text:
    Mary Lee BEAN et al. v. Jim MITCHELL et al.
    77-694.
    Supreme Court of Alabama.
    June 22, 1979.
    Rose Mary Sanders of Chestnut, Sanders & Sanders, Selma, for appellants.

      Louis C. Rutland, Union Springs, for ap-pellees.
   ALMON, Justice.

This appeal involves a boundary line dispute between coterminous land owners. We affirm.

The facts out of which this dispute arose are set out in the judgment of the Circuit Court.

“This cause involves a disputed boundary line between adjoining land owners. The Complainants have title to the SW ¼ of the NW V4 of Section 17, Township 14, Range 21, Bullock County, and other adjoining property whose lines are not in question. The Respondents have title to lands adjoining on the east and south sides of such SW Vi of NW Vi. There is a rectangular shaped parcel of land of approximately eight acres lying in the SE corner of said SW of NW ½ that is in dispute.
The Complainants have record title to the entire forty, including this eight acres, and claim ownership by virtue of their record title and also claim that they have been in possession of such eight acres until approximately four years prior to the time this suit was filed. The Complainants contend that the true boundary line is the east and south line according to the government survey of SW ¼ of NW Vi, Section 17, Township 14, Range 21, Bullock County, Alabama.
The Respondents contend, however that their predecessor in title, Virón Tur-nipseed, purchased the adjoining SE Vi of the NW Vi of Section 17, Township 14, Range 21, in 1929 and included within its fenced boundaries was the 8 acres lying in the SE corner of the SW of NW Vi, and that their said predecessor was placed in possession of these eight acres along with the land described in his deed, all of which was enclosed within a common fence. Respondents contend that Virón Turnipseed continued in possession of lands up to that fence claiming the same to be the boundary line, until his death in 1951 and that they, as devisee under his will, and subsequent grantees of such devisee, have been in possession since his death claiming title up to the fence.
Upon consideration of the evidence presented upon two hearings of this cause and of an inspection of the premises by the court, the court finds as follows:
That the Respondents and their predecessors in title have been in actual, open, notorious, peacable [sic], continuous and adverse possession of the property which lies south and east of the fence shown on Complainant’s Exhibit 2, claiming to own the same for over twenty years prior to the filing of the complaint, and said property has been under definite visible boundaries and enclosures and that Respondents and their predecessors have occupied up to the fence separating the property of the parties claiming same to be the true boundary for over twenty years.
That the Court has personally inspected the subject property and found that the fence claimed by the Respondents to be the boundary has been in its present location for more than twenty years as evidenced by the fact that trees along said fence have grown around the wire and in some instances the wire is embedded up to six inches in some trees. The Court also finds by personal observation that there is no sign of an old fence, hedgerow, treeline, or other evidence on the ground to show that there was ever a different boundary line than is now situated on the property.
That the present fence as observed by the Court and as surveyed by J. B. Johnson on May 2, 1970, which said survey is shown by Plaintiff’s Exhibit 2, a copy of which is attached hereto and incorporated herein by reference, is the true and correct boundary line between Complainants and Respondents.”

The appellants contend that the trial court misapplied the principle of “tacking” in this case and/or the appellees failed to sustain their burden of proof regarding adverse possession. We find that both of these contentions are without merit.

The evidence indicated that Virón Tur-nipseed claimed and possessed the disputed property from 1929 until his death in 1951. He devised all of his real estate to his widow who, in turn, conveyed certain real estate to the Mitchells in 1964. The crux of the appellants’ contention is that since the 1964 conveyance did not include the legal description of the disputed property, the Mitchells cannot avail themselves of the tacking doctrine.

This precise question was recently addressed by this Court in Watson v. Price, 356 So.2d 625 (Ala.1978):

. ■ . . For the purpose of effecting title by adverse possession, where all the • traditional elements are present, tacking of periods of possession by successive possessors is permitted against the coterminous owner seeking to defeat such title, unless there is a finding, supported by the evidence, that the claimant’s predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant’s predecessor in title. . . . 356 So.2d at 627.

Thus, the trial court did not err in its application of the tacking doctrine in this case.

We also believe that the appellees sustained their burden of proof in this case. Since it is undisputed that the appellants were the record owners of this property, the appellees as coterminous owners, had to establish their dominion over the land as against the whole world for the requisite period of time. Williams v. Davis, 280 Ala. 631, 197 So.2d 285 (1967). In light of our decision on the tacking issue in this case, the record provides ample support for the trial court’s findings in this regard.

The rule has been applied in boundary line disputes that questions of adverse possession are questions of fact properly determined by the trier of facts, and that the determination so made, where the evidence is taken orally, as here, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust,

(citations omitted) Martin v. Mansell, 357 So.2d 964, 966 (Ala.1978), quoting Casey v. Keeney, 290 Ala. 94, 98, 274 So.2d 68, 71 (1973).

Because we find no evidence in the record tending to indicate that the trial court was plainly erroneous, and the trial court’s decision is not manifestly unjust, the trial court is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Ethel D. CRAIG et al. v. Benjamin CRAIG et al.
    77-737.
    Supreme Court of Alabama.
    June 22, 1979.

      U. W. Clemon, Birmingham, for appellants.
    Francis W. Speaks of Speaks & Burnett, Clanton, for appellees.
   BLOODWORTH, Justice.

This is an appeal from a judgment cancel-ling a deed and ordering a sale for division. We affirm in part, reverse in part and remand.

In 1962, Rev. Abe Craig died, leaving a will naming his son, Marcus Craig, as executor. The will directed the executor to sell 80 acres of land and use the proceeds to reimburse Marcus for hospital bills, doctors’ bills, medical expenses, and attention paid by Marcus on Abe’s behalf. The remaining proceeds, if any, were to be divided equally between, Abe’s seven children, including Marcus. The will was filed for probate in 1962. No claims were filed, and the estate was never finally settled.

In 1963, Marcus deeded the land to himself in consideration of “support and medical bills” of the value of $4,000. The deed was duly recorded. There is no evidence that Marcus personally notified his brothers and sisters of the sale, nor is there any evidence that they knew of it.

On December 20, 1976, Marcus died. The following March, the appellees, Abe’s surviving children, filed this action against the appellants, Marcus’ widow and children, seeking to set aside the deed as a fraudulent conveyance and to sell the land for division, alleging they had just discovered the deed.

The trial court, after hearing evidence ore tenus, concluded that “the said Marcus Craig was acting in a fiduciary capacity and said conveyance without full disclosure to the persons who held a beneficial interest was a violation of his cestui que trust and the property was not exposed to sale in the ordinary mode and under such circumstances as to command the best price . . .” [Emphasis ours.] The trial court cancelled the deed and ordered a sale for division.

The appellants’ initial contention is that the trial court erred by ruling against them on their defense of the ten-year statute of limitations, Code 1975, § 6-2-33(2). This section, dealing with actions for the recovery of lands, applies to actions seeking to set aside a deed as a fraudulent conveyance. Hall v. Hulsey, 271 Ala. 576, 126 So.2d 217 (1961); Drummond v. Drummond, 232 Ala. 401, 168 So. 428 (1936).

The burden is upon the party asserting the fraud to show circumstances which would prevent the running of the statute. Hall v. Hulsey, supra. However, the statutory period does not start to run until adverse possession begins. Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779 (1949); Rowe v. Bonneau-Jeter Hardware Co., 245 Ala. 326, 16 So.2d 689 (1943).

The complaint in this case is silent as to possession. It does not show on its face whether or not Marcus was in adverse possession so as to start the running of the ten-year statute. Ellis v. Stickney, supra. Therefore, the motion to dismiss was properly denied.

Moreover, the evidence adduced at trial was not sufficient to establish adverse possession for ten years. There was testimony that Marcus Craig paid taxes on the land, collected rents, and made no accounting of the profits. However, there is nothing to show that his possession was adverse to the rights of his brothers and sisters. There was no open disavowal of his position as executor brought home to the other heirs with unquestionable certainty, thus putting them on notice that he held the land for himself and not for the estate. See Holt v. Wilson, 75 Ala. 58 (1883); McCarthy v. McCarthy, 74 Ala. 546 (1883).

In addition, appellants contend that the conveyance was proper under established principles of law. They point out that it was unnecessary for Marcus Craig to file a claim in order to recover any indebtedness owed to him by Abe Craig or his estate. We agree, because Abe Craig, in his will, charged his estate with the payment of indebtedness to Marcus. The will created a trust for the payment of the debt, thereby avoiding the statute of nonclaim. Bromberg v. First National Bank, 235 Ala. 226, 178 So. 48 (1937); Foster v. Featherston, 230 Ala. 268, 160 So. 689 (1935).

