text:
    DIRECTOR OF the DEPARTMENT OF INDUSTRIAL RELATIONS v. James F. BUTLER.
    Civ. 1651.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.

      George Cocoris, General Counsel, State of Ala., Dept, of Industrial Relations, Montgomery, for appellant.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

The claimant applied for unemployment benefits for a second consecutive benefit year. The Director of the Department of Industrial Relations denied the claim on the grounds that the claimant had not met the employment requirements of § 25-4-77(5), Code of Alabama (1975). The claimant appealed to the circuit court. After the submission of a stipulation of facts and the written contentions of the parties, the circuit court held that the receipt of vacation pay by the claimant during his first benefit year had qualified him for benefits in the following year. The Director appeals.

The dispositive issue is whether the receipt of vacation pay in a prior benefit year may be considered wages for work in insured employment so as to qualify a claimant for benefits in a succeeding year under § 25 — 4-77(5). We find that it does not and reverse.

The record reveals the following facts: The claimant was employed for 26 years as a millwright at Republic Steel Corporation’s Gadsden plant. Due to the unavailability of millwright work, the claimant was laid off on June 13, 1973 and began receiving unemployment compensation benefits of $60 per week on June 18, 1973. On July 7, 1973 he elected to take a ten-week vacation with pay, during which he received a total of $3,800 from Republic Steel. During the period he was receiving vacation pay, the Department of Industrial Relations, pursuant to § 25-4-71, held the claimant ineligible to receive unemployment compensation on the grounds that his vacation pay was “wages” and he was therefore not “unemployed.” After his vacation, the claimant resumed drawing unemployment benefits until the end of the benefit year on June 17, 1974. The claimant did not work from June 18, 1973 to June 17, 1974.

On June 18,1974, the claimant initiated a new benefit claim. The Department of Industrial Relations denied this claim on the grounds that the claimant had not earned wages for work in insured employment as provided by § 25 — 4-77(5) to qualify for benefits in a second consecutive benefit year.

The claimant argues that the position of the Department of Industrial Relations regarding his vacation pay is contradictory and is contrary to our holding in Autwell v. State Department of Industrial Relations, 47 Ala.App. 8, 249 So.2d 625 (1971). On the one hand, the Department denied him unemployment benefits during his ten-week vacation on the grounds that his vacation pay was “wages” under § 25 — 4-71. On the other hand, the Department denied him benefits in a succeeding year because his vacation pay was not wages for work in insured employment as required by § 25 — 4-77(5). The claimant contends that if he was not unemployed during his vacation because he received “wages” attributable to that period, then by implication he must have been employed.

We must disagree.

We note initially that this case presents an issue of first impression in Alabama. Autwell, while it is helpful here, is not controlling. In Autwell, the claimants had been laid off from work for a two-week period which overlapped the Christmas and New Year’s holidays. Under their union contract, the claimants were entitled to holiday pay for Christmas and New Year’s Day. The Autwell court found that their holiday pay was wages within the meaning of § 25 — 4-16, Code of Alabama (1975), that the meaning of the word “services” as used in § 25 — 4-71 was not restricted to actual physical or mental effort and hence those wages would be deemed “earned” on the holidays for which they were payable, and that the claimants were therefore not unemployed within the meaning of § 25 — 4-71 during the two-week layoff period for which they sought unemployment compensation. 47 Ala.App. at 10-13, 249 So.2d at 626-29 (and cases cited therein). Section 25 — 4-71 provides in part that an individual is unemployed “in any week during which he performs no services and with respect to which no wages are payable to him . . .” The finding that there could be a form of implied services for a holiday went essentially to a determination of the week “with respect to which” holiday wages were payable.

Autwell follows the general rule that a claimant is not eligible for unemployment compensation while he is receiving vacation pay. This rule applies regardless of whether the vacation is taken during a period of forced lay-off. See, Annot., 30 A.L.R.2d 366 (1953); 81 C.J.S. Social Security § 218 (1977); 76 Am.Jur.2d, Unemployment Compensation, § 86 (1975). The reason for this rule lies in the basic purpose of the Unemployment Compensation Act, which is to provide funds to an involuntarily unemployed worker so that he may avoid destitution during his unemployment. Metcalf v. Department of Industrial Relations, 245 Ala. 299, 16 So.2d 787 (1944); Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970). The purpose of the Act is not served by the payment of unemployment benefits to a claimant who is receiving certain other forms of compensation, such as vacation pay, although he is not in the ordinary sense of the word employed. In such a case, the claimant would not be suffering from the disability which the Act is designed to relieve, that is, financial hardship.

Autwell, is however, not disposi-tive of the principle issue here for two reasons. First, disqualification for a specific period under § 25-4-71 does not mean that the requirements of § 25-4-77(5) for requalification in a succeeding year have thereby been met. Second, an analysis of our statute and relevant federal legislation and an examination of similar cases from other jurisdictions lead this court to conclude that § 25-4-77(5) requires that a claimant, to qualify for benefits in a succeeding year, must have performed actual work or services during his initial benefit year.

Autwell did not address the issue of requalification under § 25-4-77(5). That case was solely concerned with the disqualification of claimants under § 25 — 4-71 during periods for which other compensation was due. The fact that an individual is disqualified under § 25-4-71 because all the criteria of unemployment were not met does not directly imply that all the criteria of employment, as that term may be used in another context, were therefore met. Under § 25-4-71, there are two criteria for unemployment. For a designated week, the claimant must have performed no services and must have no wages due. A claimant will be disqualified for unemployment benefits in any week with respect to which he either performed services or had wages due. In the instant case, a finding that the claimant is disqualified under § 25-4-71 because his vacation pay is deemed “wages” does not directly imply that he performed the “services” required by § 25-4-77(5).

Secondly, our holding that the “work in insured employment” required by § 25-4-77(5) is actual work and not “implied” or constructive (as that word is used in legal sense) work is reached by a reading of the clear language of the statute in the light of recent federal legislation.

Section 25 — 4-77(5) provides in pertinent part:

“[N]o otherwise eligible individual who shall have received benefits in a preceding benefit year shall be eligible to receive benefits in a succeeding benefit year unless and until such otherwise eligible individual, subsequent to the beginning date of the preceding benefit year, shall have worked in insured employment for which work he earned wages equal to at least eight times the weekly benefit amount established for such individual in the preceding benefit year.” (Emphasis added.)

Note that the statute requires that qualifying wages received in the initial benefit year must be attributable to work performed during that benefit year. There is no question in the instant case that the claimant’s accumulated vacation and attributable vacation pay were earned in insured employment. However, that work was performed prior to his initial benefit year. During his benefit year June 18, 1973 to June 17, 1974 the claimant performed no actual work for which he earned wages.

The holding in Autwell that the receipt of holiday pay may imply that some form of services were performed on the holiday is inapplicable to the instant case.

The problem faced in Autwell arose because holiday pay is generally not received on the holidays for which it is payable. The issue was whether an individual could be considered unemployed on a holiday in which he performed no actual services. The issue faced in Autwell is not faced here. There is no problem of determining when the claimant’s vacation pay was deemed payable. The claimant actually received that money during his vacation. He was denied unemployment benefits during that period not because it was found that he performed some implied services but because he was receiving compensation in excess of his unemployment compensation limits.

The Autwell case then is clearly distinguishable. On the other hand the federal legislation which affects this case addresses the specific issue here involved.

As we have often noted, our statute must be construed in harmony with appropriate federal legislation. Metcalf v. Department of Industrial Relations, supra; Holmes v. Cook, supra; Department of Industrial Relations v. Drummond, 30 Ala. App. 78, 1 So.2d 395 (1941). Under present federal law, employers may receive a federal unemployment tax credit if their state has a suitable unemployment compensation statute. 26 U.S.C.A. §§ 3301, 3302 (1967). In 1970, P.L. 91-373 amended 26 U.S.C.A. § 3304(a) (cum.supp.1978) by adding the requirement that state unemployment compensation laws, to be considered suitable, must now provide that:

“(7) an individual who has received compensation during his benefit year is required to have had work since the beginning of such year in order to qualify for compensation in his next benefit year; . . . .” 26 U.S.C.A. § 3304(a)(7).

