author: JONES, Justice.

text:
    In re Bedford CLARY et al. v. The CENTRAL FOUNDRY COMPANY and Tom J. Ventress. Ex parte Bedford Clary et al.
    SC 1654.
    Supreme Court of Alabama.
    June 18, 1976.
    Drake & Knowles, University, for petitioner.
    Hubbard, Waldrop & Jenkins, Tuscaloosa, for Central Foundry.
    Arthur J. Reid, Montgomery, for The Department of Industrial Relations.
   JONES, Justice.

This is a class action on behalf of members of two labor unions who work at the Central Foundry in Holt, Alabama. The claimants seek unemployment compensation for the period of time when a strike by a third union shut down operations at Central Foundry. The claims were denied by both the Department of Industrial Relations and the Circuit Court of Tuscaloosa County because the claimants’ unemployment was directly due to a labor dispute in progress at their place of employment (Tit. 26, § 214). The claimants’ appeal, asserting that their situation fell within the “reasonable fear of violence” exception set out in Ex parte McCleney, 286 Ala. 288, 239 So.2d 311 (1970):

“To qualify for unemployment compensation, the burden of proof is on the claimant to show (1) that he was willing to cross a peaceful picket line . (2) that he made a reasonable attempt to cross the picket line in question . . . (3) that claimant’s sole reason for failing to cross the picket line was a well-founded and reasonable apprehension of violence to his person. . . .We use the word ‘sole’ as contrasted with refusing to cross a picket line because of union beliefs, sympathy with other strikers, pangs of conscience, or adherence to union principles.”

The Court of Civil Appeals affirmed the trial Court’s denial of relief on the basis of Ventress v. Rice, 289 Ala. 631, 270 So.2d 100 (1972), which held that the elements set out in McCleney must all be proved before nonstriking employees are entitled to unemployment compensation. The Court of Civil Appeals found that the claimants in the instant case did not actually cross the picket line although one of them did come up to the picket line and was warned not to attempt to cross.

The claimants filed a petition for cert-iorari, under Rule 39(5), asking this Court to overrule Ventress v. Rice, supra, on public policy grounds. They argue that the law should not encourage violence. If the employees can establish a high likelihood of violence at the picket line, the claimants contend that the employees should not be required to risk physical harm by attempting to cross the line.

We granted certiorari to determine whether the Ventress case requires a rethinking or an explanation in light of the Court of Civil Appeals’ interpretation. After reviewing the record, we believe the Court of Civil Appeals reached the correct result in this case, but we also believe its interpretation of Ventress was overrestric-tive. The Court of Civil Appeals correctly read Ventress to require the elements of McCleney to be proved conjunctively, but it misinterpreted the second requirement— “a reasonable attempt to cross the picket line.”

The difficulty with the factual resolution of this case is that it is brought as a class action. The violence exception as stated in McCleney and Ventress necessarily requires an individual determination of the second element — a reasonable attempt to cross the picket line. The only claimant who testified to his own reasonable attempt to cross the picket line was Bedford Clary who stated that he told a picket he was going to go to work and the picket responded, “I’ll tell you one damn thing, you ain’t going to come out.”

Other than this incident, the record is devoid of evidence of attempts to cross the line. Most of the claimants founded their fear of violence upon occurrences of violence at prior strikes. Some of the claimants testified that they did not even come to the plant when they heard there was a strike. Others stated they refused to cross the line because of the clause in their union contracts permitting them to observe a lawful picket line established by another union. We find that the evidence supported a denial of compensation under McCleney and Ventress.

We believe, however, that for future cases the violence exception needs some clarification. The Court of Civil Appeals’ opinion indicates that it interpreted the violence exception to require an actual physical effort to cross a picket line regardless of what threats or other atmosphere of violence were present. Specifically, the Court of Civil Appeals recited Bedford Clary’s testimony of the threat he encountered at the line, but concluded, from the fact that Clary then walked away from the line, that he had not made a sufficient effort to cross.

Standing alone, this testimony would not justify a denial of Clary’s claim for compensation under McCleney and Ventress, but this does not alter the result reached by the Court of Civil Appeals since the trial Court had other testimony, including Clary’s, which indicated that Clary made no further attempts to go to work after learning that other nonstriking employees had been permitted back to work. The McCleney and Ventress cases require only a reasonable attempt to cross the picket line or evidence that such an attempt would produce violence or be futile.

The “reasonable attempt” criterion does not contemplate that nonstriking employee must risk physical harm. There are conceivable situations in which such a violent atmosphere prevails at a strike site that no actual attempt to cross the picket line would be required. For example, if the testimony of Bedford Clary had been un-qualifiedly accepted by the trial Court, the fact that Clary did not physically attempt to cross the picket line would not preclude his right to compensation whether or not his claim is presented individually or as a class action.

It is also conceivable that the “reasonable attempt” criterion could be met in certain situations by a claimant who never approached the picket line at all. For example, if several people attempting to cross had met with violence and a claimant knew of this violence, the law would not require him to do a futile act by attempting to cross the picket line. Here, again, a claimant need not risk violence to himself to come within the violence exception. Thus the situation existing at a strike site will dictate the standards of reasonableness to be applied to criterion of attempted crossing, and each claimant’s individual attempt to cross should be examined within the context of that situation.

Presiding Judge Wright of the Court of Civil Appeals, in his extended opinion on rehearing in Holmes v. Rice, 49 Ala.App. 219, 270 So.2d 92 (1972), correctly stated:

“ . . . if it were shown that a claimant’s sole reason for failing to cross a picket line was a well founded and reasonable apprehension of violence to his person it would be totally superfluous and unnecessary to prove that he was (1) willing to cross a peaceful picket line, and, (2) that he made a reasonable attempt to cross such picket line. We further indicated that proof of the latter two matters could only be relevant in an effort or means tending to prove the first.”

We repeat that we do not find in this case such an overriding atmosphere of violence as to support claims under the violence exception.

CORRECTED AND AFFIRMED.

All the Justices concur, except HEFLIN, C. J., who concurs in the result.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Alice E. WOOD v. James Lee WOOD.
    Civ. 749.
    Court of Civil Appeals of Alabama.
    June 2, 1976.

      Maury D. Smith, Montgomery, for appellant.
    Whitesell & Gordon, Montgomery, for appellee.
   BRADLEY, Judge.

This appeal is from a modification of a child custody decree. In a previous divorce proceeding, the mother had been awarded the custody of the parties’ five year old son. The father, subsequent to the divorce decree, petitioned the court to award him custody of the child on the ground that the mother, due to her conduct, was no longer a fit person to have custody of the child. The trial court, after hearing the evidence in support of the petition, awarded custody of the child to the father and gave reasonable visitation rights to the mother. The mother appeals.

The rule governing child custody modification cases was correctly set out in Ponder v. Ponder, 50 Ala.App. 27, 276 So. 2d 613, and reiterated in Ford v. Ford, 293 Ala. 743, 310 So.2d 234, and is as follows:

“ ‘It is axiomatic to review of decrees of modification as to custody of children that such a decree should be entered only upon proof of a material change of circumstances of the parties since the prior decree, which change of circumstances is such as to affect the welfare and best interest of the child or children involved. Greene v. Greene, 249 Ala. 155, 30 So.2d 444. A prior decree of custody is assumed correct and in the absence of proof of changed conditions or other substantial reason for its modification it should not be disturbed. The burden of showing a change of circumstances which affects the best interest and welfare of the children is upon the petitioner. Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797; Sparks v. McGraw, 270 Ala. 159, 117 So.2d 372.’”

In her brief on appeal, the mother says that the evidence submitted in support of the modification petition fails to support a finding of a material change of circumstances since the divorce decree, and that the trial court thereby erred to her prejudice in so finding.

Where the trial court modifies a child custody decree after hearing ore tenus, its findings will not be reversed on appeal unless they be plainly and palpably wrong. Dorminy v. Dorminy, 51 Ala.App. 70, 282 So.2d 686.

As applied to child custody, the “changed circumstance doctrine” is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.

In the case before us the evidence tends to show that at the time of the modification proceedings, the environment provided the child by its then custodial parent was unstable and deteriorating due to that parent’s impulsive behavior. The trial court did not err in determining that such mercurial changes materially affected the child and called for court action.

The parties to this suit were divorced in August 1974, and the mother was awarded custody of their only child. At this time she was living in the Meadows apartments in Montgomery and working at the local South Central Bell office.

On September 30, 1975 she took her son out of the Greengate School — he was, we think, in the first grade — left her employment without notice, and departed on an extended trip with a married man. She was away for about six weeks and visited in California, Hawaii, Australia and Denver, Colorado. She admitted to having sexual relations with the man during the trip, but insisted that it was not in the presence of the child. There was evidence that her traveling companion was an alcoholic.

During the time that she was in Denver, Colorado, the mother enrolled her child in an elementary school. The child stayed in school there for two weeks before he and his mother returned to Montgomery.

The father, after learning that the mother and child were in Montgomery, which was the week before Thanksgiving 1975, took physical custody of the child and has kept him since that time. The mother has had possession of the child for one weekend since November 1975. On this occasion, the father testified that the mother called and said the child had enjoyed himself, but wanted his father to come for him. The father did go for him and the mother voluntarily gave the child to the father. The mother denied that the child asked to go back to his father’s house.

The father also stated that since the mother’s return from her trip they had agreed that he would keep the child but the mother would not give up legal custody. They also agreed that the father would not be required to make child support payments, but in lieu thereof he would pay $100.00 per month as alimony.

