author: BEATTY, Justice.

text:
    Audrey Rucker KJELSTROM v. The FIRST NATIONAL BANK OF MONTGOMERY et al., etc.
    SC 1702.
    Supreme Court of Alabama.
    July 16, 1976.
    Alton, Leavell & Morgan, Montgomery, for appellant.
    Stowe & Macon, Wetumpka, for appel-lees.
   BEATTY, Justice.

Appellant, Audrey Rucker Kjelstrom, appeals from a judgment of the Elmore County Circuit Court which permanently enjoined her from entering lands known as the Bellingrath Estate and assessed damages at $450.00. We affirm.

On September 28, 1972, a petition was filed in circuit court, in equity, by appellees, First National Bank of Montgomery and Stanhope E. Elmore, Jr. and R. E. Steiner, III, trustees of property in Elmore County known as the Bellingrath Estate. The petition alleged that the bank and Kjelstrom owned adjoining tracts of land in Elmore County — tracts separated by a common boundary known as the west margin line of Mortar Creek Swamp and that the boundary had for many years been designated by a fence, with the estate’s property to the' east and the Kjelstrom property to the west. The petition further alleged that Kjelstrom was crossing the boundary line and cutting timber from the estate’s property. The estate trustees asked that the court issue a temporary injunction to prohibit Kjelstrom from cutting more timber and that, upon a final hearing, the court should issue a permanent injunction against Kjelstrom, assess damages against her for the timber previously cut, and determine the location of a boundary line between the parties. Kjelstrom answered, denying all material allegations and claiming to own all land to the east [sic] of Mortar Creek and all lands to Mortar Creek. She further denied cutting any timber belonging to ap-pellees.

The circuit court issued a temporary injunction against Kjelstrom on September 28,1972. Kjelstrom filed a motion to strike the injunction, which was denied. A hearing was had on May 16,1974, at which time the court took the matter under advisement.

On May 24, 1974, Kjelstrom filed a motion asking the court to view the property in question and to hire a surveyor should the court determine that such services could aid the court in making its decision.

The court entered its decree on February 14, 1975, noting that it had taken the case under advisement, considered all evidence and viewed the property. The court found “that there is an established mesh wire fence line running through the contuguous [sic] property of the parties herein, said fence line lying along the Westerly edge of Mortar Creek Swamp . . . [and] that said fence line is the true and correct boundary line between the contiguous tracts of land claimed by the parties hereto. . ” It further found the wire fence so well established and definite that no survey or additional marking was necessary; after decreeing this fence as the boundary line between the parties assessed the fine and entered the permanent injunction against Kjelstrom.

Kjelstrom filed notice of appeal to the Alabama Court of Civil Appeals; this appeal was transferred to this Court on February 18, 1976.

The appeal challenges the trial court’s determination that the fence constituted the boundary line as being unsupported by the weight of the evidence. We disagree.

The evidence for the estate’s trustee established that the disputed swamp property lay to the west of Mortar Creek, between the Creek and a wire mesh fence. One of the petitioner’s witnesses, Mr. Byrne, testified that he did not know from first-hand knowledge on which side of the Creek the swamp was located; however, two other witnesses for the petitioner, Campbell and Billups, tended to identify the area between the west bank of the Creek and the fence as Mortar Creek Swamp. Mr. Campbell testified that the area between the Creek and the fence on the west side of the Creek is a swampy area, too low to cultivate. Mr. Billups testified that Mortar Creek Swamp meant to him “the low land where the water, at times, will cover it, . . that mostly lies between the creek stream and this line . . . the fence.” Mr. Weaver testified for the petitioner that the land between the fence and the Creek was in trees, bushes and briars, and “a little marshy.”

Witnesses for Kjelstrom took an opposite view of the boundary line. Her tax assessment did not mention a swamp; Mr. Battle testified that there was no swamp between the fence and the Creek that he knew of; Mr. Welch, a timber cruiser, had been on the land two years previously and did not see any swamps. Both Mrs. Kjelstrom and her son testified that no swamp existed on the west side of the Creek, as did Mr. Hughes and Mr. Vance.

We have summarized this evidence to show how the location of the boundary line was contested and thus became an issue for the trial judge to decide. As previously noted, the trial judge made a personal inspection of the property before his findings of fact which established the boundary line.

It is the established policy of this Court to presume correct the findings of a trial court which are based upon competent evidence, when the case is heard ore tenus. Martin v. Howard, 293 Ala. 36, 299 So.2d 727; San-Ann Service, Inc. v. Bedingfield, 293 Ala. 469, 305 So.2d 374; Baldwin v. Odom, 291 Ala. 129, 278 So.2d 713; Cotton v. May, 293 Ala. 212, 301 So.2d 168. This policy has been most concisely stated in Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761:

“. . . The determination as made by the trial judge, when the evidence is taken orally, as here, is favored with a presumption of correctness, which we will not disturb on appeal unless plainly erroneous or manifestly unjust, . . .”

Other cases, dealing specifically with boundary disputes, have upheld the decision of the trial judge in similar circumstances. In Jones v. Wise, 282 Ala. 707, 213 So.2d 914, Mr. Justice Merrill noted:

“A decree establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court is presumed to be correct; and in such case the trial court’s conclusions will not be disturbed unless plainly erroneous or manifestly unjust. . . . And where the trial court sees and hears the witnesses testify, its findings which determine questions of fact will not be disturbed on appeal unless plainly wrong. . . . ”

A decree based upon conflicting testimony and a view by the trial judge has the effect of a jury verdict, not to be disturbed unless plainly and palpably contrary to the weight of the evidence. Casey v. Keeney, 290 Ala. 94, 274 So.2d 68.

There being sufficient evidence on which to support the decree, it is due to be affirmed.

AFFIRMED.

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

      . This case was originally assigned to another justice of this Court, since retired. It has been reassigned to the writer, not a member of this Court at time of submission.


source: Caselaw Access Project

license: Public Domain

text:
    KENTUCKY GALVANIZING COMPANY, INC., a Kentucky Corporation v. CONTINENTAL CASUALTY CO., INC., an Illinois Corp., et al.
    SC 1542.
    Supreme Court of Alabama.
    July 16, 1976.

      Crenshaw & Minor, Montgomery, for appellant.
    Oakley Melton, Jr., Montgomery, for ap-pellees, Continental Casualty Co., Inc. and Mid-South Pavers, Inc.
    Richard Jordan, Montgomery, for appel-lee, Contractors’ Service, Inc.
   BEATTY, Justice.

Appellant, Kentucky Galvanizing Co., Inc. [hereinafter “Galvanizing”], the defendant below, appeals the lower court’s directed verdict in favor of appellees, Continental Casualty Co., Inc. [hereinafter “Continental”], Contractors’ Service, Inc. [hereinafter “Contractors”], and Mid-South Pav-ers, Inc. [hereinafter “Mid-South”]. We reverse and remand.

An explanation of the status of each party to this suit is necessary at this time. Galvanizing is a Kentucky corporation which manufactures highway guardrail materials. Mid-South, an Indiana corporation, is a paving contractor. Mid-South was awarded a contract from the State of Alabama for highway improvements on U. S. Highway 72. As required by statute, Mid-South procured a surety: Continental. Continental is an Illinois corporation serving as guarantor of Mid-South’s bond assuring payment of suppliers. Contractors, an Alabama corporation, subcontracted from Mid-South to erect the guardrails on Mid-South’s job.

The facts are these: Mid-South entered into a contract with the Alabama State Highway Department for the improvement of U. S. Highway 72, in Colbert County, a jobsite referred to as “US 72 on Miss. Line.” It filed bond with the Highway Department,, as required by statute, with Continental as surety. Mid-South contracted out the guardrail erection to Contractors, which contacted Galvanizing for materials.

Although appellees admit that guardrail materials provided by Galvanizing were used on the jobsite, none of the appellees paid Galvanizing for those materials. Galvanizing gave notice of the default to Continental as required by Code of Alabama, Tit. 50, § 16. Subsequently, Galvanizing filed suit to recover the price of the materials used on the U. S. 72 project.

Mid-South and Continental answered Galvanizing’s complaint by stating that Mid-South had paid the subcontractor, Contractors, an amount which would be sufficient to allow Contractors to pay Galvanizing, but that apparently Contractors had applied the funds received from Mid-South to other debts. Subsequently, Mid-South and Continental amended their answer, raising in defense the fact that Galvanizing was a foreign corporation, doing business in Alabama without having qualified to do so, thereby without standing to enforce claims in the courts of this state. Contractors answered with the defense that Galvanizing failed to qualify to do business in Alabama. (Contractors also counterclaimed damages for breach of contract against Galvanizing, but this is not an issue).

At the conclusion of Galvanizing’s evidence, appellees moved for a directed verdict, which was granted, based on the fact that Galvanizing had not qualified to do business in Alabama. Judgment was entered for the appellees, and Galvanizing appealed.

The question to be decided here is whether Galvanizing is operating in interstate commerce, for, if it is so operating, the case must be reversed and remanded. But if Galvanizing is doing business of an intrastate nature, it can have no relief in our courts, and the trial court’s decision should be affirmed. Code of Alabama, Tit. 10, § 21(89); Tit. 51, § 342.

