author: PER CURIAM. ALMON, Justice JONES, Justice

text:
    In re William Herbert ORR v. Lillian M. ORR. Ex parte William Herbert Orr.
    SC 2536.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   PER CURIAM.

PETITION FOR WRIT OF CERTIORA-RI QUASHED AS IMPROVIDENTLY GRANTED.

MADDOX, FAULKNER, SHORES, EM-BRY and BEATTY, JJ., concur.

ALMON, J., concurs specially, with whom BLOODWORTH, J., joins.

JONES, J., dissents.

TORBERT, C. J., recuses.

ALMON, Justice

(concurring specially):

I concur in affirming the Court of Civil Appeals, 351 So.2d 904, and continue to adhere to the views expressed in my dissent in Peddy v. Montgomery, 345 So.2d 631, 637 (Ala., 1977).

I dissented from the Court’s opinion in Peddy because I felt it established a precedent which would lead to striking down every state statute making a gender related classification. At the forefront of my fears were challenges to the laws concerning marital rights; such as, homestead, dower, and alimony. These laws are designed to foster and preserve the family unit, a constitutionally permissible area for legislation.

The breadth of the pen with which the Court wrote Peddy has now come back to confront us. It appears that when viewed in isolation, statutes which restrict the rights of women are unconstitutional. On the other hand, statutes which grant to women rights which men do not possess are not unconstitutional.

BLOODWORTH, J., concurs.

JONES, Justice

(dissenting):

I respectfully dissent.

This case, before the Court upon writ of certiorari, concerns the constitutionality of Alabama’s alimony statutes. See Tit. 34, §§ 31-33, Code. William Herbert Orr, Petitioner, contends that these statutes are unconstitutional in that they violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because a wife may obtain alimony, whereas a husband, under similar circumstances, may not. The Petitioner also asserts that these statutes violate the Due Process Clause of the Fifth Amendment. Because this argument is so interwoven into the fabric of the equal protection contentions, the two will be dealt with together. Based upon Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974), cert. den. 421 U.S. 929, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975), the trial Court and Court of Civil Appeals held our statute constitutionally acceptable. I would reverse.

The facts of this case are not in dispute. On February 27, 1974, Mr. Orr and Lillian M. Orr, Respondent, signed a written stipulation wherein Mr. Orr agreed to pay Mrs. Orr the sum of $1,240 per month for her support and maintenance. On that same date, a final decree of divorce, incorporating the above agreement, was granted.

On July 28, 1976, Mrs. Orr alleged that Mr. Orr was $2,848 in arrears in his alimony payments. Mr. Orr filed a motion alleging that Mrs. Orr’s petition was based upon an illegal decree in that it relied upon Tit. 34, §§ 31-33, Code, and that these sections are unconstitutional. The trial Court denied the motion and granted judgment against Mr. Orr for the arrearages, attorney’s fees, and court costs.

Here, we have a needy wife who qualifies for alimony and a husband who has the property and earnings from which alimony can be paid. The veracity of this statement has not been contested. The husband, however, complains that the statutes are unconstitutional because they place an obligation upon male spouses which is not reciprocally impressed upon female spouses. The husband who must pay this alimony has sufficient standing to raise the constitutional questions involved. See Stern v. Stern, 165 Conn. 190, 332 A.2d 78 (1973).

Tit. 34, § 31, Code of Alabama, provides: If the wife has no separate estate, or if it be insufficient for her maintenance, the judge, upon granting a divorce at his discretion may decree to the wife an allowance out of the estate of the husband, taking into consideration the value thereof and the condition of his family. (Emphasis added.)

This Court has held that the statutory scheme is to provide alimony only in favor of the wife. Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966). It is this inequality of treatment which the Petitioner alleges is unconstitutional.

Two standards are utilized to determine whether a statute will withstand examination under the Equal Protection Clause of the United States Constitution. The strict scrutiny standard is a test reserved for cases involving laws which operate to the disadvantage of suspect classifications or that interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. San Antonio School District v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Under the second, and traditional, equal protection analysis, a legislative classification must be sustained unless it is patently arbitrary and bears no reasonable, rational relationship to a proper governmental interest. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); and Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).

“General equality” is one of the fundamental rights guaranteed each citizen. Peddy v. Montgomery, 345 So.2d 631 (Ala.1977); and In re Dorsey, 7 Port. 293 (Ala.1838). This, however, does not mean that all types of equal protection classifications are to be examined under the strict scrutiny test. Likewise, it does not mean that natural, rational classifications must be treated identically. Instead, they must be treated with “general equality.”

Sex, itself, has been held to be a “suspect” classification by only a plurality of the Supreme Court. Frontiero, supra. As a plurality decision, it is enlightening, but not controlling. Husband M v. Wife M, 321 A.2d 115 (Del.1974). Moreover, as pointed out by the dissent in Frontiero, it is inappropriate to hold sex suspect while the Equal Rights Amendment, which would render the decision moot, is still pending. Frontiero, 411 U.S. at 691, 93 S.Ct. 1764 (Powell, J., concurring). I see no reason to hold sex suspect in this case because the discrimination evident upon the face of the statutes fails even under the lesser “rational relationship” test.

Separating persons into various classifications does not, per se, violate the Equal Protection Clause. It is only invidious discrimination which offends the Constitution. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); and Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

“[T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. [Citations omitted.] . . . The Equal Protection of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).” Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971).

When the above-stated formula is applied to the classification contained in our alimony statutes, in my opinion, these statutes must be deemed unconstitutional.

The initial inquiry concerns whether these statutes are “arbitrary.” The basis of our alimony statutes lies in the common law obligation of a husband to support his wife. Sims v. Sims, 253 Ala. 307, 45 So.2d 25 (1950); 27A C.J.S. Divorce § 228; and 15 A.L.R.2d 1246 (1951). While this discrimination may have some historical legal justification, the advent of the married woman’s property acts dissolve any present justification. The wife is no longer the chattel of her spouse. She is a coequal partner, with equal duties, rights and obligations. Therefore, any discrimination as to who may receive alimony, merely because of sex, in my opinion, must be viewed as arbitrary.

Even should we hold that the classification by sex is not arbitrary, it must bear a rational relation to some legitimate governmental purpose. Rationality, as used here, however, does not mean that some vague, sentimental, paternalistic, or chivalric reason for the rule exists; it means that there is a truly rational relationship between the means used and the purpose sought to be served. See Thaler v. Thaler, 89 Misc.2d 315, 391 N.Y.S.2d 331 (1977). Because, as stated, the basis of the statute rests upon the assumption that wives may depend upon their husbands for support, but husbands never so depend upon their wives, the statute must fail because such a distinction has no rational basis in reality.

Mrs. Orr asks this Court to follow the example of the Georgia Supreme Court in Murphy v. Murphy, supra. In that case, the Georgia alimony statute (similar to our own in that only women can receive alimony) was held constitutional. To a large extent, the case was based upon the Supreme Court ease of Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). While dealing with a tax exemption for widows only, Kahn held that a rational relation to a legitimate interest existed because of the undisputed financial difficulties confronting the lone woman in today’s society.

I cannot accept the reasoning of the Georgia Court in Murphy and Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974) (reaffirming Murphy). The Kahn decision was based upon a state taxing statute. It is well recognized that such statutes are given great constitutional leeway. See Kahn, 416 U.S. at 355, 94 S.Ct. 1734; Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973); and Ginsburg, Gender and the Constitution, 44 Cincinnati L.Rev. 1, 13 (1975). Furthermore, the reasoning of Justice Douglas is circuitous in that, given the historic economic inequality between the sexes which he cites, a holding of this type merely perpetuates these practices because of its “protective” posture. Moreover, Kahn was decided prior to Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), which evinces a shift in the Court’s approach to sex-discrimination cases.

In Weinberger, the Supreme Court held that it was unconstitutional to allow a widow certain social security benefits not granted a widower. While recognizing that men are more likely than women to be the primary family “breadwinner,” the Court found no rational basis for the statutory distinction between men and women. 420 U.S. at 645, 95 S.Ct. 1225. Numerical probabilities evince no rational reason for the absolute exclusion of male spouses from the statute. Especially is this true where, as in the case before us, the trial Court has discretion as to whether to grant alimony at all. Thaler v. Thaler, 391 N.Y.S.2d at 336.

Even assuming arguendo this Court found the Alabama alimony statutes to be nonarbitrary and to have a rational relationship to the object of the legislation, I would hold the statutes unconstitutional because the object of the legislation is, itself, improper. See Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975). Regardless of the presence of a rational relation, the statute must have some legitimate, constitutional interest as its objective.

The objective of the legislature, in passing these statutes, was to protect the lone female from the uncompromising realities of the business world. The presumed justification for this objective is that in the great bulk of divorces it is the woman who is economically disadvantaged. This, however, does not lead to a permissible conclusion that males may be denied alimony in situations where females are granted it. Given the legal inhibition against sexual discrimination, the fact that statistically a wife is much more likely to be an alimony recipient cannot mean, as a matter of law, that a husband should be excluded altogether from access to alimony.