During the time the father has had physical custody of the child, they have been living with his parents in Wetumpka. Also living in the house is the father’s eleven year old sister. The father has enrolled the child in a private elementary school nearby. The child attends school from 8:00 a.m. to 3:00 p.m. five days a week and travels to and from school by bus. The grandfather and sister are at home in the afternoons and look after the child until around five or six p.m. when the father and grandmother arrive at the house. The father said that his sister and the child get along well together and she helps the child with his school work. The father plans to marry soon.

The mother’s testimony showed that she was unemployed and living with her mother and stepfather in a mobile home located in a mobile home park managed by her stepfather. The maternal grandmother is a nurse and works regularly; however the stepfather is at home most of the time.

The evidence also reflected that the mother had attempted suicide prior to the divorce. She said: “I took an overdose that time to go to sleep again to get away from Lee.” (Lee is her ex-husband).

On September 15 or 16, 1975, which was after the divorce, the father says that the mother attempted suicide again by taking an overdose of sleeping pills. He testified that she told him she did not want to live, she wanted out. He also said that she had made this statement many times before. The mother denied attemping suicide but admitted taking two sleeping pills so that she could go to sleep and get away from her former husband’s harassment and because she was lonely.

It is apparent to us that the trial court considered that the circumstances of the parties had materially changed since the divorce decree, especially in reference to the impulsive and possibly unstable behavior of the mother, and that the best interests of the child would not be served by remaining in the custody of its mother. After carefully reviewing the evidence heard by the trial court, the pertinent parts of which have been set out above, we cannot say that the trial court was palpably wrong in changing custody of the child from the mother to the father. The environment provided by the father may fall short of the ideal, but it áppears to have an aspect of permanence and to be far less subject to abrupt, unplanned change. We therefore affirm the judgment of the trial court.

AFFIRMED.

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


text:
    Margaret WAMBLES v. Cecil COPPAGE.
    Civ. 746.
    Court of Civil Appeals of Alabama.
    June 16, 1976.

      John L. Carroll, Pamela S. Horowitz, Joseph J. Levin, Jr., and Morris S. Dees, Montgomery, for appellant.
    No appearance for appellee.
   BRADLEY, Judge.

This is a child custody case. Wambles, the natural mother of the child in question, appeals from the denial of her petition for modification of custody by the Family Court of Montgomery County. Denial of the petition leaves the child in custody of appellee Coppage, who has been adjudicated over Wambles’ objection to be the boy’s natural father.

We are cognizant that Wambles has filed two cases, one in her own right and one as next friend of the child, in the United States District Court, Middle District of Alabama, Northern Division, Wambles v. Conn, Civ. Action No. 75—233—N; Roe v. Conn, Civ. Action No. 75-232-N. These actions incorporate some of the factual issues raised in the appeal before us now, include all the parties herein, and overlap considerably with this appeal in the questions raised. Nonetheless, we do have jurisdiction to hear the appeal, Stephens v. Stephens, 253 Ala. 315, 45 So.2d 153. We are not aware of any injunction or order from the federal district court which would prevent our hearing this matter. Moreover, this case dealing as it does with custody pursuant to state court order, there is some authority to the effect that our jurisdiction would be exclusive of the district court’s, pending exhaustion of state appeals, Prieser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed. 2d 439; Ex parte Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500. This latter statement is not intended to dispute the jurisdiction of the federal court, which is properly its own authority on jurisdiction, but is set forth to support our retention of jurisdiction over the case.

The background of the case is as follows :

Coppage and Wambles, though unmarried, resided together and enjoyed sexual relations intermittently in Montgomery during a period from 1970 to 1974. During this period the child in question was born.

Coppage, a construction worker, went to Georgia to work. Upon his return to Montgomery he telephoned a complaint to the police department concerning the situation the child was in.

The next day, June 2, 1975, a police officer picked up the child pursuant to a summary order of Judge William F. Thet-ford under Title 13, Sections 350, et seq., Alabama Code of 1940, and took him to the Montgomery County Shelter Home.

On June 25, 1975, Coppage petitioned for custody of the child alleging unfitness on Wambles’ part.

On July 3, 1975 Wambles filed the federal suits alleging that the sole factual basis for Coppage’s complaint and the pick-up order was that she, a white woman, was living with a black man, Charlie Washington, at the time. The purport of the federal complaints is that race was a factor in removing the child from Wam-bles’ custody, in violation of the United States Constitution. These suits are now pending.

On July 10, 1975 Judge Thetford held a hearing in the Family Court on Coppage’s custody petition. Considerable oral testimony was taken and transcribed. After considering the evidence, the Family Court issued a decree finding that Coppage was the child’s natural father; that no common-law marriage existed between Wambles and Coppage; and awarded temporary custody to Coppage. Wambles was awarded reasonable visitation rights. The child was to be kept at the home of Coppage’s mother, Mrs. Johnny Keene, in Pike County. Wambles was given leave to file a petition for custody at any later date.

On July 16, 1975 Wambles filed with Family Court a petition to clarify her visitation rights, stating that Mrs. Keene had refused to allow visitation to take place outside her home.

On July 21, 1975 Wambles filed with Family Court a motion for an order requiring blood tests of herself, the child, and Coppage, in order to refute Coppage’s paternity.

Also on July 21, 1975 she filed a motion for new trial of the custody proceeding citing the lack of blood tests, attacking the sufficiency of the evidence, and stating that she was no longer living with Washington.

Hearing on these motions was set for August 14. On August 5, Wambles filed with the Family Court a petition for custody of the child, requesting that hearing on this petition also be held August 14. The grounds for this petition was the averment that a substantial change in circumstances had occurred since the original custody award, to wit: Wambles was no longer living with a man to whom she was not married.

All of Wambles’ motions and petitions were denied by order of the Family Court on August 14, 1975, except that Wambles was to be given reasonable visitation rights from 2:00 p. m. to 6:00 p. m. Thursdays in Pike County, Alabama.

No appeal was ever taken from the decree of July 10, 1975, or the order of August 14, 1975.

On November 14, 1975 Wambles filed a second petition for custody with the Family Court. The wording of this petition is completely identical to the wording of the petition filed on August 5. It is this second petition which commenced the proceedings involved in this appeal.

In the meantime, Judge John W. Davis, III, had taken office as Family Court Judge, replacing Judge Thetford.

Judge Davis held a hearing on the second petition on December 11, 1975. On December 22, 1975, he issued a decree denying the petition. It is from this order that Wambles appeals.

The evidence which Judge Davis took under submission on December 11 is briefly summarized as follows:

Wambles’ attorneys introduced as evidence the complete transcript of the July 10 hearing conducted by Judge Thetford, in order to establish a basis for Judge Thetford’s earlier order, and to support Wambles’ contention that there has been a significant change of circumstances and Wambles is entitled to the child.

This transcript records the testimony of numerous witnesses called by both Coppage and by Wambles as well as the testimony of the parties themselves. Most of the factual contentions made therein are in dispute. The recorded testimony most damaging to Wambles tended to assert that she kept a filthy apartment at her old address, with bugs and food waste openly apparent; that the child was unkempt and lacked clean clothing; that Wambles had numerous male visitors in to spend the night; that she often had alcohol on her breath; that she once gave a noisy party, concerning which neighbors called the police; that the child was rebellious, and ran away from home; that the child hid under the house several times, on one occasion requiring Fire Department assistance to retrieve him; that Wambles left the child with a neighbor at night, often calling for the child after midnight; that the child often ate meals at a neighbor’s table, and seemed to be hungry.

There is also testimony recorded in the transcript to the effect that several witnesses disapproved of Wambles’ association with blacks, and that the presence of a black man or men at the apartment alarmed the neighbors and resulted in Coppage’s complaint to police. Other testimony, including that of Coppage, stated that the racial factor played no part in the complaint; that the presence of strange men would be objectionable, white or black; and that, in fact, some of the men spending the night were white. The transcript also contains an instance wherein Coppage’s attorney cross-examined Wambles as to the race of her neighbors at her new apartment, Highland Village, and the child’s playmates.

The transcript testimony favorable to Wambles asserts that she kept a clean, tidy house; the child was clean, well-clothed and fed, and was taken to the doctor when sick; that there was a good relationship between mother and child evidenced by acts of affection; that no men spent the night except Charlie Washington and Coppage; that Wambles was never intoxicated and did not have loud parties; that Wambles is usually gainfully employed ; that she is a fit mother.

The transcript contains testimony consistent to the effect that Coppage supplied financial support for the child. The amount and regularity of the support is in dispute.

In addition to this transcript, the documents before Judge Davis included the reports of social agencies from Montgomery and Pike County, commenting favorably on both Wambles’ and Mrs. Keene’s homemaking and relationships with the child. In addition, Wambles introduced affidavits from herself and Mrs. Melissa Blackstone, stating that on July 24, 1975 Mrs. Keene had interfered with Wambles’ attempted visitation with the child, rebuking Wambles for “living with niggers.” These affidavits had previously been submitted with the motion for new trial and first petition for custody which resulted in the August 14 order clarifying Wambles’ visitation privileges.

Oral testimony was taken on December 11, 1975 from Coppage, Wambles and Blackstone.