We hold that Galvanizing is a company active in interstate commerce and that the trial court’s decision is due to be reversed.

In making that determination we have examined several aspects of Galvanizing’s business. We note that Galvanizing has never manufactured, fabricated or installed any materials in the State of Alabama. What it has sold to buyers in Alabama it has delivered to the assigned jobsites. Other than delivery, Galvanizing does nothing in Alabama except what is incident to soliciting and taking orders for shipment of goods in interstate commerce and delivery of these goods.

Sale in interstate commerce is a protected right of American craftsmen. Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974), and under the Constitution of the United States a state cannot prohibit foreign corporations from conducting interstate business within that state. Simonetti Bros. Produce Co. v. Peter Fox Brewing Co., 240 Ala. 91, 197 So. 38 (1940).

This court has held in Swicegood v. Century Factors, Inc., 280 Ala. 37, 189 So.2d 776 (1966) that business solicitations and incidents relative to such solicitations do not constitute transaction of business within the State of Alabama. Rather, these are interstate in nature. On several occasions, this court has distinguished between contracts requiring only the furnishing of materials, and contracts requiring the seller to perform construction activities. When the transaction requires only sale and delivery of the materials, we have held it to be within the scope of interstate commerce, to which the laws of Alabama are not applicable. Computaflor Co. v. N. L. Blaum Const. Co., 289 Ala. 65,265 So.2d 850 (1972); American Amusement Co. v. East Lake Chutes Co., 174 Ala. 526, 56 So. 961 (1911).

As previously noted, the record reveals that the activity conducted by Galvanizing in the State of Alabama was simply solicitation of orders and delivery incident to that solicitation. Certainly, solicitation and delivery cannot be equated with the term “construction” under our cases. This distinguishes Galvanizing’s activities as interstate rather than intrastate.

The appellees, by their own admission in brief, outline the activities of Galvanizing which make its activities interstate rather than intrastate in nature. They note that Galvanizing is a foreign corporation which manufactures products outside the state and ships to customers in the state, that these sales were arranged through solicitation by one of the corporation’s agents, that the agent made monthly trips into this state for that purpose and that during those trips he would confer with customers and arrange or negotiate a sale. Appellees also point out that the sale would not be consummated in Alabama but through processing order blanks which would be forwarded to the corporate headquarters outside the state. This description of Galvanizing’s activities denotes the interstate nature of Galvanizing’s business dealings.

At oral argument the appellees introduced the case of SAR Mfg. Co., Inc. v. Dumas Bros. Mfg. Co., Inc., 526 F.2d 1283 (5 Cir. 1976), which they had not cited in .briefs. Appellees contended that SAR was dispositive of the case at bar and that it correctly distinguished the Allenberg Cotton case, supra, on which Galvanizing had relied.

In SAR, a Texas corporation attempted to recover upon a promissory note from Alabama residents. The U. S. District Court for the Southern District of Alabama denied recovery due to the fact that the plaintiff corporation was not qualified to do business in Alabama. On appeal, the Fifth Circuit affirmed.

The plaintiff corporation sold polyurethane foam which it manufactured in one of the plaintiff’s plants located in Texas, Georgia and Mississippi. The plaintiff, for several years, had generated income by the sales of its product to several Alabama corporations with need for the product, including Dumas Bros. Originally, orders were placed by mail, telephone or telegram to the plaintiff’s main office in Houston, Texas. However, in 1973, plaintiff purchased a warehouse in Alabama for the purpose of receiving and storing polyurethane foam for sale to Dumas Bros. Some foam processing was conducted at the warehouse as well. With the initiation of a warehouse in Alabama came the employment of seven persons and maintenance of two vehicles on a full-time basis. Plaintiff also had several salaried salesmen who spent one-sixth of their time in Alabama.

We feel that the change in business policy in 1973, at which time (1) the plaintiff opened a warehouse in the state in order to fill the orders of Dumas Bros., (2) processing began, (3) seven employees were obtained and (4) two vehicles were maintained for company use, distinguishes SAR from the case at bar. This business policy denotes action of an intrastate nature as opposed to the facts in the case at bar-solicitations and orders by telephone or mail, which can more easily be likened to SAR’s pre-1973 policy.

The opinion of the Fifth Circuit’s Chief Judge Brown emphasized the distinction we find when he stated at p. 1286:

“ . . . And particularly with respect to the defendants [Dumas Bros.] the marketing and supply functions of the plaintiff [SAR] are localized enough to easily fall under the ambit of a series of transactions which are primarily intrastate and concomitantly the corporation falls under the satrapy of the qualification statutes. . . . ” (Emphasis Supplied.)

Galvanizing, conducting business in interstate commerce, is justified and welcomed to use the state courts of Alabama to enforce its claim against those who defaulted on payment of an order which was delivered here.

REVERSED AND REMANDED.

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

      . This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission, who has carefully listened to the tape recordings of oral argument. Code of Alabama, Tit. 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607,219 So.2d 858.


author: JONES, Justice.

text:
    The ALABAMA STATE BOARD OF HEALTH ex rel. William J. BAXLEY, Attorney General for the State of Alabama v. CHAMBERS COUNTY et al.
    SC 1751.
    Supreme Court of Alabama.
    July 16, 1976.
    William J. Baxley, Atty. Gen., Jackson P. Burwell and John Wible, Asst. Attys. Gen., for appellant.
    James A. Avary, Lanett, for appellees.
   JONES, Justice.

The sole question for review concerns the construction of the Solid Wastes Disposal Act (Title 22, §§ 346-351, Code). More specifically, the issue is whether the provisions of § 347(a) (“ . . . may, and is hereby authorized to”) are mandatory or permissive. The trial Court, denying the relief sought by the Alabama State Board of Health against Chambers County, ruled that these provisions are permissive. We agree. The judgment below is affirmed.

§ 347 provides:

“(a) Generally. — The county governing body or municipal governing body may, and is hereby authorized to, make available to the general public collection and disposal facilities for solid wastes. The county or municipal governing body may provide such collection or disposal services by contract with private or other controlling agencies, and may include house-to-house service, or the placement of regularly serviced and controlled bulk refuse receptacles within reasonable (generally less than eight miles) distance from the farthest affected household and the wastes disposed of in a manner acceptable to the health department and within the meaning of this chapter.
“(b) Garbage Disposal. — Garbage and rubbish containing garbage shall be disposed of by sanitary landfill, approved incineration, composting, or by other means now available or which may later become available as approved by the health department and under the supervision and control of a governmental, private, or other agency acting within the provisions of this act.
“(c) Burning. — No garbage, or rubbish containing garbage or other putrescible materials, or hazardous wastes shall be burned, except in approved incinerators meeting the necessary temperature requirements and air pollution controls as now established or may later be established. The open burning of rubbish shs.ll be permitted only under sharply controlled circumstances where sanitary landfill, or landfill is not feasible, and not in proximity to sanitary landfill or landfill operations where spread of fire to these operations may be a hazard in the opinion of the controlling agency.
“(d) Haulage. — Trucks or other vehicles engaged in the business of hauling garbage and rubbish shall be so covered, secured or sealed that there will be no loss during haulage to cause littering of streets and highways, or cause a nuisance or hazard to the public health.
“(e) Exception: A household, business, industry or any property owner may store, haul and dispose of his own solid wastes on his own land or otherwise, provided such storage, haulage or disposal is accomplished pursuant to a certificate of exception as provided herein. In order to obtain a certificate of exception, an application and plan must be filed with the county health officer or his designee setting out the proposed method of storing, hauling and disposing of solid waste so as to comply with rules and regulations adopted by the state or county boards of health and not create a public nuisance or hazard to the public health. Such officer or designee shall investigate such application and plan and issue a certificate of exception if such proposal will, in such officer’s or designee’s judgment comply with such rules and regulations and adequately prevent a public nuisance or hazard to public health.”

This case has been ably briefed and argued by counsel and we believe our analysis of the dispositive issue can best be understood in the context of the respective contentions of the parties.

THE ATTORNEY GENERAL’S CONTENTIONS

In support of the State’s argument, five rules of statutory construction are stated:

(1) Permissive words in a statute may be construed as being mandatory in those cases where the public interest and rights are concerned and where the public or third persons have a claim de jure. Ex parte Simonton, 9 Port. 390 (1839).
(2) A statute must be considered as a whole and every word in it made effective if possible. State By and Through State Board for Registration of Architects v. Jones, 289 Ala. 353, 267 So.2d 427 (1972).
(3) Where a legislative provision is accompanied by a penalty for failure to comply with it the provision is mandatory. Rodgers v. Meredith, 274 Ala. 179, 146 So.2d 308 (1962).
(4) Where two sections or provisions of an act are conflicting the last in order of arrangement controls. State v. Crenshaw, 287 Ala. 139, 249 So.2d 622 (1971).
(5) The purpose of statutory construction is to ascertain, not only from the language used by the legislature, but also from the reason and necessity for the act, the evil sought to be remedied, and the object and purpose sought to be obtained. Rinehart v. Reliance Insurance Company, 273 Ala. 535, 142 So.2d 254 (1962).