“There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” Frontiero, 411 U.S. at 684, 93 S.Ct. at 1769.

Such “protective,” paternalistic legislation as we have before us should not be allowed continued effectiveness. Philosophically, a benevolent grant to women of legal rights unreasonably denied to men may help women immediately affected. This type statute, however, has the continuing effect of implicit condescension and perpetuates the misguided conception that women are not legally equal to men. Thaler, 391 N.Y.S.2d at 333. See Peddy v. Montgomery, supra; and Ginsburg, at 3, 6. Moreover, in Weinberger, the Supreme Court indicated it would no longer “accept at face value, as an automatic shield for discrimination, recitation of woman-protective purposes for laws [which effectively] associate women with the hearth and men with the wide world outside the home.” Ginsburg, at 41. The discrimination explicit in Tit. 34, §§ 31-33, Code, should not be tolerated. The right of support depends not upon sex, but upon need.

Several Courts have read their alimony statutes so as to include males. See Whitt v. Vauthier, 316 So.2d 202 (La.App.1975); and Thaler, supra. I cannot accept this reasoning, however. This Court has previously determined that our statute provides no alimony for male spouses. Davis v. Davis, supra. Furthermore, because there was no alimony at common law, our statute must be strictly construed. The power to award alimony is jealously limited to statutory authority. Gabbert v. Gabbert, 217 Ala. 599, 117 So. 214 (1928); and 27A C.J.S. Divorce § 203. For this reason, I would hold the alimony statutes unconstitutional but I would not rewrite them so as to include the male spouse. We must look to the legislature to pass a more appropriate statute.

Moreover, as in Peddy, supra, “we are not called upon to decide whether all legislation which contains a so-called ‘gender-based classification’ violates the constitution, either of this state or of the United States.” 345 So.2d, at 635.

I conclude with one additional observation: Nothing I have said in this dissenting opinion should be construed as an accusation of inconsistency on the part of the majority in the instant case with the holding of the majority in Peddy. Indeed, I believe even a casual reading of this dissent will disclose that I have cited Peddy for an incidental point merely, and not as precedent for my views. I acknowledge that Peddy’s rationale is not sex based; that the statute there declared unconstitutional was obligatory — declaring the conveyance void for failure of the husband to join in its execution; and that the statute here under attack leaves the grant of alimony discretionary with the trial court upon its finding of need on the part of the wife, ability to pay on the part of the husband, etc. While this difference does not require, in my opinion, different results, neither does it compel reversal in this case. I say this simply to make clear that my views herein expressed represent an extension of Peddy’s rationale; and, therefore, I do not assert, as do my fellow Justices Bloodworth and Almon, inconsistency on the part of the majority.

For the reasons stated above, I would grant the writ and hold that the Court of Civil Appeals is due to be reversed.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Fred W. KEMP v. Alma J. KEMP.
    Civ. 1191.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1977.
    Rehearing Denied Nov. 9, 1977.
    Roger M. Monroe, of Jones & Monroe, Birmingham, for appellant.
    Samual Maples, Birmingham, for appel-lee.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., in support of Constitutionality of Title 34, Section 31, Code of Alabama 1940, Recompiled 1958, amicus curiae.
   HOLMES, Judge.

This is a divorce case. The trial court awarded alimony to the wife and the husband appeals.

The sole issue before this court is whether Tit. 34, § 31, Code of Alabama (Alabama’s alimony statute), is unconstitutional.

The husband raised the issue of the constitutionality of the statute for the first time in his motion for a new trial. Error on appeal may not be so predicated. See Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225.

In any event, we would note that this court, in two previous decisions, has upheld the constitutionality of Tit. 34, § 31 Code of Alabama. See Orr v. Orr, Ala.Civ.App., 351 So.2d 904, decided March 10, 1977; and Blackwell v. Blackwell, Ala.Civ.App., 348 So.2d 500.

The case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Joe WELCH and J. E. Welch, d/b/a Midway Auto Auction v. Dwight MITCHELL.
    Civ. 1167.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1977.

      W. Allen Davis, of Sullins & Davis, Huntsville, for appellant.
    T. Schram Woodruff, of Woodruff & Woodruff, Athens, for appellee.
   BRADLEY, Judge.

Judgment was rendered by the Circuit Court of Limestone County in the amount of $2,310.25 against Joe Welch, individually and doing business as Midway Auto Auction, and in favor of Dwight Mitchell for breach of warranty of title to an automobile.

The evidence shows that Mitchell bought a 1969 Cadillac automobile on November 21, 1972 from Dennis Griffin at the Midway Auto Auction. At this time Mitchell received a bill of sale to the automobile and paid the sum of $2,010.00 to Griffin.

The front of the bill of sale revealed the following:

Less than a month later, Mitchell sold the automobile to Randy Hobbs, giving him a bill of sale and the original bill of sale Mitchell received at the Midway Auto Auction from Dennis Griffin.

Within about one month of the purchase of the vehicle in question, Hobbs sold the automobile to Kenneth and Judy Jenkins. Shortly thereafter, Hobbs was advised that the American Credit Company had a lien on the car. Hobbs was sued by the Jenkinses for breach of warranty. Judgment was rendered against Hobbs. Hobbs then sued Mitchell for breach of warranty and Mitchell, in turn, filed a third-party complaint against Welch and Midway Auto Auction also for breach of warranty of the title to the automobile.

At trial Hobbs testified that when he contacted Mitchell about the defective title, Mitchell assured him that the Auto Auction would stand behind the title and the latter went with Hobbs to talk to Welch about the bad title. Welch informed Hobbs and Mitchell that he did not warrant the title. Hobbs, however, testified that he had been to the Auto Auction many times and that in his best judgment signs were displayed on the company’s premises advising that automobile titles were guaranteed by the Auction. In fact, Welch, upon taking the stand in his own behalf, stated categorically that he stood behind the titles of the automobiles sold through his auction.

In addition, Charles Butler testified that in his capacity as an automobile dealer he had bought and sold automobiles through the Midway Auto Auction and that it was a common understanding that Midway Auto Auction guaranteed title to the automobiles which were bought and sold there.

On appeal to this court, Welch argues that the contract of sale for the automobile in question shows that Griffin was the seller and Mitchell was the buyer, and that neither Welch nor Midway Auto Auction is shown to be a party to the transaction. Welch, however, says that if he is considered to be a party to the sale and warranty of title, the agreement violates the statute of frauds in that it was not signed by Welch. Welch also urges that if he is found to have joined in the contract of sale, Mitchell and Griffin by that same instrument released him from any liability for the title. Moreover, he contends that should he be deemed liable for the failure of title, his liability by the express terms of the agreement would be limited to the purchase price of the vehicle and his liability on that amount would be reduced at the rate of 8.3% per month, thus making his liability nonexistent after twelve (12) months.

Mitchell replies that Welch is liable to him for the defective title and argues that an auctioneer may be held personally liable for a defect in title to the property sold if he pledges responsibility for good title or personally contracts with the buyer (either expressly or by implication) that the title is or will be made good. See 7 Am.Jur., Auctions and Auctioneers, § 65.

In support of his theory of the case, Mitchell asserts that every witness who took the stand, including Welch, testified that Welch guaranteed the title to vehicles sold through his car auction. Furthermore, Mitchell claims that under the terms of the bill of sale, Welch was an agent of the seller (Griffin) and as such promised to “ . . . defend the title of said vehicle against the lawful claims and demands of all persons.”

The first issue presented on appeal concerns Welch’s claim that the contract of sale for the Cadillac automobile demonstrates that neither Welch nor Midway Auto Auction was a party to the transaction between Griffin and Mitchell. We disagree.

The contract and bill of sale representing the sale of the automobile in question is replete with language showing that Welch (and Midway Auto Auction) acted as an agent for the seller Griffin. Indeed, one provision specifically states: “Midway Auto Auction acts only as agents in the transaction of this sale.” Moreover, it is a well-established rule that an auctioneer, in selling property for another, is the agent of the seller, and as such, is a part to the contract between the buyer and seller. E. g. Pasley v. Ropp, 334 S.W.2d 254, 80 A.L.R.2d 1231 (Mo.Ct.App.); Tulsa Auto Dealers Auction v. North Side State Bank, 431 P.2d 408 (Okl.). Thus it is clear from both the facts presented in this case and the applicable principles of law that Joe Welch was a party to the sales contract entered into by Griffin and Mitchell.

As an alternative ground for claiming that the trial court erred in rendering its judgment against him, Welch contends that even if he is deemed to be a party to the contract representing the sale of the Cadillac automobile, he did not warrant good title to the vehicle since he was merely the seller’s (Griffin’s) agent. Furthermore, Welch asserts that Mitchell knew that Griffin was Welch’s principal. Thus, Welch argues that he is entitled to rely on an established rule of agency law which holds that in circumstances where an agent has disclosed his principal (or the principal is known to the buyer), the principal is considered to be the vendor and, as such, responsible to the vendee for title. Pursuant to this rule, Welch concludes that as Griffin’s agent he (Welch) is not liable for the failure of his principal to obtain good title to the vehicle in question prior to transferring it to Mitchell. Again, however, we must disagree with Welch’s contention.