Now, we turn to the decisive issue in this cause, whether an executor may, under certain circumstances, convey estate land to himself, and, if so, whether those circumstances are present here.

This Court has consistently held that an executor or administrator may sell estate lands to himself. This practice, discussed at length in the early case of Brannan v. Oliver, 2 Stew. 47 (Ala.1829), treats the sale as voidable at the option of the ■distributees of the estate, upon timely application. This rule has a single exception: if the executor or administrator has an interest in the property sold, and the land is sold fairly, in the ordinary mode or way, and so as to command the best price, in such case the sale is not voidable. E. g., Bank of Wetumpka v. Walkley, 169 Ala. 648, 53 So. 830 (1910); Penny v. Jackson, 85 Ala. 67, 4 So. 720 (1888). If one of these elements is absent, the distributees or heirs may avoid the sale for fraud, the burden being upon them to show that their claim was brought within a reasonable time. See Randolph v. Vails, 180 Ala. 82, 60 So. 159 (1912).

The reason for departing from the general rule that a trustee may not purchase trust property at his own sale is explained in Brannan v. Oliver, supra. There, this Court recognized that an administrator is considered to be a trustee of the creditors and distributees of the estate, and that his duty as a trustee “obliges him to communicate all information, and to exert all the care and industry necessary to dispose of the estate as advantageously, for his cestui que trust, as if he were selling it for himself.” Id. at 49. However, this Court found in Brannan, supra, that this general rule was inapplicable in that case when the defendant, as administratrix, had sold estate property to herself at public auction, with a return of the sale made to the court. The great difficulty in discovering a trustee’s violation of duty was alleviated because “there is little danger of unfairness in the sale passing undetected where it is made publicly.” Id. at 53. Thus, this exception in favor of executors and administrators purchasing at their sale of the estate, as delineated in Brannan, was limited as follows: “an administrator may purchase at a sale made at public auction, under legal authority, of his intestate’s estate,” if the administrator or executor has an interest in the estate.

The exception set out in Brannan was further explained in Saltmarsh v. Beene, 4 Port. 283 (Ala.1837). The Court stated that it was a practice of long continuance in Alabama for an executor or administrator to purchase at his own sale. The departure from the general rule, which prohibited such a sale, was forced on the Court in Brannan in order to prevent the unsettling of titles. The Court in Saltmarsh noted that such a sale, to be valid, must be public and under the order or supervision of the court, “the opportunities for the detection of fraud being more favorable than where the sale was private.”

The exception thus allowed was criticized in subsequent decisions. E. g., Daniel v. Stough, 73 Ala. 379 (1882); Calloway v. Gilmer, 36 Ala. 354 (1860); McCartney v. Calhoun, 17 Ala. 301 (1850). This Court stated repeatedly that the exception was not to be extended beyond the limitations set out in the Brannan case. Payne v. Turner, 36 Ala. 623 (1860); Andrews v. Hobson’s Administrator, 23 Ala. 219 (1853).

The exception has been thus permitted in accordance with the limitations expressed above, although there appear to*be few modern cases dealing with the rule. Those sales affirmed have been at public auction, under order of the probate court or with a return made to the court. E. g., Cottingham v. Moore, 128 Ala. 209, 30 So. 784 (1901). One case approved a private sale by an executor to his wife, but only after unsuccessful attempts to obtain bids and only after the distributees had actual notice of the sale and an opportunity to purchase at the same price. Warrick v. Woodham, 243 Ala. 585, 11 So.2d 150 (1942).

Sales to executors or administrators have been disapproved upon a showing of the absence of one of the required elements:

(1) no interest in the estate, Daniel v. Stough, supra; James v. James, 55 Ala. 525 (1876); Saltmarsh v. Beene, supra;

(2) not sold in the ordinary mode, McLane v. Spence, 6 Ala. 894 (1844);

(3) not sold so as to command the best price, Payne v. Turner, supra; McLane v. Spence, supra;

(4) not sold fairly, Payne v. Turner, supra; Montgomery v. Givhan, 24 Ala. 568 (1854); McCartney v. Calhoun, supra.

Were any of these elements absent in the instant case? We think so.

The will does not specify the mode of sale, and does not expressly restrict the exercise of the power of sale to a public .sale. But for the fact that the executor here purchased at his own sale, the general power of sale created in the will could very well include a private sale. However, as discussed above, the limited exception permitting an executor to purchase at his own sale has been confined by our cases to public sales. We conclude that “ordinary mode” means a public sale unless the sale is to a third person and that the private sale in the instant case was not in the ordinary mode.

Moreover, we find that, under the circumstances of this case, the sale was unfair. Marcus Craig wore several hats simultaneously: he was executor, creditor, devisee, and co-tenant. In Calloway v. Gilmer, supra, the executor was also a guardian of some of the devisees. The Court held that the two offices could not be separated.

“ . . No person can become a purchaser of an interest in property, where he has a duty to perform which is inconsistent with the character of a purchaser; in other words, where a person stands in the situation of a trustee for others, and bound as such to protect the general interests of those for whose benefit the trust was created, in regard to the subject of the sale, he is incapacitated from purchasing for his own benefit, no matter by whom, or under what proceeding the sale is made . . .
“Again; the defendant, as executor, had as many advantages of superior information as to the situation and value of the land, and as much control of the sale, as he would have had if the property had been held and sold by him as guardian. The superior knowledge which a trustee has the means of acquiring, as to the condition and value of the property, and the power he has to control or affect the sale, occupy a prominent place among the reasons for the rule which disqualifies him from purchasing at his own sale of the trust property.-Ex parte Lacey, 6 Vesey, 626; Ex parte James, 8 Vesey, 337; 1 White & Tudor’s Lead. Cases, (3d ed.) top pp. 198-9, 201, 207, 217. Upon principle, therefore, it seems to us that, where the same person is executor of the will and guardian of some of the devisees, he is incapacitated from purchasing the property, an interest in which is devised to his wards, although the sale is made by him in his capacity as executor, and not as guardian, and although he may have such an interest in the property as, under our decisions, would give him the right to become the purchaser, if he occupied no other fiduciary relation towards the persons to be affected by the sale, than that of executor of the devisor.”

36 Ala. at 359-61.

The situation in the instant case is analogous. We hold that Marcus Craig’s sale to himself was inherently unfair and in violation of the fiduciary duties owed to the distributees and heirs, aside from his position as executor.

For similar reasons, the appellees’ claim is not barred by laches. In James v. James, supra, it was stated that knowledge of facts entitling one to relief and lack of diligence in enforcing those rights must coexist in order for laches to bar a claim. Laches was found to operate in that ease because of the publicity of the auction sale, recordation of the deed, change of possession, and residence of the claimants near to the lands.

The only circumstance present in both the James case and the instant case is the recording of the deed. Recordation of a deed operates as constructive notice of the contents of the deed and applies to those whose duty it is to search the records, usually subsequent purchasers. Spradling v. May, 259 Ala. 10, 65 So.2d 494 (1953); Pittman v. Pittman, 247 Ala. 458, 25 So.2d 26 (1945). The appellees here were not bound to search the record for evidence that Marcus Craig had violated his fiduciary duties. They were certainly entitled to actual notice of any sale, and cannot be said to have acquiesced in a private sale of which they had no knowledge.

Therefore, we are in accord with the trial court’s judgment regarding the issues discussed above. However, we must reverse and remand this cause for a determination of the amount of the debt, if any, owed by the Abe Craig estate to Marcus Craig, the payment of which Abe Craig provided for in his will and laid a charge therefor upon the land.

Normally, cancellation of a deed requires a tender to the purchaser of the amount given in consideration. Laird v. Columbia Loan & Investment Co., 204 Ala. 246, 85 So. 521 (1920). Reimbursement may be offset by the value of the use of the land which the purchaser has enjoyed prior to cancellation of the deed. Walling v. Thomas, 133 Ala. 426, 31 So. 982 (1902); Gunn v. Brantley, 21 Ala. 633 (1852).

Evidence was admitted to prove some of the indebtedness. The trial judge expressly reserved ruling on the admission of other documents offered to show the amount of the indebtedness. Upon remand, the trial judge should rule on the offer of this evidence and determine the amount of the indebtedness.

For the foregoing reasons, this cause must be affirmed in part, reversed in part, and remanded for proceedings in accordance with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: EMBRY, Justice.

text:
    Helen UNDERWOOD et al. v. BARBOUR COUNTY BOARD OF EDUCATION et al. Calvin BAXTER v. BARBOUR COUNTY BOARD OF EDUCATION et al.
    77-746, 77-747.
    Supreme Court of Alabama.
    June 22, 1979.
    Myron H. Thompson, Dothan, for appellants.
    David R. Boyd, Montgomery, for appel-lee, Barbour County Bd. of Ed.
   EMBRY, Justice.

