author: BRADLEY, Judge. HOLMES, Judge

text:
    SOUTHEASTERN PROPERTIES, INC., a corporation, and Harold Johnson v. William L. LEE, III, Lucy Stuart Lee, Barry Richard Kraselsky and Dale M. Kraselsky.
    Civ. 1277.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1978.
    Rehearing Denied March 8, 1978.

      Richard H. Ramsey, III, Dothan, for appellants.
    Huey D. Mclnish and Stephen T. Ether-edge of Lee & Mclnish, Dothan, for appel-lees.
   BRADLEY, Judge.

This is an appeal by Southeastern Properties, Inc. and its agent Harold Johnson (appellants) from judgments rendered in favor of Barry and Dale Kraselsky, and William and Lucy Lee (appellees). Initially, appel-lees filed a complaint against appellants alleging in two separate counts that the latter made certain fraudulent misrepresentations to the appellees during negotiations between the parties and that the appellees’ reliance on these representations resulted in the purchase of residential lots by the ap-pellees from the appellants. A trial was held in the Circuit Court of Houston County with the trial judge sitting as trier of fact. After the presentation of evidence by all parties, the trial judge found the appellants liable for fraudulent misrepresentations and rendered a judgment in the amount of $4,000 in favor of William and Lucy Lee on one count of appellees’ complaint and a judgment, also in the amount of $4,000, in favor of Barry and Dale Kraselsky on another count of appellees’ complaint. From these judgments and the trial court’s denial of appellants’ motion for a rehearing, appellants bring this appeal.

The record before this court indicates that during the summer of 1974, the appel-lees, the Lees and the Kraselskys, purchased from the appellants residential lots located in the Quail Creek subdivision of Dothan, Alabama. Evidence was presented at trial that during the negotiations preceding the sale of this property appellant-Harold Johnson (while representing appellant-Southeastern Properties, Inc.) promised the ap-pellees that steps would be taken to make a small pond which was located near the ap-pellees’ adjoining lots “attractive, sanitary, clean and safe.” Evidence was further adduced that the appellees purchased the property in reliance on this promise. However, the testimony was in conflict as to whether the pond and the area around it had subsequently been made “attractive, sanitary, clean and safe” by the appellants. Witnesses testifying in behalf of the appellants stated that it was their opinion that the pond was sanitary and safe. On the other hand, witnesses who testified in favor of the appellees contended that the pond was dangerous, filthy and a health hazard. On the basis of this and other testimony the trial court apparently concluded that the appellants had promised to alter the conditions existing in and about the pond at the time the appellees had purchased their lots and that the appellants had no intention of performing the promised act when they made it. Consequently, the trial court found appellants liable for fraudulent misrepresentation.

Appellants argue that the trial court erred in rendering this judgment because the evidence offered at trial failed to support the allegations of appellees that appellants made a fraudulent misrepresentation regarding a future event. We agree.

The trial transcript demonstrates that several months after the property was sold to appellees, appellants employed a construction company to work on the pond located in Quail Creek subdivision. Frank Conway, who was the construction supervisor in charge of performing the work contracted for, testified that he purchased and installed a drainage pipe for the pond; rebuilt a drain structure and constructed an inlet and gate which permitted the height of the water in the pond to be regulated; graded and sloped the embankment around the pond and planted grass along the embankment. Moreover, he stated he felt that he had done “first class” work. Appellant-Harold Johnson also testified that he had had the area around the pond cleaned up, graded and seeded. In addition, Johnson stated that a spillway had been installed with a gate through which water could be released and that approximately $12,000 was spent in altering the conditions in and about the pond. Appellees did not dispute that this work had been done, contending instead that the labor performed had failed to put the pond in the safe and sanitary condition which appellants had originally promised.

Despite these facts, the trial judge apparently concluded that the appellants had represented to the appellees that the pond in question would be made “attractive, sanitary, clean and safe” and that the appellants made this promise with no intention of fulfilling it. However, we have carefully examined the record and do not find sufficient evidence to support the allegations of fraud on the part of appellants. And fraud was the sole ground on which appellees’ cause of action was premised. In instances where the proof at trial fails to support the allegations of fraud on which a suit is based, the judgment rendered cannot be upheld on appeal. Mid-State Homes, Inc. v. Cone, 294 Ala. 310, 316 So.2d 333 (1975). Consequently, we reverse and remand.