While it is generally true that an auctioneer who acts for a disclosed principal will not be deemed liable for a defect in the title of the property sold, he may nevertheless, by his words or actions, make himself liable to a buyer on the warranty of good title. Indeed, a number of cases have held that an auctioneer, while the agent of another, may personally contract with the buyer that the title of the property being auctioned is or will be made good. Pasley v. Ropp, supra; Farmers & Merchants State Bank v. Folmer, 217 Minn. 513, 15 N.W.2d 13; Gessler v. Winton, 24 Tenn.App. 411, 145 S.W.2d 789; Ingram v. Canal Bank & Trust Co., 13 La.App. 651, 127 So. 462. And in situations where an auctioneer undertakes such a responsibility, he will be liable to the purchaser for any defect in the title of the property sold. Pasley v. Ropp, supra; Farmers & Merchants State Bank v. Folmer, supra; Gessler v. Winton, supra; Ingram v. Canal Bank & Trust Co., supra.

In the instant case both the sales document itself and the testimony presented at trial indicate that the auctioneer (Joe Welch), while an agent of the seller (Griffin), personally warranted to the buyer (Mitchell) that the title of the property was valid and that if it was not valid, Welch would “stand behind” the title.

Despite this fact, Welch argues that Midway Auto Auction’s agreement to warrant title was not signed by Welch and was therefore void on the ground that an unsigned agreement violates the statute of frauds.

A number of decisions, however, have established the rule that any name or symbol which is used or adopted by a party as that party’s signature is sufficient to comply with the statute of frauds. Landeker v. Co-operative Building Bank, 71 Misc. 517, 130 N.Y.S. 780; Pearlberg v. Levisohn, 112 Misc. 95, 182 N.Y.S. 615; Gessler v. Winton, supra; Degginger v. Martin, 48 Wash. 1, 92 P. 674. Thus the question is whether Welch adopted and used the printed name of his firm, Midway Auto Auction, on the bill of sale with the intention that it should authenticate the bill of sale as the contract between the parties. If so, the bill of sale must be treated as the contract of the parties, notwithstanding that it was not formally subscribed to by Welch.

In this instance, the facts as demonstrated from the written memorandum and the circumstances surrounding it make it apparent that Welch adopted the printed name, Midway Auto Auction, as his signature and therefore authenticated the bill of sale in a manner sufficient to comply with the statute of frauds.

This being so, Welch is liable as an ordinary vendor upon the warranty of title contracted for between Midway Auto Auction and Mitchell. And, as stated earlier, an auctioneer may personally contract with the buyer that the title of the property being auctioned is or will be made good. Moreover, in situations where the actual agreement and the surrounding circumstances indicate that the auctioneer has contracted (either expressly or by implication) that he will be liable to the purchaser for any defect in the title to the property sold, the auctioneer will be held liable if this warranty is breached by reason of an existing lien on the property or because of the superior title of another person to the property.

In the present case it is also relevant to note that the agreement refers to:

“THE SELLER, in consideration of the provisions and sale price shown below, and the terms and conditions of this Title Warranty and Bill of Sale, has this day sold and transferred to the buyer below the following described motor vehicle. Buyer covenants with MIDWAY AUTO AUCTION to abide by terms and conditions on reverse side.”

And the reverse side of the bill of sale sets out several provisions which modify or limit Midway Auto Auction’s warranty of title. Among those provisions are the following: (1) the warranty of title does not cover technical defects such as those which can be removed by delivery to the buyer of the necessary legal papers; (2) the warranty of title by the named auction company is void unless the vehicle received by the buyer complies with the description set out on the face of the title warranty and bill of sale; (3) the liability of the auction company named on the face of the title warranty and bill of sale is limited to the sale price of the vehicle; (4) the title warranty expires twelve months after the sales date; (5) the buyer may not pay or acknowledge any claim effecting title to the vehicle without the prior approval of Midway Auto Auction; and finally, (6) in case of a breach of warranty arising under the terms of this agreement the seller agrees to pay all costs of collection of buyer’s damages, including a reasonable attorney’s fee.

These provisions demonstrate that Welch recognized his obligation to “make good” any defects in the title to the vehicle. Had Welch not undertaken the responsibility of warranting title, it is difficult to understand why he would go to such lengths to limit his liability on that warranty by the use of the language set out on the reverse side of the bill of sale provided by his firm.

Moreover, a number of persons, including Welch himself, testified that Midway Auto Auction guaranteed the title of the vehicles bought and sold through its auto auction. Such being the case, Welch is liable for breaching his warranty of good title.

Nor did the express terms of the warranty limit Welch’s liability as he contends. With regard to this claim, Welch submits that the trial court was in error because Mitchell’s third-party action against Welch was instituted more than twelve months after the date of the sale of the car. In support of this contention Welch refers to the title warranty provision which states:

“5. The liability of the Auction Company named on the face of this Title Warranty and Bill of Sale shall be limited to the sale price of the vehicle, and the amount payable hereunder shall be reduced on account of depreciation by deducting from the sale price 8.3% thereof on the first of each month following the sale date as shown on the face of this instrument; and this Warranty will expire and become void 12 months after said date.”

However, there is nothing in this provision which specifies a time limit for bringing an action for a breach of warranty of title. Construing a provision almost identical to the one relied upon in this case by Welch, a Massachusetts court in Stan Cross Buick v. Concord Auto Auction, 350 Mass. 14, 212 N.E.2d 862, concluded that such a provision guaranteed the title of the automobile for the period stated but did not limit the time on which an action for breach of warranty could be brought. We believe this to be a sound decision.

In the case before us, title to the automobile was defective when the sale was made and therefore there was an immediate breach of warranty upon transfer of the title from Griffin to Mitchell. Thus, Mitchell was entitled to bring his action for breach of warranty of title on any date thereafter, subject to the applicable statute of limitations.

From the foregoing it is evident that Welch is liable on his warranty of good title. This obligation, however, is expressly “limited to the sale price of the vehicle.” Mitchell purchased the automobile from Griffin for $2,010.00. Consequently, the trial court’s award of damages in the amount of $2,310.26 was in error. Therefore, we affirm the court’s finding regarding the liability of Joe Welch (and Midway Auto Auction) for breach of warranty of title, but reverse the award of damages and remand the case with instructions that the judgment be entered for Mitchell (the plaintiff below) in the sum of $2,010.00.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

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

      . Although the language following this provision attempts to limit Midway Auto Auction’s liability in the transaction (or any results therefrom), the language used is ambiguous and overly broad. Very precise and unambiguous language must be used to exclude so basic a warranty as that of title. Jones v. Linebaugh, 34 Mich.App. 305, 191 N.W.2d 142.

      . The official comments of Title 7, section 1-201(39), Code of Alabama 1975 state:
      “The inclusion of authentication in the definition of ‘signed’ is to make clear that as the term is used in this Act a complete signature is not necessary. Authentication may be printed, stamped or written; it may be by initials or by thumbprint. It may be on any part of the document and in appropriate cases may be found in a billhead or letterhead. No catalog of possible authentications can be complete and the court must use common sense and commercial experience in passing upon these matters. The question always is whether the symbol was executed or adopted by the party with present intention to authenticate the writing.”


text:
    Darrell WALKER, d/b/a Huntsville Employment Agency v. Bill R. TRAUGHBER.
    Civ. 1144.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1977.

      Douglas V. Hale and Lowell H. Becraft, Jr., Huntsville, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This appeal results from a judgment rendered against appellant in the Circuit Court of Madison County. Appellee, Bill Traugh-ber, brought a civil action for breach of contract against appellant, Darrell Walker (doing business as the Huntsville Employment Agency). Traughber’s lawsuit was tried before a jury and a verdict was entered in favor of Traughber awarding him damages in the sum of $882.98. From that judgment Walker appeals.

Basically, there are three issues presented to this court for review. First, Walker contends that the trial court’s admission of oral testimony by Traughber concerning his employment contract with the Huntsville Employment Agency violated the “parol evidence rule.” Second, Walker claims that the trial court improperly refused to permit an amended answer by his attorney in order that Walker might raise the affirmative defenses of release and full performance. Finally, Walker urges that the trial court erred in failing to grant a new trial on the basis that evidence discovered after trial disclosed that Traughber had falsified the application he submitted to the Huntsville Employment Agency.

This appeal arose out of the following facts. In September of 1975 Traughber read a newspaper advertisement which stated that the Huntsville Employment Agency was seeking applicants for the position of sheet metal worker at an unspecified firm. Traughber went to the agency to apply for the position advertised. After some preliminary discussions with Mrs. Gail Snow (an agency employee) about the terms of the standard contract used by the agency, Traughber signed a written agreement with the Huntsville Employment Agency. Upon signing the contract provided by the agency, Traughber was sent to interview for the sheet metal worker’s position with Vernon Hutchens, owner of the Hutchens Company. After the two men had discussed the position available, Hutchens offered Traughber a job and the latter accepted the offer.