The stated purpose of this amendment was to prevent the payment of unemployment benefits in two successive benefit years based on only one separation from employment — the so-called “double dip.” S.Rep.No.91-752, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin. News, pp. 3606, 3624-25. In the instant case, the claimant seeks to qualify for benefits in a second consecutive benefit year based on only one separation from employment. Construing § 25-4-77(5) Code of Alabama (1975) together with 26 U.S.C.A. § 3304(a)(7), we find that the benefits for the second year were properly denied. As such, our holding is consistent with cases in other jurisdictions decided subsequent to the passage of P.L. 91-373 which have construed statutes similar to our own. See Olenz v. Cleary, 19 Ill.App.3d 946, 312 N.E.2d 385 (1974) (lay-off allowance); Gibson v. Doyle, La.App., 307 So.2d 679 (1975) (pension benefits); Morrison v. Swift & Co., 295 Minn. 578, 205 N.W.2d 328 (1973) (lump sum severance pay); Gluck v. Employment Sec. Dept., 84 Wash.2d 316, 525 P.2d 768 (1974) (wages earned prior to initial benefit year). In each of these cases, the claimant was seeking to qualify for unemployment benefits in a second consecutive benefit year without performing intervening work, but relying upon compensation he earned during the initial benefit year. In each case, benefits were denied on the grounds that the compensation received was not for intervening work or services required by statute for requalification for a second benefit year.

Because the vacation pay received was not derived as wages for work performed in the base period, the judgment of the circuit court is reversed and the decision of the Board of Appeals for the Department of Industrial Relations denying benefits to the claimant for the benefit year beginning June 18, 1974 is hereby reinstated.

REVERSED AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Sarah L. WRIGHT and Inez Murdock v. MARENGO COUNTY BOARD OF EDUCATION.
    Civ. 1667.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.

      Joseph E. Carr, IV, Alabama Ed. Assn., Montgomery, for appellants.
    T. W. Thagard, Jr., and David R. Boyd, Montgomery, for appellee.
   HOLMES, Judge.

This is a teacher tenure case.

The record reveals the following: On April 28, 1977, the board of education notified the appellants-teachers of the board’s intent to transfer them to another school. Appellants objected to the transfer and demanded a hearing. Accordingly, the board, by letters on May 5 and 10 respectively, notified each of the time and place set for a hearing. The notice of the hearing did not specify the reasons for which the board sought to effect the transfers.

After a hearing, the board reaffirmed its decision to transfer and the teachers appealed to the Alabama State Tenure Commission. The tenure commission, on July 15, struck down the board’s decision because it found that the notice of the time and place for the hearing failed to include the board’s reasons for the appellants’ transfer as required by Code of Ala.1975, § 16-24-6.

After the commission struck down the transfers, the board, on July 20, again informed the appellants that it intended to transfer them. On July 28,1977, the board gave notice to appellants that the reason for their transfer was a decrease in enrollment at the school were each had taught. In addition, the July 28 notice also informed appellants of their right to a hearing. Rather than contest the reasons for the transfer at a hearing before the board, the teachers appealed a second time to the tenure commission.

On this second appeal, the commission found that the board’s July 28 letter properly stated the reasons for appellants’ transfer and thus upheld the board’s actions. After the Circuit Court of Marengo County upheld the commission’s decision, the teachers appealed.

Able counsel for appellants maintains that the transfers in this case did not comport with procedural or substantive due process and thus are invalid.

Prior to discussing the procedural aspects of this appeal, we observe that appellants’ substantive due process contentions are not properly before this court. In Ala. State Tenure Commission v. Board of School Com’rs of Mobile County, Ala.Civ.App., 332 So.2d 724 (1976), this court held that it must limit its review to the subject matter and actions pertaining thereto taken by the tenure commission and the court below. In the case before us, the record reveals that appellants premise this appeal on the commission’s August 18, 1977, decision and the ruling of the court below which upheld the validity of the board’s procedural actions. Because the substantive issues raised by appellants were not considered below, they are inappropriate for our review here. Board of School Com’rs of Mobile County, supra.

With respect to the procedural contentions raised by appellants, we note at the outset that in teacher transfer cases, § 16-24-5 requires the board give a teacher notice of its intent to transfer. This notice puts the teacher on actual notice that a change in the employment situation is contemplated by the board and thus gives the teacher an opportunity to acquiesce to the change, seek other employment, or challenge the board’s action. See, e. g., Ala. State Tenure Commission v. Franklin County Bd. of Ed., Ala.Civ.App., 336 So.2d 187 (1976). Subsequently, if the teacher timely contests the transfer, § 16-24-6 contemplates that another notice be sent the teacher which sets forth the time and place of the hearing and the reasons for the transfer. In Franklin County Bd. of Ed., supra, this court held that the notice provisions set forth in § 16-24-6 are calculated to inform the teacher of the reasons for the transfer in order that the teacher be afforded an adequate opportunity to prepare a defense.

Counsel for appellants contends that notice of intent to transfer was not properly given by the board in this instance. This allegation is premised on the contention that notice of intent to transfer under § 16-24-5 must be given prior to June 30, i. e., before the commencement of the succeeding school year. Appellants further argue that because the tenure commission, in its July 15 order, held invalid the May 5 hearing notice given pursuant to § 16-24-6, the notice of intent to transfer was also declared invalid. We do not agree.

Under the facts of this case, this court is not required to reach nor discuss the issue of whether § 16-24-5 compels the board to give notice of intent to transfer prior to June 30. This is so because the record clearly reveals that the board gave notice, pursuant to § 16-24-5, of its intent to transfer appellants on April 28, 1977, unquestionably prior to the June 30 deadline. Therefore, even assuming arguendo that the board is required to give such notice by June 30, a proposition which we do not necessarily adopt, such notice, in this instance, was timely given.

We do not agree that the board’s April 28 notice of intent to transfer was rendered invalid when the tenure commission found that the hearing notice sent by the board pursuant to § 16-24-6 was void. The commission’s ruling specifically held that the board’s initial attempt to inform appellants of their hearing, without giving the reasons for their transfer, was invalid; however, the ruling did not encompass the validity of the intent to transfer notice.

In addition to what we have said, we reiterate that the central purpose of the § 16-24-5 intent to transfer notice is to give the teacher timely actual knowledge of the contemplated change in her employment situation. Where, as here, appellants received actual knowledge, and the purposes of the § 16-24 — 5 were subserved, this court cannot say that the effect of the April 28 notice was erased by the commission’s first order. See, e. g., Fluker v. Ala. State Bd. of Ed., 441 F.2d 201 (5th Cir. 1971).

Appellants next contend that the board failed to give valid notice, pursuant to § 16-24-6, of the reasons for their transfer and the time and place of the hearing. The record demonstrates that this contention is factually incorrect.

We agree that the board’s initial May 5 notice failed to state the reasons for the transfer and therefore was ineffective. However, the record reveals that the board’s subsequent notice on July 28 expressly informed appellants that they were being transferred due to a lack of enrollment at the school where they had been teaching, and thus the requirements of § 16-24-6 were fulfilled.

Furthermore, it was within the prerogative of appellants, after they received notice of the hearing and the reasons for the transfer, to avail themselves of the right to explore the merits of the board’s proposed changes. We note, however, that rather than avail themselves of a second hearing on the merits, appellants instead instituted this appeal contending in part that they were denied their procedural rights to prepare an adequate defense. For obvious reasons, the contention that appellants were deprived of an opportunity to prepare a defense, when they in fact were given an opportunity which they disdained, is not persuasive.

Given the foregoing, we hold that appellants, in this instance, were given timely notice of the employing board’s intent to transfer them. Further, we hold that appellants were validly notified of the reasons for the transfer and of the time and place for a hearing to contest the board’s action. Accordingly, we find no error in the decision of the court below.

AFFIRMED.