Appellants, Helen E. Underwood, Flossie M. Crosley and Locy Lamar Baker, filed this action against the Barbour County Board of Education, its Superintendent, and the members of the Board, alleging their contracts had been illegally nonrenewed in violation of state and federal law. They sought damages, reinstatement, and back pay. Appellant, Calvin Baxter, filed his complaint against the same parties, which, as amended, was virtually the same. In each case defendants filed motions to dismiss which were transformed into motions for summary judgment when affidavits were offered in support and the deposition of the Superintendent was offered in opposition.

Summary judgment was entered in favor of the Barbour County Board of Education and the other defendants in each case. We affirm.

The material facts in these cases, consolidated on appeal, are undisputed and demonstrate clearly why the trial court entered summary judgment. All of the teachers, parties to these actions, were nontenured. The uncontroverted affidavits and deposition of the Superintendent clearly indicate the Superintendent recommended to the Board that the contracts of all nontenured teachers in Barbour County not be renewed; that upon such recommendation the Board voted not to renew the contracts of the nontenured teachers; that each appellant’s contract was not renewed; that each appellant received timely notice of the action of the Board; that each appellant’s nonrenewal was considered on an individual basis; that certain nontenured teachers in Barbour County other than appellants were later reemployed, and that appellants were not reemployed.

The uncontroverted material facts further show that appellant-teachers were at no time told, before or after their contracts were not renewed, that any job would be available to them for the next year. Appellants were given no reason for the nonre-newal of their contracts, but were told the reason for nonrenewal was not personal. At no time did the Board or the Superintendent give any indication that appellants were not reemployed becaus^ of dishonesty, immorality, or because they'were exercising any of their constitutional rights.

Appellants made four basic charges in their complaint: (1) the nonrenewal of the appellants’ contracts was unlawful because the Board improperly delegated their statutory duties to the Superintendent; (2) the Board violated Code 1975, § 16-24-12, by voting for the nonrenewal of all, or most all of, the nontenured teachers and later reemploying most of them, thus creating an objective expectation upon their part that all nontenured teachers would be reemployed regardless of the nonrenewal notice sent, thereby frustrating the purpose of the statute; (3) the Board’s above described practice of employment concerning the nontenured teachers created a property interest in their jobs, and the Board’s nonrenewal of their contracts, without a due process hearing, therefore deprived them of property without due process of law; and (4) the action of appellees was arbitrary and capricious, therefore such action deprived appellants of property without due process of law.

In this case there were simply no disputed material facts. The material facts in the case involved whether notice was sent to the appellants as required by Code 1975, § 16-24-12, and whether the Board illegally delegated to the Superintendent the authority to terminate the employment of the appellants in violation of § 16-24-12. That section provides as follows:

“Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June. The employing board of education shall not cancel the contract of any teacher in continuing service status, nor cause notice of nonemployment to be given to any teacher whether in continuing service status or not except by a vote of a majority of its members evidenced by the minute entries of said board made prior to or at the time of any such action.”

The facts relating to § 16-24-12 are not in dispute. The affidavits filed by appellees and the deposition filed by the appellants were in agreement that appellants all received their notice of nonrenewal before the last day of the school term, that the minutes of the Board meeting had an entry of the Board’s unanimous vote to not renew appellants’ contracts, and that the Board considered the recommendation of the Superintendent to not renew the appellants’ contracts on an individual basis. The appellants were allowed approximately ten (10) months to discover information upon which to base affidavits in opposition to appellees’ affidavits and failed to do so. The deposition of the Superintendent did not place any material facts in dispute. There is nothing in that deposition which shows that a genuine issue as to any material fact exists. When a motion for summary judgment is properly made, an adverse party may not rest upon the mere allegations in his pleadings. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). Consequently, summary judgment was properly granted.

Appellants rely heavily in their complaints, and in briefs, upon the point that there was some question as to whether a certain nontenured teacher named Ashley Craig received notice of nonrenewal of his contract. Mr. Craig was not a party to this action, therefore, it is immaterial to this case whether the Superintendent failed to send Craig a notice or whether Craig was later reemployed. Assuming, arguendo, that Craig was not given notice, this isolated instance of the Superintendent’s failure to perform his duty does not show the Board failed to carry out its statutory duty. Furthermore, since Craig was not a party to this case, any issue as to Craig is not material to any claim on the part of the appellants in this case since it was clearly established the appellants did receive their individual notices.

Appellants propose two arguments as to the Board’s improper conduct in violation of Code 1975, § 16-24-12. These are: (1) the authority not to renew their contracts was improperly delegated to the Superintendent; and (2) the notices sent to the appellants were ineffective. Under the clear facts of the case, the trial judge properly ruled that appellees were entitled to summary judgment as a matter of law as to both of these contentions.

As to the improper delegation of authority argument, there was simply no weight to be given to appellants’ contentions. The minutes of the Board, the affidavits of the Superintendent, and the Superintendent’s deposition clearly show the Board voted not to rehire the appellants based on the Superintendent’s recommendation. The fact the Board based its decision on the recommendation of the Superintendent did not amount to an improper delegation of its authority. This issue was decided by the Court of Civil Appeals in Hambree v. Jefferson County Board of Education, 337 So.2d 9 (Ala.Civ.App.1976), and we hereby adopt their opinion, as to that issue, with approval. Neither the fact the Board authorized the Superintendent to send out the notices nor the possibility that the Superintendent might not have carried out his duty to send notices to all nontenured teachers, whom the Board voted not to rehire, constituted an improper delegation of authority. The Hembree court wisely pointed out that it would be an administrative impossibility for a board of education to function without reliance upon help from its subordinates.

Appellants’ second contention relating to § 16-24-12 is also without substance. Appellants basically argue that their notices were ineffective because the Board often voted, and did in this instance, not to rehire all the nontenured teachers and the notices sent to the appellants were meaningless formalities since the Board did not make its actual decisiorf regarding hiring until August. The appellants contend that because of this practice the notices sent out were void. The Court of Civil Appeals rejected this argument in Hembree, supra, and we do likewise. The notices sent appellants were effective. The mere possibility that sufficient funds would be available in August to rehire all nontenured teachers at that time, and the possibility that if such funds were available the Board would decide, in fact, to rehire the same nontenured teachers are not enough to invalidate a notice of nonrehire under § 16-24-12.

Nontenured teachers have a contract to work for a stated period of time. At the end of that period if the local board of education votes not to renew that contract, and sends. proper statutory notice to the individual teacher to that effect, neither the board of education nor the teacher has any further contractual obligation one to the other. The school board is free to hire a different teacher for the next year, and likewise, the teacher is free to find other employment. The fact the local school board may adopt a policy of voting not to rehire all nontenured teachers at the end of the year does not affect this contractual relationship. School boards must be allowed to adopt such a policy since, in many instances, they do not know within one day of the end of the school term what amount of money it will have available for the next year. Adopting such a practice has its own limiting detriment because the nontenured teachers are free to seek other employment; consequently, if a school board does adopt such a practice, it takes a risk of losing good teachers. This risk is a safeguard that, in all likelihood, limits the widespread employment of such a practice by school boards.

Finally, the trial judge properly granted summary judgment about appellants’ claims that the Board’s actions violated their federal and state constitutional due process rights. The cases uniformly hold that such a claim, under the facts of this case, cannot be maintained.

This court has firmly held that a nontenured teacher may be dismissed without any kind of due process hearing unless such a teacher can show that the reasons for his, or her, nonrenewal either stigmatized him, or her, or injured his, or her, prospects for future employment. Gowens v. Cherokee County Board of Education, 348 So.2d 441 (Ala.1977); and Foster v. Blount County Board of Education, 340 So.2d 751 (1976). The federal cases likewise hold that a nontenured teacher is not entitled to a due process hearing when not rehired unless such a teacher can show he, or she, was stigmatized; his, or her, prospects for future employment were injured; or his, or her, constitutionally protected interests, such as free speech or freedom to associate, were infringed. The Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Carmichael v. Chambers County Board of Education, 581 F.2d 95 (5th Cir. 1978); and Kaprelian v. Texas Woman’s University, 509 F.2d 133 (5th Cir. 1975). No doubt this court would recognize the infringement of constitutionally protected interests theory.

In this case the appellants have neither alleged nor shown that nonrenewal of their contracts either stigmatized them, or injured their prospects for future employment; nor have they shown that the Board failed to renew their contracts because they were exercising their constitutionally protected rights. Consequently, summary judgment was properly granted as to this aspect of the cases.

For the stated reasons, entry of summary judgment was proper and the judgment is hereby affirmed.