Traughber began his employment with the Hutchens Company on September 18, 1975. A few weeks after beginning his job, Traughber returned to the Huntsville Employment Agency and signed an acceptance slip provided by the agency. In addition, Traughber paid a $1,000.00 fee to the agency for its services.

On November 13, 1975 — approximately fifty-five days after he had begun work— Traughber’s employment with the Hutch-ens Company was terminated because the company lacked sufficient work for him. The following day, Traughber telephoned the Huntsville Employment Agency and informed Mrs. Snow that he had lost his job at the Hutchens Company. He then explained to her why he had been terminated. Nothing was done to resolve Traughber’s dilemma at this time; however, on subsequent occasions Truaghber made inquiries to the agency in an effort to determine if the agency had found him new employment. Nonetheless, Traughber never obtained a new position through the services of the Huntsville Employment Agency.

As a consequence of these events, Bill Traughber brought a civil action for breach of contract against Darrell Walker and his firm, the Huntsville Employment Agency.

The first issue presented on this appeal is based on Traughber’s claim that Walker’s employee promised Traughber that any employment secured for him by the employment agency would be of a permanent nature. And since Traughber paid the prescribed fee to the agency but was employed for a period of only approximately fifty-five days, he submits that the agency breached its contract by not providing him with “permanent” employment. Traughber also argues that the employment agency failed to find him a new position as it had agreed to do.

On the other hand, Walker asserts that the contract between his employment agency and Traughber was not breached since express provisions of the employment agreement provide that the agency “only handles permanent positions.” Thus, Walker contends that Traughber’s employment with the Hutchens Company constituted a “trial job” which was not covered by the contract between Traughber and the Huntsville Employment Agency and therefore the agency was under no legal obligation to obtain alternative employment for Traughber.

These contentions by the parties initiated the events out of which the dispute over the “parol evidence rule” actually arose. During his case-in-chief, Traughber’s attorney sought to introduce oral testimony by Traughber that an employee (or employees) of the agency had informed Traughber that the agency guaranteed employment for a minimum of ninety days. The lawyer who represented Walker immediately objected to such testimony on the grounds that its admission would violate the “parol evidence rule.” Both parties then presented arguments concerning the proffered testimony. After the attorneys for both litigants concluded their debate on the issue, the trial court overruled the objection which had been made by Walker’s attorney and the following exchange occurred:

“Q. Butch, [Traughber] on September 11, 1975, when you were at this employment agency did you have additional conversations with Mrs. Gail Snow [agency employee]?
“A. Yes, sir.
“Q. What additional conversation did you have with her?
“A. We were discussing the contract in general, the fee to be paid and the guarantee of employment and she stated that all we offer is full time employment service, but if in fact you get laid off or work ceases on your job within a ninety day period we will guarantee you another job in the same pay scale that you are making there.”

On appeal, Walker claims that the trial court erred in permitting the above quoted testimony. Specifically, Walker asserts that the effect of the oral evidence which was introduced was to modify or vary the express terms of the written contract between Traughber and the Huntsville Employment Agency. Therefore, Walker submits that Traughber’s testimony violated the rule against parol evidence. We disagree.

The “parol evidence rule” is generally considered to be a rule of substantive law rather than a rule of evidence. Restatement of Contracts, § 237, comment a (1932). But regardless of whether it is considered to be a rule of substantive law or a rule of evidence, the rule against parol evidence is subject to numerous exceptions. Moreover, a strict, formal and technical interpretation of the rule has generally been abandoned. Young v. United States, 327 F.2d 933 (5th Cir.); Parker v. McGaha, 294 Ala. 702, 321 So.2d 182.

Simply stated, the “parol evidence rule” forbids the parties to a written contract to supplement the terms of the contract by extrinsic evidence. The rule does not, however, forbid the admission of extrinsic evidence to explain the meaning of words contained in the writing. Riegel Fiber Corp. v. Anderson, Gin Co., 512 F.2d 784 (5th Cir.). Indeed, such evidence is often necessary for the purpose of ascertaining the circumstances under which a contract was made; the relationships between the parties to the contract; and any facts which may be deemed to be within the mutual knowledge of the parties. Coley v. W. P. Brown & Sons Lumber Co., 251 Ala. 235, 37 So.2d 125. And the admission of extrinsic evidence to clarify these matters or explain ambiguous terms contained in the contract is not an infringement of the rule that parol evidence is inadmissible to contradict, add to, or vary a contract in writing. See Parker v. McGaha, supra; Coley v. W. P. Brown & Sons Lumber Co., supra.

In the instant case Walker objected to oral testimony which involved preliminary discussions leading to the written agreement which was actually entered into between Traughber and the Huntsville Employment Agency. The basis of his objection was that Traughber’s statement that Mrs. Snow informed him that the employment agency guaranteed him a minimum of ninety days’ work violated the express provisions of the contract that the agency “only handled permanent positions” and that the agency would not recognize verbal agreements between agency employees and applicants.

However, we view the testimony given by Traughber to have been for the purpose of clarifying the circumstances under which the contract was made and to explain what was meant by the contract term “permanent” employment. In other words, this testimony was not introduced to modify, vary or contradict either of the contract provisions relied upon by Walker. Instead, it was offered to show that prior to entering into the written agreement, Traughber sought to have the agency define its obligation to provide him with alternative employment should his initial assignment cease. Accordingly, Mrs. Snow informed him that the agency offered only full time employment, but if he was laid off or his job ceased within a ninety day period, the agency would guarantee him another job. Since the contract which the agency furnished stated that the agency provided only “permanent positions,” Mrs. Snow’s efforts to explain to Traughber what was meant by this term — that is, whether the failure to obtain a “permanent position” (presumably anything over ninety days would be deemed “permanent”) precluded the latter’s right to receive the agency’s services in seeking alternative employment — were understandable and a necessary part of the discussions which were preliminary to the contract which was actually entered into. Moreover, the above described events demonstrate the ambiguity of the term “permanent positions” in relation to the agency’s obligation to find alternative positions for persons whom the agency has contracted with for its services.

Thus, the trial court properly admitted oral testimony by Traughber that an employee of the Huntsville Employment Agency told him that if he lost his job within ninety days after it was obtained for him by the agency, the agency guaranteed that it would find him another job.

This evidence merely aided the trial court and the jury in their efforts to understand the proper meaning of the term “permanent positions” as set out in the written agreement between Traughber and the employment agency. As we have stated earlier, extrinsic evidence may be admitted to explain the meaning of words contained in a written agreement. Likewise, the circumstances and preliminary discussions under which the parties contract may be admitted into evidence in order to indicate the possible meanings of contractual terms or to show the conditions which existed at the time when the writing was made. Restatement of Contracts, § 242, and comments and illustrations thereto (1932).

“AC.C.F.PTANCE SLIP
“I, the undersigned hereby affirm that the terms of agreement No. 393 dated Sept. 11 19 75 . with Huntsville Employ, have been fulfilled as 1 have accepted employment with Hutchens Co. . date of reporting to work Sept. 17 19 75 . at an annual anticipated pay rate of $ 1,000.00 . This the 30th day of Sept. 19 75 .’*

The second assignment of error presented on this appeal involves Walker s claim that the trial court improperly refused to permit his amended answer or grant his motion for a continuance so that he could raise certain affirmative defenses.

The facts with regard to this matter are as follows. Approximately seventy-five days after Traughber had filed his complaint initiating his action against Walker for breach of contract, Walker filed a Rule 12(b)(6) motion to dismiss. The motion was denied on July 7, and on August 17, 1976 Walker filed the following answer: “Defendant denies each and every allegation of the Complaint and requires strict proof thereof.”

Subsequent to the filing of Traughber’s complaint and Walker’s motion to dismiss, the trial court issued a notice to both parties stating that a pretrial conference would be held on September 22, 1976. The notice informed the attorneys that at the hearing they should be prepared to fully discuss the nature of the case, including “the theory of the parties, the admitted facts, the disputed facts, and all points of law to be determined by the Court.”

The pretrial conference was actually held on September 23, 1976 and the lawyers for both parties attended. At that conference Walker’s attorney again made a general denial to Traughber’s complaint; however, he did not seek to amend his answer nor did he inform the court (or the opposing attorney) that he wished to raise any affirmative defenses. In fact, there was no attempt to assert an affirmative defense to Traugh-ber’s action until November 15, 1976 when the case actually came to trial.

Nonetheless, at the outset of the proceedings on that date, Walker’s counsel sought to amend his answer to add the defenses of release and full performance. In addition, the attorney requested that the court continue the case in order to permit an amendment to the pretrial order by the court and to allow further discovery by the parties on the newly raised defenses. The lawyer who represented Traughber objected to the motion to amend and the request for a continuance which Walker’s attorney had made. The court then asked the moving attorney if the document on which Walker wished to base his defenses of release and full performance had been in that attorney’s possession since the lawsuit began. Walker’s counsel replied that it had been in his possession since that time, whereupon the court denied his request for a continuance and refused to permit him to amend his answer to Traughber’s complaint.