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

      . The teachers in essence contend that the transfers were arbitrary and unjust in that they were prompted by personal or political reasons. They further maintain that because the notices of May 5 and 10, 1977, failed to state the board’s reasons for the transfers, they were unable to adequately meet the substance of the board’s actions on the merits. We note, however, that appellants chose not to exercise their right to a hearing after they had received proper notice.


author: BRADLEY, Judge.

text:
    Alexis Lu Braddy OLSON v. Alan Bradley OLSON.
    Civ. 1670.
    Court of Civil Appeals of Alabama.
    Feb. 14, 1979.
    J. Donald Reynolds, Montgomery, for appellant.
    William E. Shinn, Jr., Decatur, for appel-lee.
   BRADLEY, Judge.

This is a child custody case.

The parties to this proceeding were divorced on September 28,1977 by the Circuit Court of Morgan County for incompatibility of temperament. Custody of two minor female children was awarded to the father, with reasonable visitation rights in the mother. On October 14, 1977 plaintiff-mother filed a motion seeking to “alter, amend or vacate the judgment” of divorce and asking for custody of the two minors. Defendant answered by suggesting that the motion had remained pending for more than ninety days and should be deemed denied by operation of Rule 59.1, ARCP. Subsequently, plaintiff amended her motion to request a modification of the divorce decree based on changed circumstances.

Hearings were conducted in March and April 1978 during which extensive oral testimony was heard by the court. On May 1, 1978 the circuit court rendered a decree wherein it modified the prior decree and awarded temporary legal custody of the children to the Department of Pensions and Security with actual, physical custody in the father. The father’s physical custody was based on his compliance with certain conditions imposed by the decree, such as close supervision by the Department of Pensions and Security.

Within thirty days of this modification decree and, more specifically, on May 17, 1978, the plaintiff-wife filed a motion for a new trial or in the alternative to alter, amend or vacate the judgment. Several grounds were assigned as justification for the motion. The trial court on May 19, 1978 set the matter for hearing on August 16, 1978 and directed DPS to make investigation of the homes of the parties and the home of the maternal grandparents. A hearing was held before the court, at which oral testimony was heard and the reports made by DPS were received; the court thereupon, on August 23, 1978, denied the motion.

Notice of appeal to this court was filed in the trial court on October 3, 1978.

Although there is no motion to dismiss the appeal filed in this court, it is nevertheless incumbent upon this court to establish its own jurisdictional authority to accept and decide a case on appeal. Helms v. Helms, 50 Ala.App. 453, 280 So.2d 159 (1973); Mears v. Nail, 54 Ala.App. 610, 311 So.2d 435 (1975).

Rule 4(a)(1) and (3), ARAP, provides that appeals from final judgments or post-trial motions filed pursuant to Rules 50, 52 and 59, ARCP, must be taken within forty-two days of said judgment or orders.

The post-trial motion filed on May 17, 1978, which was within thirty days of the final judgment entered on May 1,1978, was a Rule 59(a) and 59(e) motion and was denied by the trial court on August 23, 1978. However, the record before us does not show that the Rule 59 motion was kept alive as required by Rule 59.1, ARCP.

Rule 59.1 is, in pertinent part, as follows:

No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.

The motion remained pending in the trial court for more than ninety days, i. e. the ninetieth day was August 15, 1978, and the record fails to show that the parties expressly agreed for the motion to remain pending beyond August 15, 1978. As a consequence, the motion is deemed denied on the ninetieth day, L e. August 15, 1978. Personnel Board for Mobile County v. Bronstein, Ala.Civ.App., 354 So.2d 8 (1977).

Rule 4(a)(3), ARAP, provides that if a post-trial motion is deemed denied by the expiration of ninety days as provided in Rule 59.1, ARCP, the time for appeal shall be computed from the date of denial of the post-trial motion under Rule 59.1. In the present case that time would have run on September 26, 1978. The notice of appeal was filed on October 3, 1978, which was seven days too late. As a consequence, we have no alternative but to dismiss the appeal ex mero motu, for we have no jurisdiction in this case. State v. Wall, Ala., 348 So.2d 482 (1977).

We would point out, as did Judge Holmes in Personnel Board for Mobile County v. Bronstein, supra, that the drafters of Rule 59.1, ARCP, probably did not intend the rule to have the effect that it does have in this case, i. e. the appeal is untimely because the parties failed to expressly agree of record that the trial judge could set the motion for hearing on a day that is beyond the ninety day period envisioned by Rule 59.1. Nevertheless, until Rule 59.1 is altered or amended, the result can be no different from the one reached here, for the reason that we consider the language of the rule to be clear and explicit.

Appellant’s request for attorney’s fee on appeal is denied.

APPEAL DISMISSED.

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


author: WRIGHT, Presiding Judge.

text:
    DIRECTOR OF the STATE of Alabama DEPARTMENT OF INDUSTRIAL RELATIONS v. A. Marie STONE.
    Civ. 1723.
    Court of Civil Appeals of Alabama.
    Feb. 14, 1979.

      George Cocoris, Gen. Counsel, Dept, of Industrial Relations, Frank D. Marsh, Asst. Gen. Counsel, Dept, of Industrial Relations, Montgomery, for appellant.
    John A. Lockett, Jr., Selma, for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case. The trial court found that the claimant was entitled to receive compensation for a period of thirty-nine weeks and rendered judgment for claimant in the amount of $3,510. The Department of Industrial Relations filed a motion to vacate the judgment and enter judgment for defendant on the ground that the claimant had failed to carry the burden of proving that she was available for work during the period she claimed compensation. The trial court denied the motion and the Department appeals. The issue presented is whether claimant produced evidence to show that she met the benefit eligibility condition of availability for work as required by § 25-4-77(3), Code of Alabama (1975). We find that issue in favor of the Department and reverse the judgment of the trial court.

In brief, the facts presented were as follows: Claimant was a United States Civil Service employee of the Air Force at Craig Air Force Base at Selma, Alabama, for some fourteen months prior to January 21, 1975. Her rating was Clerk/Typist, GS-3. She had worked at various U.S. Government jobs for several years at several locations over the country. Her husband is a minister and they had traveled from place to place. Claimant had worked at jobs of higher rating, i. e., GS-5 and GS-7. Her testimony was that the volume of work placed upon her at Craig was too heavy for her. Though she sought transfer to other jobs and sought additional personnel to assist her, neither was forthcoming. She therefore resigned from her employment because of her heavy work load. This occurred at the time Craig was beginning a phase out of its operations which culminated in its closing down some two years later. There was no testimony of any effort or attempt to secure work for which she was qualified — clerk/typist—in or near the locality of her employment subsequent to her resignation-.

Our courts have applied the benefits eligibility conditions specified in the statute numerous times. This court did so as recently as December 6,1978 when we rendered our decision in the case of State of Alabama Department of Industrial Relations v. Harbin, 365 So.2d 313 (Ala.Civ.App.1978). We will not repeat what we said there but will say that it is dispositive of the law to be applied in this ease.

We find in the record sent to us statements of the learned trial judge made by him at the time he denied the post judgment motion of the Department. We are boufid to observe that from the statement, there appears a misunderstanding of the requirement of the statute that one must be available for work in order to be eligible for unemployment compensation.

“Availability” is not satisfied by the claimant being able and ready to return to the job from which she resigned if the work load is lessened to her satisfaction. “Availability” under the statute is not necessarily related at all to a readiness to return to the employment she left, but rather applies to a willingness and ability to seek and accept any employment for which she may be qualified. In this case claimant could not limit her availability even to Civil Service employment. There can be no presumption of availability under the statute because of a claimant’s past work history. “Availability” to satisfy the statutory conditions for benefits, must be exemplified by continuing effort to find employment throughout the benefit period. Failure of proof of constant availability for employment for which she is qualified may require a finding of ineligibility for benefits. Claimant supplied no proof of availability during the benefit period as required by the statute. She therefore did not qualify for benefits. The judgment below should have been set aside upon the motion of the Department and judgment rendered in favor of the Department. Having failed to do so, this court now does instead.