AFFIRMED.

BLOODWORTH, FAULKNER, JONES and ALMON, JJ., concur.


author: BOOKOUT, Judge.

text:
    Brian Keith BALDWIN v. STATE.
    1 Div. 901.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.
    Windell C. Owens, Monroeville, for appellant.
    Nicholas S. Hare, Jr., and John Causey, Jr., Monroeville, amici curiae.
    William J. Baxley, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

The appellant was convicted of the capital felony of “robbery or attempts thereof when the victim is intentionally killed by the defendant.” Section 2(b), Act No. 213, Acts of Alabama 1975, approved September 9, 1975. [Now § 13-ll-2(a)(2), Code of Ala.1975] The jury filed punishment at death, and the trial court after a hearing on aggravating and mitigating circumstances sentenced the appellant to death.

The facts of the case are set out in detail in the companion case of Horsley v. State, Ala.Cr.App., [1 Div. 931, October 3, 1978], However, for the purposes of this opinion, a brief recitation of the facts will be set out.

The victim of the appellant’s vicious crime was a sixteen-year-old girl named Naomi Rolon. On November 25, 1976, she was driving across town in Hudson, North Carolina, to visit her father who was in a local hospital. She was abducted before reaching her destination by the appellant and his companion, Edward Horsley, both of whom were escapees from a North Carolina prison camp at the time. They took control of her automobile and drove to Charlotte, North Carolina, where they attempted to rape her and to choke her to death. They stripped her of all her clothing except her shoes and socks. She was stabbed with a knife in various parts of her body and then locked in the trunk of the automobile she had been driving. Baldwin and Horsley then drove the car through South Carolina to Atlanta, Georgia, where they spent the night. They next drove through Montgomery, Alabama, on Interstate Highway 85 and then proceeded to Camden, Alabama, located in Wilcox County. The victim remained locked in the trunk of the car during the entire trip.

In Camden, the appellant stole a pickup truck which contained a hatchet. Horsley drove the automobile, and the appellant drove the truck to an isolated spot in Monroe County. There they removed the victim from the trunk of the car, and Horsley attempted to run the car over her. After several unsuccessful attempts to kill the victim with the automobile, the appellant took the hatchet from the trunk and killed her with a blow leaving a gaping wound in the base of her neck. The two killers were later arrested in Lanett, Alabama, where they were traveling in the stolen truck. The automobile tag from the victim’s car was found in the truck which appellant was driving. Both were transported to the Wilcox County Jail on the truck theft charge.

The appellant was well represented in this court by two outstanding members of the Monroe County Bar who filed briefs and argued the case as amicus curiae. The appellant was likewise well represented in the trial court by two different attorneys from Monroeville who were likewise highly capable.

I

The only issue raised on appeal was whether the state of Alabama had jurisdiction to try the offense of aggravated robbery where the robbery took place in North Carolina, but the aggravating circumstance of intentionally killing the victim occurred in Alabama.

That issue was conclusively settled in the companion case of Horsley v. State, supra, written by the eminent jurist and legal scholar, Retired Circuit Judge Leigh M. Clark, serving as a judge of this court pursuant to the provisions of Amendment No. 328 of the Alabama Constitution.

The crime of robbery when the victim is intentionally killed by the defendant does not consist of two separate and distinct offenses. It is a single offense beginning with the act of robbing or attempting to rob and ending with the act of intentionally killing the victim. Here, two separate acts or elements constitute but one single crime. Judge Clark made this clear in Horsley, supra, in stating:

“Notwithstanding the importance of robbery as an essential element of the crime charged, it did not constitute the crime charged in the indictment or a crime proscribed by the death penalty statute. No crime proscribed by that statute falls short of an intentional killing. Each of the fourteen crimes enumerated in the statute has within it the culminating factor of an intentional homicide. The statute is for the prevention and punishment of homicides committed under legislatively determined aggravating circumstances. It is impossible to complete,.to consummate, any of the fourteen' crimes enumerated without the intentionally] taking of the life of a human being. . .

As in Horsley, supra, we find that the capital felony charged here began in North Carolina and ended in Alabama.

Title 15, § 92, Code of Ala.1940 [now § 15-2-4, Code of Ala.1975], states in pertinent part:

“When the commission of an offense, commenced elsewhere, is consummated within the boundaries of this state, the offender is liable to punishment here, although he was out of the state at the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent, or by any other means proceeding directly from himself; and the jurisdiction in such case, unless otherwise provided by law, is in the county in which the offense was consummated.”

Thus, the Circuit Court of Monroe County, Alabama, had jurisdiction over the crime and the person of the appellant.

II

Although only one issue is raised upon appeal, it is our statutory duty to search the entire record for error. Therefore, two other points raised only at trial have been considered.

During the course of the trial, prior to receiving any statements into evidence made by the appellant to law enforcement officers, the trial court allowed defense counsel to conduct a voir dire examination of the State’s witnesses and of the appellant himself outside the presence of the jury. The appellant stated that he did not remember anyone reading the Miranda warning to him prior to giving a statement to the law enforcement officers at the Wilcox County Jail. He stated that he signed a waiver of rights form which enumerated the Miranda warning, however, he said that it was handed to him and he was instructed to sign it, which he did without reading its contents.

The appellant stated that at the time he signed the waiver forms on March 15, 1977, and again on March 16, he signed the forms without reading them because he was instructed to do so. He stated that on March 16 he was handcuffed with someone standing behind him pulling his hair to make him sign the statement. He testified that he was threatened and beaten on that occasion by Sheriff Moody Maness and two deputies. He said, “They told me I didn’t tell them where the car was, they was going to hang me, shoot me, beat me up; then they took handcuffs and handcuffed me to a bar and took an electric stick, the thing you stick cows with, and poked me with that.” The appellant stated that a jail trusty had seen the officers pushing him and handcuffing him to the bars and “stuff like that.”

Pledge Bennett, the Wilcox County Jailer, testified that the appellant was never threatened, hit, prodded with a cow prod, or mistreated in any way in his presence. Neither did he know of any mistreatment occurring outside of his presence.

James Moore testified that on the dates in question he was a trusty in the Wilcox County Jail. He saw the appellant in jail and was present during the fingerprinting of the appellant. He knew nothing about any threats to the appellant, neither did he see anyone hit, threaten to shoot, threaten to hang, or use an electric prod on the appellant.

James Smith testified that he was a cellmate of the appellant in the Wilcox County Jail on March 15 and 16. On the times that appellant was questioned, he left the cell and was later returned to the cell. Smith never heard or saw any threat made to the appellant, nor saw anyone hit or mistreat him in any way. When the appellant was returned to his cell after making the statements, Smith did not see any bruise marks or beaten marks on him. He never saw any signs that the appellant had been beaten or mistreated.

Edward Headley, an Investigator for the Alabama State Troopers, testified that he was present on March 16 with Sheriff Moody Maness and Deputy Nathaniel Man-zie when the appellant gave them a statement. He said that no one in his presence abused the appellant, threatened him, made promises to him, or told him it would be better for him if he made a statement or worse for him if he did not make a statement. He personally advised the appellant of his constitutional rights using the Miranda form. The appellant was also given an opportunity to read the form which he voluntarily signed. The witness testified to the same predicate for the introduction of a statement made by the appellant on March 17.

The appellant was reexamined on voir dire wherein he admitted signing a waiver of rights form in connection with a statement he gave law enforcement officers on March 17. The appellant admitted that the rights form was read to him on March 17, however, he said that he informed the officers that he wanted to see his lawyer, but Investigator Headley told him to go ahead and sign the statement. He said Headley opened his coat and put his hand on his pistol, started pulling it out, and asked the appellant if he was going to sign the statement, so he did sign it.

Monroe County Sheriff Lenwood Sager testified that he was present on March 17 when Investigator Headley questioned the appellant. He stated that the Miranda rights were read to the appellant who seemed to understand them. The appellant was given an opportunity to read the statement which he signed. The witness testified that no one threatened the appellant in any way, either by actual violence or threats of violence and that the appellant never asked for an attorney.

J. C. Butler, an Investigator for the State of Alabama, testified that he was present during the questioning of the appellant on March 17. Neither he nor anyone in his presence physically abused, threatened, or offered any hope of reward or promise to the appellant to obtain a statement. No one told the appellant that it would be better for him if he made a statement or worse for him if he failed to do so. The witness stated that he identified himself to the appellant and advised him of his constitutional rights via the Miranda warning. The appellant stated that he understood each of the rights, was afforded an opportunity to read the waiver of rights form, but declined to do so, and then voluntarily signed it.