The Attorney General also contends that the mandatory effect of § 347(a) becomes even more apparent when that section is read in conjunction with § 349 which provides:

“The accomplishment of solid waste management practices, within the meaning of this act, shall be within a period of not more than two years following the signing of this act into law, or such lesser time as may be determined to be in the public interest by the health department. Where the affected governing bodies can demonstrate to the satisfaction of the health department that compliance to the two-year limitations is economically infeasible, the controlling agency may petition for a yearly extension, but this shall not preclude the possibility of nuisance or public hazard suits brought on by individuals or other entities.” (Emphasis added.) '

: The obvious effect of § 349, says the ..Attorney General, is to impose a deadline by which time .county governing bodies must provide a comprehensive solid waste collection and disposal program throughout the county. Unless § 347(a) is mandatory, the imposition of a deadline in § 349 makes no sense and is useless verbiage. This was, in essence, the rationale of the Attorney General’s opinion holding the statute mandatory (Opinion to Dr. Ira L. Myers, State Health Officer, dated May 3, 1971).

THE COUNTY’S CONTENTIONS

The County has no dispute with the foregoing rules of statutory construction per se, but it feels that they are not applicable in the instant case.

The County maintains the polestar of statutory construction is that the intention of the legislature must be given effect. Boswell v. South Central Bell Telephone Co., 293 Ala. 189, 301 So.2d 65 (1974); State v. AAA Motor Lines, Inc., 275 Ala. 405, 155 So.2d 509 (1963). In determining the intent of the legislature, the Court must look to the language of the statute. State v. Zewen, 270 Ala. 52, 116 So.2d 373 (1959). Furthermore, the Court must look to the entire act and not merely to an isolated part in construing a statute. Ex parte Wilson, 269 Ala. 263, 112 So.2d 443 (1959).

It is difficult to understand, says the County, why the legislature would place permissive words in one subsection and mandatory words in four subsections of the same section if the first subsection was intended to be mandatory as well, especially when the Court considers the rule that, in lieu of other factors, words in a statute will be given their ordinary meaning, citing Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830 (1974). Certainly, the legislature could have made subsection (a) mandatory if that had been the true intention of the legislature. Therefore, to construe § 347(a) as being other than permissive would be contrary to the apparent intention of the legislature as expressed by the clear wording of subsection (a) and as ' evidenced by the balance of the Solid Wastes Disposal Act. Title 22, § 346 et seq.

Additionally, the County contends the' State’s argument that the imposition in § 349 of a two-year deadline renders § 347(a) obligatory ignores the remaining provisions of § 347. § 349 can hardly be said to be “useless verbage,” says the County, in light of § 347(b) (methods of garbage disposal), § 347(c) (burning garbage), § 347(d) (hauling garbage and rubbish), § 347(e) (exceptions), § 347(a) (disposal of hazardous wastes), § 348(b) (unauthorized dumps), § 348(c) (rodents and insects), all of which are mandatory on their face. § 349, reasons the County, applies to these sections even when § 347(a) is construed as being permissive; consequently, there is no conflict between § 347(a) and § 349.

DECISION OF THE COURT

We acknowledge as correct each of the five rules of legislative construction set forth in the State’s contentions; but basic to each of these rules, unless the challenged act is constitutionally offensive, is the intent of the legislature. As the Supreme Court of Alabama recognized in Thompson v. State, 20 Ala. 54 (1852):

“The inartificial manner in which many of our statutes are framed, the inaptness of expressions frequently used, and the want of perspicuity and precision not un-frequently met with, often require the court to look less at the letter or words of the statute, than at the context, the subject-matter, the consequences and effects, and the reason and spirit of the law, in endeavoring to arrive at the will of the law giver.”

Unquestionably, the legislature has the right to permissively authorize counties and municipalities to establish and maintain waste disposal systems, and to regulate through the State Department of Health the methodology employed by those counties and municipalities electing to exercise such authority. To employ the Simonton principle of rendering permissive language (“may”) obligatory (“shall”) merely because of the public welfare objective (“public health and safety”) of the legislature would deny the legislature of its prerogative to pass permissive legislation in this field. In other words, the unbridled application of Simonton would produce a mandatory interpretation irrespective of the legislature’s intent in the use of the words “. may, and is hereby authorized to . . . ”

Since it is within the legislature’s prerogative to permissively or mandatorily authorize counties and municipalities to establish waste disposal systems, the words “. may, and is hereby authorized to . . . ” must be given their usual and customary permissive meaning unless a contrary meaning is manifest from the content and spirit of the act as a whole.

The strongest argument advanced by the State is the two-year deadline for compliance imposed by § 349. At first glance, this compliance mandate appears all inclusive; and, if so interpreted, the two sections (§§ 347(a) and 349) are rendered inconsistent unless a mandatory interpretation is given to the challenged language of § 347(a). A closer examination of the introductory phrase of § 349 (“The accomplishment of solid waste management practices, within the meaning of this act . ”), however, reveals that these are words of limitation, restricting the operative effect of the deadline provision to those practices outlined in subsections (b), (c), (d), and (e), and subsections 348(b) and (c), which are mandatory by the terms of the act, and such phrase does not refer to the establishment provision of subsection (a), which is permissive by its terms.

This interpretation becomes even more apparent when considered in light of § 350 which states: “The county governing body or municipality undertaking the responsibility for providing services to the public under this chapter may . . .” This section, which appears in the original act as § 5, entitled “Enabling,” by its explicit reference to those governing bodies undertaking the responsibilities under this chapter implicitly recognizes that the governing bodies may elect not to undertake such responsibilities. Thus, a permissive interpretation appears consistent with the legislative intent.

Our refusal to interpret the permissive language of § 347(a) as mandatory neither ignores nor disturbs that line of cases of this Court based on the “public interest” principle of Simonton. Several of these cases, including Simonton, substituted “shall” for “may” in order to avoid declaring the statute unconstitutional (e. g., see Conecuh County v. Carter, 220 Ala. 668, 126 So. 132 (1930)). Other cases applying the Simonton principle have left the permissive language unaltered (e. g., Ex parte Banks, 28 Ala. 28 (1856)).

The case which we believe bears closest analogy to the instant case is George v. Board of Revenue and Road Com’rs of Mobile County, 207 Ala. 227, 92 So. 269 (1922). There, the Court refused to give mandatory meaning to the language of a stock law statute which gave the court of county commissioners “power and authority” to cause fences to be built on lines between “stock law” and “at large” districts. This Court in George found “no public necessity, so far as the protection of citizens is concerned” — an essential element for mandatory construction of permissive language.

Our most recent expression in this area is found in Miles v. Bank of Heflin, 295 Ala. 286, 328 So.2d 281 (1976).

“The interchangeability of ‘may’ and ‘shall’ to effect legislative intent is a sound rule; but it can be given a field of operation only where the overall expression of the legislative enactment evidences an intent and purpose contrary to the term employed. See Morgan v. State, 280 Ala. 414, 194 So.2d 820 (1967). Here, no contrary intent which permits ‘may’ to be substituted for ‘shall’ is manifest.”

The Rodgers’ principle of construing permissive language as mandatory where the legislative provision is accompanied by a penalty for failure to comply is not here applicable. As previously pointed out, the act contains mandatory provisions to which the provided penalty can be given a field of operation.

We are persuaded that our reversal of the trial Court would require that we substitute our policy judgment for that of the legislature in a field in which it has exercised its prerogative.

AFFIRMED.

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

      . Act No. 771, Acts of Alabama 1969, p. 1373, as amended by Act No. 2247, Acts of Alabama 1971, p. 3604.


author: BEATTY, Justice. MADDOX, Justice

text:
    Annie M. LOYD v. The CITY OF FLORENCE et al.
    SC 1871.
    Supreme Court of Alabama.
    July 16, 1976.

      Robert W. Walker, Florence, for appellant.
    Poellnitz, Cox, Robison, McBurney & Jones, Florence, for appellees.
   BEATTY, Justice.

Plaintiff-appellant, Annie M. Loyd, appeals judgments of the Circuit Court of Lauderdale County dismissing her complaints against the City of Florence, Tennessee Valley Authority and certain unnamed defendants for the alleged wrongful death of her minor daughter. We affirm.

Ms. Loyd alleged that her daughter drowned July 6, 1974, while swimming at Point Park, a public swimming complex operated by the City of Florence, as a result of the city’s negligence in operation of the park. She filed one suit against the above-named defendants claiming punitive damages; the second suit claimed funeral expenses.

Both cases were removed to Federal Court at the request of defendant Tennessee Valley Authority. T. V. A. was dismissed as a defendant by the Federal Court, and the cases were remanded to the Circuit Court of Lauderdale County. That Court dismissed the City of Florence as a defendant on February 27,1976; all other defendants in both cases were dismissed with the understanding that additional defendants could be added within thirty days. No defendants were added. Appellant now appeals the dismissal of the City of Florence in both cases, urging upon us the proposition that municipal immunity in death cases be abolished retroactively.

We affirm the action of the circuit court. Although Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68, abolished the doctrine of municipal immunity in all wrongful acts, that decision was prospective in application; therefore, municipal immunity was abolished only from July 10, 1975 forward. The tort which was the subject of this complaint occurred July 6, 1974, over a year prior to the decision in Jackson. Thus, at the time of the alleged tort municipal immunity existed. Therefore, the decision of the circuit court is due to be affirmed.

AFFIRMED.