It may be stated as a general proposition that a complaining party may recover damages for a misrepresentation in situations involving a promise to perform a future act when: (1) the misrepresentation relates to a material fact; (2) the misrepresentation was fraudulently or intentionally made; and (3) the complaining party acts on the misrepresentation to his detriment. See Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975). However, it is necessary for the complaining party to demonstrate the existence of all three of the aforementioned elements before he is entitled to a judgment in his favor on the grounds of a fraudulent misrepresentation. In the present case element (2) — fraudulent intent — was missing.

Ordinarily, the failure to perform a promise cannot be made the basis for actionable fraud. Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782 (1938). Nonetheless, if the circumstances of a particular case show that the party who made the promise did so with fraudulent intent at the time the promise was made and the promise was made in order to deceive the other party or induce him to act, then a civil action for fraud exists. Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So.2d 23 (1963); Shepherd v. Kendrick, supra. And while the subsequent failure of a party to perform his promise by itself is not sufficient evidence to demonstrate a fraudulent intent not to perform at the time the promise or contract was made, Walker v. Woodall, 288 Ala. 510, 262 So.2d 756 (1972), evidence that a party actually attempted to perform or “make good” his promise may, in circumstances where there is no indication that the performance was in bad faith or a sham or the result of demands by the complaining party or in other appropriate instances, defeat an allegation that when the party made the promise he did so without any intention of keeping it. See Hubert v. May, 292 F.2d 239 (7th Cir. 1961).

The latter situation is what occurred in the present case. There was no evidence that appellees had to demand performance by appellants before the latter undertook the work which was done on the pond subsequent to appellant-Johnson’s promise to the appellees. On the other hand, there was evidence that appellants endeavored to have the pond and the area immediately surrounding it made “attractive, sanitary, clean and safe.” However, after a substantial amount of work had been done toward this goal, appellees were not satisfied. And perhaps their dissatisfaction was justified. In fact, in the summer of 1976, the mayor of Dothan (who also deals in real estate) observed a snake near the pond and thereafter telephoned appellant-Johnson to ask if the latter planned to do anything about the pond. Johnson informed the mayor that he was not going to do a “damn” thing about the pond. Nonetheless, labor had been performed by appellants almost two years earlier in an effort to fulfill the representations which had been made to appellees in regard to the pond and its surrounding area. And there is nothing in the record to demonstrate that appellants’ efforts were in bad faith. Moreover, appellant-Johnson did not promise appellees that having once placed the pond in what he thought to be an attractive and sanitary condition, he would then undertake to maintain the pond in that condition for an indefinite period of time. Indeed, the entire record in this case demonstrates that the parties involved in this dispute did not agree on what steps were necessary to satisfy the appellees that the area in and about the pond was “attractive, sanitary, clean and safe.”

While this court is always reluctant to substitute its own judgment for that of a trial court which has heard the evidence ore tenus, it is nevertheless our duty to reverse the trial court when the evidence presented at trial fails to support the trial court’s judgment. Such is the case when, as here, the proof offered at trial fails to correspond substantially with the allegations in a complaint. We believe that sufficient evidence was adduced by appellants to defeat appel-lees’ charge of a fraudulent misrepresentation; specifically, there was not sufficient evidence to the effect that when appellant-Harold Johnson promised to make the pond “attractive, sanitary, clean and safe” he did so with the fraudulent intent to deceive.

For the error in rendering the judgment based upon the allegations in the appellees’ complaint which are unsupported by the evidence, this case is reversed and remanded.

REVERSED AND REMANDED.

WRIGHT, P. J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent. As I view the evidence and the reasonable inferences therefrom, the defendants promised the plaintiffs to make a pond located near the plaintiffs’ homesite “attractive, sanitary, clean and safe.” The pond’s “appearance” was a major inducement to purchasing the lot and thereafter building a home. The defendants did do some work on the pond. However, it appears to me, from the evidence, that the plaintiffs were never satisfied with the pond.

Mere failure to perform a promise or contract is not of itself evidence of intent not to perform at the time the promise or contract was made. See McAdory v. Jones, 260 Ala. 547, 71 So.2d 526 (1954).