REVERSED AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


author: BOOKOUT, Judge.

text:
    Oscar Eugene KENT v. STATE.
    6 Div. 466.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      William N. Clark of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State, for appellee.
   BOOKOUT, Judge.

Second degree murder; sentence: ten years imprisonment.

On the night of November 20, 1971, Morris Carlisle, who had a prior conviction for burglary, was shot and killed in the home of the appellant. After an investigation, the Coroner of Jefferson County ruled the killing to be justifiable homicide. Almost five years later, the Birmingham Police Department reopened the case which resulted in the instant charge. Appellant charged that the case was reopened following several years of conflict between him and certain police officers in connection with his operation of a local club, The Wrought Iron Lounge.

Statements given to police officers by the appellant clearly made out a case of justified homicide. The State, through circumstantial evidence, sought to prove an unlawful homicide.

Birmingham Police Officer Robert J. Lamb and his partner, responding to a call, went to the residence of the appellant on November 20, 1971. They arrived shortly after midnight and within a few minutes, the Jefferson County Coroner, J. 0. Butler, and other officers arrived at the scene. When Lamb and his partner entered the house, they observed a black man lying in a hallway. A piece of broken window pane glass was lying next to the hand of the deceased.

Lamb interviewed the appellant Kent who gave an account of the killing. Appellant told Lamb that he had awakened to discover the deceased coming from a back bedroom holding a piece of broken glass to the throat of the appellant’s child. He stated that the deceased made sexual advances toward Mrs. Kent, but the appellant attempted to talk the deceased into leaving peacefully. The appellant told the deceased that he would open the door for him to leave, and then the appellant stepped into the living room and took a rifle from a wall rack, loaded it, and stepped back within sight of the deceased. He stated that Mrs. Kent screamed something to the effect that the deceased was cutting the child. At that time, he shot the man, Mrs. Kent grabbed the child, and the man fell to the floor.

Officer Lamb stated that he was informed that Mrs. Kent and the baby were at a local hospital. He went there to verify the appellant’s story. Upon arriving, he observed doctors working on the child who had a “jagged, very deep wound” on the side of his throat.

Officer Jeffery E. Webb testified that on the date of the homicide, he and Police Sergeant M. E. Guillion went to the appellant’s residence to investigate the shooting. He went back to the appellant’s residence on October 27,1976, (almost five years after the homicide) with Police Sergeant J. E. Rhodes. He identified a diagram of the appellant’s house which Rhodes had made on that occasion. In the first instance, he had a conversation with the appellant in the presence of Officers Lamb and Guillion. He examined the body and found a wound in the abdomen on the right side of the navel. He observed no other wounds. He testified that the investigation was dropped when the coroner ruled the homicide to be justifiable. He stated that the coroner had consulted with him prior to making the ruling of justifiable homicide. The story which the appellant told him was essentially the same as that told to Officer Lamb.

Officer Webb testified that he examined a piece of glass which was in the right hand of the deceased and found only a small amount of blood on it. He saw no blood on the deceased except around the gunshot wound.

Webb examined the appellant’s home and found a partially broken window in a rear bedroom. He had examined the area around the window, but did not see anything that looked like fingerprints that might be retrieved; however, he did see smudges on the glass. He observed that dust on the windowsill had apparently not been disturbed.

Officer Webb found a pair of shoes and a hat outside the rear bedroom window. The shoes were laced up and tied when he found them. The deceased was not wearing shoes, but was in his stocking feet when the police officers observed his body. Officer Webb testified that there were perhaps a dozen officers present during the investigation, but that he, Sergeant Guillion, Officers Little, Jones, Lamb, and Gardner and the coroner actually conducted the investigation which he admitted was thorough. A two-man fingerprint unit worked at the scene until approximately 2:00 A.M. on that occasion. The witness testified that, although he conferred with the coroner, he did not agree with the coroner’s conclusion and had expressed his doubts to his supervisor and partner. He stated that he was aware that the deceased had a record for burglary.

Sergeant James R. Little testified that he took photographs and fingerprints at the scene of the homicide on the night in question. He was not able to obtain any identifiable fingerprints from around the window frame because of the rough surface.

Wayne Poole testified that he had known the appellant for ten or twelve years. He stated that in July or August of 1972, he was at the appellant’s place of business, The Wrought Iron Lounge. He had consumed approximately two-fifths of liquor at the time and was in a rage. He had been in a fight earlier and wanted the appellant to go with him to retaliate against some people. When appellant would not go with him, Poole accused appellant of killing Carlisle. Poole said the appellant at that time stated to him that it would have been easy for him to have killed the deceased and made it look like self-defense. He testified that Kent told him he could have shot the deceased and then “pull the skin up on the baby’s neck and let it go back and all that crap.” (He apparently meant that appellant could have pulled the outer skin away from the neck and inflict a superficial cut without seriously injuring the child although his testimony is not completely clear on this point.) However, he then stated that Kent told him that he was just telling him that to get him to calm down and that the killing had actually occurred as he had related earlier — “the guy broke in on him, threatened him and his wife, and cut the baby’s throat.” Poole admitted that he was drunk when he talked with the appellant in 1972 and that the appellant was trying to get rid of him at the time.

Poole admitted that ten years earlier he had been convicted of burglary, grand larceny, and automobile theft. Four years earlier he had been convicted of attempted murder, buying and receiving stolen property, grand larceny of an automobile, and conspiracy to pass counterfeit money. He admitted to serving time in the penitentiary and that he was out on both state and federal paroles at the time. He said no threats were made by the police in order to get him to talk to them; however, he was afraid that if he did not do so, his probation would be revoked.

Officer Little was reexamined and testified that he found some glass under the rear window of the appellant’s house which appeared to have been there from some length of time. He stated that the glass was on the ground and was water spotted and had debris on it, however, he never tried to put the pieces of glass together to determine whether they came from the window. In fact, the glass had since then been disposed of, and he did not know what had happened to it.' He admitted that he did not mention to anyone that the glass looked weathered until approximately two months before the trial. He did not check that particular glass for fingerprints, neither did he find prints on the glass that was remaining in the window.

Wilbert Gratton, the uncle of the deceased, testified on behalf of the State. He last saw deceased on the day of the homicide. Earlier on that date, he had received several telephone calls for the deceased from a person whose voice he said he had heard before.

After the shooting, Gratton went to the coroner’s office where he saw the deceased’s billfold, driver’s license, money, and a “little telephone book.” He said that prior to that time he had looked through the telephone book and had seen the name “Kent” and a telephone number written therein. He first testified that there was no other name in the book, but on cross-examination, he stated that there were other names in the book, all of which were relatives of the deceased. He stated that he did not know what happened to the book after he saw it at the coroner’s office. The telephone number was never connected with the appellant by the State’s evidence.

Gratton testified that on one occasion pri- or to the date of the crime a white man of heavy build with blonde hair had come to his house and asked for the deceased. He said the man drove a motorbike. The motorbike was never connected with the appellant by the evidence in the State’s case in chief. Gratton also stated that he had heard a man’s voice on the telephone several times. He stated that he recognized the voice on the telephone to be the same voice of the white man who visited his house on the day Morris Carlisle was killed. In his testimony before the jury, he did not connect the voice on the telephone with the appellant.

Gratton admitted to having given police a statement on September 29, 1976, and another statement on January 28, 1977, three days prior to the trial. Both of those statements were admitted into evidence and read to the jury. In the first statement, Gratton told police that the deceased had a few telephone calls, but he did not recognize any of the voices. When asked if he could tell whether they were black or white, he answered that they were “colored.” The only time he had seen Carlisle associate with a white person was on the one occasion when the white man came to the house and asked to see Carlisle. Carlisle told Gratton the white man was someone he met in Draper. In the first statement, he did not identify the white man who visited his house, neither did he state that he recognized the voice of the white man as having called before.