Rule 15(a), ARCP, provides that after a party has amended his pleading once as a matter of course (or the time for amendments under that provision has expired), a party may amend his pleading only by obtaining leave of the court (or if the adverse party consents to it). Rule 15 further states that leave to amend “shall be freely allowed when justice so requires.” However, a precise delineation of when an amendment should be allowed is not practical since the grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of that discretion. The same may also be said with regard to the granting or denying a request for a continuance. Furthermore, if the court determines, as it apparently did here, that a party has had sufficient opportunity to state a claim or revise his answer to a complaint but has failed to do so, leave to amend may properly be denied. See Mooney v. Vitolo, 435 F.2d 838 (2d Cir.); Williams v. Lewis, 342 F.2d 727 (4th Cir.), cert. den. 382 U.S. 814, 86 S.Ct. 30, 15 L.Ed.2d 61; Shall v. Henry, 211 F.2d 226 (7th Cir.).

Accordingly, we are not persuaded that the events which occurred in this instance demonstrate that the trial court abused its discretion in denying Walker’s leave to amend or his motion for a continuance. Therefore, we find no error in the trial court’s action.

The final issue presented on this appeal deals with Walker’s contention that the trial court erred in failing to grant a new trial despite the fact that evidence discovered after the trial disclosed that Traughber had falsified the application he submitted to the Huntsville Employment Agency. This contention deals primarily with the fact that the application form provided by the Huntsville Employment Agency asked the following question: “Do you have a police record.” Traughber answered “No” to this question when in actuality he had been convicted of the sale of marijuana sometime earlier.

We find little merit to Walker’s argument. The function of a motion for new trial is to establish some error of law in the trial of the main case or to demonstrate that the moving party has some newly discovered evidence which he could not obtain for the purpose of using it in the original trial. Williams v. State, 20 Ala.App. 275, 101 So. 509. A conviction for the sale of drugs is a felony and generally is a matter of public record. Thus, we cannot say that evidence of Traughber’s prior arrest and conviction was not available for presentation by Walker’s attorney during the actual trial of Traughber’s suit for breach of contract. Moreover, the burden is on appellant (Walker) to show that the trial court’s action in denying his motion for a new trial was in error. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123. Prom the record before us it is evident that Walker has failed to demonstrate that the action of the court in this matter was in error.

The judgment of the trial court is affirmed.

AFFIRMED.

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

      . Walker urges that an examination of the contract which Traughber signed will reveal that the oral testimony presented at trial is in conflict with two provisions of the employment agreement. Those provisions are: (1) NO TRI- ' AL JOBS. This agency only handles permanent positions. Any trial jobs must be so stated prior to acceptance in writing to the agency; (2) The agency will not recognize or honor any verbal agreements between any employee of the agency and the applicant. Any alterations or modifications of this agreement must be made in writing and countersigned by the agency office manager.

      . Mrs. Snow testified that she told Traughber that if an applicant lost a job through no fault of his own, the agency would find the applicant another job as a courtesy.

      . These defenses were to be based on an acceptance slip which the employment contract required Traughber to sign before reporting to his new job. (Failure to sign the acceptance slip constituted a violation of the employment agreement.) The slip signed by Traughber stated:

      . We believe this case is distinguishable from McEIrath v. Consolidated Pipe & Supply Co., (Ala.1977), 351 So.2d 560. In McEIrath our supreme court held that leave to amend pleadings should receive liberal treatment and that a court should not deny such amendments in the absence of prejudice to the opposing party or unexplained delay on the part of the moving party. However, the supreme court’s decision was premised on the fact that there was no evidence that the amendments which were sought by McEIrath’s attorney at the beginning of (and during) the trial on Consolidated Pipe’s cause of action could have been made at an earlier time. In the instant case, Walker’s attorney had the document on which his affirmative defenses were based from the outset of Traughber’s suit until the trial date; yet despite this fact, the lawyer who represented Walker failed to take any action to amend his answer to Traughber’s complaint. Since he did not take affirmative steps to raise his affirmative defenses by amendment until the case was called for trial, the trial court was well within its discretionary power in precluding the amendments (and continuance) sought by Walker’s counsel at that time.


text:
    John D. MORROW, Sr. v. Aleen MORROW.
    Civ. 1217.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1977.
    Franklin J. Allen, II, Boaz, for appellant.
    Louis B. Lusk of Lusk & Lusk, Gunters-ville, for appellee.
   HOLMES, Judge.

The trial court refused to modify an award of alimony to wife. The husband appeals .and we affirm.

The parties were divorced in 1974. An agreement between the parties was entered into regarding alimony and other matters. This agreement was incorporated into the decree of divorce. In 1976, the husband filed his petition to modify the divorce decree contending that there had been a material change in circumstances. Specifically, the husband alleged that his income had been reduced and requested that the trial court eliminate or decrease the amount of alimony.

The trial court held an ore tenus hearing where the witnesses were the husband and the wife. Thereafter, the trial court entered an order denying the husband’s petition to modify. It is from this order that the husband appeals.

While able counsel for the appellant-husband presents to this court several issues, the dispositive issue is whether the trial court abused its discretion in refusing to modify a prior decree for support and alimony.

. As in all cases, in which the testimony is heard orally by the court, the presumption is that the decree of the trial court is correct. The modification of a pri- or decree for support and alimony, based upon changed circumstances of the parties, is largely a matter within the judicial discretion of the trial court. The exercise of such discretion is to be disturbed on appeal only if from a review of the evidence this court finds in the decree such an abuse of discretion as to be plainly and palpably wrong. See Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied 295 Ala. 429, 321 So.2d 664 (1975); Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616 (1973).

We do not deem it necessary or prudent to detail the supportive evidence in this matter. Suffice it to say that in this instance where the husband’s present gross income is in excess of $20,000 per year; the amount of alimony is approximately $200 per month; and the agreement of the parties incorporated in the decree has been in effect for approximately two years, we find no abuse by the trial court in refusing to modify.

In addition to the above, the husband in brief argues that the trial court did not address itself to all the issues before it. Quite frankly, we find no basis for this argument. Additionally, the husband contends that Alabama’s alimony statutes, Tit. 34, §§ 31, 32, are unconstitutional. See Orr v. Orr, Ala.Civ.App., 351 So.2d 904 (1977); Blackwell v. Blackwell, Ala.Civ.App., 348 So.2d 500 (1977).

The case is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Cordelia BROTHERS v. Pervie BROTHERS, Jr.
    Civ. 1218.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1977.

      George H. Howell, Prattville, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

Plaintiff brought suit for divorce with alimony and division of property. Divorce with alimony and sale and division of jointly-owned realty was granted to her. She appeals. We affirm.

Two issues are presented by the appeal. It is first charged that the trial court erroneously prevented plaintiff from presenting evidence of property purchased during the marriage and the appreciated value of the property.

We have looked to that part of the transcript wherein plaintiff charges erroneous ruling of the trial court. We find a colloquy between counsel and the court concerning presentation of evidence relating to the purchase price of property and sums paid for improvements. The court suggested that more evidence on the subject might be “whipping the dog,” as it was going to be sold and the proceeds divided. Counsel agreed that further testimony was unnecessary under such circumstances and proceeded to other testimony without any offer of proof, stated objection or a ruling by the court.

It is clear from what we have related, no error may be contended on appeal. Ordinarily, in the absence of an objection to a ruling of the court and a statement of grounds of objection, there is no ground for appeal. Rule 46, ARCP. Though there is no longer necessity for saving error after an adverse ruling by recording a formal exception to the ruling, it remains necessary to enter an objection and state grounds therefor. We find neither a ruling nor objection thereto in the record.

The remaining issue is whether the trial court abused its discretion in not awarding plaintiff more of the property accumulated by the parties during the marriage.

Plaintiff recognizes that the division of property in a divorce action is a matter for the exercise of the discretion of the trial court, subject to review on appeal only for gross abuse. Dickson v. Dickson, 57 Ala.App. 732, 331 So.2d 740 (1976). We have reviewed the record and find absent therefrom any evidence as to present value of either the real estate and its improvements or of various items of personal property. The evidence as to purchase price in past years is of no assistance to our review. In view of the state of the record this court cannot find the trial court has abused its discretion.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Judith Marie Burt QUINN v. Stanley Wayne QUINN.
    Civ. 1222.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1977.

      Alvin B. Foshee, Clanton, for appellant.
    Scott Q. Kirkland, Montgomery, for ap-pellee.
   HOLMES, Judge.

This is a child custody case.

The mother and father were divorced in 1976. The divorce was granted on answer and waiver and by agreement of the parties. Custody of the two year old female child was to be with the mother. Some few months after the divorce, the father petitioned the trial court for custody of the child. He alleged, among other things, that since the divorce the mother had been admitted and confined for a period of time in a state mental hospital.