Wambles testified as to her employment history prior to and after June 2, 1975. As of December 11, she was working in the dietary unit of a nursing home for $75.00 per week. Her hours were 6:00 a. m. to 2:30 p. m. She has applied for food stamps and other public assistance. Wambles’ residence is unchanged since July 10, 1975; she resides at the Highland Village apartments, a government-assistance project.

If given custody, Wambles intended to leave the child at the housing authority on-premises day-care center while she worked. The center opens at 7:30 a. m., leaving a gap of ninety minutes in the child’s supervision. Wambles testified that she had arranged for Melissa Blackstone to keep the child from 6:00 a. m. to 7:30 a. m.

Wambles testified that no man has slept at her apartment since July. She also testified as to Coppage’s and Mrs. Keene’s interference with her visitation attempts.

Melissa Blackstone testified that she is a housewife. Her own children are three years and eighteen months old. She became acquainted with Wambles through a friend of Wambles’ 'lawyer. The first meeting between the two occurred just prior to Wambles’ trip to visit David at Mrs. Keene’s house in July. Since Wam-bles does not have a car, Blackstone was asked and agreed to drive her to Pike County. Blackstone has visited Wambles at home six or seven times, and has seen her otherwise three or four times a week.

Blackstone stated that Wambles’ apartment is clean, and no men are present. There is plenty of food. Blackstone testified that Wambles exercised her visitation rights twenty-five percent of the time.

Blackstone testified that she has agreed to keep the child from 6:00 a. m. until 7:30 a. m. Blackstone will pick the child up in the morning. She testified that she has never been to Highland Village earlier than 8:00 a. m. She is not licensed to operate a day-care facility. She resides at Park Towne, a private apartment complex across town from Highland Village. She did not testify as to whether she would be compensated by Wambles for her services, or whether she was rendering them gratis. Blackstone has never seen the Highland Village day-care center.

Coppage testified that he worked from 7:00 a. m. to 4:00 p. m. at a contracting job. His mother, Mrs. Keene, 54 years old, is present to supervise the child twenty-four hours a day. Coppage stated that the boy had several playmates.

According to Coppage, the only interference with Wambles’ visitation rights occurred when, on the advice of attorneys, Mrs. Keene refused to let Wambles take the child away from the Keene house. Coppage stated that Wambles was never prohibited from coming to see the child; that nothing has ever been done to prejudice the child against Wambles; that Coppage has encouraged the child to have a favorable attitude toward Wambles, but the child will not accept it. He further stated that the child has settled into the Keene home, and a radical change in surroundings would upset him.

Wambles’ first major contention on appeal is that the trial court’s decision to deny the second petition for custody, without a showing that Wambles totally failed to fulfill her parental responsibilities, was plainly and palpably wrong. This contention misstates the applicable law, and thus presents an inadequate ground for reversal; the paramount principle in determining child custody is the welfare of the child, Brill v. Johnson, 293 Ala. 435, 304 So.2d 595, an inquiry in which parental rights are important, but not so absolutely controlling as appellant asserts, Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338.

This argument of appellant has two branches: first, that the “tender years doctrine” has been transgressed below, and, second, that there is no evidence of Wambles’ unfitness.

The tender years doctrine is a rebuttable presumption that “all things being equal, the mother is better fitted to care for a child of tender years,” Bynum v. Bynum, 52 Ala.App. 633, 296 So.2d 722. See also, Blankenship v. Blankenship, 248 Ala. 489, 28 So.2d 409; Statham v. Statham, 276 Ala. 675, 166 So.2d 403; Ala. Digest, Parent and Child, §§ 2(3.1) and 2(3.2).

Appellant cites Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910, for the point that clear and convincing proof of unfitness is required to deprive the natural mother of custody. Clear and convincing proof is not necessarily undisputed proof. The present case presented Judge Davis plentiful, albeit disputed, evidence of Wambles’ unfitness, summarized above. Appellant’s own exhibit, the July 10 transcript, makes numerous references to appellant’s poor housekeeping, late hours, consumption of intoxicating beverages, and inability to prevent the child from running away. Though placed in dispute by other transcript testimony, these references, unless disbelieved, are convincing proof of unfitness. It must be noted, that appellant, who introduced the transcript, offered no new testimony on December 11 to explain or refute the inferences gleaned from that document.

Additionally, the strict proof required in Griggs v. Barnes, supra, is not called for here. Griggs dealt with the right to custody of a natural mother, the sole identifiable blood parent, vis-a-vis the claims of foster parents not related by blood to the child:

“ . . . [T]he courts of this state do not have the power to sever the bonds of blood relationship merely in order to gain some real or fancied advantage for a minor child,”

262 Ala. at 362, 78 So.2d at 914. In the instant case Coppage has been adjudged to be the natural father of the child. This adjudication has not been appealed, and is res judicata. The custody decision faced in this case is the allocation of custody between two natural parents.

In such situations the unfitness of the mother need not be established to rebut the presumption of the tender years doctrine. Rather, the father can obtain custody upon showing that he is relatively more fit, Statham v. Statham, supra. Such a result is a necessary consequence of the natural father’s rights to due process and equal protection, Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124, cert. den. 295 Ala. -, 326 So.2d 129. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551. As previously mentioned, the evidence does show Wambles' unfitness; it even more convincingly points to Coppage’s comparatively better suitability. His income is larger and steadier; he has financially supported the child in the past; the child is under twenty-four hour adult supervision at the Keene home; there are no reports that the child has run away.

Appellant’s contention further neglects the fact that, the petition’s caption notwithstanding, this is an action for modification of child custody. The orders of July 10 and August 14 placed custody with Coppage; the petition filed November 14 necessarily sought modification, not an original award of custody. Thus, the burden is on appellant to prove circumstances which justify the court in disturbing the child’s custody, Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902; Stifflemire v. Williamson, 250 Ala. 409, 34 So.2d 685; it is not appellee’s burden to disprove such circumstances. This rule of law is a rule of repose, protecting the child from frequent environmental dislocations, Wood v. Wood, 57 Ala.App. -, 333 So.2d 826, 1976; Statham v. Statham, supra.

In the hearing of December 11, Wambles and Blackstone offered oral testimony that the apartment was clean, no men were living there, appellant was employed, and that there was a day care arrangement of sorts. With such minimal proof of materially changed circumstances — amounting to little more than a statement of good intentions — the trial judge was well within his proper scope of discretion in denying this, the second petition in less than six months. There is no palpable error in Judge Davis’ declining to place the child in a situation where its welfare from 6:00 a. m. to 7:30 a. m. daily is entrusted to an unlicensed, possibly unpaid volunteer who must drive across Montgomery, either leaving her own two infants at home alone or taking them with her, to fulfill her obligation. There being no palpable error, there is no ground for reversal, Randolph v. Randolph, 45 Ala.App. 326, 229 So.2d 923.

Wambles, who is white, makes the second contention that she is the victim of racial discrimination by the trial court. She argues that the true reason she has been denied custody is because her paramour, Charlie Washington, was black, she likes to associate with black persons, and she currently resides in a predominantly black apartment complex.

A person does have the right to associate with persons of their choice without regard to race. Racial considerations per se are not relevant judicial considerations. However, the factual basis for this contention as well as our basis for review is not clearcut.

Appellant contends that the trial judge was motivated by an attitude of invidious racial discrimination in issuing the denial of the petition.

Title 13, § 6, Code of Alabama, provides the statutory grounds for disqualification of a judge. The grounds set out in the statute do not exclude common law grounds. The common law required that no judge sit in judgment where, due to extrajudicial causes, he could not be legally indifferent between the parties, Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461, cert. den. 289 Ala. 751, 267 So.2d 467.

It is not likely that a racially prejudiced judge could be indifferent in a case involving a party’s relations with the racial group that is the object of the prejudice. Upon proper proof, timely presented by motion or petition, that such prejudice exists, the judge should recuse himself. Where the judge refuses to do so, review may be obtained by mandamus or by appeal, Shell v. Shell, supra, and the appellate courts will be diligent in taking remedial action. The powers of supervisory control possessed by appellate courts will be exercised to insure due process and fair play at the trial level, without taint of invidious racial discrimination.

It is a well-established rule in Alabama that a challenge to a judge’s qualifications must be presented at trial so that the trial judge can rule thereon, Shell v. Shell, supra. The issue of qualification, not being raised at the trial level, cannot be raised on appeal, Gross v. Gross, 265 Ala. 58, 89 So.2d 737. This legal principle is analogous to the substantially similar rule prevailing in federal practice, Brotherhood of Locomotive Firemen and Enginemen v. Bangor & A. R. Co., 127 U.S.App. D.C. 23, 380 F.2d 570, cert. den. 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560, and serves the same important legitimate purposes of allowing prompt determination of the questions raised, reducing the duplication of trials, and eliminating tactical advantages for obstructive or dilatory parties, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216. The rule is applied to all manner of cases; there is no discrimination in applying it here. In fact, it would be a burdensome discrimination against appellee to disregard the rule. Appellant’s failure to raise the issue of qualification below precludes consideration of that issue on appeal insofar as it relates to the possibility of recusal of the trial judge. Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83; Francis v. Henderson, - U.S. -, 96 S.Ct. 1708, 48 L.Ed.2d 149, 1976.

Nor does appellant point to error in any specific ruling in the trial judge’s conduct of the case. Instead, we are presented with the contention that because in appellant’s view no evidence, other than irrelevant evidence regarding racial matters, supports the decree below, racial prejudice must be the overriding factor in the decision.

After carefully reading the entire record and appellant’s brief (appellee submitted no brief), we are convinced that appellant has failed to establish the existence of racial bias.

