARRIS and De-CARLO, JJ., concur.


text:
    Anthony Borden HARRIS v. STATE.
    6 Div. 983.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    William J. Baxley, Atty. Gen., G. Daniel Evans, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Grand larceny (shoplifting $67.50 worth of phonograph records); sentence, ten years imprisonment.

I

The State put two security employees of Southeast Zayre, Inc. on the witness stand. Their testimony was that Harris and another man took record albums from store counters, put them in a brown paper sack, went through an unattended cash register aisle, and left the store without paying. They were overtaken by a citizen’s arrest made some eight feet from the door.

The defense offered no evidence.

II

The trial judge instructed the jury in part:

“The law further says that if a defendant is found in possession of recently stolen property, in the absence of a satisfactory explanation from the defendant the jury can infer that he was the one that stole the property; but that is to be considered with all the other evidence in the case. But first of all, before that principle of law came into play, you would have to find beyond a reasonable doubt and to a moral certainty that the defendant was actually in control of the stolen property.”

In this case — because of the use of a check-out counter system — the completed act of asportation did not occur until the two thieves went past or evaded the place of payment, i. e., the designated cash register. Immediately after they passed that point they were halted with the goods in hand.

The inference from possession of recently stolen goods is not necessary as a logical device where a thief is caught red-handed. Here both the taking and the carrying away were directly seen by witnesses for the prosecution. The above quote excerpt was surplusage in this case. Nor did it prejudice the appellant. See Burleson v. State, 52 Ala.App. 399, 293 So.2d 317.

The judgment below is

Affirmed.

All the Judges concur.

      . See Jones v. State, 55 Ala.App. 274, 314 So.2d 876.