Sheriff Moody Maness of Wilcox County stated that he first came in contact with the appellant on March 15. At the time he talked with Baldwin on that date, neither he nor anyone in his presence committed any physical act to obtain a statement from the appellant. No one threatened the appellant nor made any promises to him. No one in his presence told the appellant it would be better for him to make a statement or worse for him if he failed to do so. The appellant was advised of his constitutional rights, which the witness then read into the record.

The Sheriff said that he talked to the appellant on March 16, the day after he had been advised of his constitutional rights. No one in his presence abused the defendant in order to obtain a statement. No one made a promise to the appellant nor threatened him. No one informed the appellant that it would be better for him to make a statement or worse for him if he did not. The appellant was again read his constitutional rights which are fully set out in the record. The appellant stated that he was willing to make a statement without talking to an attorney, and he then signed a waiver of rights form.

Sheriff Maness stated that he talked to the appellant about an automobile tag that had been found in the vehicle in which the appellant and Horsley were traveling when they were arrested. He asked the appellant about the disappearance of a girl from North Carolina who was supposed to have been in the car to which the tag belonged. He said the appellant first stated that the car had broken down in Atlanta and that he knew nothing about the girl. Later the appellant told them that when the car broke down he caught a bus from Atlanta to Montgomery and then hitchhiked to Camden where he stole a vehicle. The appellant told the officers that he had left the girl tied up in a house in Atlanta.

The Sheriff then questioned Horsley and returned and informed Baldwin that their stories did not match — that Horsley stated that the girl was in the trunk of the vehicle in the area around Camden and that he would help the officers find it. The appellant then stated that he would go with the officers and help them find the car and that the girl was in the trunk of the car, but had not been harmed.

Sheriff Maness, Investigator Headley, and Deputy Manzie, following the appellant’s directions, drove him to the isolated area in Monroe County where the missing automobile was found. The tag was missing from the automobile, and the officers did not find the victim in the trunk. The appellant then told the officers to look in front of the car. There they found the dead, mutilated body of the victim.

On March 17, 1977, the appellant made a statement in the presence of Sheriff Maness, Sheriff Sager, and Investigator Head-ley which was tape recorded. The tape recording was admitted into evidence as State’s Exhibit No. 9, and a typewritten transcript of the tape recording was admitted into evidence as State’s Exhibit No. 10. We have listened to the tape recording of the appellant’s confession and from inflections in his voice, the matter-of-fact and almost casual manner in which he relates the events, we are unable to detect even a hint of coercion. In fact, the appellant relates his part in the kidnapping, attempted strangulation, stabbing, attempted murder with the automobile, and the final act of slaughtering his helpless victim with no more emotion than if he had been describing the fixing of a flat tire on his automobile. The tape recording of the appellant’s confession leaves one with the impression that he felt no remorse over the fact that he and his companion had treated this unfortunate, innocent victim with a brutality not found in animals and had mercilessly slaughtered this defenseless young girl.

We have carefully reviewed the record in this appeal, and we find first that the trial judge was not in error in finding the confession of the appellant to have been made voluntarily after having been fully apprised of his constitutional rights per Miranda v. Arizona, 284 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 94 (1966). The trial court heard testimony from numerous witnesses outside the presence of the jury concerning the Miranda predicate and the predicate as to the voluntariness of the confession. Whether a confession is voluntary is a question to be determined by the trial court. Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967). The trial judge need only be convinced from a preponderance of the evidence in order to find the confession to have been knowingly and voluntarily made. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). On many instances, we have stated that a trial court’s finding that a confession was knowingly and voluntarily made will not be disturbed on appeal unless we are convinced that the conclusion reached by the trial judge was palpably contrary to the weight of the evidence. Smith v. State, Ala.Cr.App., 346 So.2d 382, cert. denied, Ala., 346 So.2d 385 (1977). Likewise, this court stated in McNair v. State, 50 Ala.App. 465 at 470, 280 So.2d 171, 176 (1973), cert. denied, 291 Ala. 789, 280 So.2d 177:

“. . . Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and volun-tariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. . . . ”

Secondly, the appellant contends that the corpus delicti was not proved by the State before the confession was admitted into evidence. The correct rule of law in Alabama is that the corpus delicti must be proved independently of the confession in order to support a conviction. Our Supreme Court in Bridges v. State, 284 Ala. 412, at 417, 225 So.2d 821, 826 (1969), stated:

“The oral confession of the defendant was found to have been voluntarily given. It is inadmissible for the purpose of pri-ma facie proof of the corpus delicti. . But, ‘inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti.’ . . . ” (Citations omitted.)

Also see: Mackey v. State, 55 Ala.App. 197, 314 So.2d 116 (1975), cert. denied, 294 Ala. 764, 314 So.2d 123.

In the instant case, we find that the corpus delicti was established independently of the appellant’s confession. The appellant and his companion were arrested while driving a stolen truck which contained the license plate of the victim’s car which was missing from North Carolina. The keys to the victim’s car were also found in the possession of the appellant, who led officers to the location of the missing vehicle where they discovered the horribly mutilated body of the victim. Discovery of the body and the missing automobile from North Carolina was certainly sufficient evidence to support a reasonable inference that the automobile was brought into this state from the other state and that Naomi Rolon had been murdered, both due to the criminal agency of someone. Arnold v. State, 57 Ala.App. 172, 326 So.2d 700 (1976).

Ill

After the jury returned a guilty verdict and fixed punishment at death, the trial court, pursuant to the capital felony statute, set a hearing for presentation of aggravating and mitigating circumstances. At that hearing, the State introduced the written transcript of a statement given by the appellant’s accomplice, Edward Horsley, which related the details of the crime substantially as we have enumerated them at the beginning of this opinion. The State also introduced the juvenile record of the appellant reflecting his adjudication and delinquency based on a charge of assault with intent to rape. Likewise, the State introduced the adult record of the appellant reflecting a conviction and penitentiary sentence for robbery and a conviction for possession of marijuana.

The trial court then allowed the defendant to take the stand and be examined by his counsel for the purpose of showing any mitigating circumstances. When the appellant finished testifying, the trial court stated:

“Brian Keith Baldwin, today is the day you have in court to tell this judge whatever is on your mind and as Mr. Owens has told you, now is your time to tell the judge anything that you feel like might be helpful to you in the position that you find yourself in. I want to give you every opportunity in the world that I know about.”

In the course of the appellant’s statement, he said, “I ain’t saying I’m guilty but I might be guilty for murder but I ain’t guilty for robbery down here. That’s all I got to say.” However, the court continued to question him to bring out any mitigating circumstances possible. Both the State and the defense then argued mitigating and aggravating circumstances to the trial court.

The court made findings which in pertinent part are as follows:

“. . . The Court first considered the aggravating circumstances as set out in Title 15, Section 342(8) of the 1940 Code of Alabama as amended:
“(a) The Court finds that the capital felony or robbery in the course of which the victim was intentionally killed was committed by the defendant while he was under sentence of imprisonment in the state of North Carolina but from which he had escaped.
“(b) The Court further finds that the defendant had previously plead (sic) guilty to a felony in the state of North Carolina involving the use of violence to the person of the victim and was sentenced to five years imprisonment in a North Carolina penitentiary as a youthful offender.
“(c) The Court further finds that the defendant was previously charged in the state of North Carolina of the offense of kidnapping and rape, which said offenses were disposed of in juvenile proceedings by the defendant being adjudged delinquent by reason of the charge of assault to commit rape.
“(d) The Court further finds that the capital felony was committed while the defendant was in the commission of robbery or flight after committing said crime of robbery.
“(e) The Court further finds that under the circumstances of this case as revealed by the record, the capital felony was especially heinous or atrocious or cruel.
“The Court now considers mitigating circumstances as described in Title 15, Section 342(9) of the 1940 Code of Alabama as amended:
“(a) The Court finds the only mitigating circumstances would be the age of the defendant at the time of the commission of the crime, to-wit, eighteen.
“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted.”

The trial court then sentenced the appellant to suffer death by electrocution as prescribed by law.

We have reviewed the aggravating and mitigating circumstances set out in the record and the trial court’s findings relative to those circumstances. The appellant was given the opportunity to present any mitigating circumstance which he desired to the trial court. Alabama’s capital felony act, supra, fully comports with Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), in that it does not preclude from consideration as a mitigating factor “any aspect of a defendant’s character and record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence [of] less than death.” After review of the hearing on aggravating and mitigating circumstances, we find no error on the part of the trial court in reaching the conclusion that the aggravating circumstances far outweigh the mitigating circumstances in this case. The sentence fits the crime.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice. JONES, Justice BEATTY, Justice

text:
    In re Brian Keith BALDWIN v. STATE of Alabama. Ex parte Brian Keith Baldwin.
    78-127.
    Supreme Court of Alabama.
    June 1, 1979.