Appellant devotes a portion of her brief to arguing that Judge William F. Thetford allowed racial considerations to enter his decision of July 10, 1975 which originally gave Coppage custody of the child. Judge Thetford did not conduct or preside over the modification proceedings initiated November 14, nor did he enter the resulting order now on appeal. In fact Judge Thetford no longer occupied the office of Family Court Judge at the time the modification proceedings took place. Inclusion of matter challenging Judge Thet-ford in appellant’s brief presents nothing for review. Appellant never perfected an appeal from Judge Thetford’s original decree, and cannot now gain review of it through an indirect challenge.

It was Judge John Davis who presided over the trial of the present case; if bias or prejudice is to be proven by appellant, it must be attributed to Judge Davis.

Appellant presents two items allegedly showing that Judge Davis’ decree was influenced by racial bias. One such item is Judge Davis’ own deposition taken in the aforementioned federal suit. The entire portion of the deposition which was submitted to this court is as follows:

“Q (Interrupting) What do you mean by ‘the manner in which the facts were presented to you’?
“A Well, if someone in whom I had a great deal of trust and faith called me or came to my office and told me that a sordid condition existed, then I would certainly have to give that more weight than Joe Blow coming in and telling me that.
“Q Who do you mean by someone in whom you have a great deal of trust?
“A I think of no particular person.
“Q Back to the hypothetical again, a white woman with a child living with a black man, would it influence your decision as to whether to issue a summary pickup order if the couple and the child were living in a predominantly black neighborhood ?
“A I think that would be a factor that would be considered.
“Q Why would that be a factor that would be considered?
“A Because notwithstanding our opinions as to whether say fifty-fifty per cent integrated neighorhoods should or should not exist, for the time being there appears to be some evidence that says or indicates that one member of a race or a very small number of members of a race, living in a great, or amongst a great number of members of another race, does present problems.
“Q What evidence are you talking about that you just referred to?
“A Well, I can’t cite you readings or authorities in sociology, but—
“Q (Interrupting) But it would be a factor for your consideration that if a child—
“A (Interrupting) I would not dismiss this from my mind.
“Q Would you issue a summary pickup order based on the fact that a white woman with a white child was living with a black man in a black neighborhood?
“A Possibly not.
“Q But, again, the possibly yes answer also applies?
“A (Witness nods affirmatively.)
“Q But the race and the neighborhood is a consideration in your consideration?
“A Everything, every bit of information I can put my hands on is a consideration. I do not want to exclude anything from my consideration. I feel that

This deposition is not part of the record in the case on appeal. Nonetheless, in keeping with the broad spirit of NAACP v. Ala., 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325, we have analyzed it in order to insure that appellant received a fair • hearing below.

In the deposition, Judge Davis clearly makes statements reflecting a racially neutral and not a discriminatory attitude. In response to questioning the judge does disclose that he is aware of some evidence that individuals or small groups of one race isolated within an area among a much greater number of another race face special problems. The judge also stated that every bit of information he can lay his hands on goes into his decision to issue a summary pickup order.

Even in the context of this latter statement, Judge Davis indicated that the racial factor would not control his decision to issue a summary pick-up order for a sole white child in an otherwise all black neighborhood. The judge possibly would not or possibly would issue the order.

The deposition thus shows Judge Davis to possess an unbiased attitude toward litigants without regard to their race.

Moreover, the deposition must be considered in light of the difference between the summary proceeding referred to in the deposition, and the adversarial custody proceeding now on appeal. In the former, the judge is faced with the urgent immediate question of whether or not a situation is so imminently dangerous to the child as to require its temporary but immediate removal from its environment, pending further proceedings.

By contrast, the type of hearing from which this appeal is taken is a regular, adversarial court proceeding, without the critical time factor. Nowhere in the deposition is Judge Davis asked how he would respond to similar matters if their introduction as evidence was objected to in court. The deposition thus casts little light on the appellant’s major contentions in this appeal.

The second item presented to show alleged prejudice on Judge Davis’ part is the transcript of testimony from the July 10 hearing conducted by Judge Thetford. This transcript was introduced at the modification proceeding by Wambles’ lawyers as a documentary exhibit.

It is appellant’s contention that the transcript contains “rampant racial overtones,” and that, because Judge Davis, after reading the transcript, did not modify Judge Thetford’s order, Judge Davis is undoubtedly prejudiced.

Having evaluated the transcript carefully for its evidentiary value, we disagree with appellant and affirm the instant decree.

In addition to a great amount of legitimate testimony of unfitness, the transcript does contain quite a few references by counsel for both parties and by witnesses to racial matters. The bulk of these statements occurred on cross-examination and were obviously responsive to questions aimed at revealing the racial attitudes of the witnesses to shake their credibility. The questions were posed in approximately equal numbers by counsel for appellant and counsel for appellee. The responses of the witnesses were correspondingly mixed: about half thought Wambles’ relationships detracted from her fitness, about half did not. Witness Fred Mosely put forth some testimony that is quite damaging to Wam-bles, and his testimony contained no reference whatsoever to race. Several other witnesses for Coppage testified in response to questioning by Wambles’ lawyer, to the fact that some of the men observed entering the Wambles’ apartment were black, but went on to add that it was the presence of strange men in general, not the color of their skin to which they objected.

After carefully evaluating the transcript we hold that its contents do not indicate that Judge Davis was controlled by any rampant racism found therein. First, the transcript presents a great many racially neutral facts on which to base the conclusion that the detrimental nonracial factors in Wambles’ home life have not improved sufficiently to justify modifying the original decree. Second, there is nothing presented by appellant to show that the racial testimony in the transcript appealed to an alleged prejudice possessed by the judge. To the contrary, it is equally, if not more likely, that Judge Davis found that any racially biased remarks made by a witness in the transcript rendered that witness’ testimony somewhat less credible. Such a conclusion would indicate that appellant’s lawyers achieved the purpose sought when they elicited the testimony with their questions. Third, the transcript does not present such overwhelming evidence that the original decree was so governed by racial prejudice as to cry out for Judge Davis to modify it. Judge Davis was not sitting in review of the original decree; it was not his office to pass judgment on evidentiary rulings made by Judge Thetford. Fourth, the transcript was submitted in unabridged entirety by appellant. Appellant cannot complain of the trial court considering any matter therein. Fifth, it is the rule observed in Alabama and in federal practice that to be reversible, prejudice must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case, United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778; Ex parte White, 53 Ala.App. 377, 300 So. 2d 420, cert. den. 293 Ala. 778, 300 So.2d 439. There are no such extrajudicial sources pointed to here, other than the deposition which we have found unpersuasive.

Appellant’s showings do not suggest a significant possibility that racial bias infected Judge Davis’ conduct of the case or his decree rendered therein. Rather, it appears the decree is soundly based on racially neutral considerations.

There being no reversible error argued, the decree of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    TRI-STATE BUILDING CORPORATION et al. v. MOORE-HANDLEY, INC., a corporation.
    Civ. 642.
    Court of Civil Appeals of Alabama.
    June 16, 1976.
    James F. Berry, Cullman, for appellants.
    Milam & Hardwick, Decatur, for appel-lee.
   WRIGHT, Presiding Judge.

Defendant appeals from judgment on open account in the principal sum of $7,055.50 with interest from February 17, 1972, in the sum of $1,375.82 for a total of $8,431.32. We affirm.

Suit began against Tri-State Building-Corporation, a Corporation and William Byron Folsom. The complaint claimed money for furnishing materials on account to Tri-State. It was averred that TriState was principally owned by Folsom and was so wholly controlled as to be a mere instrumentality through which Folsom conducted his individual business. It was requested that the corporate identity of TriState be disregarded and that Folsom be found to owe the account individually.

The case came on to be heard orally by the court without a jury. The evidence disclosed that Folsom organized Tri-State in 1962 with capital of $5,000.00. He owned 40% of the stock, his wife 20%, and two other 20% each. Folsom was the president and executive officer. No minutes of corporate activities, stockholders’ or directors’ meetings were produced. Folsom handled the business and made corporate decisions without meeting or direction from the other stockholders who neither resided nor had business in Cullman. TriState constructed houses over a wide area of the state until some time in 1970 when it became relatively inactive because of the state of the mortgage market. Folsom never drew a salary nor were there dividends paid to the stockholders. The corporation was in existence in 1972 and at the time of trial in 1974-75, but it had no assets.

During its active years, materials were furnished by plaintiff to Folsom individually and to Cullman Building Supply Co. Cullman Building Supply Co. was the alter ego of Folsom and not a corporation. In December 1971 Folsom requested of plaintiff that the account with Cullman Building Supply Co. be closed and the account be carried under the name of Tri-State Building Corporation. At that time, plaintiff’s manager discussed with Folsom furnishing materials to Tri-State for residential construction in the Northwest or Culpepper subdivision in Cullman, Alabama. Folsom informed him that Tri-State owned the lots where the materials were to be used. The materials were furnished and were used in construction but were not paid for.