In the second statement, given three days prior to the trial, Gratton stated that between the time Carlisle got out of prison and the date he was killed, a white man called the house on the telephone on several occasions. The white man never left his name. Gratton stated that he had looked through the appellant’s address book in October of 1971, a month before Carlisle was killed. He stated that he saw the name “Kent” written in the book. He asked Car-lisle about the name Kent and Carlisle said he was “the white guy he had met.”

In the second statement, Gratton stated that when Morris Carlisle would leave the house for work, he often carried a plastic shaving kit with him which contained marijuana. The following portion of that statement was read to the jury by defense counsel:

“Q. What did you think Morris was doing with that marijuana when he took it to work with him?
“A. I think — you know — he was selling it.
“Q. Who was Morris selling that marijuana for?
“A. I reckon this white guy — Kent.”

Even though read by defense counsel, this was the rankest of speculation and conjecture on the part of Gratton and is not evidence which will support even an inference of guilt.

Gratton testified that the police showed him some photographs of Kent and stated that Kent was the one that had killed his nephew Carlisle. On cross-examination he testified that he was shown the pictures at the time of the September statement and then changed his testimony to the effect that it was at the time of the January statement, then stated that he was not shown the pictures in January, but was shown them in September, and then changed his testimony twice more concerning when he was shown the photographs.

“Q. Now at the time this last statement was made, did Captain Myers show you pictures of Mr. Kent who is sitting over at the table? When I say ‘the last’ I mean the one this last Friday? I don’t want to confuse you.
“A. No, sir, he didn’t show me no pictures.
******
“Q. Well, when was it he showed you the picture of Mr. Kent that you testified about?
“A. That night we first, you know, back in September when he first showed me no picture. Back in September.
“Q. Well, did he tell you who the pictures were, the name of them and so forth? Did Captain Myers tell you that?
“A. No, they didn’t tell me until I, you know, picked the picture out. Then he told me.
“Q. How many different kinds of pictures did he show you of Mr. Kent?
“A. About four to six, you know.
“Q. How many?
“A. About four or five.
******
“Q. And are you sure that that was in September rather than last Friday that those pictures were shown of Mr. Kent? Think back now, if it wasn’t last Friday. I don’t want to confuse you, but was it last Friday before you made this last statement that he showed you the pictures of Mr. Kent?
“A. Yes, I think it was.
“Q. It was the last time, wasn’t it?
“A. That’s right.
******
“Q. . . . After this statement was made last Friday, did you bring Mr. Kent into it after being shown those pictures? “In this statement that was made in September, there was no mention of Mr. Kent there in any way, was there?
“If you want to, if His Honor will allow it, take them and look through, but look through and see if it is September. Was any statement made concerning Mr. Kent and it was only after last Friday after you had been shown the pictures of Mr. Kent and had been told who it was that you mentioned Mr. Kent in your statement?
“A. No, sir. They tell me, you know, that is the man that shot him. They didn’t call the name.
“Q. What was that now?
“A. They didn’t say it was Kent, just told me that was the fellow that shot him.
“Q. He didn’t say it was Kent, but he showed you the picture of Kent and said that was the fellow that shot him?
“A. That’s right.
“Q. And that was last Friday, then?
“A. No, sir, not last Friday. No, in September.
“Q. But last Friday when you made this last statement, was that the time you were shown the five pictures of Kent?
“A. That’s right.
“Q. That was last Friday, wasn’t it?
“A. That’s right.
“Q. Now in your statement in September, you didn’t mention anywhere anything about Mr. Kent, any notebook or anything else, did you? Is that right?
“A. That’s right.”

Gratton testified that he had given police statements on seven separate occasions at which time his statement was written up. He had not seen the other five statements, they were not in court, and the only ones he had seen were the two produced in court. Gratton’s testimony in court as well as in the prior written statements is confusing, conflicting, and inconclusive.

Jay Glass, a pathologist’s assistant employed at the Cooper-Green Hospital in Birmingham, testified for the State concerning the exhumation and examination of the body of Morris Carlisle in 1976. His autopsy revealed that the bullet entered just to the left of the navel and went in at a ten degree angle toward the spinal column from left to right. The defense stipulated that the cause of death was from the gunshot wound inflicted by defendant, nevertheless, the State continued to elicit detailed testimony concerning the autopsy.

Mrs. Imogene Wilson testified on behalf of the State. She remembered the occasion of the shooting in question, but did not remember the date. She stated that she went with her husband to a house where his three sons resided. They went upstairs, but found that the boys were not there, and on going back downstairs, Oscar Kent opened the door to his apartment. Mrs. Wilson said that he had a gun in his hand and said that he had shot someone. They entered the apartment, to the best of her memory, through a small archway where she saw a man lying on the floor of what she thought to be a room. She said Mrs. Kent was sitting on a sofa holding a baby and that both Mrs. Kent and the baby were crying. She did not see any blood because she did not examine the baby. Mrs. Wilson immediately returned to her car, and her husband brought her a soft drink. She remembered nothing from that point on.

Police Officer Kenneth Lewis testified that he was present when the body of the deceased was exhumed, and he identified a photograph of that body. He testified that he attempted to take fingerprints from the body, but was able to print only a portion of the right thumb and palm.

Sergeant Richard Zales, after a voir dire examination, testified concerning his investigation of the case. He testified as to a statement the appellant had given him on October 27, 1976, after the case had been reopened. Kent’s statement to Officer Za-les was substantially the same as the one he gave to Officers Lamb and Webb, set out earlier in this opinion.

On cross-examination Zales admitted that he was aware that Kent had been investigated for selling narcotics. He said Kent knew the case was reopened, however, Kent cooperated fully with the investigation. Zales likewise testified that Wilbert Grat-ton, the uncle of the deceased, had been interviewed about ten times by the police between the interviews of September 29, 1976, and of January 28, 1977. Furthermore, Zales said that he had talked with Gratton on three of those occasions.

Dr. James N. Buttram, Toxicologist and Laboratory Director for the State Department of Toxicology and Criminal Investigation, testified for the State. The prosecution attempted to prove through Dr. But-tram the following: (1) that the deceased would not have fallen in the position shown in the photographs of the body taken at the scene of the crime; (2) that a person being shot with a rifle would not normally continue to grasp a piece of glass while falling to the floor, absent the occurrence of cadaveric spasm; and (3) that it was highly unlikely that cadaveric spasm occurred in the instant situation.

The State attempted to lay the predicate for Dr. Buttram’s testimony as an expert witness by having him testify as to his qualifications as follows:

“I have a B.S. degree earned at Auburn University and a Ph.D. degree earned at the University of Tennessee Medical Unit, Memphis, Tennessee. I spent approximately one year in post-doctoral study and research at the University of Georgia in the Institute of Comparative Medicine. I joined the department after that period of study and research and have been employed with this department in excess of three years.
“During this period of time I have received extensive on-the-job training under the direction of Dr. C. J. Rehling, State Toxicologist. I have also studied with Dr. Neil Hoffman, forensic pathologist, now with the medical examiner’s office in Tulsa, Oklahoma.
“During this period of time, Dr. Hoffman was located at Lister Army Hospital in Fort Rucker, Alabama. I have received training under Dr. Keith Hester, pathologist and coroner, Montgomery County, Alabama, and have participated in in-service training seminars and short courses, both within our department and in regional and national meetings.
“I am a member of the Southern Association of Forensic Scientists, the American Academy of Laboratory Directors and the International Association of Forensic Toxicologists.”

Dr. Buttram later testified that he earned his Ph.D. degree primarily in the area of pharmacology, “drug action,” with a minor in physiology, “a study of the function of the parts of the human body in life.” He testified that he had been involved in more than 450 examinations of dead human bodies and in investigations of those deaths. On “many occasions,” those deaths investigated were caused by gunshot wounds. Dr. Buttram had never witnessed an actual shooting, however. After extensive voir dire examination, the trial court allowed Dr. Buttram to testify by expressing his opinion as an expert witness.