In order for a promise to constitute a fraudulent representation, it is necessary that it be made with the intent not to perform the act. Walker v. Woodall, 288 Ala. 510, 262 So.2d 756 (1972), and cases cited therein. Intent is a matter peculiarly within the province of the trier of facts. See Walker v. Woodall, supra.

Here, to me, aside from the defendants’ failure to perform as shown by the plaintiffs’ evidence, I feel there was sufficient, though slight, evidence introduced upon which the trier of facts could infer the requisite intent. Specifically, I refer to the response of the defendants to the Mayor of the City of Dothan’s question of what the defendants intended to do about the condition of the pond. The defendant-Johnson’s response to the mayor’s inquiry was to the effect that he (defendant) did not intend to do a “damn” thing about the pond. This evidence is sufficient to fall within the criteria as stated in Walker v. Woodall, supra.

      . Additional counts in appellees’ complaint sought a permanent injunction against the appellants. These counts, however, were dismissed by the trial court.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    In re SOUTHEASTERN PROPERTIES, INC., a corp., et al. v. William L. LEE, III, et al. Ex parte William L. Lee, III, et al.
    77-401.
    Supreme Court of Alabama.
    Feb. 9, 1979.
    Huey D. Mclnish and Stephen T. Ether-edge, of Lee & Mclnish, Dothan, for petitioners.
    Richard H. Ramsey, III and J. Ronald Storey, Dothan, for respondents.
   EMBRY, Justice.

Petitioners, William L. Lee, III, Lucy Stuart Lee, Barry Richard Kraselsky and Dale M. Kraselsky, filed this action against respondents, Southeastern Properties, Inc. and Harold Johnson. The case was tried without a jury and submitted on two counts complaining of a fraudulent misrepresentation made to petitioners during negotiations for the purchase of lots for construction of homes thereon. The representation was that a pond located near plaintiffs’ home-sites would be made “attractive, sanitary, clean and safe.” Judgment was entered in behalf of the Lees on one count of the complaint for the sum of $4000; in behalf of the Kraselskys on another count for the same sum.

Respondents appealed to the Court of Civil Appeals which reversed on the theory that the proof failed to support the allegations of fraud and Mid-State Homes, Inc. v. Cone, 294 Ala. 310, 316 So.2d 333 (1975), required reversal.

The issue is whether there was evidence of a fraudulent intent not to perform at the time the promise to do something in the future was made.

Southeastern Properties and Johnson contend the evidence showed there was a degree of performance of the acts promised, therefore, there could be no fraudulent intent at the time the promise was made. A majority of the Court of Civil Appeals, agreed on the basis that, under the circumstances shown by the evidence, there was no indication of bad faith, or sham, absent which there could be no fraudulent intent when the promise was made, citing Hubert v. May, 292 F.2d 289 (7th Cir. 1961).

We disagree.

Proof of fraudulent intent is required in cases where the fraud concerns misrepresentations concerning future events. Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953); Ellis v. Zuck, 409 F.Supp. 1151 (N.D.Ala.1976), aff’d 546 F.2d 643 (5th Cir. 1977). But such intent is a matter peculiarly within the province of the trier of facts; in this case the trial court. See Walker v. Woodall, 288 Ala. 510, 262 So.2d 756 (1972).

Although respondents presented evidence to show they had attempted to clean up the pond, this does not conclusively prove an absence of intent to deceive. William Lee and Barry Kraselsky both testified that Harold Johnson told them he would make the pond safe, clean and attractive if they purchased the lots. Both men testified that they relied on Johnson’s representation in buying their respective lots. James W. Grant, the mayor of Dothan, testified that when he called Johnson and asked him what he was going to do about the pond, Johnson replied “not a damn thing.” Further testimony indicated the pond was never put into the promised condition.