The evidence showed that the lots to which plaintiff delivered materials and supplies were at the time not owned by Tri-State but by Folsom and his wife. As best we can determine from the testimony, the scheme for securing funds to build at least one of the houses was as follows: Folsom and wife gave a mortgage on the lot to John Nesmith, who was allegedly to build the house as an employee for TriState; Nesmith took the note and mortgage from Folsom to the Bank and used it as collateral to secure construction funds; the house was built and sold by Folsom to a purchaser; the purchaser executed a purchase money mortgage to First Federal Savings and Loan; Folsom attended the closing of that loan as seller; he executed an affidavit that he was the owner and builder of the newly constructed residence; that he had contracted for all labor and material used in the construction and that all had been paid for in full; there was no mention that Tri-State Builders had been involved; the funds from the purchaser’s mortgage were paid to Folsom; the lender was not informed that any contractor had been involved in any way.

Folsom, though chief executive officer of Tri-State professed to have no knowledge of the amount alleged to have been paid to Tri-State, nor of its distribution by Tri-State.

His testimony, though totally lacking in specificity, was that he regularly used his personal credit for the benefit of TriState; that he loaned it money and aided it in various ways without approval or authority of the directors or stockholders. There is no evidence that anyone benefited from the activities of Tri-State other than Folsom.

We conclude that the evidence supports the finding of the trial court that Tri-State Building Corporation was merely an instrument conceived by Folsom and used by him for his personal benefit. It may further be concluded from the evidence that the materials and supplies furnished by plaintiff were used by Folsom for the construction of a residence on his property and that he personally was enriched thereby.

It is the law that the legal fiction of separate corporate entity will not be recognized in equity where there is such unity of interest and ownership that the separate personalities of the corporation and the individual in control no longer exist. The fiction of corporate entity was not created to promote injustice and protect its owner from payment of just obligations. Forest Hill Corporation v. Latter & Blum, 249 Ala. 23, 29 So.2d 298; C. E. Development Company v. Kitchens, 288 Ala. 660, 264 So.2d 510.

The question of whether the owners of a corporation have so abused the corporate privilege and manipulated it to make it a personal instrumentality is one of fact. The judgment of the trial court, entered after oral hearing, has the weight of a jury verdict. Forest Hill Corporation v. Latter & Blum, Supra. The evidence, with its reasonable inferences, supports the judgment. It is neither wrong nor unjust. We affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HARRIS, Judge.

text:
    Chester McKINNEY v. STATE.
    6 Div. 671.
    Court of Criminal Appeals of Alabama.
    Oct. 29, 1974.
    Rehearing Denied Nov. 26, 1974.
    Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Atlanta, Ga., for appellant.
    William J. Baxley, Atty. Gen., and George M. Van Tassel, Jr., Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted in the Circuit Court of Jefferson County on October 24, 1973, (Judge Jasper, Presiding) for selling a magazine, “Nude Figure”, that had been judicially declared to be obscene in an equity proceeding before Judge Joseph M. Hocklander in the Mobile Circuit Court on February 26, 1970.

The question of obscenity was not submitted to the jury under express instructions by Judge Jasper. The sole question submitted to the jury was the guilt vel non of appellant in selling the magazine.

The jury returned a verdict of guilty as charged in the District Attorney’s complaint and assessed a fine of $500.00. The trial judge added six months hard labor for Jefferson County as additional punishment.

The precise issues raised on this appeal were decided adversely to appellant by the Supreme Court of Alabama on May 9, 1974, in Ex parte McKinney, 292 Ala. 484, 296 So.2d 228.

This case should be affirmed on authority of the above case.

Affirmed.

CATES, P. J., and ALMON and TYSON, JJ., concur.

DeCARLO, J., recuses himself.


author: BLOODWORTH, Justice.

text:
    In re Chester McKINNEY v. STATE of Alabama. Ex parte Chester McKinney.
    SC 1089.
    Supreme Court of Alabama.
    May 7, 1976.
    Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Atlanta, Ga., for petitioner.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, respondent.
   BLOODWORTH, Justice.

Petitioner was convicted on October 24, 1973, in the Circuit Court of Jefferson County for selling a magazine, “Nude Figure.” Previously, the" magazine had been judicially declared to be “obscene” by the Mobile Circuit Court, in equity. The conviction was affirmed by the Court of Criminal Appeals on October 29, 1974, rehearing denied November 26, 1974, 57 Ala.App. -, 333 So.2d 842. The Court of Criminal Appeals in its opinion (per Harris, J.) wrote that the “precise issues raised on this appeal were decided adversely to appellant by the Supreme Court of Alabama on May 9, 1974, in Ex parte McKinney, 292 Ala. 484, 296 So.2d 228.” As it was constrained by law to do, the Court of Criminal Appeals properly followed the 5-4 opinion of this Court (per Faulkner, J.) in Ex parte McKinney, 292 Ala. 484, 296 So.2d 228 (1974). (SC 486).

On December 9, 1974, petitioner filed a petition for writ of certiorari in the instant case. On January 9, 1975, we denied the petition in a memorandum per curiam opinion, five justices concurring, four justices dissenting. On January 23, 1975, petitioner filed an application for rehearing.

In the meanwhile, this same petitioner filed a petition for writ of certiorari with the United States Supreme Court in the prior McKinney case [our SC 486], supra. We delayed our determination in the instant case, leaving the cause pending on rehearing, awaiting the United States Supreme Court’s ruling in McKinney [our SC 486], U. S. Supreme Court No. 74 — 532. On June 23, 1975, the petition for certiora-ri was granted by the United States Supreme Court.

Therefore, on September 5, 1975, we withdrew our opinion in the instant case, granted rehearing and issued the writ of certiorari. We advised counsel for both sides that it would be unnecessary to submit the instant case until after the United States Supreme Court had rendered its decision in the other McKinney case.

On March 23, 1976, the United States Supreme Court rendered a unanimous opinion authored by Mr. Justice Rehnquist in McKinney v. State of Alabama, - U. S. -, 96 S.Ct. 1189, 47 L.Ed. 387, 44 L.W. 4330, reversing and remanding our case SC 486. The court held that our Alabama procedures, insofar as they precluded petitioner from litigating the obscenity vel non of “New Directions” as a defense to his criminal prosecution, violated the First and Fourteenth Amendments, citing Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). The court went on to state that the constitutional infirmity of those procedures cannot be avoided on the ground (urged by the State) that the equity action constituted an “adversary judicial proceeding,’’ since the respondents in that action were not in privity with the petitioner and with interests sufficiently identical to petitioner’s so as to provide adequate protection for his First Amendment rights, which he had the right to assert in his own behalf in the proceeding to which he was a party.

Since the issues in the instant case are precisely the same as those decided in McKinney v. State of Alabama, supra, we reverse and remand the instant cause to the Court of Criminal Appeals for entry of a judgment in conformity with this opinion and the opinion and judgment of the United States Supreme Court.

REVERSED AND REMANDED WITH DIRECTIONS.

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

On remand, Ala.Cr.App., 57 Ala.App. -, 333 So.2d 844.


text:
    Chester McKINNEY v. STATE.
    6 Div. 671.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
   After remandment from the Supreme Court of Alabama, REVERSED AND REMANDED on authority of Ex Parte McKinney, 295 Ala. —, 333 So.2d 843, and McKinney v. Alabama, 1976, - U.S. —, 96 S.Ct. 1189, 47 L.Ed.2d 387.


text:
    Chester McKINNEY v. STATE.
    6 Div. 531.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Oct. 29, 1974.
    Certiorari Granted Sept. 5, 1975.
   Judgment of affirmance (52 Ala.App. 615, 296 So.2d 235) set aside and cause restored to docket; AFFIRMED without opinion.

Judgment reversed, 295 Ala. -, 333 So.2d 845, on remand, Ala.Cr.App., 57 Ala.App. -, 333 So.2d 845.


text:
    In re Chester McKINNEY v. STATE of Alabama. Ex parte Chester McKinney.
    SC 1045.
    Supreme Court of Alabama.
    May 7, 1976.
    Ferris S. Ritchey, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   JONES, Justice.

This case is reversed and remanded on authority of Ex Parte McKinney, 295 Ala. -, 333 So.2d 843 (1976).

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Chester McKINNEY v. STATE.
    6 Div. 531.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Baltimore, Md., D. Freeman Hutton, Atlanta, Ga., for appellant.
    William J. Baxley, Atty. Gen., and George M. Van Tassel, Jr., Asst. Atty. Gen., for the State.
   PER CURIAM.

By direction of the Supreme of Court of Alabama, 295 Ala. -, 333 So.2d 845, under date of May 7, 1976, the judgment below is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Calvin HAWKINS, alias v. STATE.
    3 Div. 452.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 1, 1976.
    Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Joel L. Dillard, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of carnal knowledge of a girl over twelve and under sixteen years of age. At arraignment, with counsel present, he pleaded not guilty and not guilty by reason of insanity. The jury found him guilty as charged in the indictment and fixed his punishment at imprisonment in the penitentiary for ten years. After sentence was imposed, he gave notice of appeal. He sought and obtained a free transcript of the evidence and he is represented by trial counsel on this appeal.

After appellant was arrested and given the Miranda rights and warnings, he signed a waiver of rights form. After executing the waiver of rights form he made and signed a confession which on voir dire out of the presence and hearing of the jury was found to be knowingly, voluntarily, and intelligently made. Appellant did not testify but his confession was repudiated by the testimony of a woman with whom he was living and who claimed he was just a cousin.

Appellant was twenty years of age at the time of his trial and the Court advised him that he could make application to be treated as a Youthful Offender. He made application for Youthful Offender benefits and it was referred to a probation officer for investigation. The probation officer’s report showed that he had previously been convicted of a felony and his application for Youthful Offender treatment was denied because of his felony conviction.