After an ore tenus hearing, where numerous witnesses testified, the trial court modified the prior decree of divorce and awarded custody of the child to the father. The mother appeals, contending the trial court erred in its action in granting custody of the child to the father. We affirm.

We do not deem it necessary to set out in detail the facts as revealed by the record. Suffice it to say that viewing the evidence with the attendant presumption of correctness accorded the trial court’s decision, the following is revealed.

There was evidence that after the decree of divorce, the mother was a patient in a mental hospital. Furthermore, there was evidence that the mother drank intoxicating beverages, took drugs, and had sexual relations outside marriage. There was also evidence that the mother did not properly care for the child; specifically, that the child’s health was impaired as a result of the mother’s neglect. Furthermore, there was testimony that the mother had been charged with a felony.

Additionally, there was evidence that since the divorce the father had become an active church member; that he had remarried and had a small child as a result of the marriage. The father’s present wife specifically testified that she loved the minor child and would care for the child.

As noted earlier, we review judgments of this sort with a presumption of correctness. See Wambles v. Coppage, Ala.Civ.App., 333 So.2d 829 (1976); Snellings v. Snellings, 272 Ala. 254, 130 So.2d 363 (1961). Furthermore, in this instance, the award of custody is a matter for the exercise of judicial discretion by the trial judge and this court will reverse only where the trial judge is plainly and palpably wrong. See Parsons v. Parsons, Ala.Civ.App., 337 So.2d 765 (1976).

Clearly, as indicated from the above, we can find no such error. In addition to the above, the mother argues that this court is required to reverse the trial court in that the trial court made no findings of fact. We know of no mandatory requirement that the trial court make findings of fact in a case of this nature. Absent such a statute, the court renders findings in its discretion. See 2 Lyons Alabama Practice, § 52.2 (1973).

The case is due to be affirmed.

AFFIRMED.

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


author: BOWEN, Judge. TYSON, Presiding Judge, BOOKOUT, Judge,

text:
    Johnny Ray PARKER v. STATE.
    8 Div. 905.
    Alabama Court of Criminal Appeals.
    May 3, 1977.
    Rehearing Denied June 7, 1977.
   On Rehearing

BOWEN, Judge.

The opinion of this court issued March 29, 1977, is hereby set aside and withdrawn. The following opinion becomes the opinion of the court.

The appellant was indicted for the first degree murder of Christine Lott. A petit jury found him guilty of murder in the second degree and fixed his punishment at fifty years imprisonment in the penitentiary. Judgment and sentence by the trial court were accordingly entered. Because the appellant was found to be indigent, counsel was appointed to represent him both at trial and on appeal.

The major contention of the appellant is that the trial court erred in refusing to suppress the confession of the appellant (1) because it was involuntary when considered in light of the totality of the circumstances and (2) because the appellant was a juvenile and did not have the capacity to waive his rights under the Fifth and Sixth Amendments of the Constitution of the United States.

At a hearing outside the presence of the jury to determine the admissibility of the confession, the state presented the testimony of two detectives of the Decatur Police Department. Their testimony established the fact that the appellant was the main suspect in the murder case of Christine Lott which they were investigating. Around 8:30 on the morning of March 4, 1976, they went to the appellant’s home which was located approximately seventy-five yards from the scene of the crime. The detectives told the mother of the appellant that they wanted to talk to her son about “what happened at the L & H Salvage Yard” and the murder of Mrs. Lott. Mrs. Parker then told the officers that her son had stated that he “saw some negroes up there”. She invited the detectives into her house where they talked to the fifteen year old appellant with his mother present.

The appellant was asked and agreed to talk to the detectives in their police car. Once in the car, the appellant was advised of his constitutional rights and questioned for five or ten minutes. During this time, Mrs. Parker was either in the front yard or by the front door of the house.

The appellant agreed to go with the detectives to the police station for further questioning. Mrs. Parker was told that her son was going to be taken to the police station and would be brought back home “if everything turned out all right”. Although the appellant was the “prime” suspect in Mrs. Lott’s murder, Mrs. Parker was not informed that her son was a suspect.

Arriving at the police station shortly after 9:00 A.M., the appellant was again advised of his rights. He read a waiver of rights form and signed a written waiver of his constitutional rights at 9:25 that morning. Detective Collier testified that the appellant stated that he understood his rights before signing the waiver form. He also testified that no threats, coercion, intimidation, offer or promise of reward or hope of reward, or leniency “or anything of that nature” was extended to the appellant in order to induce him to make a statement. Three police officers were present during the questioning of the appellant.

The appellant was confronted with statements made by other parties the police had previously questioned in their investigation which conflicted with his answers. At least two of the three officers present told the appellant that they thought the appellant was lying and that he should go ahead and tell the truth. There was testimony from one of the officers that he was nervous and “afraid that he was going to get killed if he told us who it was”. The appellant was accused of committing the murder and told by Detective Collier that he “thought he would feel better about it if he told us the truth and asked for forgiveness”.

At that point the appellant began crying, confessed to the murder and recited the details of the crime. The total interrogation had consumed forty-five minutes. The three police officers and the appellant went out to the scene of the murder. The appellant recounted and re-enacted the events and then showed the officers where he had hidden the money he took from Mrs. Lott’s body.

The appellant was taken back to police headquarters and again advised of his-rights and signed a second waiver form at 1:05 P.M. The appellant recited the entire sequence of events and Detective Collier wrote it down. The appellant read the confession, stated that it was true and signed it. This confession was completed at 2:20 P.M.

The juvenile authorities were advised around “noon” that the appellant had been “picked up”. While the appellant was being questioned one of the detectives who brought the appellant to police station filed a petition with the juvenile court to invoke the jurisdiction of that court. The appellant was in the custody of the police and not the juvenile authorities when he confessed.

Mrs. Parker, the mother of the appellant, testified that the detectives only talked with her son in the police car and would not let her be with him during that time. They also would not let her give the appellant a “coke” when she brought one out to the car. She testified that one of the detectives told her that they were going to carry Johnny up to the police station “for him to sign a statement that he hadn’t been down at Lott’s store yesterday”. The detectives would not let Mrs. Parker go with her son to the police station and told her that they would bring him back in “a little bit”.

A report from the “Mental Health Center” on the I.Q. of the appellant was admitted into evidence at the hearing on the motion to suppress but was not included in the transcript of the court reporter. At trial, the defense called William S. Lucus, Jr., Chief of the Out-Patient Services of the North Central Alabama Mental Health Center. He testified that the appellant was very weak in the general comprehension of factual information, common sense, judgment and reasoning. The appellant was a “slow learner” slow in the area of vocabulary. Mr. Lucus administered the Weschler Adult Intelligent Scale test consisting of three general levels of competency: (1) A verbal scale, (2) a performance scale, and (3) a full scale. On the verbal scale the appellant had an I.Q score of 81 with 90 to 110 being the normal range. On the performance scale, the appellant scored within the normal range with an I.Q. of 96. On the full scale, the appellant’s I.Q. was 87, just three points below normal. An additional test administered to the appellant revealed no organic brain damage and no extreme emotional instability.

The appellant did not testify at the hearing on the motion to suppress or at trial.

This concluded the hearing on the motion to suppress the confession. The trial court found that the evidence presented a question of fact and refused to suppress the confession.

During the course of the trial and before the confession was admitted into evidence before the jury, the trial judge offered to defense counsel two additional opportunities to» introduce evidence on the initial vol-untariness and admissibility of the confession. However, defense counsel refused these opportunities and declined to present further testimony on this issue.

At trial, the state presented the testimony of Carl Green who testified that he saw the appellant within three hundred yards of the store of the deceased on the day of the murder. Detective Collier testified substantially as he did on the hearing to determine the admissibility of the confession. A state toxicologist stated that based upon his examination, Mrs. Lott had been strangled to death. Expert testimony was also presented to show that a fingerprint lifted from the vacuum cleaner rod or wand to which the rope was tied that went around the victim’s neck belonged to the appellant.

The defense presented the testimony of the parents and relatives of the appellant to show that the appellant had an unhappy home and family life, that his father would become intoxicated and beat him, that the appellant did not like school and that the appellant had difficulty controlling his bowel movements when he was younger. Additional testimony revealed that the appellant read at a fifth grade level.

The confession given by the appellant is dated at 2:20 P.M., March 4, 1976. Court records and orders evidence that at 2:00 P.M. on that same afternoon, counsel was appointed to represent the appellant. At 4:30 P.M. that same afternoon, the appellant and his attorney appeared before the Juvenile Division of the Morgan County Court along with a probation officer and the appellant was advised as to the petition alleging his delinquency for the commission of the offense of murder in the first degree and robbery. That order of the court reflects that:

“The youth is advised of his rights under the law and questioned only as to his care since the time he was taken into custody earlier on this date. He advised the court that he has been under no duress or coercion. He has not been injured, threatened, denied food or other necessary comforts.”

The court ordered the appellant detained in the city jail pending his detention hearing. This hearing was held the next day, March 5, 1976. After testimony was taken and evidence presented the juvenile court found that just and reasonable cause existed to detain the appellant, without bond, pending further proceedings.