Dr. Buttram was allowed to examine photographs of the scene of the shooting depicting the body of the deceased showing a piece of glass lying partially over the right hand. Over objection he was allowed to testify that, “I do not believe that the photographs depict the phenomenon of cadav-eric spasm.” Dr. Buttram earlier testified that cadaveric spasm was an uncommon phenomenon which occurs “whenever a dead individual is found tightly grasping an object.” He stated that in all of his examinations of dead bodies, he thought he had only seen that phenomenon one time. However, the defense never contended that cadaveric spasm occurred in this case. During voir dire examination, he stated that it is a rare circumstance that “is not well studied.”

In answering a hypothetical question by the prosecution (assuming no cadaveric spasm occurred, assuming that the person was shot from approximately eight feet with a 7.65 millimeter Mauser rifle, assuming that the bullet stayed within the body, and assuming the body fell backwards), he stated that “it would be an unlikely event” that the glass would have stayed within the hand of the person when he fell to the floor.

On cross-examination, the following occurred:

“Q. Well, let’s get away from cadaveric spasm. They just happen once every so many times and it is very unlikely to be a cadaveric spasm. That is correct, isn’t it? Very unlikely?
“A. Yes, it is rare.
“Q. Very rare. Now assuming it is not that and that this man is holding this glass and is simply shot, he falls, he is holding that glass in his hand, when he falls his hand relaxes and the glass is lying there on top of his hand. Wouldn’t this picture designate what would ordinarily happen in that transaction in the course of being shot like that?
“A. With the supposition you have stated, yes.
“Q. So there is nothing unusual about that, it would just be the average course of events under the statement I have given you, wouldn’t it? Nothing unusual about it?
“A. Under the statement you have given me, yes.
“Q. Yes. And it could be reasonably assumed from that that he was holding the glass, was shot, held onto it, fell and died and his hand relaxed and the glass is there, would it not?
“A. That is possible.”

At the end of Dr. Buttram’s testimony, the State rested its case in chief. The defense then moved to exclude the State’s evidence as being insufficient to submit to the jury. The trial court overruled the motion to exclude, and the defense put on its witnesses.

In considering the question as to whether the trial court correctly overruled the appellant’s motion to exclude the State’s evidence, we may only consider the evidence which was before the trial court at the time the motion to exclude was made. Williams v. State, Ala.Cr.App., 340 So.2d 1144, cert. denied, Ala., 340 So.2d 1149 (1977); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327 (1975), cert. denied, 295 Ala. 426, 324 So.2d 333.

The fact that the appellant shot the deceased and killed him is not in dispute. The issue is whether the appellant was legally justified in shooting the deceased. In Champion v. State, 35 Ala.App. 7, 44 So.2d 616 (1949), the Court of Appeals stated:

“Every killing is unlawful unless expressly excused, or justified by the law. A homicide being shown, it is incumbent upon the defendant to prove circumstanc- • es in mitigation, excuse, or justification, unless shown by the evidence produced against him. . . . The degree of the mitigation, the validity of the excuse, or justification are questions for the jury. . ” (Emphasis supplied.) (Citation omitted.)

In testing the appellant’s motion to exclude the State’s evidence, we must review that evidence in the strongest light favorable to the State. Since every killing is presumed unlawful unless proved to be justified by law, and since the use of a deadly weapon infers malice, it is necessary to determine whether the State’s evidence shows a justification or excuse for the homicide in favor of the appellant sufficiently strong to refute the presumption that the homicide was both unlawful and committed with malice.

By the State’s own evidence, the appellant’s version of the shooting was put into evidence. The appellant and his wife were the only eyewitnesses to the killing. The appellant’s statements given to police officers and elicited in the State’s case in chief show prima facie that the homicide was legally justifiable, i. e. it was committed in defense of the appellant’s home and family against an intruder. The issue then is whether, by the end of the State’s ease in chief, the State had presented sufficient circumstantial evidence to prove an unlawful, malicious killing and overcome the initial evidence of justifiable homicide.

The prosecution must prove each of the elements of murder, and that proof must be positive enough to show there was no justification or that the appellant was not free from fault in bringing on the fatal encounter. There is no burden of proof on a defendant in a homicide case except as may be germane under a special plea of not guilty by reason of insanity. Payne v. State, 52 Ala.App. 453, 293 So.2d 877 (1974).

When the issue of self-defense is present (through the State’s own evidence in this case), the State must prove that the accused did not act in self-defense in the sense that the State must prove a prima facie case of unjustified homicide. Mack v. State, Ala.Cr.App., 348 So.2d 524 (1977). Our use of the term “self-defense” encompasses the defense of one’s home or a member of one’s family. The right to defend another is coextensive with the right to defend one’s self. In such a case, the accused steps into the shoes of the person whom he defended, and he has the same right as that person did in self-defense. This right extends not only to the person assailed, but also to any members of his family. Collier v. State, 57 Ala.App. 375, 328 So.2d 626, cert. denied, 295 Ala. 397, 328 So.2d 629 (1975). It has long been the law in Alabama that, if an assault on one’s house is made under circumstances which would create a just apprehension of imminent danger to person or property in the mind of a reasonable man, the owner may act upon appearances and kill the assailant. Carroll v. State, 23 Ala. 28, 58 Am.Dec. 282 (1853).

To meet the burden of proof to sustain a charge of second degree murder, the prosecution must show an unlawful killing with malice, but without deliberation or premeditation. The State’s own proof introduced the elements of justification via defense of one’s premises and family from a deadly assault. The State’s initial proof in this regard rebuts the presumption that the homicide was unlawful and that the use of the deadly weapon by appellant was malicious. Whether the State’s further evidence is sufficient to prove the killing to be without justification and with malice beyond a reasonable doubt and to a moral certainty remains to be seen. To make such a determination, we must review the State’s evidence and analyze those circumstances which may tend to or appear to incriminate the appellant.

Wayne Poole, an admitted felon, was on parole at the time he gave the police a statement. He was apprehensive that he might be jailed and have his parole revoked if he did not cooperate. He had to recall a conversation from almost five years earlier that took place while he was intoxicated from drinking two-fifths of liquor. At the most, his testimony was that the appellant humored him by saying he could have faked Carlisle’s threat to his family, but that he actually did not do so.

An accused stating that he could have committed a crime, but that he actually did not commit it, is not evidence that he indeed offended the law. Such a statement is not inculpatory in nature since it only states that a certain act could have happened, but did not happen. As stated in Taylor v. State, 30 Ala.App. 316, 5 So.2d 117 (1941):

“. . . ‘proof which goes no further than to show an injury could have occurred in an alleged way does not warrant the conclusion that it did so occur.’ ”

The possibility that the appellant may have “faked” the threat to the child by inflicting a light superficial cut was disputed by other positive evidence on behalf of the State. Officer Lamb testified that he observed a “jagged, very deep wound” on the child’s neck.

Wilbert Gratton’s testimony in the presence of the jury does not shed light on the issue of the guilt or innocence of the appellant. Only by speculation can one connect the appellant with the deceased at all through Gratton’s confusing and contradictory testimony. After reviewing his testimony numerous times, we are still uncertain whether the appellant was identified by Gratton as being the white man on the motorbike which visited his house. What Gratton “thought,” “guessed,” or “reckoned” was not evidence to support a murder charge.

The portions of Officer Webb’s testimony unfavorable to appellant were (1) that the piece of glass found next to the hand of the deceased evidenced only a small amount of blood, and (2) dust on the bedroom windowsill appeared undisturbed.

Dr. Buttram’s testimony could be summarized down to this: (1) It would be an unlikely event for a body to fall in the position depicted in the photographs of the deceased, but (2) it was possible.

Many of the other State’s witnesses testified as to facts or circumstances having no bearing on the question of appellant’s guilt vel non of an unjustified and illegal homicide. The many circumstances hypothesized or testified to add up to nothing more than a suspicion that appellant may have killed Carlisle and then “staged” the scene to give the appearance that he shot an intruder. As stated in Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967):

“. . . This merely showed a possibility that this appellant may have committed the offense. However, the possibility that a thing may occur is not alone evidence even circumstantially, that the thing did occur. Taylor v. State, 30 Ala.App. 316, 5 So.2d 117. See especially Lang v. State, 252 Ala. 640, 42 So.2d 512.”