The State’s evidence is undisputed that the victim was thirteen years of age at the time of the offense which occurred on July 8, 1975, at the home of one Joann Smith who lived about three doors from the victim’s house. Catherene Larry, the mother of the victim, testified that her daughter went to visit Joann Smith on the afternoon of July 8, 1975. That Joann Smith sent her to the store to buy some cookies after which she returned home. Later in the afternoon the victim, Cora Mae Larry, went back to Joann Smith’s home and she returned home bleeding from her “private parts.” She told her mother what had happened to her and the mother called the Police Department and the victim was carried to the hospital. Before carrying her daughter to the hospital, she talked to appellant and asked him if he ravished her daughter and appellant said, “How do you know. Who told you ?” Appellant came to her house later that afternoon asking for the victim and his aunt offered to pay the doctor’s bill.

The victim, Cora Mae Larry, testified that she was thirteen years of age and was born on April 15, 1962. She knew Joann Smith as “Ann” who lived down the street from her. She also knew the appellant, Calvin Hawkins, and had known him about a year. Appellant was at Joann Smith’s house on July 8, 1975, after Cora Mae Larry came back from the store where she went to buy Joann some cookies. She sat on the sofa with Joann and talked to her a few minutes and then went to her home. Later that afternoon she returned to Joann’s house and Calvin Hawkins was there. Appellant sat down on the sofa beside Cora Mae and started kissing her and she told him she didn’t like kissing as she was too young. Appellant kept kissing the victim and told her to, “let’s go to the back room,” and she refused to go. She further testified that appellant dragged her into the back room by her arm and leg. When he got her in the back room, he pulled out a knife with a yellow handle and put the blade against her throat and told her if she didn’t do what he said he would kill her. He told her to pull her underclothes down but she refused to do so. He then pulled them down himself, keeping the knife at her throat, and removed his own clothing. She stated that appellant put his “body in her body” and she began crying because it hurt her inside. When he finished, she went home and told her mother what had happened. Her private parts were bleeding and she was taken to the hospital.

On cross-examination she testified that she had never kissed appellant before though she had seen him at Joann’s house before. She further testified that Joann saw her as she was dragged to the back room and that her six-year-old brother looked in the window as the rape progressed and she begged him to get help. She further stated that appellant told her the reason it was hurting her was because it was her first time and said it was good that it was hurting her.

Mary Wisdom, a Toxicologist for the State of Alabama, testified as to her education, experience, and qualifications to perform the duties assigned to her. Her qualifications were admitted by the defense. She recalled seeing Cora Mae Larry on the night of July 8, 197S, in the Emergency Room at Baptist Hospital. She was present when the victim was examined by a doctor and observed the examination of her vaginal area. Mrs. .Wisdom observed a great quantity of blood around the vaginal opening, inside the vagina, and around the outside of the vaginal opening. She also observed several tears or abrasions in the tissue around the vaginal area as they were pointed out to her by the doctor. This witness had observed examinations in sex-related cases many times before. The doctor who performed the examination took two slide specimens from the victim in Mrs. Wisdom’s presence and Mrs. Wisdom immediately took the slides to the laboratory at the hospital and examined them under the microscope and found numerous red blood cells intact. She also found spermatozoal, or sperm cells, and a moderate number of vaginal cells. Mrs. Wisdom was present when the doctor took and delivered to her a saline wash of the vagina which she carried to the laboratory and examined under a microscope. She found numerous red blood cells and there were intact or whole spermatozoal, many of which were motile. They were still alive.

Mrs. Wisdom further testified that she observed a pair of slacks and a pair of panties which were given to her by Detective Faye Henderson. The slacks had a large stained area in the crotch which contained large quantities of human blood and seminal fluid. There was a similar stain on the panties. Upon examination of the panties she found blood and human seminal fluid and some whole sperm in this stain. The clothing was sealed up with Mrs. Wisdom’s initials under the seal and kept in an evidence locker until they were delivered to Mr. William Landrum at the State Toxicology Laboratory at Auburn.

Detective Faye Henderson testified that she was employed by the Montgomery Police Department in the Youth Aid Division and had been so employed for five years. She talked with Cora Mae Larry and her mother at their home on Sierra Street on July 8, 1975, and observed Cora Mae to be emotionally upset. She stated that the victim was having difficulty in walking and she accompanied her and her mother to the Baptist Hospital Emergency Room. She was given a stained pair of panties and shorts at the Sierra residence which she turned over to Mrs. Mary Wisdom at the hospital.

William H. Landrum testified that he was employed by the State Department of Toxicology and Criminal Investigation, and had been so employed for almost four years. He was qualified as a Forensic Serologist, trained in the examination of human tissue and secretion from the human body to determine the sources from which they come. He identified the clothing delivered to him by Mrs. Wisdom and identified the blood stains inside the crotch of those items and they were introduced in evidence. Mr. Landrum also testified that he received a fitted bed sheet and an orange bedspread.

Mrs. Wisdom was recalled by the State and stated that she received from Detective J. E. Lloyd a large brown paper bag which she did not open, but which she delivered to Mr. Landrum.

Mr. Landrum was recalled and stated that he found human blood on the sheet and the bedspread.

John E. Lloyd testified that he was employed by the Youth Aid Division of the Montgomery Police Department. He was working with Detective Faye Henderson. He visited a house on Early Street where the offense was believed to have been committed. The defendant was not at this address when he arrived. He told Joann Smith that he was a police officer and his purpose for coming there. He told Mrs. Smith that certain items might be needed for evidence and she consented for the officer to enter her house. She told the officer that Cora Mae Larry had been in her home that afternoon and showed him the bedroom in the back part of the house where appellant and Cora Mae had been. Mrs. Smith gave Officer Lloyd permission to take the bedclothes with him. The officer put the sheet and bedspread in a bag and put them in an evidence locker and two days later he delivered them to the office of the Toxicologist.

Officer Lloyd further testified that later that night he arrested appellant pursuant to an arrest warrant and carried him to the station house. Before asking appellant any questions he gave him the Miranda rights and warnings and he signed a waiver of rights form. After the waiver of rights form was executed, he gave the officer a statement which was later reduced to writing and signed by appellant, and witnessed by Lloyd and Detective Henderson.

After the proper predicate was laid, the officer was asked to read the statement to the jury.

From the record:

“THE WITNESS: This is a statement from Calvin Hawkins, colored, male, age twenty, 1023 Early Street, concerning his part in the alleged crime of Cora Mae Larry, colored, female, age thirteen, 1415 Sierra Street. Calvin has been read his Rights and knows and understands what he is doing and gives this statement willingly.
“The statement is: ‘Cora Mae came to the house and I asked her to come and sit with me on the sofa. After she sat on the sofa with me we started talking and after a few kisses I asked her to come into the bedroom with me. After we got in there we continued kissing and then asked her to remove her pants. After we got started for about ten minutes her brother came in to the door and called Cora Mae. Since this was her first time she was making a lot of noises. Then her brother ran to their house and later on her parents came down there. They told me that Cora Mae was bleeding and I told them that I was the one.
“QUESTION. Was this the first time that you have ever had sex relations with Cora Mae?
“ANSWER. Yes.
“Did you force her to have sex relations with you?
“No.
“QUESTION. Did you, in fact, have sex relations with Cora Mae Larry?
“ANSWER. I put it in just a little bit.
“QUESTION. Is there anything else that you would like to add to this statement?
“ANSWER. No.
“I have read the foregoing statement and find it to be true and correct. Signed by Calvin Hawkins.”

The above statement was admitted into evidence without objections.

Catherene Larry was recalled and testified that Cora Mae was born on April 15, 1962, in Kelly Alley and was delivered by a midwife. She told the midwife what name she wanted her baby to have and the midwife went to the Bureau of Vital Statistics with the information. At this point the trial court had the victim brought into the courtroom and had Mrs. Larry identify her daughter, the one she gave birth to in Kelly Alley in 1962, and she identified her as “Cora Mae.” The Court asked her full name and the mother said, “Louise Cora Mae Larry.”

Joann Smith was called as the sole defense witness. She testified that she lived at 1023 Early Street and that she knew the defendant and the victim. She stated the defendant was a cousin and just happened to live with her. She stated that appellant was there every day and Cora Mae was there practically every day. That she observed them “smooching', kissing and hugging, feeling on each other quite a lot.” She said that appellant got tired of kissing Cora Mae and got up and went to his room. She did not see appellant drag Cora Mae by the arm and leg to his room and she did not hear any noises coming from the room at any later time. That she got up and started fixing supper and her baby was crying and the dogs were barking, the kids were whooping and hollering, water was running in the sink and she was trying to cook, and if there were any noises in appellant’s bedroom, she didn’t hear them. She denied that she sent Cora Mae to the store to buy cookies or anything else. On direct examination she did admit giving the police officers permission to come into her home and did admit she consented to the officers taking the sheet and bedspread.

With reference to the warrantless search of her home she testified that she gave the officers permission to enter her home and gave them permission to take the spread and sheet off the bed. Her consent is fully supported by the record as follows:

“Q. What did they do when they went to your house ?
“A. Well, he asked me about what happened. He told me a man down the street had signed a warrant to arrest him and he was my husband — you know, he asked me how long me and my husband had been together, and I told him I had never been married in my life.
“Q. Did you ever go in the back room?
“A. Yes, we went in the room.
“Q. Did you invite them back there?
“A. No, but he asked me where was the back room so I showed him.
“Q. Did he take any articles from there ?
“A. He took a spread and a sheet off the bed.
“Q. Did you give him permission to take those ?
“A. Yes.
“Q. You told him it was all right for him to have them?
“A. I told him it was all right.
“Q. What did he say to you before he took them?
“A. Well, that he just needed evidence to see if he raped her or anything; they find some blood stains on the sheet and spread.
“Q. And you gave them to him ?
“A. Yes.”