      Windell C. Owens and Paul M. Harden, Monroeville, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for the State, respondent.
   TORBERT, Chief Justice.

Petitioner was convicted of the capital felony of robbery when the victim is intentionally killed by the defendant and was sentenced to death by electrocution. We granted certiorari to review the decision of the Court of Criminal Appeals affirming Baldwin’s conviction. The facts as set forth in the opinion of the Court of Criminal Appeals, are as follows:

The victim of the appellant’s vicious crime was a sixteen-year-old girl named Naomi Rolon. On November 25, 1976, she was driving across town in Hudson, North Carolina, to visit her father who was in a local hospital. She was abducted before reaching her destination by the appellant and his companion, Edward Horsley, both of whom were escapees from a North Carolina prison camp at the time. They took control of her automobile and drove to Charlotte, North Carolina, where they attempted to rape her and to choke her to death. They stripped her of all her clothing except her shoes and socks. She was stabbed with a knife in various parts of her body and then locked in the trunk of the automobile she had been driving. Baldwin and Horsley then drove the car through South Carolina to Atlanta, Georgia, where they spent the night. They next drove through Montgomery, Alabama, on Interstate Highway 85 and then proceeded to Camden, Alabama, located in Wilcox County. The victim remained locked in the trunk of the car during the entire trip.
In Camden, the appellant stole a pickup truck which contained a hatchet. Hors-ley drove the automobile, and the appellant drove the truck to an isolated spot in Monroe County. There they removed the victim from the trunk of the car, and Horsley attempted to run the car over her. After several unsuccessful attempts to kill the victim with the automobile, the appellant took the hatchet from the trunk and killed her with a blow leaving a gaping wound in the base of her neck. The two killers were later arrested in Lanett, Alabama, where they were traveling in the stolen truck. The automobile tag from the victim’s car was found in the truck which appellant was driving. Both were transported to the Wilcox County Jail on the truck theft charge.

The only issue presented for review is whether the State of Alabama had jurisdiction to try the offense. Petitioner contends that the robbery took place outside of Alabama and the killing took place within Alabama; therefore, the venue of the crime of robbery was not within the state and there was no jurisdiction to try petitioner in Alabama so the verdict of the jury and judgment of the trial court are void. We disagree.

The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating with the act of intentionally killing the victim. The offense consists of two elements, robbing and intentionally killing, but does not consist of two separate offenses. See Ex parte Clements, 370 So.2d 723 (Ala.1979); Horsley v. State, [1 Div. 931] (Ala.Crim.App.1978). Therefore, although the offense was commenced in North Carolina, it was not consummated until Naomi Rolon was killed in Monroe County, Alabama.

The place where the crime was consummated is the place where the crime was committed and the place where the defendant may be tried. 21 Am.Jur.2d Criminal Law § 399, at 416. Section 15-2-4 provides:

When the commission of an offense commenced elsewhere is consummated within the boundaries of the state of Alabama, the offender is liable to punishment in Alabama, although he was out of the state at the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent or by any other means proceeding directly from himself; and venue in such case is in the county in which the offense was consummated, unless otherwise provided by law.

§ 15-2-4, Code 1975.

Accordingly, venue did lie in Monroe County and petitioner was properly tried and convicted. The decision of the Court of Criminal Appeals is affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

JONES, J., concurs in the result.

BEATTY, J., dissents.

JONES, Justice

(concurring in the result):

I concur in the result to affirm. I see no necessity to deal with what I perceive as a purely academic exercise: Whether the capital offense here charged is one or two offenses. It is one offense in the sense that both robbery and intentional killing must co-exist to constitute the capital offense contemplated by the Death Penalty Statute. In another aspect, it is two separate and distinct offenses — each of which must be charged, instructed upon, and all the elements of which must be found as a prerequisite to a guilty verdict on the capital offense charged.

The point is this: It is unimportant whether it is denominated one offense comprised of two elements, or two offenses — 1) intentional killing in the course of 2) robbing the victim. The disposition of this appeal in no way depends upon the one offense/two offenses dichotomy. As the opinion of the Court of Criminal Appeals points out, the offense of robbery was consummated in Alabama and the offense of intentional killing was consummated in this State. There is no jurisdictional problem.

BEATTY, Justice

(dissenting):

For the reasons expressed in my dissent in Horsley v. State, - So.2d - (Ala. 1979), I also dissent in this case.


author: PER CURIAM. LEIGH M. CLARK, Retired Circuit Judge. TYSON and DeCARLO, JJ.,

text:
    Roosevelt YOUNGBLOOD v. STATE.
    3 Div. 935.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    On Rehearing March 6, 1979.
    Rehearing Denied March 27, 1979.
    See also, Ala.Cr.App., 370 So.2d 740 and 372 So.2d 37.

      B, P. Lovelace, Public Defender, Escam-bia County, Brewton, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State, appellee.
    Charles A. Graddick, Atty. Gen., and Edwin L. Yates and Linda C. Breland, Asst. Attys. Gen., for the State, appellee, on rehearing.
   ON REHEARING

PER CURIAM.

On October 31, 1978, this court affirmed without an opinion the conviction and sentence of appellant-defendant. There was no application for a rehearing. On January 16, 1979, this court rendered an opinion in Prothro v. State, 370 So.2d 740, wherein instant case and Evans v. State, Ala.Cr.App., 362 So.2d 1284 (1978), were expressly overruled. To avoid confusion and to assure a final judgment of this court in the instant case conformable to the present views of this court, this case has been placed upon the rehearing docket ex mero motu.

The record herein shows that appellant-defendant was indicted under the Death Penalty and Life Imprisonment Without Parole Act (Act 213, 1975 Ala. Acts, p. 701, et seq., now Ala.Code 1975, § 13-11-1, et seq.) Upon arraignment he pleaded not guilty, but thereafter he and his counsel made it known to the trial court that he desired to withdraw his plea of “not guilty” and enter a “guilty” plea. The court then conducted a plenary hearing as to his understanding of all of his rights and concluded, properly we think, that he was acting in the premises voluntarily, intelligently and understandingly, and with full knowledge of all of his pertinent constitutional rights. The court then inquired of counsel for the State as to “the recommendation of the State” and was informed by such counsel that: “There are some, mitigating circumstances” and: “The State would recommend at this time that the punishment or sentence for this offense be life imprisonment without parole.”

Colloquy among the court, the defendant and counsel for the respective parties continued as follows:

“THE COURT: Roosevelt, with all these things in mind, are you telling the Court now that you wish to withdraw your plea of not guilty and plead guilty?
“THE DEFENDANT: That’s right.
“THE COURT: I am going to accept his plea of guilt and I am going to accept the recommendation of the state in this case. Have you anything to say why the sentence of law shouldn’t be imposed upon you?
“THE DEFENDANT: No, I don’t.
“THE COURT; I am going to accept the recommendation of the State and sentence you to the State Penitentiary for life without parole.”

A formal judgment adjudging defendant guilty as charged in the indictment and sentencing him to the “State Penitentiary” for life without parole was rendered and entered.

It is obvious from the above, and the rest of the record confirms, that no jury determined the guilt of the defendant; that no jury fixed his punishment. A majority in Prothro, supra, held that “a trial court in a capital case can neither determine the guilt nor fix the punishment of a defendant without the intervention of a jury.” Also, it was specifically held therein that in a prosecution under the Death Penalty and Life Imprisonment Without Parole Act of Alabama, supra:

“Neither the death sentence nor a sentence to life imprisonment without parole is permissible, whether by agreement of all concerned or not, in the absence of a verdict of a jury finding the defendant guilty and fixing his punishment at death.”

In accordance with Prothro v. State, supra, as quoted above and as amplified in the opinion, the previous judgment herein affirming the judgment of the trial court should be set aside and a judgment now rendered reversing the judgment of the trial court and remanding this cause for further proceedings not in conflict with this opinion.

Although it is not held or indicated herein, or in Prothro, supra, that a plea of guilty cannot be entered and accepted in a prosecution under the Death Penalty and' Life Imprisonment Without Parole Act, supra, it should be noted that any further proceeding under the indictment in this case should be without prejudice to defendant’s unquestionable right to enter a plea of not guilty unprejudiced by the plea and position taken by him when tried and convicted. Furthermore, as he entered his previous plea on a premise that the law does not permit (even though all parties concerned were acting sincerely and were commendably working toward what they conceived to be a laudable goal), his previous plea of guilty is not to stand unless he continues to insist on it or renews a plea of guilty or the like, and then only after a hearing and determination that meets the requirements of tests for the acceptance of a guilty plea under circumstances existing at the time of the attempted entry of such plea.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this court under the provisions of § 6.10 of the New Judicial Article (constitutional Amendment No. 328). His opinion is hereby adopted as that of the court. A rehearing is granted appellant ex mero motu. The judgment of this court affirming the judgment of the trial court is set aside. The judgment of the trial court is reversed and the cause remanded for further proceedings not in conflict with this opinion.