HEFLIN, C. J., and JONES and SHORES, JJ., concur.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

I concur in the result reached because it prohibits a suit against the city. I still believe that the dissent in Jackson, which said municipal immunity is a legislative matter, is better law. In fact, this case shows precisely why the Legislature, not the courts, is generally best suited to make policy changes and establish effective dates. For instance, the majority’s holding in Jackson makes the date of that decision the effective date. Jackson was allegedly injured by the same City of Florence, but at a later time than Loyd, but got his appeal here first. Had this case reached this Court first, presumably this Court would have reached the same result it reached in Jackson. In that event, under the Jackson rule of prospective application, Loyd would have been able to proceed, but Jackson would not. I recognize that the majority follows the Jackson rule of prospective application in denying Loyd’s action, but I do not believe that one plaintiff should be able to sue the City of Florence and another cannot. That is obvious unequal treatment. I think the dissent in Jackson is still the better rule and that any changes in the law in this area should be left to the Legislature.


text:
    Paul W. SHOCKLEY v. STATE.
    8 Div. 616.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.
    Donald E. Holt, J. Douglas Evans and Joe M. Patterson, Jr., Florence, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was jointly indicted with Jide Irons for assault with intent to murder Clyde R. Goodwin, Sr., who was appellant’s brother-in-law. Appellant was convicted as charged. The trial judge fixed punishment at eighteen years imprisonment. He was declared an indigent and is represented here by appointed and competent counsel.

The two defendants were tried separately pursuant to law. Irons was tried and convicted of assault with intent to murder Goodwin. This conviction was prior to the trial of appellant. An appeal was taken to this court and dismissed, on Iron’s motion, after appellant’s trial. So Irons’ appeal was pending when appellant was tried.

A brief statement or summary of the evidence will be sufficient for the purpose of this opinion.

The evidence adduced by the State tends to show that appellant, with the aid of Jide Irons, the co-defendant, committed the offense charged.

Goodwin, the victim of the assault, testified that appellant importuned him to come to Florence, Alabama, and get some meat. Following this telephone conversation, he went to Florence.

After both had picked up some steaks, appellant promised to get Goodwin some hamburger patties. To that end, appellant told Goodwin to drive to Wildwood Park. Upon arrival, appellant got out of the car and talked with Jide Irons, who was waiting there. Appellant also told Goodwin that Irons would show him where the hamburger meat was. Appellant did not get back into the car.

Irons told the witness Goodwin to take a road that would lead to a dead-end. Upon arrival at the isolated area, Irons alighted and shot the witness five times.

Sometime prior to the shooting an insurance agent approached Goodwin about purchasing life insurance policies for a large amount. He signed an insurance application that designated appellant, his wife and their four children as beneficiaries. Later upon learning the amount of the premiums, Goodwin directed the agent to cancel the policies. The agent made no reply, but the policies were never delivered to Goodwin, nor did he pay any premiums therefor. It further appears from the evidence that although the victim never paid the premiums that appellant did.

Appellant-defendant testified and denied that he went with the victim to Wildwood Park. He admitted that he paid the premiums, but that he did so to keep the policies from lapsing. He did not admit financial difficulties at the time but on cross-examination he admitted some financial embarrassment. He admitted that he knew he was one of the beneficiaries of the ¡policies.

During the course of the trial, Irons was called as a witness for the State; he took the fifth amendment and refused to testify. The witness’ attorney, Mr. Evans, after some delay, arrived in court and along with the District Attorney and defendant’s counsel, held a conference in camera with the court.

The record indicates that before the witness’ attorney arrived the court held an in camera conference with the District Attorney and defendant’s attorney, at which time the refusal of the witness, Irons, to testify was discussed and considered. The court overruled defendant’s objection to the State interrogating the witness after Irons refused to testify. The court cited Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, cert. denied by the Supreme Court, 291 Ala. 803, 279 So.2d 538, as his authority in overruling defendant’s objection.

Shortly after the trial was resumed before the jury, Mr. Evans, counsel for the witness, appeared in court. Mr. Evans was given an opportunity to confer in camera with Irons, after which another hearing or conference took place outside the presence of the jury. Mr. Evans informed the court and the other involved attorneys that his client did not wish to testify in the case; that he informed his client if he did not wish to testify he would be glad to raise any objection and assert the fifth amendment under the Constitution of the United States and Article 1, § 6, of the Constitution of Alabama. The witness indicated to his attorney that was what he wanted to do. The court intimated that the witness might be subject to contempt of court for refusal. Mr. Evans stated that he had so advised his client.

The court then ruled that under Willing-ham, supra, the witness, by having taken the stand in own trial for the assault on Mr. Goodwin, had waived his constitutional right not to testify. The trial thereupon was resumed.

We do not think it necessary or advisable here to discuss the application vel non of our pronouncements in Willingham, supra; to the asserted rights of the witness. The witness adamantly refused to testify and continued throughout his appearance on the stand to assert his right not to do so.

It appears to us that before resumption of trial after the court’s ruling, the trial court and the District Attorney, who prosecuted for the State, were fully informed of the witness’ refusal to testify, but notwithstanding such knowledge the court allowed the witness to be bombarded with approximately twenty-five questions, most of which sought to elicit information relating to witness’ participation in the assault: They were calculated to fasten guilty conduct on defendant.

To each question, or approximately so, counsel for the witness objected, and so did defendant’s counsel. The objections were overruled and the District Attorney proceeded with the examination. We will not burden this opinion with a delineation of each question. Suffice it to say, the questionings were calculated to elicit critical evidence against appellant-defendant.

However, even though the court instructed the jury several times that the questions were not to be considered as evidence against the defendant, the court permitted multiple questions to be pyramided over defendant’s continuous objections thereto. We hold that the pyramiding was injurious to defendant and justifies a reversal of the judgment and remand of the cause.

In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), it appears that petitioner, the defendant in Alabama, an alleged accomplice as here, was tried separately in the State court for assault with intent to murder. Another alleged accomplice was called as a State’s witness in petitioner’s (defendant’s) trial, but repeatedly refused on self-incrimination grounds to testify. Under the guise of cross-examining the accomplice as a hostile witness, the prosecution, over defendant’s objections and despite the accomplice’s multiple refusals to answer (as here), read in the presence of the jury the latter’s purported confession which implicated the petitioner. The confession was read in the form of questions to the witness. The jury convicted the petitioner.

Petitioner’s inability, so the court said, to cross-examine the alleged accomplice about the purported confession and the reading of the confession, may well have been treated by the jury as substantial and cogent evidence of guilt, and denied him the right of cross-examination secured by the Confrontation Clause of the Sixth Amendment, which is made applicable to the states by the Fourteenth. Petitioner’s objection adequately preserved his denial of a federal constitutional right regardless of its adequacy- under State law. The Supreme Court of the United States reversed and remanded.

The United States Circuit Court of Appeals in Sanders v. U. S., 373 F.2d 735, 9 Cir., held that the refusal of a witness who claimed Fifth Amendment privilege, to answer certain questions, “. . . [AJdded critical weight to a prosecution’s case in form not subject to cross-examination, and thus prejudiced appellant Sanders. These inferences affected his substantial rights.”

In Fletcher v. U. S., 118 U.S.App.D.C. 137, 332 F.2d 724, the court held that proceedings wherein a witness was called by the prosecution and asked a series of questions as to his involvement with defendant in a robbery in question, followed by refusal of the witness to answer each of the questions on grounds that it might incriminate him, constituted prejudicial error.

For further discussions and treatments of the subject see: United States v. Coppola, 479 F.2d 1153, 10 Cir.; U. S. v. Compton, 365 F.2d 1, 6 Cir., cert. denied 385 U.S. 956, 87 S.Ct. 391, 17 L.Ed.2d 303; Robbins v. Small, 371 F.2d 793, 1 Cir., 386 U.S. 1033, 87 S.Ct. 1483, 18 L.Ed.2d 594; People v. Myers, 35 Ill.2d 811, 220 N.E.2d 297, cert. denied 385 U.S. 1019, 87 S.Ct. 752, 17 L.Ed.2d 557; State v. Dinsio, 176 Ohio St. 460, 200 N.E.2d 467; State v. Nelson, 72 Wash.2d 269, 432 P.2d 857.

In the latter case, (Nelson, supra,) the court observed:

“Had there been a genuine doubt in the mind of the prosecutor that the witness, Patrick, would again claim his privilege as he contended he would, the wisest solution, it seems to us, was that suggested by appellant’s attorney:
“ ‘If there is any doubt about what this man is going to testify to, I can ask the Court to call him in the absence of the jury and let the prosecutor ask him questions. This is a very critical thing in this case and I don’t want the prosecutor getting their point to the jury by unanswered questions.’
“As noted by the Fifth Circuit Court of Appeals in San Fratello v. United States, 340 F.2d 560, 565 (1965): ‘There is nothing about the government’s right to have a witness claim his privilege in response to specific questions while on the stand under oath that requires it to be done in the presence of the jury.’
“Another solution would have been to have discontinued the examination of this witness for the state once it became apparent that the witness did in fact intend to claim his privilege, as he had a right to do. This procedure met with our approval in the first trial of Nelson.
“But, in the present case, neither solution was attempted. Instead, the prosecutor called Patrick to the stand, and, in the presence of the jury, asked 28 questions of Patrick outlining substantially in its entirety the state’s theory of the case. As anticipated, Patrick claimed the privilege against self incrimination to each of the questions.”