It took the jury only 18 minutes to find appellant guilty as charged in the indictment and fix his punishment at ten years imprisonment in the penitentiary.

Appellant urges this Court to reverse this case because the officers did not have a search warrant when they went to Mrs. Smith’s house and got the sheet and the bedspread. To comply with this request we would have to completely ignore the facts in this case and the controlling law.

Mrs. Smith testified that she not only occupied the residence searched, but also that it was her house and the appellant merely happened to be living with her. She gave consent to search her house and consented for the officers to take the sheet and bedspread. Myers v. State, 55 Ala.App. 404, 316 So.2d 235; United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242; Daniels v. State, 290 Ala. 316, 276 So.2d 441.

Courts throughout the country have consistently held that searches without warrants are constitutionally permissible when executed with the owner’s consent. Securing a search warrant is wholly unnecessary when consent to search has been freely given. Payton v. State, 47 Ala.App. 347, 254 So.2d 351; Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct 2041, 36 L.Ed.2d 854.

Appellant claims there was a fatal variance in the name of the victim as laid in the indictment and the proof offered at trial. Appellant introduced the birth certificate showing the girl’s name to be “Louise Pamela Larry” and the proof showed her name to be “Louise Cora Mae Larry.”

An indictment is sufficient, and there is no variance, if it describes the person injured by a name by which she was known and called, and by which the defendant knew her. Langston v. State, 8 Ala.App. 129, 63 So. 38.

The evidence is undisputed that the victim was known in the community by the name of “Cora Mae Larry.” It is also undisputed that appellant knew her by that name. The evidence left no doubt as to the identity of the victim.

Appellant filed a motion for a new trial which motion was overruled and denied.

We have repeatedly held that a decision on a motion for a new trial rests largely within the sound discretion of the trial court and, in reviewing that decision, this Court will indulge every presumption in favor of the correctness thereof. Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624; Espey v. State, 270 Ala. 669, 120 So.2d 904.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


author: ALMON, Justice.

text:
    In re Calvin HAWKINS v. STATE. Ex parte Calvin Hawkins.
    SC 1883.
    Supreme Court of Alabama.
    June 25, 1976.
    Elno A. Smith, Jr., Montgomery, for petitioner.
    No appearance for the State.
   ALMON, Justice.

Petition of Calvin Hawkins for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hawkins v. State, 57 Ala.App. -, 333 So.2d 846.

WRIT DENIED.

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


text:
    Joseph Ralph STEVENS v. STATE.
    1 Div. 510.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 9, 1975.
    Alphonse Maples, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found defendant guilty of the crime against nature (Code of Alabama 1940, Title 14, Section 106) as charged in an indictment in Code form (Form 104, Code of Alabama 1940, Title 15, Section 259) alleging that defendant “against the order of nature, carnally knew James Edward Hampton.” The court fixed his punishment at imprisonment for ten years in the penitentiary and duly sentenced him accordingly.

A summary at least of the evidence would be made if necessary and in the interest of justice, but it is neither. We condense our discussion of the facts to a statement sufficient to explain our resolution of the questions presented and worthy of discussion on this appeal.

The chief contention of appellant is that he was convicted on the uncorroborated testimony of an accomplice and for that reason the court erred in overruling defendant’s motion to exclude the evidence at the conclusion of the State’s case. If appellant is correct in the contention, the court should have granted defendant’s motion and should have directed a verdict in favor of the defendant or given the defendant the affirmative charge in his favor, as he requested in writing in several forms. Code of Alabama 1940, Title 15, Section 307; Alexander v. State, 281 Ala. 457, 204 So.2d 488, af’g. 44 Ala.App. 143, 204 So.2d 486 (1967); Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966); Smith v. State, 45 Ala.App. 63, 223 So.2d 605 (1969).

The scene of the alleged crime was Cell Block 7-B of the Mobile County Jail. Hampton, an inmate of the particular cell of the jail during the first part of January 1974, testified that defendant and others in the cell conducted a “little trial” for him for not taking a shower for three days. According to him, the defendant was the judge, one of the inmates acted as the district attorney and another inmate was designated as his attorney, and the remaining inmates, at least three, constituted the jury. They found him guilty and sentenced him to do what he was told by the others, including specifically conduct expressed in post-Victorian jargon not readily found in judicial or other legal publications, but defined in some authoritative ultramodern lexicons as a specific form of the crime against nature. He further testified that for three or four hours thereafter he was intermittently used unnaturally by some of the others; he was bruised in and about his face and eyes, his glasses were broken; and, while he was in the bathroom taking a shower, defendant, as well as two others, committed a sex act of anal penetration of him.

Another inmate at the time testified for the State and corroborated the testimony of Hampton in the foregoing essential details, but appellant contends that such witness was also an accomplice. If so, his testimony is insufficient to afford the legal corroboration required by Section 307, supra. Evans v. State, 42 Ala.App. 587, 172 So.2d 796; White v. State, 47 Ala.App. 282, 253 So.2d 351.

The only other witness for the State was a jail guard, who testified that on January 8, 1975, he removed Hampton from the cell, but at that time Hampton said nothing to him about being sexually assaulted. He further testified that he was told that there was an inmate in the cell that had been beaten, burned and sexually molested. Hampton had testified that he had been burned.

Defendant did not testify. The chief jailer testified for the defense to the effect that one of the persons who Hampton testified took part in the mistreatment of him had been removed from the Mobile County Jail to Atmore or Holman Prison at the time.

The other witnesses for the defense included an inmate of the cell at the time of the alleged offense. He said that Hampton’s sentence at the trial was to wash his clothes, take a shower, send his clothes in once a week to the laundry and wash clothes for the other inmates, that upon his failure to clean himself he was taken back to the court and sentenced to go through a gauntlet line. He further said he had never witnessed any sex acts committed upon Hampton by anyone in the cell.

There were two other witnesses for the defense, both of whom testified that in late January 1974 they were in the “drunk tank” of the Mobile County Jail and that while there they had heard Hampton say that he had told officials that he had been sexually molested in order to beat the case that they had pending against him, and both testified in effect that at such time Hampton denied that he had been sexually abused by defendant.

Inmates of the jail who testified, including Hampton, and certainly he was no virgin, had substantial criminal records calculated to impair seriously their credibility as witnesses.

It is so difficult to believe that human beings would act as Hampton testified that inmates of the jail did, that we have some concern whether the jury reached a correct verdict, but, if Hampton was not an accomplice, the verdict was well within the province of the jury and should not be disturbed. Even the appellant does not contend otherwise.

There may be some basis for an inference that Hampton was an accomplice within the legal meaning of the term in its present context, but we are not convinced that he was.

A pathic acting under duress in permitting an unnatural sexual crime is not an accomplice. La Bryer v. State, 45 Ala.App. 33, 222 So.2d 361 (1969), cert. denied, 284 Ala. 732, 222 So.2d 366.

There is little language in the testimony that includes words synonymous with force or duress, but the circumstances as a whole indicate that the conduct of Hampton was imposed upon him, that he was not a willing participant in the execution of the sentence that had been meted out and that he thought it necessary to comply with the demands of the others or suffer severe bodily injury, some of which he did sustain, if his testimony is to be believed.

The contention of the appellant that Hampton falsely charged the appellant and others with a crime against nature in order to receive favorable treatment from officials on the charge against him of embezzlement has a natural rebound that indicates that he would not have voluntarily confessed to a crime of such a serious nature, which it would have been if his accusation and testimony could be construed as an admission of voluntary participation by him.

The jury could have concluded that whatever conduct is chargeable to Hampton was involuntary, that he was acting under duress and threat of force, the results of which would not have been as degrading but which could readily have been of such serious consequence in the mind of Hampton that he, morally weak as he doubtless was, did not have courage to resist. Under such circumstances, Hampton was not an accomplice, and the court was correct in submitting the question of the guilt or innocence of the defendant to the jury. Ferrell v. State, 41 Ala.App. 659, 148 So. 2d 656; Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966).

Appellant also complains of the court’s refusal to give defendant’s requested charge No. 3 as follows:

“The Court charges you ladies and gentlement of the jury, that assault and battery is an included offense in the charge against this defendant.”

Appellant cites People v. Hickey, 109 Cal. 275, 41 P. 1027 (1895) in which it was held that the offense of simple assault may or may not be an element in the felony designated as “sodomy”; that it is not an element where the act is done or attempted with the consent of the other party but that it is an element when the other party has not consented. We do not disagree therewith, but the charge was correctly refused for two reasons: (1) it was abstract and standing alone would not have been helpful to the jury but on the other hand would have been confusing and (2) there is no basis in the evidence for a finding that as to the particular act charged in the indictment and specified in the testimony of the State there was a failure to consummate the crime. In that circumstance the charge as to any lesser included offense is not proper. Kelly v. State, 235 Ala. 5, 176 So. 807 (1937), Stovall v. State, 34 Ala.App. 610, 42 So.2d 636 (1949).

.Mindful of our duty to search the record to determine whether there was any error prejudicial to defendant, we have done so and have found none.