To authorize the submission of a criminal case to a jury, the State must submit substantial evidence tending to prove each element of the offense. In view of the presumption of innocence, which is a matter of evidence attending an accused in every trial, a mere scintilla of evidence is insufficient to present a question of guilt to a jury. Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1933).

In reviewing the trial court’s action in overruling a motion to exclude, the standard for review is whether at the time the motion was made legal evidence was submitted to the jury from which the jury could by fair inference find the defendant guilty. Stewart v. State, Ala.Cr.App., 350 So.2d 764 (1977). This court in applying such a standard will not substitute itself for the jury by attempting to determine the probative force and weight of the evidence. Toles v. State, 170 Ala. 99, 54 So. 511 (1911); Leach v. State, 24 Ala.App. 423, 136 So. 493 (1931). Our task is to determine if legal evidence was presented from which the jury by fair inference could have found the defendant guilty beyond a reasonable doubt. Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976).

An inference is a permissible deduction from proven facts which the jury may weigh in reaching its decision. Roberts v. State, Ala.Cr.App., 346 So.2d 473, cert. denied, Ala., 346 So.2d 478 (1978). “It is a logical and reasonable deduction from the evidence and is not supposition or conjecture. Guesswork is not a substitute. Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640 (1940); Bolt v. Davis, 70 N.M. 449, 374 P.2d 648 (1962). A supposition is a conjecture based on the possibility or probability that a thing could have or may have occurred without proof that it did occur. Louisville & N. R. Co. v. Mann’s Adm’r, 221 Ky. 399, 13 S.W.2d 257 (1929).” Thomas v. State, Ala.Cr.App., 363 So.2d 1020 (1978).

While reasonable inferences fron the evidence may furnish a basis for a conviction, mere possibility, suspicion, or guesswork, no matter how strong, is insufficient to overcome the presumption of innocence. Thomas, supra.

After careful review, we have determined that the State did not present substantial evidence in its case in chief that the appellant committed an unlawful, malicious homicide. We are of the opinion that the evidence was not substantial to support a fair inference that the appellant committed the crime charged. Thus, applying the standard of review hereinabove stated, we are of the opinion that the defendant’s motion to exclude the evidence should have been granted, and that refusal to do so constituted reversible error. In light of this finding, it is unnecessary to comment on the many other grounds of error alleged by the appellant which we have also reviewed.

REVERSED AND REMANDED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
    78-89.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Fred BILLUPS v. The CITY OF BIRMINGHAM.
    6 Div. 755.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      William Conway, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., Birmingham, for the City of Birmingham, ap-pellee.
   BOWEN, Judge.

This is an appeal from a conviction in the Circuit Court of Jefferson County for a violation of Article XXV, Section 3, of the Zoning Regulations of the General City Code of the City of Birmingham, Alabama, concerning nonconforming uses. A jury assessed a fine of twenty-five dollars against the appellant and the trial judge imposed an additional sentence of sixty days hard labor.

I

Initially the appellant contends that he was tried on his appeal in the Circuit Court on a charge different from the 'one on which he was convicted in the Recorder’s Court. Therefore, he argues, the Circuit Court was without jurisdiction.

We find this contention unsupported by the facts before this Court. The appellant was initially charged by an affidavit of complaint issued in the Recorder’s Court and citing a violation of Article XXV, Section 4, of the city zoning ordinance. At a hearing on the very issue now under review, both the city prosecutor and the municipal judge testified that the appellant was actually tried in Recorder’s Court on an amended complaint charging a violation of Section 3 of the same code.

While the appellant alleges that the judgment entry of the Recorder’s Court discloses that he was tried on Section 4, the trial judge specifically found, after hearing evidence on this matter, that regardless of what the judgment entry showed, the appellant was actually tried, convicted, and sentenced under Section 3. The judgment entry is not before this court on appeal. From the record before us and the findings of the trial judge, which are amply supported by the facts, the appellant was tried on the same charge in both the Recorder’s Court and the Circuit Court. The jurisdiction of the Circuit Court is therefore beyond question.

II

The appellant asserts that the action of the Circuit Court trial judge in declaring a mistrial because of the weather was without authority of law.

The bench notes of the Circuit Judge reflect the following.

“January 19,1978. Motion to strike Complaint and Demurrer overruled. Jury struck, sworn, nonsequestered and Defendant pleads not guilty. Cole, J. “January 23,1978. This case was partially in completion 1/19/78 when we adjourned for the day. Overnight and next day snow and ice developed and Court adjourned that day and next day, and everything was closed Friday and Saturday. Returning today only 3 Jurors came in and all rest unaccounted for or called in but not to come in. It is a manifest necessity that a mistrial be declared, a retrial is not precluded and the case is set at the top of the Docket for February 21, 1978. Cole, J.”

In overruling the plea of former jeopardy based on this discharge, the judgment entry of the trial court states:

“This the 21st day of February, 1978, came Rowena Crocker, Assistant City Attorney, who prosecutes for the City of Birmingham, and also came the defendant in his own person and by his attorney, William Conway, defendant files Plea of Former Jeopardy and same being duly considered and it appearing to the Court that defendant failed to appear when snow fell on January 19th and 20th, 1978, it is therefore ordered, adjudged and decreed by the Court that Plea of Former Jeopardy be and same is hereby overruled.”

Section 9 of the Alabama Constitution of 1901 provides

“That no person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury.”

The reasons fixed by law for the discharge of juries are set forth in Section 12-16-233, Code of Alabama 1975. The trial judge may discharge the jury and declare a mistrial when

“in the opinion of the court or judge, there is a manifest necessity for the discharge or when the ends of justice would otherwise be defeated.” Section 12-16-233, Code.

Thus the statute fixes the reasons for a discharge and wisely leaves it to the opinion or discretion of the trial judge to determine whether a reason really exists. Andrews v. State, 174 Ala. 11, 56 So. 998 (1911); Brewer v. State, 24 Ala.App. 410, 137 So. 454 (1931). While the trial judge may not fix the reason for the discharge, he is authorized to determine whether the reason as fixed by law actually exists. Andrews, supra.

“Examples of proper manifest necessity have arisen from: illness of prisoners, jurors, judges . . . ; death of a jur- or, the judge or a near relative of either; tardily disclosed disqualification of a jur- or not consented to; misconduct of a juror or bailiff; mental incapacity or intoxication of a juror, (citations omitted).” Parham v. State, 47 Ala.App. 76, 79, 250 So.2d 613, 615 (1971).

We think Section 12-16-233 must function in light of the practical aspects of the trial court. Time and time again the courts have refused to formulate rigid or mechanical rules governing the circumstances under which a trial judge may declare a mistrial without giving rise to a defense of double jeopardy. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). The very vagueness of the manifest necessity and ends of justice formulation, while maintaining the variety of the test, necessarily makes application imprecise. United States v. Grasso, 552 F.2d 46, 51 (2nd Cir. 1977). Virtually all double jeopardy cases turn on the particular facts. Illinois v. Somerville, supra.

In our opinion the argument advanced by the City has merit. The issues before the trial court concerned a zoning violation — a somewhat complicated matter which required the application of technical terms and definitions to conflicting facts. The record itself best demonstrates the confusion which arose during the trial over the terms “nonconforming” and “nonconforming use”. In order to render a fair verdict it was necessary that the jury have a clear and accurate understanding of these terms. An unexpected and unavoidable four day break in the appellant’s trial may very well have clouded that understanding.

The legal reasons for the granting of a mistrial are not aimed at giving any party an advantage. The function of the measure is not to aid the accused or hinder the city, but rather to afford the accused a fair trial and accomplish the ends of justice. Under the circumstances enumerated in the bench notes and judgment entry it was within the proper discretion of the trial judge to determine that the severe weather conditions and the absence of the jury created a case of manifest necessity for the discharge.

Ill

The appellant claims that it was error for the trial judge to deny his plea of former jeopardy without submitting the issue to a jury.