On March 16, 1976, the juvenile court, on motion of defense counsel, ordered physical and mental examinations of the appellant.

On April 30, 1976, the juvenile court, after an evidentiary hearing, ordered jurisdiction of the cause transferred to the circuit court where the appellant would be treated as an adult. In making this order the juvenile court took into consideration the fact that the appellant had been found delinquent at the age of fifteen and at the time of the murder was already on probation for an unrelated offense. The court also received evidence relative to the social history of the appellant and his family, his physical and mental condition, and his past behavior.

I

The appellant contends that the Morgan County Court, Juvenile Division, erred in transferring jurisdiction of the cause against the appellant to the circuit court because it failed to make a prior determination of delinquency.

In Seagroves v. State, 279 Ala. 621, 189 So.2d 137 (1966) the Alabama Supreme Court set forth the proper procedure to be followed before ordering a transfer from the juvenile court. The juvenile court must determine (1) that the child is delinquent and (2) cannot be made to lead a correct life or be properly disciplined. Rudolph v. State, 286 Ala. 189, 238 So.2d 542 (1970).

On April 30, 1976, the county court of Morgan County, Juvenile Division, heard evidence on the petition of the state to transfer the appellant to the jurisdiction of the circuit court for criminal prosecution. The court heard testimony concerning the home and social history of the appellant and his family and the lack of supervision provided for him by his parents. It was noted that the appellant had previously been declared delinquent at the age of fifteen years and was, in fact, on probation at the time of the murder. Evidence was submitted and heard concerning the period of time the appellant was on probation and his behavior during that time. A comprehensive statement and report of the medical, mental, and psychiatric condition of the appellant was taken into consideration.

In ordering the transfer,the juvenile court specifically found that:

“After a careful investigation and a consideration of the disciplinary measures, the facilities and programs available to the court, it is the judgment and opinion of the court that the subject youth, Johnny Ray Parker, is not amenable to the care, treatment and training programs available to the facilities of the Juvenile Court and he cannot be made to lead a correct life and cannot be properly disciplined under the provisions of the Juvenile Court Statutes of the State of Alabama.”

It is not necessary that the court specifically find that the appellant was delinquent. A finding that he was incorrigible necessarily includes a finding of delinquency. Steele v. State, 289 Ala. 186, 266 So.2d 746 (1972). This is because Title 13, § 350(3), Code of Alabama 1940 defines “delinquent child” as:

“. . any child who while under sixteen years of age violates any penal laiv of this state or of the United States, . .; or who is beyond the control of his parent, parents, guardian, or custodian, or who is otherwise incorrigible, . .”

Black’s Law Dictionary, 4th Edition, defines “incorrigible” as:

“Incapable of being corrected, amended, or improved; with respect to juvenile offenders, unmanageable by parents or guardians.”

The findings of the juvenile court in this case were tantamount to a finding of “incorrigibility” and “delinquency” within the meaning of the statute. The transfer of the appellant to the jurisdiction of the circuit court was properly conducted and the appellant was properly adjudged delinquent.

II

The final and primary contention of the appellant is that the circuit court erred in refusing to suppress the confession because of (1) the totality of the circumstances and (2) because the appellant as a juvenile did not have the capacity to waive his rights under the Fifth and Sixth Amendments to the Constitution of the United States.

A confession is not inadmissible, in the absence of a statutory provision to the contrary, merely because the person making it is a minor. In Clarke v. State, 51 Ala. App. 222, 225, 283 So.2d 671, 673 (1973) we held that:

“We subscribe to the general proposition that the confession of a minor is not ipso facto inadmissible; however, infancy is certainly a relevant factor bearing upon the voluntariness, vel non, of a confession. 23 C.J.S. Criminal Law § 829; 87 A.L.R.2d 624; Burton v. State, 107 Ala. 108, 18 So. 284. The better rule appears to equate the capacity required for a valid confession with that prerequisite to criminal responsibility. We conclude from Burton, supra, that generally a person whose age and mental faculties make him amenable to criminal sanctions is sui juris in matters relating to confessions and inculpatory admissions.” (Emphasis added)

In Alabama, there are two statutory provisions dealing with the confession of a minor: (1) Title 13, § 377, Code of Alabama 1940, and (2) Act No. 1205, § 5-125, Acts of Alabama 1975, approved October 10, 1975 (The Judicial Article Implementation Act).

Title 7, § 377 specifically forbids the use of any voluntary confession of a “dependent, neglected or delinquent child” made “to the probation officer or court” in reference to any cause or matter in the juvenile court, as evidence against the child “for any purpose” in other cause, court, or proceeding. This section creates an exception to the general rule set out above and by its very language is applicable where the confession is made (1) to a probation officer or a juvenile court and (2) in connection with matters and proceedings had therein.

The evidence in this case discloses that the confession was given in the presence of three police officers. There was no probation officer present. Therefore the situation arising in Clarke, supra, (two police officers and a probation officer present) does not present itself in this case. We particularly note, that in Alabama, there is no statutory requirement that a police officer taking a minor into custody for an offense, take him immediately before the juvenile court or deliver him to the juvenile officer or person acting for him. Here the confession was made after the appellant was in the custody of the police but before the petition invoking the jurisdiction of the juvenile court was filed. See State v. Arbeiter (Mo.) 408 S.W.2d 26 (1966). The “McNabb — Mallory rule” is that a confession may be excluded by the federal court because of unnecessary delay in bringing the arrested defendant before a United States Commissioner. This is a federal procedural rule; it is not predicated upon the Fourteenth Amendment and has no application to state trials. Federal Rules of Criminal Procedure, Rule 5(a), 18 U.S.C.A.; Hutto v. State, 278 Ala. 416, 178 So.2d 810 (1965); Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, rehearing denied, 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 561 (1957). A confession is not inadmissible solely because it was made after arrest by an officer and before the accused was taken before a committing magistrate, Smith v. State, 291 Ala. 507, 282 So.2d 907 (1973); Austin v. State, 56 Ala.App. 307, 321 So.2d 272 (1975) or because of the illegal detention of the accused, Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192 (1973); Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969) although these factors are relevant for consideration in determining the voluntariness of a confession. Therefore Title 7, § 377 does not mandate the exclusion of the confession in the instant case.

The second statutory provision concerned with the confession of a minor is § 5-125 of Act 1205, Acts of Alabama 1975, approved October 10, 1975, which reads as follows:

“Unless advised by counsel, the statements of a child or other information or evidence derived directly or indirectly from such statements made while in custody to police or law enforcement officers or made to the prosecutor or probation officer, during the process of the case, including statements made during a preliminary inquiry, predisposition study, informal adjustment, or consent decree, shall not be used prior to a determination of the petition’s allegations in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction.” (Emphasis supplied)

Thus, the confession of the appellant was clearly inadmissible pursuant to the above statute.

However by resolution and order of the Alabama Supreme Court dated December 1, 1975, in creating “an advisory committee to make recommendations for rules of administration, practice and procedure in juvenile courts”, the Supreme Court declared that:

“WHEREAS, The Supreme Court of Alabama, in reviewing Act No. 1205, Acts of Alabama 1975, approved October 10,1975, concludes that Article 5 shall become effective January 16, 1977, statutory provisions currently effective remaining in full force and effect until that time; . .”

The Resolution cites as its authority Article 6, § 150, Constitution of Alabama (Article VI, Section 6.11, ratified December 27, 1973) and Act 1205 itself (see specifically Sections 6-102, 6-105). This decree is clear and unambiguous. Its meaning leaves no room for interpretation. While we seriously question the power and authority of the Supreme Court to change the effective date of any legislative act, we will adhere to a literal interpretation of the Resolution. Article 5 of Act No. 1205 not being applicable to the confession of a minor made before January 16, 1977, by virtue of the Supreme Court Resolution above, the appellant’s confession was not inadmissible under this second statutory prohibition.

Thus the only issue remaining is the vol-untariness of the confession itself. We have already stated that the confession of a minor is not ipso facto inadmissible. A number of courts have considered the question of the competency of a minor, without the guidance of a parent, attorney, or other friendly adult, to make an intelligent, understanding, and voluntary waiver of his constitutional rights.

“Most courts that have considered this question have concluded that there is no absolute requirement that a parent or attorney be present in order for a child to make an effective waiver, or, put another way, that a child is not presumed, for reasons of age alone, to be incapable of waiving his rights by himself. Rather, the effectiveness of the waiver is determined by examining the totality-of-the circumstances surrounding the giving of the statements, and some courts in using this approach have employed what amounts to a voluntariness test, rather than a literal application of Miranda.” S. Davis, Rights of Juveniles: The Juvenile Justice System, 1974, p. 92.

Most of the decisions that examine the totality of the circumstances to determine the voluntariness of a minor’s confession and waiver rely on Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948) and Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). The leading case so holding is People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407 (1968) wherein the California Supreme Court stated that:

“We cannot accept the suggestion of certain commentators . . . that every minor is incompetent as a matter of law to waive his constitutional rights to remain silent and to an attorney unless the waiver is consented to by an attorney or by a parent or guardian who has himself been advised of the minor’s rights.”