The judgment is due to be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Affirmed.

All the Judges concur.


author: BEATTY, Justice.

text:
    In re Joseph Ralph STEVENS v. STATE. Ex parte Joseph Ralph Stevens.
    SC 1612.
    Supreme Court of Alabama.
    July 2, 1976.
    Thomas M. Haas and Neil L. Hanley, Mobile, for petitioner.
    None for the State.
   BEATTY, Justice.

Petition of Joseph Ralph Stevens for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Stevens v. State, 57 Ala.App. —, 333 So.2d 852.

WRIT DENIED.

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


text:
    Jerry COOK v. STATE
    8 Div. 760.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied April 20, 1976.

      Michael E. Sparkman, Hartselle, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Cook was convicted of buying, receiving, concealing or aiding in concealing stolen property and was sentenced to eighteen months in the penitentiary. Prior to arraignment he was found to be indigent and counsel was appointed to represent him. He pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was furnished a free transcript, and trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment Jerry Cook, whose name is to the Grand Jury otherwise unknown, did buy, receive, conceal or aid in concealing one (1) 1973 250 Kawasaki motorcycle bearing 1974 Alabama License Number M-46786, of the value of $250.00, the personal property of Dwight Lowery, knowing that it was stolen, or having reasonable grounds to believe the same was stolen, and not having the intent to restore it to the owner, against the peace and dignity of the State of Alabama.”

The evidence was extremely conflicting. The tendencies of the State’s evidence pointed directly to the guilt of appellant. In addition to a denial of guilt, appellant offered alibi testimony.

Billy F. Speegle, who was employed as an undercover agent for the Hartselle Police Department in investigating the drug traffic and making narcotic buys, testified that appellant was his first cousin and he had known him all of his life. On May 27, 1974, Speegle said appellant came to his home in Hartselle and told him he had a motorcycle he wanted to sell and Speegle asked him what kind it was and appellant said it was a Kawasaki. Speegle told him he would like to look at it and appellant said he would have to wait until it got dark before he could show it to him as he had the motorcycle hidden from view. That night appellant showed Speegle the motorcycle. It was located out on Highway 36, west of Hartselle, on Hul-brooks Road about 150 to 200 feet off the road in the woods covered with tree limbs that had green leaves on the branches.

Appellant agreed to sell the motorcycle to Speegle for $150.00 and told him it was hot. He further told him to get rid of it quick unless he had a place to store it and Speegle told him he thought he had a place to store it. Speegle further testified that he recalled a motorcycle being stolen at that time and he made a deal to buy this one from appellant and they agreed to meet later that night at the West Hartselle Baptist Church when he got a truck to haul the motorcycle and the money to purchase it. When they parted, they agreed to meet at the church at nine o’clock that same night and Speegle went to Mr. W. L. Ky-ker, Chief of Police of Hartselle and got clearance from him to purchase this motorcycle and put it in the Chief’s storage room at his home.

Speegle further testified that he borrowed a truck from a friend and picked up appellant and they went to the location where the motorcycle was hidden. That before they got to the road to turn off into the woods, appellant asked him to stop- and turn off the truck lights. It was here that Speegle wrote a check for $150.00 payable to appellant and both of them loaded the motorcycle on the truck and they went back to West Hartselle Baptist Church where appellant got out of the truck. Speegle then drove to Chief Kyker’s home where they stored it in the Chief’s storage room. The check for $150.00 drawn by Speegle and payable to appellant, dated May 27, 1974, was introduced in evidence without objection. The check was endorsed and cashed by appellant.

Dwight Lowery, a fireman with the City of Hartselle, testified that on May 15, 1974, his 1973 Kawasaki motorcycle was stolen from his house and it was valued at $250.00. The next day he filed a report with the Hartselle Police Department giving a description of the motorcycle. The tag number was M46,786. He signed the stolen property report. This report was introduced in evidence without objection. The next time Lowery saw his motorcycle was on May 27, 1974, at the home of Chief Kyker and he identified it as being the motorcycle stolen from his house on May 15, 1974.

Appellant testified and denied the incriminating testimony of Speegle. Appellant testified that Speegle loaned him $150.00 to buy a car, and wrote him a check for that amount on May 26, 1974. He stated that the next day Speegle went with him to find a car he liked. He found a car and purchased it for $100.00 and gave the remaining $50.00 back to Speegle. He said he saw Speegle at his home on the night of May 27, 1974, but he did not accompany Speegle outside that night to sell him a motorcycle and never sold him a motorcycle.

On cross-examination appellant denied that he had ever discussed with one Rad-ford Pannell that he was going to sell a motorcycle to Billy Speegle.

Appellant’s wife, Linda Cook, testified that her husband bought a car on May 27, 1974, and Speegle loaned him the money to buy it. She said the loan was made by check and the check was written on May 26, 1974. She further testified that her husband arrived home at 12:00 noon on May 27 and did not leave the house the rest of the day.

Appellant’s mother, Lois Cook, testified that on the night he bought the car, he did not leave home but spent the night with his family watching television.

On rebuttal the State called W. L. Kyker, Chief of Police of Hartselle, who testified that on May 27, 1974, Billy Speegle was working for the Hartselle Police Department as an undercover agent. Chief Kyker stated that he authorized Speegle to purchase the mtorcycle and that he observed the check, number 406, that Speegle was to give appellant and it was' still blank at 8:30 p. m. on the night of May 27, 1974. He stated that Speegle turned the motorcycle over to him on the night of May 27 and it remained in his care, custody and control until Dwight Lowery positively identified it as belonging to him.

Radford Pannell testified that in May, 1974, appellant showed him a 250 Kawasaki motorcycle hidden under some bushes off a side road near Hartselle and that appellant told him he was going to sell, the motorcycle to Billy Speegle.

Appellant was recalled to the stand and denied that he ever took Radford Pannell to see a motorcycle and that he was going to sell a motorcycle to Speegle or anyone else. Appellant admitted that he had previously been convicted for the offense of burglary.

Shortly after the alleged sale of the stolen motorcycle by appellant to Speegle appellant moved to the state of Georgia and did not return until December, 1974. He was arraigned on September 12, 1975. He claims that his Constitutional right to a speedy trial was denied him and the case against him should be dismissed.

It is settled law that speedy trial rights do not operate to deprive the state of a reasonable opportunity to prosecute defendants. A defendant cannot claim his Constitutional rights have been denied where the delay is caused by him, or where delays are made necessary by the law itself, or occasioned by want of time to try the case. Braden v. State, 49 Ala.App. 97, 268 So.2d 877; Tiner v. State, 279 Ala. 126, 182 So.2d 859; Sellers v. State, 48 Ala.App. 178, 263 So.2d 156.

In Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265 we held that a delay of 17 months between initial indictment and trial was not a denial of the defendant’s right to a speedy trial.

Appellant claims the trial court committed reversible error in making inquiry as to how the jury stood numerically after the jury reported they were unable to reach a verdict. The record indicates the jury stood nine to three, but there was no indication as to how the majority stood on the question of guilt or innocence.

Under the cases of Gidley v. State, 19 Ala.App. 113, 95 So. 330 and Orr v. State, 269 Ala. 176, 111 So.2d 639, such inquiry on the part of the trial judge was held to be reversible error on the ground that the trial judge should not by word or deed give the least appearance of duress or coercion.

It is never improper for the Court to urge upon the jury the duty of trying to reach an agreement so long as the Court does not suggest which way the verdict should be returned. Martin v. State, 29 Ala.App. 395, 196 So. 753; Jones v. State, 56 Ala.App. 444, 322 So.2d 735.

However, we note in this case there were no exceptions reserved to the Court’s supplemental charge. There was no motion for a mistrial and there was no motion for a new trial. In this posture of the record we cannot reach the claimed error. Shiver v. State, 49 Ala.App. 615, 274 So.2d 644; Daniels v. State, 53 Ala.App. 666, 303 So.2d 166; Wade v. State, 49 Ala.App. 601, 274 So.2d 626.

We have carefully searched the record and have found no error upon which we can predicate a reversal. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    In re Jerry COOK v. STATE of Alabama. Ex parte Jerry Cook.
    SC 1834.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    Michael E. Sparkman, Hartselle, for petitioner.
    None for the State.
    Jacob Walker, Jr., Opelika, Richard H. Gill, Roland M. Nachman, Montgomery, Robert B. Harwood, Jr., Tuscaloosa, J. Edward Thornton, Mobile, Amicus Curiae.
   BLOODWORTH, Justice.

Petition of Jerry Cook for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cook v. State, 57 Ala.App. —, 333 So.2d 855 [1976].

The writ is denied on the merits. Although the petition does not state that an application for rehearing was filed in the Court of Criminal Appeals and “the date of the order overruling the application for rehearing” as required by Rule 39(d)(2), A.R.A.P., the petition does follow Form 22, Appendix 1, A.R.A.P., which Rule 50 states is sufficient.

On the other hand, Rule 39(b) requires that the petition be filed with the Clerk of the Supreme Court “within 14 days (2 weeks) after the decision of the court of appeals on the application for rehearing.” We cannot tell from examining the petition whether it was timely filed or not.

Form 22, Appendix 1, A.R.A.P., should contain the following averment at the end of paragraph 1:

“An application for rehearing was filed on-and overruled on [date]
[date]

WRIT DENIED. ORIGINAL OPINION WITHDRAWN AND CORRECTED.

All the Justices concur.