The general rule is that the accused is entitled to a jury trial on the issues of fact raised by his plea of former jeopardy. Inman v. State, 39 Ala.App. 496, 104 So.2d 448 (1958); Lovejoy v. State, 32 Ala.App. 110, 22 So.2d 532, cert. denied, 247 Ala. 48, 22 So.2d 537 (1945); Slayton v. State, 31 Ala.App. 622, 21 So.2d 122 (1945); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931). Ordinarily it is the duty of the court to hear evidence on a plea of former jeopardy and submit the same to the jury; and the jury must find whether or not the plea is true in advance of the issue of not guilty. Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970). It is not for the court to decide in advance that a plea sufficient on its face cannot be established and, if the facts set forth are sufficient in law, it is error for the court to strike or overrule it on motion of the prosecution, or on its own motion, without giving the accused an opportunity to submit his evidence in support thereof. Berland v. City of Birmingham, 36 Ala.App. 488, 60 So.2d 377, cert. denied, 257 Ala. 571, 60 So.2d 378 (1952); Jackson v. State, 340 So.2d 1141 (Ala.Cr.App.), cert. denied, 340 So.2d 1142 (Ala.1976).

“When a plea is regularly interposed it is subject to either a demurrer or motion to strike, and if neither is interposed issue must be taken on the plea. A court is without authority to overrule such plea without giving the party interposing the plea an opportunity to submit his evidence in support thereof.”

Berland, 36 Ala.App. 489, 60 So.2d 378. Generally the court cannot of its own motion overrule a plea of former jeopardy for a defect therein, or on facts within the personal knowledge of the judge, no demurrer, motion, or pleading being interposed thereto and no evidence produced. Coburn v. State, 151 Ala. 100, 44 So. 58 (1907); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931). Yet in overruling a plea of former jeopardy without a jury, the trial court may take judicial cognizance of its own records. Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284 (1953).

However where the issue presented by the plea is only a matter of law, the judge need not submit that issue to the jury.

“When the plea on its face shows that the question raised by it is a matter of law and not of fact, as where the facts are admitted and only a question of law remains, . . . , it is a question for the court alone, which should pass on the question of law properly presented and either sustain the plea and discharge accused or overrule the plea and place him on trial on the merits.”

22 C.J.S. Criminal Law § 446b.

Whether the plea raises a question of fact or a question of law depends on the circumstances of the particular case. Thomas v. State, 23 Ala.App. 438, 126 So. 610 (1930).

The plea of former jeopardy based on the granting of a mistrial may present a factual issue where the facts out of which the legal necessity arose are disputed. Thus under certain conditions, the accused is entitled to a determination by the jury of an issue of whether the court improperly or prematurely discharged the jury. Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180 (1923); State v. Thompson, 58 Utah 291, 199 P. 161 (1921); Chadwick v. State, 86 Tex.Cr.R. 269, 216 S.W. 397 (1919). Yet, even where the issue is submitted to a jury, the court may charge the jury that the plea is not sustained by the proof when that is a fact, and where the facts are not controverted the court has the authority to direct a verdict for or against the state as the case may require. Brown v. State, 209 Ala. 490, 96 So. 475 (1923); Parsons v. State, 179 Ala. 23, 60 So. 864 (1913); Blevins v. State, 20 Ala.App. 229, 101 So. 478, cert. denied, 211 Ala. 615, 101 So. 482 (1924).

In declaring the mistrial

“The judge must determine the existence of the facts, but when they are ascertained, the law determines whether they constitute a case for necessity. Therefore, the judge ascertains the death or sudden illness of a juror, — the law pronounces this a case of necessity, that the jury shall be discharged.”
Ned v. State, 7 Port. 187, 210 (1838). “(A)lthough the judge determines the existence of facts, yet, when they are ascertained, the law determines whether they constitute a case of necessity.”
McCauley v. State, 26 Ala. 135, 138 (1855).

In his plea of former jeopardy the appellant maintains that the mistrial was an “unauthorized discharge” of the jury. In his brief on appeal he argues that severe weather conditions do not constitute a case of necessity. There appears to be no dispute over the facts. We think this is a legal question and one which the trial judge properly decided without the aid of a jury. Moreover, when the evidence shows without contradiction that the plea could not avail even had the issues been submitted to the jury the defendant is not prejudiced in the denial of the plea without submission. Inman v. State, 39 Ala.App. 496, 104 So.2d 448 (1958). Under these principles, the failure of the trial judge to submit the plea of former jeopardy to a jury was not error.

IV

The appellant’s request for the affirmative charge was properly denied. The state’s evidence fully supports a finding by the jury that the appellant unlawfully enlarged, extended, reconstructed, or structurally altered a structure or premise occupied by a nonconforming use in violation of Article XXV, § 3, of the Birmingham City Code. Under the evidence the jury would be amply justified in finding that the appellant not only violated the zoning ordinance with the full knowledge that his actions were prohibited by law but that he knowingly deceived the county officials into granting him a building permit. Where evidence is presented which would sustain a verdict against the defendant, the affirmative charge is properly refused. Russo v. State, 236 Ala. 155, 181 So. 502 (1938); Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1976).

The appellant’s requested charges “Y” and “Z” are erroneous and misleading and were therefore properly refused. By ordinance, a nonconforming use is defined as

“The use of any building or land which was lawful at the time of passage of this ordinance, or amendment thereto, but which use does not conform, after passage of this ordinance or amendment thereto, with the use regulations of the district in which it is situated.”
Article II, § 1(35), Code of the City of Birmingham 1964.

The spirit and intention of the zoning laws is to restrict any increase of any nonconforming use. Fulford v. Board of Zoning Adjustment of City of Dothan, 256 Ala. 336, 54 So.2d 580 (1951); Moore v. Pettus, 260 Ala. 616, 71 So.2d 814 (1954).

“The objective is the gradual elimination of the nonconforming use by obsolescence or destruction by fire or the elements. Given the objective of zoning to eliminate nonconforming uses, courts generally follow a strict policy against their extension or enlargement.”

Moore, 260 Ala. 627, 71 So.2d 823.

Charge “Y” concerns the functional use of the building and instructs the jury to find the defendant not guilty if they believe that “the defendant has not changed the character of this use by reason of the addition to the original building”. This charge has absolutely nothing whatsoever to do with the prosecution and charge against the appellant. He was charged with the enlargement or extension of the structure or premises occupied by a nonconforming use. The character of the nonconforming use has no significance in determining a violation of Article XXV, § 3. The appellant was not charged with an enlargement or extension of the use itself.

Requested charge “Z” stating that the jury should find the defendant not guilty if they believed that “the addition to the original building conforms to the same operation of defendant’s business, that is, sale of merchandise authorized by the City of Birmingham” is clearly an erroneous and incorrect statement of the law.

Section 3 of Article XXV expressly prohibits the enlargement or extension of any structure (or premises) occupied by a nonconforming use for any reason except where necessary for compliance with minimum standards of health and safety or unless the use is changed to a conforming use. The intent of Section 3 is patently designed to prevent any increase, extension, or enlargement of any structure occupied by a nonconforming use.

In our determination and disposition of this cause we have been aided by the excellent brief filed by the City attorney. We have searched the record for error and finding none, affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.

      . Sec. 4. Enlargement, etc., of nonconforming use. No nonconforming use shall be enlarged, extended or expanded unless such use is changed to a use which conforms to the use regulations of the district in which such use is located.

      . Sec. 3. Enlargement, etc., of structure or premises. No structure or premises occupied by a nonconforming use shall be enlarged, extended, reconstructed or structurally altered, unless such use is changed to a use which conforms to the use regulations of the district in which such structure or premises is located; provided, however, that a structure or premises may be physically enlarged, extended, reconstructed or structurally altered to the extent necessary for compliance with any existing and applicable law or ordinance specifying minimum standards of health or safety.


author: SHORES, Justice.

text:
    Ex parte Fred BILLUPS.
    78-76.
    Supreme Court of Alabama.
    March 2, 1979.
   SHORES, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.