In the case at bar, the prosecutor’s persistent confrontation of the witness, Irons, with multiple questions, approximately twenty-five in number, even though the prosecutor was informed in camera, and also after the questioning had begun, that Irons would not testify, supports a reasonable inference that the prosecution preferred to parade these questions before the jury, thereby impressing them with innuendoes and inferences of guilt prejudicial to defendant.

The trial court committed error in permitting such interrogation, although no answers were made, if for no other reason than that the defendant under such tactics was denied confrontation, a right of cross-examination, assured under the Sixth Amendment to the U. S. Constitution.

The court’s frequent admonitions to the jury that they should not consider the questions as evidence, while at the same time permitting the questioning to continue over repeated objections of defendant, did not cure the error. A proper procedure under the circumstances would have been for the court ex mero motu to have excluded the jury and thus defendant’s rights would have been protected.

It is no answer to the prejudice done defendant that the witness, under Willing-ham, supra, had waived his immunity from testifying. Regardless of such waiver, if applicable to the witness, Irons, so that he could not lawfully refuse to testify, he did refuse and continued to do so during the extended questioning.

The defendant did not invite or instigate the refusal; he had to sit with his hands tied while the parade of innuendoes and inferences went on and was denied by such procedure the right of cross-examination. The only thing the defendant could do was to object, which he frequently did, and suffer the consequences.

We hold that the trial court erred in overruling the defendant’s frequent objections and in permitting the questioning to continue before the jury.

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

The judgment below is reversed and the cause is remanded.

Reversed and remanded.


author: MADDOX, Justice.

text:
    In re Paul W. SHOCKLEY v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1541.
    Supreme Court of Alabama.
    July 2, 1976.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for petitioner.
    Donald E. Holt, Joe M. Patterson, Jr., and J. Douglas Evans, Florence, for respondent.
   MADDOX, Justice.

Defendant Shockley’s conviction for assault with intent to murder was reversed by the Court of Criminal Appeals, 58 Ala.App. -, 335 So.2d 659, because Shockley was effectively denied the right to confront a witness, an alleged accomplice, who was called by the prosecution and asked several questions, but who refused to answer any questions. We granted certiorari to review the judgment.

After review, we are of the opinion that the judgment of the Court of Criminal Appeals is due to be affirmed.

The Court of Criminal Appeals found that the defendant, Shockley, “did not invite or instigate the refusal” of the accomplice to testify; consequently, the case is controlled by Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), a strikingly similar case.

AFFIRMED.

JONES, SHORES, EMBRY and BEAT-TY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Oscar Lee JOHNSON v. STATE.
    3 Div. 340.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 15, 1976.

      See also, Ala.Cr.App., 58 Ala.App.-, 335 So.2d 679.

      William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: thirty-one years.

The homicide in question took place at Atmore State Prison on January 18, 1974. It occurred during a prison riot, which inmates termed a “revolution.” The victim, Officer Luell Barrow, was held as a hostage by rioting prisoners in the prison’s segregation unit. Appellant was tried for murder in the first degree on February 10, 1975, and on February 12, the jury returned the above verdict and punishment.

Other inmates have also been tried as a result of the riot, assaults and the killing. Johnny Harris, a key participant, was convicted of first degree murder pursuant to Title 14, § 319, Code of Alabama 1940, and sentenced to death. His conviction was affirmed by this Court on January 20, 1976, and is now pending in the Alabama Supreme Court on automatic appeal. Harris v. State, Ala.App.

The first witness for the State, Nelson E. Grubbs, a State Toxicologist, testified as to his post mortem examination on the body of Luell Barrow on January 19, 1974, at a funeral home in Escambia County. He stated that Barrow had five stab wounds on the head and a total of twenty-seven stab wounds. Dr. Grubbs testified that death was caused by stab wounds, inflicted by a long sharp instrument, possibly a knife some twelve to fourteen inches long. Dr. Grubbs stated, “In my opinion, death would have resulted immediately because the heart was cut almost into two pieces.”

The next witness called was Marion Harding, warden at the then Atmore State Prison (since renamed). He stated that he was notified by radio around 3:30 on the afternoon of January 18, 1974, that the inmates in segregation had taken two correctional officers hostage. When he got to the window inside the unit, he was informed that inmate George Dobbins was requesting to talk to him. Warden Harding testified that the following took place:

“A. When the cardboard was removed and I saw, I asked George Dobbins who was standing at the window along with Oscar Johnson, I asked . . . Dobbins what his problem was. He stated to me he didn’t have a problem, that I had a problem. That they were not bitching about the food nor the conditions of the prison, that this is a revolution and the revolution is on.
“Q. When you saw these inmates would you tell the jury whether or not they were armed at the time you saw them.
“A. They were armed. Inmate Dobbins had a prison-made knife, inmate Heard had what appeared to be one of the Officers’ night sticks, Oscar Johnson had a prison-made knife and inmate Moore had a prison-made knife.”

After this, inmate Johnson, the appellant, started hitting a knife against the windowpane and said, “This is no game. We mean business and we are ready and willing to die but we are going to kill some of these mother-_pigs before we do.” Inmate Dobbins then stated that they wanted to see the Governor’s Aide, the Commissioner, Sister Patricia, Sister Williams, Harold Martin and “a black dude that is a representative.” Harding said the inmates demanded those people there within five minutes, and that when he told them it was impossible, Dobbins said he knew that it was before he asked it. Dobbins then told Harding, “Just to show you we mean business and we are not joking, we are going to bring up some people that we have already killed. We have already killed some house-niggers and snitches and we are going to show you who they are.” Harding stated that he saw two inmates brought up and “that they were mutilated or they had blood all over them.”

Warden Harding also testified that he saw the appellant holding a knife at the throat of Officer Dreadin just before the inmates put the piece of cardboard or cloth back over the window. Then the following occurred:

“I asked Dobbins could we talk some more. He said, ‘Man, we are through talking. We are not talking anymore.’ And someone back in here, some several people talking, says, ‘Quit talking to the man. Let’s get started and get on with what we are supposed to be doing; this is a revolution, man, let’s go on and do what we are supposed to be doing.’
“Q. What happened then?
“A. Dobbins called back and said, ‘Bring up one of them mother-_ pigs and let’s show the man we mean business.’
“Q. What happened then?
“A. I heard a commotion back in here and then I heard Officer Dreadin yell and say, ‘Come in and get me. They have killed one of us and they are killing me now.’ At that time he appeared here at the door and I saw Frank Moore stab him as he fell through the door and George Dobbins stabbed him as he come through the door and he fell into the lobby. And George went back this way and we started in after them.”

After the Warden and his guards entered, he stated that he saw the appellant, Oscar Lee Johnson, and inmate Johnny Harris leave the Number One cell, the cell where Officer Barrow’s body was found.

Jewell F. Thomas, an inmate, testified that he was “hall flunky” with duties similar to a janitor and that the appellant and Johnny Harris were the other two “hall flunkies.” Thomas testified that he was in the lobby when he heard someone yell, “This is a revolution.” Someone also yelled to inmate Robert York, “This is a revolution — Do you want your cell open,” and York said, “Yes.” Thomas testified that he (Thomas) was stabbed twenty-two times. He was stabbed first by Dobbins and then Johnnie Wilson, Grover McCorvey, Charles Beasley, Oscar Johnson and Johnny Harris came in and attempted to “cut him up.” However, he testified that he could not say which of them was actually cutting him. Sometime later Dobbins instructed California Richie to finish Thomas off and Richie also stabbed him. Jewell Thomas testified that during the riot he saw the appellant and Grover McCorvey pass by his cell at separate intervals, each carrying a bloody knife.

The next State witness was Bruce Ether-idge, a correctional officer, who testified as to the help he rendered in removing Officer Barrow from the lock-up area of the prison and getting him into an ambulance. He testified that Barrow was covered with blood and that he stopped breathing during the drive to the hospital in Atmore. Ether-idge saw none of the disturbance on the day in question as he arrived on the scene as order was being restored.

Arthur Dreadin, a correctional officer, testified that he was captured and taken hostage along with Officer Luell Barrow. The following appears in the record in regard to the taking of the two guards as hostage:

“A. And we had already fed supper and was taking up the trays from the inmates and so Johnny Harris and Oscar Johnson, Johnny Harris come out first with a pick and he put it to my back and said not to say anything. And Oscar Johnson had a knife around Mr. Barrow’s neck, throat, and told us not to say nare word; did, they was going to kill us. We did not say nothing. They taken our keys, pocket book, watches and pocket knife, all our personal belongings we had on us and then they carried us over on Number Two side, on Number One.”