APPLICATION GRANTED.

REVERSED AND REMANDED.

HARRIS, P. J., and BOOKOUT and BOWEN, JJ., concur.

TYSON and DeCARLO, JJ., dissent.

On Rehearing

ORDER

LEIGH M. CLARK, Retired Circuit Judge.

The application for rehearing is overruled without further opinion.

HARRIS, P. J., and BOOKOUT and BOWEN, JJ., concur.

TYSON and DeCARLO, JJ.,

dissent for reasons stated in Evans v. State, Ala.Cr.App., 362 So.2d 1284, and Prothro v. State, Ala.Cr.App., 370 So.2d 740, rehearing overruled, February 20, 1979.


author: PER CURIAM.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-427.
    Supreme Court of Alabama.
    June 15, 1979.
   PER CURIAM.

PETITION DISMISSED On Motion Of Petitioner.

BLOODWORTH, MADDOX, FAULKNER, JONES and ALMON, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge. TYSON and DeCARLO, JJ.,

text:
    Leslie EVANS v. STATE.
    3 Div. 934.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    Rehearing Denied March 27, 1979.
    HARRIS, P. J., and BOOKOUT and BOWEN, JJ., concur.
    TYSON and DeCARLO, JJ., dissent.
   On Rehearing

ORDER

LEIGH M. CLARK, Retired Circuit Judge.

The application for rehearing is overruled without further opinion.

HARRIS, P. J„ and BOOKOUT and BOWEN, JJ., concur.

TYSON and DeCARLO, JJ.,

dissent for reasons stated in Evans v. State, Ala.Cr.App., 362 So.2d 1284; and Prothro v. State, 370 So.2d 740 (Ala.Cr.App.), rehearing overruled, February 20, 1979.

Petition dismissed, Ala., 372 So.2d 37.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-436.
    Supreme Court of Alabama.
    June 15, 1979.
   PER CURIAM.

PETITION DISMISSED ON MOTION OF PETITIONER.

BLOODWORTH, MADDOX, FAULKNER, JONES and ALMON, JJ., concur.

See also, 362 So.2d 1284.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Roger Wilfred BEAUREGARD v. STATE.
    2 Div. 237.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    On Remand April 17, 1979.
    Rehearing Denied May 22, 1979.

      Ronnie E. Keahey of Gilmore & Keahey, Grove Hill, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the first degree murder of Diane Walby. Sentence was fixed at life imprisonment.

I

By motion for new trial the appellant raises the issue of the unlawful separation of the jury.

During the evening between the first and second day of the appellant’s trial the jury was allowed to separate before they were taken from Eutaw to Tuscaloosa, Alabama, where they spent the night in a motel. Officers of the Sheriff’s Department either took the jurors in small groups or followed the jurors to their homes to allow them to get their clothes and take care of other business. A deputy waited outside while the jurors went in their homes to gather their belongings. One juror testified that she picked up her father from his work and took him home and then delivered some clothes to her children who were being kept by an aunt. Most of the jurors saw members of their families during the separation. No mention is made of any agreements for the jury to separate or of any local or special law permitting a temporary dispersal.

“There is no doubt that in Alabama a separation of the jury after the trial has been entered upon and before verdict, creates a ground for reversible error in favor of the defendant unless the State affirmatively shows that the defendant was not thereby injuriously affected. In other words, the separation of the jury does not establish an absolute right to have a mistrial declared or a new trial granted but prejudice must result therefrom in order for a new trial to be granted. The right of the defendant in this respect is only prima facie and when a separation is shown, the burden is on the prosecution to establish affirmatively that the separating jury or juror conversed with no one as to the defendant’s guilt and that no other influences were brought to bear on the jury or any of its members which might have biased their deliberations. Lynn v. State, 250 Ala. 384, 34 So.2d 602; Arnett v. State, 225 Ala. 8, 141 So. 699.” King v. State, 266 Ala. 232, 236, 95 So.2d 816, 819 (1957). (Emphasis added)

“To meet its burden in rebutting [a defendant’s] evidence showing a separation [of jurors], the State’s evidence must tend to show that each and every juror was free from influences.” Wright v. State, 38 Ala.App. 64, 70, 79 So.2d 66, 70, cert. denied, 262 Ala. 420, 79 So.2d 74 (1955).

At the hearing on the motion for new trial the appellant presented eleven jurors who testified to the fact of their separation. With ten of these jurors the State clearly and affirmatively established that during the separation they had not discussed the case. However the State did not establish that juror James Amerson conversed with no one affecting the appellant’s guilt and that no other influences were exerted on him which may have influenced or biased his verdict.

Additionally the appellant proved the separation of eleven jurors but presented no evidence on the whereabouts of the twelfth juror. The record appears to indicate that all the jurors were driven or taken to their homes to secure clothing and personal belongings. Under these circumstances it was incumbent upon the State to clearly show that no injury resulted from the separation of the twelfth juror.

In view of these facts we remand this case with instructions that a hearing be held to determine whether or not the separation of juror Amerson and the twelfth juror may have prejudiced the appellant.

II

The appellant contends that the failure of six jurors to make a proper response to questions regarding their qualifications to serve as jurors violated his right to a fair and impartial jury and his right to have jurors answer questions correctly and truthfully on voir dire examination.

In qualifying the prospective jurors the venire was asked the question, by both the court and defense counsel, whether or not any juror had read anything about the facts of the case. Though some veniremen responded, the appellant proved on motion for new trial that six of the jurors who tried and convicted the appellant had read an article about the homicide in the Greene County newspaper. Each juror who read the newspaper article also stated that his verdict was based on the evidence that came from the witness stand and each indicated, in one way or another, that the newspaper article did not influence his verdict in any way.

Though the defendant has a right to have questions answered truthfully to enable him to exercise his discretion wisely m the use of his pre-emptory strikes, Sanders v. State, 284 Ala. 215, 219, 224 So.2d 247 (1969), in this State the rule is well settled that

“the failure of a juror to make a proper response to a question regarding his qualifications to serve as a juror, regardless of the situation or circumstances, does not automatically entitle one to a new trial. The proper inquiry in such cases is whether the defendant’s rights were prejudiced by such failure to respond properly. Sheperd v. State, 57 Ala.App. 35, 325 So.2d 551.” Radney v. State, 342 So.2d 942, 946 (Ala.Cr.App.) cert. denied, 342 So.2d 947 (Ala.1976).

See also McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756, reversed on other grounds, 292 Ala. 378, 294 So.2d 766 (1973); Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 (1973); Evans v. State, 38 Ala.App. 45, 78 So.2d 315, cert. denied, 262 Ala. 701, 78 So.2d 318 (1955). The test is not whether the defendant was prejudiced but whether he might have been. Little v. State, 339 So.2d 1071, 1072 (Ala.Cr.App.), cert. denied, 339 So.2d 1073 (Ala.1976); Wallis v. State, 38 Ala.App. 359, 362, 84 So.2d 788 (1955), cert. denied, 264 Ala. 700, 84 So.2d 792 (1956); Leach v. State, 32 Ala.App. 248, 24 So.2d 454 (1946).

The article was published on October 13, 1977. The trial of the appellant began on December 12, 1977. We have examined the news article which was made a part of the record. It is a fair and accurate account which substantially and briefly relates the same testimony Mrs. Eloise Sanders gave at trial. The article does not evoke prejudice against the appellant or elicit sympathy for the deceased. Under these circumstances we find that the appellant was not nor could it be reasonably said that he might have been prejudiced by the jurors’ failure to respond.

Ill

The trial court did not err in refusing to grant the request of the appellant for a continuance of his trial to allow preparation of his defense of insanity.

The homicide occurred on October 9,1977. On October 28th, counsel was appointed and the appellant was arraigned. At this time the appellant consented to an examination by the West Alabama Mental Health Center.

On November 4th, a hearing on the appellant’s motion for a determination of competency was held. The examination by Dr. Michael Haley, a psychologist and the Director of Judicial Services for the Mental Health Center, revealed that the appellant “does not have any active psychosis and does not have any significant psychological disturbance”. A friend of the appellant testified that the appellant suffered “blackouts” and needed psychiatric help. The appellant’s attorney testified that, although the appellant was able to communicate with him and knew what he was charged with, the appellant did not remember any of the incidents surrounding the homicide.