The court concluded that a minor has the capacity to make a voluntary confession even in a capital case, without the presence or consent of counsel or other responsible adult. The court said that the admissibility of such a confession depends not on age alone but with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statements.

In West v. United States, 399 F.2d 467 (5th Cir. 1968), the court set forth the circumstances to be considered in determining the validity of a minor’s waiver of Miranda rights:

“(1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge, if any has been filed, and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogation; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused had repudiated an extra judicial statement at a later date.” 399 F.2d at 469.

It should be noted that in some of the cases employing a totality of the circumstances approach, the importance of a parent’s presence in determining the effectiveness of a waiver of constitutional rights has been urged in the very strongest terms but not required.

A number of states now require the presence of a parent before an effective waiver can be found. See, e. g., Colo.Rev. Stat.Ann. § 19-2-102(3)(c)(1) (1974) (requires that warnings be given to both child and parent or legal custodian and requires presence of parent or legal custodian during any questioning); Conn.Gen.Stat.Ann. § 17-66d (1975) (identical to Colorado provision); Okla.Stat.Ann. Title 10, § 1109(a) (Supp.1973) (requires that warnings be given to both child and parent or legal custodian); N.M.Stat.Ann. § 13-14-25(A) (Supp. 1973) (child cannot be questioned except in presence of parent or counsel). See also Freeman v. Wilcox, 119 Ga.App. 325, 167 S.E.2d 163 (1969); Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972). Alabama has no such requirement and, under the totality of the circumstances test, the absence of a parent is just one factor or circumstance to consider in determining voluntariness.

Using those criteria pronounced in West v. United States, supra, we now proceed to examine the totality of the circumstances under which the confession of the appellant was made.

1. The appellant was 15 years old when he made the confession.

2. The record does not reflect the education of the accused. We do know that he quit school but was still in school when he was twelve or thirteen. We also know that he could read at a fifth grade level and had an I.Q. of 87, some three points below normal. However, the mental subnormality of an accused does not in and of itself render his confession inadmissible. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967). There is no evidence in the record which would indicate that his mental condition was such that he did not realize what he was doing when he confessed. See Bean v. State, 234 Md. 432, 199 A.2d 773 (1964) (confession of 15 year old with full scale I.Q. of 74 admissible). Detective Collier testified that the appellant stated he understood his rights. There was no testimony presented to contradict this.

3. The officers told the appellant and his mother what they wanted to discuss with the appellant. It appears that no charges were pending when the confession was made. If affirmatively appears that the accused was advised of his constitutional rights on at least three occasions. He stated he understood those rights and signed two printed waiver of rights forms on two separate occasions. The appellant did not testify either on the hearing to suppress or at trial. Therefore we have absolutely no reason to imply that he did not understand his constitutional rights.

4. There is no evidence that the accused was held incommunicado. Indeed it was a detective who filed the petition before the juvenile court. The mother of the appellant did testify that she requested to be allowed to go to the police station with her son. However this was contradictory of the testimony given by the two detectives. The finding of the trial court that the confession was voluntary was amply supported by the evidence. McNair v. State, 50 Ala.App. 465, 280 So.2d 171, cert. denied, 291 Ala. 789, 280 So.2d 177 (1973). The controverted testimony for the defendant goes to the jury on its credibility. Godfrey v. State, Ala.App., 333 So.2d 182 (1976). There is nothing in the record to indicate that the appellant ever requested to see anyone or ever asked that the questioning be stopped. Seagroves v. State, 279 Ala. 621, 189 So.2d 137 (1965).

5: The appellant was interrogated before formal charges were filed.

6. From the record it does not appear that the police employed the “third degree”, overt physical coercion or subtle psychological ploys. The officers did confront him with contradictions in his own story and conflicts between his testimony and what others had told them during their investigation. It is true that at least two of the three officers present in the room did accuse the appellant of lying and of having committed the murder himself. Detective Collier testified that he accused the appellant of lying and of having killed Mrs. Lott and told him that he would feel better about it if he told the truth and asked for forgiveness. The appellant then began crying and confessed. This was in no way an inducement. While the slightest menace or threat, or any hope engendered or encouraged that the suspect’s case will be lightened, meliorated, or more favorably dealt with if he will confess, is enough to exclude a confession thereby superinduced, Womack v. State, 281 Ala. 499, 205 So.2d 579 (1967); Bass v. State, 55 Ala.App. 5, 312 So.2d 576 (1975) such factors were not present here. A policeman’s advice or exhortation to an accused minor to “tell the truth” or that “it would be better to tell the truth”, unaccompanied by threat or promise, does not render involuntary the minor’s subsequent confession. People v. Robinson, 274 Cal.App.2d 514, 79 Cal.Rptr. 213 (1969). The appellant was the only individual who could contradict Detective Collier’s testimony that his confession was not coerced, and he did not testify at all.

7. The appellant had been interrogated for forty-five minutes when he confessed.

8. At no time does it appear that the accused refused to give a voluntary statement or that he ever requested the presence of his mother during the questioning.

9.The appellant never repudiated the extra judicial statement at a later date. He never presented any evidence to even contradict the confession or its voluntariness.

We may summarize the above by stating that the evidence in this case simply does not compel the conclusion that the confession was involuntary. In reaching this decision this Court has been guided by Justice Douglas’ remarks in Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 92 L.Ed. 224 (1948), that special care must be employed in determining the admissibility of confessions and incriminating statements made by juveniles. Even when guided by such high standards we must deal only with the facts contained in the record before us. The totality of those facts and circumstances simply does not indicate that the confession was involuntary. In conclusion, it may be best to caution the overzealous police officer or prosecutor against a misinterpretation of this opinion. Had we found any indication that the appellant sought to exercise his. privilege against self-incrimination or requested the assistance of counsel or parents, we would have reversed his present conviction without hesitation. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Having thoroughly reviewed the record and finding no error, this court is of the opinion that the judgment of conviction is due to be and is hereby affirmed.

APPLICATION FOR REHEARING GRANTED;

AFFIRMED.

TYSON, P. J., and DeCARLO, J., concur.

HARRIS, J., concurs in result.

BOOKOUT, J., dissents.

TYSON, Presiding Judge,

concurring.

I concur in the foregoing opinion as prepared by my brother, Judge BOWEN.

Because the Supreme Court of Alabama in Pendleton v. State, 295 Ala. 325, 329 So.2d 142; also Pendleton v. State, 295 Ala. 327, 329 So.2d 144, suspended the operation of old Rule 18, and gave immediate effect to Rule 10(f), ARAP; and also because the Supreme Court of Alabama in Carter v. State, Ala., 339 So.2d 592, suspended the rules applicable to the timely perfecting of a habeas corpus appeal and directed consideration on its merits, I believe that Judge Bowen has correctly set forth the law applicable to the effective date of Article 5 of Act No. 1205, Acts of Alabama 1975, approved October 10, 1975.

BOOKOUT, Judge,

dissenting:

The resolution of the Alabama Supreme Court of December 1,1975, appears to delay the effective date of Article 5 of Act 1205, Acts of Alabama 1975, approved October 10, 1975. I use the word “appears” because I do not think the Supreme Court intended to, nor could, change the effective date of a section of Article 5 which does not depend upon adoption of administrative or procedural rules for its effectiveness.

The Supreme Court Resolution in question cites as its authority, Article 6, § 150, Constitution of Alabama (Article VI, Section 6.11, ratified December 27, 1973), and Act 1205 itself (presumably Sections 6-102, 6-105). The rule making power of the Supreme Court as set out in Article 6, § 150, supra, is as follows:

“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by Section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application.”

Such power is limited to making rules governing (1) the administration of all courts, and (2) practice and procedure in all courts.

Section 5-125 of Act 1205, supra, prohibits the use of a statement of a “child” from being used in evidence against him in a criminal proceeding prior to conviction. That section is clear and unambiguous. Its implementation or effectiveness does not depend upon any rule governing administration or practice and procedure. Section 5-125 is completely severable from all other parts of the Act pursuant to Section 18-101 of that Act.

The effective dates of various articles and sections of Act 1205 are set out in Section 18-103. Except for those sections therein enumerated, the effective date of Act 1205 was October 10, 1975. It is reasonable to conclude that those sections of Act 1205 which depend upon rules of administration and procedure for their effectiveness could not be operable until such rules were established. However, I do not think the Supreme Court ever intended that their order of December 1, 1975, would allow confessions of children to be admissible until January 16, 1977, when the Legislature of Alabama clearly prohibited the admissibility of such confessions in criminal courts beginning October 10, 1975. This question will no doubt be considered by the Supreme Court on certiorari which is likely to follow. However, until that Court rules squarely on this issue to the contrary, I hold to the view that the confession was improperly admitted in contravention of the legislative prohibition of Section 5-125, supra. I, therefore, respectfully dissent.