Dreadin testified that the appellant appeared to be one of the six ringleaders. He also stated that the inmates said that the revolution was, “taking over and that they was going to cut our heads off and . and roll them down the hall.” Dreadin testified that he and Barrow were taken to cell Number One in the following manner:

“Q. With these four persons. Where were you standing?
“A. Standing right in the door. Frank X. Moore was standing in the hall right ahead of me and just kept punching his knife at me and he said he wasn’t going to cut me, he just practicing, just kept doing that.
“Q. Harris, Moore, McCorvey and this Defendant were behind you in the cell with Barrow?
“A. Yes.
“Q. Did you say anything at this time?
“A. No, I didn’t.
“Q. Did you see Mr. Barrow at this time?
“A. I could just see him, just part of him. And so they taken — I saw him. He grunted, groaned like.
“Q. Did any of these inmates have weapons?
“A. They all had knives.
“Q. What kind of knives were they?
“A. Prison-made knives.
“Q. Did you hear Mr. Barrow say anything while he was behind you in the cell?
“A. He said ‘uhh, uhh,’ something like that. I saw him going down. I knowed what was happening so I run and Frank Moore was standing right at me. That is when he went to cutting me, stabbing me. I got to the door and that is about as far as I know.
“Q. Did you say anything?
“A. All I done I hollered for them to come on, get us. ‘They done killed Mr. Barrow and they cutting me.’ ”

At the close of Officer Dreadin’s testimony, the State rested its case. A motion to exclude the State’s evidence was overruled, and the defense called its first witness.

William Boyd testified as to the atmosphere existing at Atmore on January 18, 1974. When the defense sought to elicit testimony concerning an unrelated incident at an earlier date with Warden Harding and concerning conditions at the prison, the court held such to be irrelevant and immaterial. It was shown that the witness was not in the segregation unit on January 18, 1974.

Paul Echols testified next for the defense that he was in the segregation unit on January 18,1974, and testified to the conditions present at the time of the incident. He also testified that he never saw the appellant stab anyone and that Dobbins appeared to be the only leader. Echols stated that he and the rioters were beaten after the quelling of the “rebellion,” as he termed it, and that he had been threatened three times by guards seeking to keep him from testifying.

Claude Harris, Jr., testified that he was also in the unit on the day in question and that he had been there for twenty-one days. He, too, described conditions at Atmore Prison. He testified that he did not see the appellant stab anyone. Harris testified that he was hit over the head with a pick handle which required stitches. This witness also stated that Jewell Thomas sold water and extra food to the inmates.

The defense called Jerry White to testify to numerous conditions at the prison and to identify a lawsuit pending in federal court, however, his testimony was not allowed since he was not present on the day of the incident.

J. Andrew Lipscomb, a sociologist and minister, testified next and stated that he found Atmore to be, “one of the worst facilities I have ever had the displeasure of serving.” Lipscomb, as Assistant Director of the southern office of the United States Commission on Civil Rights, had the responsibility for a study of the Alabama prison system. This report, sought to be introduced as was Lipscomb’s testimony, was not allowed into evidence.

The appellant’s mother, Mrs. Eloise Johnson, testified that Oscar Johnson’s reputation in the community was “the best.”

The appellant, Oscar Lee Johnson, was the final witness to testify. The witness first testified that on January 18, 1974, he did not stab anyone. He described his duties as hall attendant and the conditions there in the segregation unit. Johnson further testified as to the goals of the Inmates For Action (IFA) organization of which he was chairman. He was asked questions as to the whereabouts of Jessie Clancy and as to rumors he had heard concerning what had happened to Clancy. He testified that he was told by an officer, “We are to go down there and beat them niggers and kill them like we did Jessie Clancy.”

After meal time, appellant cleaned the food trays into a “slop bucket.” The appellant testified that when he went out to put the slop in the bucket, the following took place:

“A. I grabbed Officer Dreadin, Officer Barrow — whichever one it was. I grabbed him because I wanted to get to see the Warden. I wanted the Warden to get. ... I wanted to see these people. We all wanted to see them to let them know what we been living under,' physically and mentally . . . .”

After this statement, he testified that he never stabbed, shot or hit Officer Dreadin. He also testified that no time limit was placed on the arrival of the persons they demanded to see. He said that the Warden kept telling them that he did not have time and that he could not get the people there. The appellant testified as to beatings and inhumane treatment inflicted upon the inmates after the incident.

The appellant testified that he had been convicted of a felony three times and that he had been put in “lock-up” because the officials said he was inciting a riot. He also testified as to various educational meetings had by the I.F.A. and that the members called each other “comrade.” Concerning their meetings, the appellant testified:

“A. We use the words of the ill-effects of capitalism. We use the words of the things we can do to better conditions of the things we’re living in and the conditions of population; how to stop ripping off the young people coming in; to kill homosexuality and the use of dope

The testimony established the segregation unit to be a maximum security unit for inmates that create disciplinary problems among the regular prison population. Prisoners are not segregated on the basis of race.

I

Appellant contends that there was a systematic exclusion of blacks and women from the jury roll from which the grand jury was drawn, therefore, the indictment and venire should have been quashed. Appellant asserts that his pretrial motion to quash contained substantial allegations in that regard and should have been granted.

Appellant’s motion to quash was based upon the same statistical data as that used in the Harris case, supra. In order to show the racial composition of the Escambia County jury roll, Diana Hicks, a college student and part-time law clerk for Johnny Harris’ attorney, took a sample that consisted of the last 451 names on the jury roll. The jury roll in that county normally consists of around 4,000 names.

A statistical analysis of the sample was compiled by a statistician, Dr. Joseph Van Matre. From the random sampling, appellant alleges that only 10.6% of the people on the jury roll were black, while blacks constitute 27.2% of the population of Escambia County eligible for jury duty. He contends that approximately 35.5% of the names from which the grand jury was selected were names of women, whereas they constitute 50% of the population of the county. Appellant contends that the random sample of 451 names out of some 4,000 on the jury roll was sufficient to establish an underrep-resentation of blacks and females requiring the indictment and venire to be quashed. The trial court disagreed and overruled appellant’s motion to quash.

In White v. State, 48 Ala.App. 111, 262 So.2d 313, Judge Tyson, speaking for this Court, stated:

“The law is clear that a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his own race on the jury which tries him, nor on the jury roll from which grand and petit jurors are selected. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.”

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the United States Supreme Court, in ruling on a similar question from Talladega County, failed to find that the statutory method of the jury selection there resulted in purposeful discrimination based on race. The Court recognized that venires drawn in the same or similar manner as in the instant case contain a smaller proportion of blacks than whites in the community. The Court went on to state:

“. . . But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. . . . Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. . . . We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%. . . . ” (Citations omitted.)

The Supreme Court stated further:

“. . . There is no evidence that the commissioners applied different standards of qualifications to the Negro community than they did to the white community. Nor was there any meaningful attempt to demonstrate that the same proportion of Negroes qualified under the standards being administered by the commissioners. It is not clear from the record that the commissioners even knew how many Negroes were in their respective areas, or on the jury roll or on the venires drawn from the jury box. The overall percentage disparity has been small, and reflects no studied attempt to include or exclude a specified number of Negroes. Undoubtedly the selection of prospective jurors was somewhat haphazard and little effort was made to ensure that all groups in the community were fully represented. But an imperfect system is not equivalent to purposeful discrimination based on race. We do not think that the burden of proof was carried by petitioner in this case.” (Footnote omitted.)

See also Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966); White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966); Carter v. State, 53 Ala.App. 43, 297 So.2d 175; King v. State, 53 Ala.App. 160, 298 So.2d 92; Brantley v. State, 55 Ala.App. 493, 317 So.2d 337.

In Harris v. State, supra, we quoted from Butler v. State, 285 Ala. 387, 232 So.2d 631, wherein our Supreme Court stated:

“The burden of proof is on the person attacking selection procedure to show ‘the existence of purposeful discrimination’ by the exclusion of Negroes on account of race from jury participation. . Purposeful discrimination may not be assumed or merely asserted. It must be proved. . . .” (Citations omitted.)

There is no proof in the instant case that the opportunity existed for the jury commissioners to subjectively discriminate on the basis of race or sex. Neither was there evidence of a past pattern of discrimination in jury selection in Escambia County. Based upon the above cited authority and our expressions in the Harris case, supra, on the identical issue, we find that the appellant’s motion to quash and affidavit in support thereof falls considerably short of the proof necessary to establish purposeful discrimination. The trial court, therefore, did not err in overruling appellant’s motion.

II

Appellant contends that the trial court erred in overruling his motion that he be present at the hearing of his preliminary pretrial motions. Preliminary motions hearings and pretrial motions hearings are not viewed by this Court as a “critical stage” of the trial. Berness v. State, 263 Ala. 641, 83 So.2d 613. 23 C.J.S. § 974 states in pertinent part:

“The trial does not embrace every procedural and administrative step and judicial examination of every issue of fact and law during the trial, and accused’s presence is not necessary during proceedings which are no part of the trial, such as preliminary or formal proceedings or motions which do not affect his guilt or innocence. .
“It has been held that accused’s presence is not necessary at the hearing and determination of a demurrer to the indictment or information, of a motion to quash the same, of a plea in abatement, or of a motion for leave to file an information, or to summon witnesses, or to amend the information . . or of other motions. .
. . Thus, the exclusion of accused during conferences of court and counsel on questions of law, at the bench or in chambers, has been considered not to constitute a denial of the right of accused to be present at every stage of the trial. .” (Footnotes omitted.)

Also see: State v. Neal, 350 Mo. 1002, 169 S.W.2d 686; Rosebud County v. Flinn, 109 Mont. 537, 98 P.2d 330.