At the conclusion of the hearing the trial court declared the appellant competent to stand trial and specifically found that no evidence of incompetency had been presented. Although refusing to order the appellant transferred to one of the State hospitals for further psychological and psychiatric examination, the court offered to make doctors and psychologists from the West Alabama Mental Health Center available to the appellant at State expense. Defense counsel then requested these services and the court directed Dr. Haley to “make arrangements for these two doctors (an independent psychiatrist and an independent psychologist who performed services for the Mental Health Center) to see the defendant and administer all necessary tests in their discretion to determine his present mental state and his mental state at the time of the alleged offense”. Although the appointments were made and despite the fact that the examinations were to be conducted at State expense, the appellant later refused the services of these experts.

On December 5, 1977, the appellant requested a continuance “based on the need to obtain additional time for the defendant’s family to raise money to employ an independent psychiatrist to evaluate the defendant”. The court denied this request in the following language.

“I’m not going to be able to continue the case. I appointed two independent psychiatrist, who are in private practice, to see him and you refused to see them. I don’t know for what reason. I’ve done everything within my power to see that he got them. The State was going to pay for those. Now, you want me to continue it on the hopes that somebody might raise the money to hire someone that he wants to see. I’m going to deny your Motion for a Continuance.”

On December 12, 1977, the day regularly scheduled for trial, a written motion for a continuance was filed and a hearing was held thereon. Defense counsel presented a psychologist and a psychiatrist who could only testify that they had examined the appellant and additional testing was necessary before they could express an opinion on the appellant’s mental condition and his competency to stand trial.

After hearing the testimony and examining the appellant the court denied the continuance.

“(T)his case has been here for almost a month and a half, or two months, and at the same .... and I ordered Doctors to see him and you refused to have these Doctors see him. The Doctor that did see him, testified . . . Dr. Haley, who you don’t like, testified that he was competent, in his opinion, and that he did not need to be institutionalized; and I have appointed a Medical Doctor and a Psychologist ... for the West Alabama Mental Health to see him, and you refused to let him see them.”
“I don’t find anything to find that he’s not competent, based on the prior testimony, and based on observation and conversation with him, I think he’s competent to stand trial.”
“I don’t want to rush into a judgment. I’m just sitting here trying to listen to any testimony that would indicate that this man is not competent. I can not see anything that indicates to me that he’s not competent to stand trial as the law knows it.”
“I made a Doctor .... a Psychiatrist, a Psychologist . . . two Psychologist available. I understand you didn’t want them to see him because you were afraid they might be unfair. I made them available at the State’s expense; then you called somebody in Friday, the day before Monday’s trial, and they don’t indicate to me, from their examination, that he’s incompetent: they just say that they need more time to diagnose him. I’m going to deny your Motion for a Continuance; and I find him competent; and we’re going to go ahead and proceed with the trial. I certainly understand your position.”
“This case has been set for trial for over two months.”
“If I had some indication that this man was presently incompetent, I would certainly do it, but, I find, beyond any reasonable doubt, that this man is competent to stand trial. He knows the charges against him; he knows the penalty; he knows . . . he’s able to associate with reality and he’s ready to go to trial.”

The trial court was within its discretion in denying the motions for a continuance. Peterson v. State, 231 Ala. 625, 166 So. 20 (1936); Jarvis v. State, 220 Ala. 501, 126 So. 127 (1930); Campbell v. State, 257 Ala. 322, 58 So.2d 623 (1952); Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (1972); Payne v. State, 48 Ala.App. 401, 265 So.2d 185 (1972), cert. denied, 288 Ala. 748, 265 So.2d 192 (1972); Ballard v. State, 51 Ala. App. 393, 286 So.2d 68 (1973). Where conflicting evidence is presented on the present mental condition of the appellant, it is within the sound discretion of the trial court to deny the motion for a continuance in the aspect of the appellant’s mental condition at the time of trial. Rickard v. State, 283 Ala. 534, 219 So.2d 363 (1969). The reversal of a conviction because of the refusal of the trial judge to grant a continuance requires “a positive demonstration of abuse of judicial discretion”. Clayton v. State, 45 Ala.App. 127, 129, 226 So.2d 671, 672 (1969).

Here it affirmatively appears that the trial court did not abuse its discretion but afforded the appellant ample opportunity to obtain independent and free psychiatric examination. When the appellant refused examination by these experts — after an appointment had been made and after defense counsel had requested their availability — the court refused the requested continuance and properly so.

A defendant has no right to receive a mental examination as to his sanity whenever he requests one and, absent such a right, the trial court is the screening agent as to such requests. Pace v. State, 284 Ala. 585, 226 So.2d 645 (1969); Dixon v. State, 357 So.2d 690 (Ala.Cr.App.1978). Only when the evidence presents a sufficient doubt as to the defendant’s sanity is an investigation into his sanity required. Buttram v. State, 338 So.2d 1062 (Ala.Cr.App.1976); Gales v. State, 338 So.2d 436 (Ala.Cr.App.), cert. denied, 338 So.2d 438 (Ala.1976); Buttram v. State, 57 Ala.App. 425, 329 So.2d 114, cert. denied, 295 Ala. 394, 329 So.2d 116 (1976).

“Before the trial judge suspends the normal course of criminal proceedings and conducts a jury inquiry into the ‘fact of sanity’ there must come to his attention factual data, tending to show ‘reasonable ground to doubt (the accused’s) sanity’. The court has discretion to determine if the underlying factual basis said to exist does in fact exist, and whether such factual basis constitutes ‘reasonable ground to doubt (the accused’s) sanity’.” Brinks v. Alabama, 465 F.2d 446, 450, (5th Cir. 1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 940, 35 L.Ed.2d 263 (1972).

Where the trial court finds that there are no reasonable grounds to doubt the accused’s sanity, the standard of appellate review is whether the trial judge abused his discretion. Pace v. State, 284 Ala. 585, 226 So.2d 645 (1969); Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197 (1971).

In determining whether a reasonable doubt as to sanity exists, the trial judge may make investigation and hear evidence. Thomas v. State, 357 So.2d 1015, 1018 (Ala.Cr.App.1978). Here the trial judge did not err or abuse his discretion in failing to submit to a jury the issue of the appellant’s competency to stand trial because he specifically determined that there was no reasonable ground to doubt that competency. Thomas, supra.

The competence of an accused to stand trial is determined by whether at the time of the trial he has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him. Atwell v. State, 354 So.2d 30, 35 (Ala.Cr.App.1977), cert. denied, 354 So.2d 39 (Ala.1978). Inability to recall the events constituting the crime charged because of amnesia does not constitute mental incapacity or incompetency to stand trial. Thompson v. State, 364 So.2d 683 (Ala.Cr.App.), cert. denied, 364 So.2d 687 (Ala.1978).

The only expert to express his opinion on the sanity or competency of the appellant testified that the appellant was sane and competent. While there was evidence that the appellant had “emotional problems” this evidence was insufficient to raise a reasonable doubt of his sanity or competency to stand trial. The fact that additional psychological and psychiatric testing might have resulted in expert opinions of the appellant’s insanity and incompetency cannot be considered by this court because we are confined to the record before us. Wheeler, 47 Ala.App. at 459.

The trial judge’s refusal to submit the issue of the appellant’s sanity to a jury was not arbitrary because it was made only after an adversary hearing and a judicial determination of the appellant’s competency to stand trial. That decision is supported by the evidence and will not be disturbed on appeal. Minniefield v. State, 47 Ala.App. 699, 704, 260 So.2d 607 (1972). See also Davis v. State, 53 Ala.App. 598, 302 So.2d 571 (1974); Schull v. State, 53 Ala.App. 735, 304 So.2d 239, cert. denied, 293 Ala. 773, 304 So.2d 242 (1974); Moore v. State, 52 Ala. App. 179, 290 So.2d 246 (1974).

After considering each and every assignment of error advanced on appeal this cause is remanded for a hearing in accordance with part I of this opinion.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON REMAND

BOWEN, Judge.

In accordance with our instructions a hearing was held in the circuit court. Juror Amerson and the twelfth juror, Leona Cook, testified. Defense counsel cross examined each witness.

After hearing all the testimony the Court reached the conclusion that it was “convinced beyond a reasonable doubt and to a moral certainty that no prejudice occurred to the defendant by allowing the jury to separate”. The Court further found that “there was no prejudice whatsoever to the defendant in this case at all”.

The record fully supports the findings and judgment of the trial court. Therefore the judgment is affirmed.

AFFIRMED.

All the Judges concur.

      . Actually the court appointed one psychiatrist and one psychologist.


text:
    Ex parte Roger Wilfred BEAUREGARD.
    78-598.
    Supreme Court of Alabama.
    June 22, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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