Ill

Appellant contends that the trial court’s voir dire examination of prospective jurors was inadequate and that denial of this motion for individual counsel-conducted voir dire constituted error.

It is well settled in Alabama that the trial court has the discretion as to how voir dire examination of the venire will be conducted. Beecher v. State, 288 Ala. 1, 256 So.2d 154 (reversed on other grounds, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; McPhearson v. State, 271 Ala. 533, 125 So.2d 709.

The trial court allowed the defense to submit questions “to the court for its consideration one day before the qualifying of jurors,” and the trial judge also allowed additional questions during the qualification of jurors, “if the response to the original questions pronounced by the Court seems to justify such additional questions.” We find no abuse of discretion by the trial court in following such procedure. Title 30, § 6, Code of Alabama 1940, requires the trial judge to ascertain that the jurors possess the qualifications required by law, and Title 30, § 52, allows either party the further right to examine jurors, “under the direction of the court.” The trial court may conduct the voir dire examination of the venire and refuse to allow defense counsel to personally interrogate each prospective juror. Aaron v. State, 273 Ala. 337, 139 So.2d 309, cert. denied, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82.

IV

Appellant contends that his denial of a preliminary hearing and of a bill of particulars should be grounds for reversal of his conviction.

A preliminary hearing is not a required procedure in a criminal prosecution and no right to such exists in Alabama after indictment. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Ex parte Campbell, 278 Ala. 114, 176 So.2d 242; Rhodes v. State, 50 Ala.App. 661, 282 So.2d 100.

An accused is not entitled to a bill of particulars under Alabama law. Even in jurisdictions where the granting of a bill of particulars is permissible, such rests within the discretion of the trial judge. In Jones v. State, 136 Ala. 118, 34 So.2d 236, our Supreme Court, at p. 238 stated:

“. . . Whatever may be the practice in those jurisdictions with respect to demanding a bill of particulars in criminal cases . . ..the practice has never prevailed in this State, and we would be unwilling to introduce into it such an innovation. . . . ”

Also see Danley v. State, 34 Ala.App. 412, 41 So.2d 414, cert. denied 252 Ala. 420, 41 So.2d 417, and Kennedy v. State, 39 Ala. App. 676, 107 So.2d 913.

V

The appellant contends that the evidence was insufficient to support a conviction for “aiding and abetting” in the homicide because there was no evidence that the actual perpetrator knew of the appellant’s presence or willingness to assist.

The testimony of at least three witnesses for the State amply supports appellant’s conviction. Warden Harding, Officer Dreadin and Jewell Thomas, establish in their testimony that appellant was not only a participant in the riot, but was a leader. Their testimony established that appellant was at all times in the segregation unit where the riot occurred, that he was armed with a knife and participated in holding hostages. Testimony also placed appellant in the very cell where the deceased was stabbed to death. Testimony likewise portrayed appellant as holding a knife to the throat of á correctional officer.

The trial court properly instructed the jury that conspiracy need not be proved by positive testimony. Circumstantial evidence may be considered by a jury in determining whether or not a conspiracy existed. Stokley v. State, 254 Ala. 534, 49 So.2d 284; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358; Parsons v. State, 33 Ala.App. 309, 33 So.2d 164.

The trial court’s charge, in this regard, came directly from the following Alabama cases: Davis v. State, 36 Ala.App. 573, 62 So.2d 224; Ray v. State, 32 Ala.App. 556, 28 So.2d 116. Appellant cannot rely upon the argument that he cannot be treated as a coconspirator or accessory to the crime unless the principal knew of his presence and willingness to aid and abet in the criminal act. That rule, stated correctly, is that mere presence alone, where there was no prearrangement or preconcert, is insufficient to establish a conspiracy, “unless the principal knew of the presence, with intent to aid, of such person.” Raiford v. State, 59 Ala. 106; State ex rel. Martin v. Tally, 102 Ala. 25, 15 So. 722; Morris v. State, 146 Ala. 66, 41 So. 274.

Here, there was much more than the appellant’s mere presence at the scene of the crime to support the finding of the jury that Oscar Johnson aided and abetted in the homicide. Whether appellant aided and abetted in the murder was a question for the jury, and we are of the opinion that the evidence was sufficient to go to the jury on this question. Davis, supra.

VI

Appellant contends that the trial court should have excluded the testimony of Jewell Thomas, “particularly as it related to stabbings,” as its prejudicial nature was so high in relation to its probative value as to make such evidence inadmissible.

It is a well-established principle that evidence of other or collateral crimes is not admissible as substantive evidence to establish the guilt of an accused of a particular crime. To this well-established rule, there are several equally well-established exceptions. Wharton’s Criminal Evidence, § 31, lists them as follows:

“These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand, to protect the accused and secure to him the rights guaranteed to him by the Constitution and the laws.”

See Murphy v. State, 52 Ala.App. 490, 294 So.2d 457; Brasher v. State, 33 Ala.App. 13, 30 So.2d 26, cert. denied 249 Ala. 96, 30 So.2d 31.

The stabbing of Jewell Thomas, as well as the other acts of violence enumerated in the evidence, were a part of the whole or same occurrence and thus could be considered by the trial court as relevant as a part of the res gestae. Also see McElroy, The Law of Evidence in Alabama, Vol. 1, § 69.01(3), p. 167; Keith v. State, 253 Ala. 670, 46 So.2d 705; Grant v. State, 250 Ala. 164, 33 So.2d 466.

VII

Appellant contends that the court should have allowed testimony concerning the conditions at the prison. He argues in brief such conditions gave rise to the incidents which ultimately resulted in the instant prosecution. We cannot agree with such contention. The conditions in the Alabama penal system, and more particularly in the Atmore Prison, are not relevant to the issue of whether or not the appellant killed Luell Barrow.

At any rate, testimony was injected throughout the trial concerning the prison conditions. Such testimony came from Jewell Thomas, Paul Echols and from the appellant himself. However, the testimony of Warden Harding bears mentioning in that it tends to show that the prison conditions were not the cause of the riot.

Warden Harding described his conversation with inmates George Dobbins and Oscar Lee Johnson at the very beginning of the riot:

“When the cardboard was removed and I saw, I asked George Dobbins who was standing at the window along with inmate Oscar Johnson, I asked Officer (sic) Dobbins what his problem was. He stated to me he didn’t have a problem, that I had a problem. That they were not bitching about the food nor the conditions of the prison, that this is a revolution and the revolution was on.” (Emphasis supplied.)
VIII

Appellant contends that the circumstances surrounding the death of inmate George Dobbins should have been admitted as part of the res gestae.

Whether testimony is part of the res gestae is a matter to be determined by the court on a case-by-case basis, and there is no hard and fast rule for making such a determination. Price v. State, 41 Ala.App. 239, 128 So.2d 109. As previously stated, the testimony of Jewell Thomas was admissible since his stabbing was a part of the whole or same occurrence. The time is significant in this instance since the death of Dobbins occurred after the death of Officer Barrow and occurred a substantial period of time after the uprising had been quelled. The circumstances surrounding the death of inmate Dobbins failed to meet the requirements set forth in Murphy v. State, 42 Ala.App. 60, 63, 151 So.2d 800:

“The general rule is that acts or declarations are admissible as part of the res gestae if they are ‘substantially contemporaneous with the main fact under consideration, and so closely connected with it as to illustrate its character.’ . . . ”

(Citations omitted.)

Appellant convinced neither the trial court nor this Court that the circumstances surrounding the death of George Dobbins have any relevant bearing upon the issue being decided in the instant case.

IX

The appellant insists that the trial court erred in cutting off the testimony of Claude Harris which would have impeached Jewell Thomas by showing Thomas to have been biased and guilty of the illegal conduct of selling food and water to inmates. Appellant argues that the judge put an end to the line of questioning which would have tended to accuse Thomas of illegally selling food and water to inmates.

This argument can be disposed of on the basis of a reading of the record. The record discloses that the witness was allowed to testify concerning the selling of such food and water. It was only when defense counsel asked the collateral question, “How was the food back at that time in this area?” that the judge sustained an objection. Such ruling did not cut off further questions concerning the selling of food and water by Jewell Thomas, and the record fails to show that defense counsel could not have propounded further questions along those lines had he so desired.

X

Appellant contends that the trial court limited his access to possible witnesses to only those prisoners who were present at the time and place the crime was committed. He argues that such a restrictive ruling effectively barred access to impeachment witnesses. Again, a reading of the record will not support the appellant’s contention in this regard. The ruling of the trial court appears in Volume I, p. 80, of the record:

“THE COURT: Anybody that is a material witness they can see. If they are talking about people who went into the system after this all happened, I will have to be shown the basis.”

We find no error in the trial judge’s refusal to turn the keys of the prison over to defense counsel to roam at will, interviewing inmates who were not even in the prison system at the time the crime occurred. It is clear from the trial court’s statement above that all material witnesses were available to the defense, and further that inmates not in the system at the time of the crime could possibly be interviewed if the defense showed the trial judge a valid basis for such. We find no error in this.

XI

Appellant asserts that he was never properly informed of the charges against him. In addition to his contention that denial of a preliminary hearing and of a bill of particulars was a violation of his rights, he attacks the indictment as being conclusory and uninformative in its wording.

We have disposed of his argument concerning denial of a preliminary hearing and of a bill of particulars in IV, ante.

The proper method of reaching defects in an indictment is by demurrer and not by motion to quash. Boulo v. State, 49 Ala. 22; Daniel v. State, 149 Ala. 44, 43 So. 22.

The indictment, attacked by the appellant, follows Code Form 79 as set out in Title 15, § 259, Code of Alabama 1940, and therefore sufficiently informed the appellant of the charges against him. Indictments which substantially follow the form set out in the Alabama Code have been held to be sufficient since the earliest days of our judicial system. Duncan v. State, 278 Ala. 145, 176 So.2d 840; Sanders v. State, 278 Ala. 453, 179 So.2d 35; Jones, supra.

XII

Appellant contends that before trial, the trial judge examined, in camera, some sixty to seventy statements obtained by state investigators. Appellant contends that after reviewing such statements, the trial judge would have been biased against him.

In view of the appellant’s pretrial motions for discovery and his demands for production of such statements, we find nothing improper in the trial judge’s action in reviewing such material. Judge DeCar-lo, in a lengthy and well researched opinion on the subject of judicial bias wrote, in the case, In re White, 53 Ala.App. 377, 300 So.2d 420, cert, denied 293 Ala. 778, 300 So.2d 439:

“The bias of prejudice which will disqualify must be ‘personal’ as distinguished from ‘judicial’ bias. ‘Personal’, as contrasted with ‘judicial’, characterizes an attitude of extra-judicial origin, derived non coram judice. Craven v. United States, 1 Cir., 22 F.2d 605.”

Appellant fails to make any showing of a bias on the part of the trial judge which would work a recusal or disqualification pursuant to the standards set out in White, supra.

XIII

Appellant contends the trial court erred in denying his motion for change of venue.

Filing a motion for change of venue pursuant to Title 15, § 274, Code of Alabama 1940, the appellant has the burden to prove that he could not receive a fair and impartial trial in Escambia County. Mere allegations of widespread publicity or of racial or economic prejudice is insufficient. It has likewise been held that the mere introduction of newspaper articles is insufficient without a showing to the trial judge what effect such articles would have on the venire. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175, cert. denied 266 Ala. 694, 96 So.2d 178; Aycock v. State, 50 Ala.App. 130, 277 So.2d 404, cert. denied 291 Ala. 49, 277 So.2d 412.

A motion for change of venue is addressed to the sound discretion of the trial judge, and his rulings will not be disturbed on appeal, absent a showing of abuse of discretion. Cobern v. State, 273 Ala. 547, 142 So.2d 869; Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79. From a review of the record, we find that the appellant failed to meet the burden of proof necessary to support the motion for a change of venue, and we fail to find an abuse of discretion on the part of the trial judge in denying the same.

XIV

Appellant urges that he was a victim of selective enforcement and thus was denied equal protection of the laws.

In 1962, the United States Supreme Court, in the case of Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446, said:

“. . . the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore, grounds supporting a finding of a denial of equal protection were not alleged. .” (Citations omitted.)

We take judicial notice that appeals have been taken to this Court from the convictions of at least four inmates participating in the Atmore Prison riot. Whether, the State had sufficient proof to bring successful prosecutions against other inmates is not known to us. However, we do know from reading the record in the instant case that the appellant was a ring leader in the so-called revolution and that the testimony against him as such is amply sufficient to support the instant prosecution for murder directly or under Title 14, § 14, Code of Alabama 1940, as an accomplice.

No one reading the record could logically come to the conclusion that appellant was being tried because of the color of his skin or because of a religious belief, or because of some other unjustifiable standard or arbitrary classification. It is evident from the record that appellant was tried because he participated in the cold blooded, savage murder of Luell Barrow.

XV

Appellant claims the denial of funds to pay defense expenses for investigators and assistance of experts amounts to a denial of equal protection of the law.

In Tillis v. State, 292 Ala. 521, at p. 525, 296 So.2d 892, at p. 895, our Supreme Court stated:

“The defendant makes the argument that because of his indigency, he was not able to adequately investigate or procure witnesses in his defense, and the State does not award sufficient funds to pay an attorney and do those things, too. To be sure an indigent defendant is in a difficult position. This question has been raised before. Wheeler v. State, 47 Ala. App. 457, 256 So.2d 197 (1971). While some provisions are made for this in the federal system, it is not the present situation in this State. . . .”

Title 18, § 3006A(e), U.S.C.A., provides financial assistance to indigent defendants to obtain investigative, expert or other services necessary for an adequate defense. Other states, such as California, provide for such assistance, however, the Alabama legislature has not enacted such a statute in this state. As stated in Harris v. State, supra, “Appellant was not denied due process where the state did not provide funds for the employment of a special investigator to aid him in procuring witnesses in his defense. . . . ”

XVI

Appellant alleges error on the part of the trial judge in denying his request for discovery of: statements taken by state investigators; criminal and psychiatric records; grand jury minutes; prisoner “jackets”; findings of investigatory meetings; and information to support a jury challenge.

The trial judge reviewed, in camera, the statements taken by state investigators as per Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The United States Supreme Court in 1972 explained the Brady decision, in part, in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, as follows:

“The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. These are the standards by which the prosecution’s conduct . . . is to be measured.
* * * * * *
“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. . . . ”

Limitation on prosecutory suppression of evidence was set out in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 and paraphrased as follows in Shuler v. Wainwright, 5 Cir., 491 F.2d 1213 (1974):

“(1) Deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice. The same results obtain, when the State, although not soliciting false evidence, allows it to go uncorrected when it appears;
“(2) When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falis within the rule;
“(3) The rule however does not automatically require a new trial whenever a combing of prosecutors’ files after trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict (emphasis ours). A new trial is required if false testimony could in any reasonable likelihood have affected the jury.”

We fail to find a violation of any of the above standards in the instant case on the part of the prosecution. We find no evidence on this appeal that any evidence was suppressed which could have devalued the strong case the state proved against the appellant, “that would have led the jury to entertain a reasonable doubt of the defendant’s guilt.” United States v. Teague, 7th Cir., 445 F.2d 114 (1971). Neither are we convinced from appellant’s assertions that the material sought was, “so material to the guilt or innocence of the accused that he was denied a fair trial under the teachings of Brady v. Maryland. . . .” Shuler, supra; Davis v. Heyd, 5th Cir., 479 F.2d 446.

The standards set out in Brady and Moore, supra, do not subject a prosecutor in a state criminal proceeding to a “scatter-gun” motion to produce, nor to a motion amounting to a mere “fishing expedition” by a defendant. McCants v. State, 282 Ala. 397, 211 So.2d 877; Sanders v. State, 278 Ala. 453, 179 So.2d 35; Mabry v. State, 40 Ala.App. 129, 110 So.2d 250, cert. denied 268 Ala. 660, 110 So.2d 260; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62, cert. denied 293 Ala. 548, 307 So.2d 73. We find no abuse of discretion on the part of the trial court in denying appellant’s requests. Maneas v. State, 57 Ala.App. 431, 329 So.2d 120 cert. denied 295 Ala.-, 329 So.2d 126 (1976).

XVII

Appellant contends that the trial tactics and inflammatory comments of the prosecution deprived him of a fair trial.

We have reviewed each comment of the prosecution which appellant argues were improper and which had the cumulative effect of inflaming the jury. In each instance, the trial judge sustained appellant’s objection or else the comment or question was withdrawn by the state and no ruling ’of the court was invoked. On several occasions, the trial judge admonished the jury to disregard the comment or gave other corrective instruction.

This Court will only be persuaded to a reversal on such an allegation where the prosecutor’s comments go to, prejudicial matters not in evidence which either cannot be eradicated from the minds of the jurors, or being eradicable, where the trial judge overrules objection thereto or ■ fails to properly instruct the jury. Allred v. State, 291 Ala. 34, 277. So.2d 339 (1973). Comments, even though hard hitting, which may arise from reasonable inferences from the evidence are permissible. To quote from Arant v. State, 232 Ala. 275, 167 So. 540:

“Counsel for the state and defendant are allowed a rather wide latitude in drawing their deductions from the evidence. .
* * 4c 4c 4s' 4c
“. •. . Such statements are usually valued by the jury at their true worth . . . and not expected to become factors in the formulation of their verdict. .
* * * 4: * *
“. . . But, after all, we must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair. . . .” (Citations omitted.)

We find no reversible error in this regard.

XVIII

Appellant’s contention that the trial court erred to a reversal in charging the jury as to the death penalty is without merit. This Court as recently as 1974 held it was not reversible error to charge the jury on the death penalty where the accused was indicted for first degree murder, but was convicted by the jury of second degree murder. Goodwin v. State, 53 Ala. App. 498, 301 So.2d 261 and numerous cases cited therein.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


author: EMBRY, Justice.

text:
    In re Oscar Lee JOHNSON v. STATE. Ex parte Oscar Lee Johnson.
    SC 1932.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    William M. Dawson, Jr., Birmingham, for petitioner.
    None for the State.
   EMBRY, Justice.

Petition of Oscar Lee 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 of Ala., 58 Ala.App.-, 335 So.2d 663.

WRIT DENIED.

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