We hold the trial court could reasonably infer from these facts that an intent to deceive was present. The court’s judgment, based upon credible evidence taken ore ten-us, cannot be said to be clearly erroneous or manifestly unjust. See English v. Brantley, 361 So.2d 549 (Ala.1978). The judgment of the Court of Civil Appeals must, therefore, be reversed and the ease remanded to that court for decision not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.


author: BRADLEY, Judge.

text:
    SOUTHEASTERN PROPERTIES, INC., a corporation, and Harold Johnson v. William L. LEE, III, Lucy Stuart Lee, Barry Richard Kraselsky and Dale M. Kraselsky.
    Civ. 1277.
    Court of Civil Appeals of Alabama.
    March 7, 1979.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama, it is considered that this cause should be affirmed in accordance with the opinion rendered by the Supreme Court of Alabama on February 9, 1979, 368 So.2d 288.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Patricia W. SIMON v. Morris A. SIMON, III.
    Civ. 1581.
    Court of Civil Appeals of Alabama.
    Feb. 7, 1979.
    Rehearing Denied March 7, 1979.

      James M. Fullan, Jr., Birmingham, for appellant.
    J. Huntley Johnson, of Johnson & Horns-by, Dothan, for appellee.
   HOLMES, Judge.

The Circuit Court of Houston County modified a previous decree of divorce regarding visitation rights of the father. From this modification the mother appeals. We affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in granting the father specific visitation rights. As indicated above, we find no abuse of discretion and affirm.

The father and mother were divorced in 1977. An agreement regarding child support, custody, and visitation was entered into and incorporated into the decree of divorce. The mother was granted custody; the father was required to pay $250 per month child support; and the father was granted the right to visit with the minor child (who is now approximately three years old) “ . . . at reasonable times and places.”

Thereafter, the husband filed a petition to modify alleging the mother had moved to Texas; that he had been denied reasonable visitation rights and specifically requested the trial court to specify reasonable visitation privileges. The wife answered the petition stating that she had not refused visitation rights to the father and that the father'was unfit for the child to visit with him.

After an ore tenus hearing, the learned trial judge entered a decree which provided that the father was to have the child six weeks each year, divided into three week periods until the child reached school age, and thereafter, to have the child the month of June, one week of Christmas, and every other year, one week during spring vacation. The father was responsible for transporting the child for the visits. From this aspect of the decree the wife appeals.

The wife, through able and distinguished counsel, argues that the evidence shows the father to be unfit to have such visitation rights as granted.

We do not deem it necessary to set out in detail all of the evidence or conclusions drawn therefrom by the mother, suffice it to say that we have carefully perused the record.

Viewing the record with the attendant presumption, we find in pertinent part that the father is a college professor at Troy State University. He holds a Ph.D. academic degree. He made two visits to a mental health center. He has tried marijuana. He has entered into a common-law marriage. His present marriage partner was convicted prior to their marriage of possession of marijuana. He believes in Christian principles, but does not attend church.

There is no evidence that the husband in any way physically abused his child. There is evidence that the children of the father’s present spouse live in the home with the father and his present spouse. There is evidence that these children are well adjusted. One is in the National Honor Society; one attends the Baptist Church.

With the above in mind and the entire record before this court, we cannot say that the lower court erred in its determination of visitation periods.

We have consistently held, as the Supreme Court of Alabama has held, that much discretion is left with the trial court in the settlement of visitation rights between the parents, and each case must stand on its own peculiar facts and personalities involved. See Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967); Mockridge v. Mockridge, 278 Ala. 79, 175 So.2d 772 (1965); Phillips v. Phillips, 53 Ala.App. 191, 298 So.2d 613 (1974). See also 8 Ala. Dig. Divorce &wkey;296 and 299.

In this instance, we cannot say the trial court abused its discretion with regard to the visitation rights provided for in its decree.

The mother’s request for attorney’s fee on appeal is denied. The father’s request for Rule 38 ARAP sanction for frivolous appeal is denied.

The case is due to be affirmed.

AFFIRMED.

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

      . We note that the father is required to pay $250 per month child support and was current in said payments at the time of the hearing.


author: WRIGHT, Presiding Judge.

text:
    Elba Magana SHIRES v. Wayne Stanley SHIRES.
    Civ. 1641.
    Court of Civil Appeals of Alabama.
    March 7, 1979.

      Maury D. Smith, Montgomery, for appellant.
    John L. Capell, III, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals. The issue is whether the trial court abused its discretion in the award of alimony, child support and/or property division. We reverse.

The parties were married for nineteen years. The wife is a citizen of El Salvador although she has lived in Montgomery with her family since marriage. The husband is American and a career postal service employee. There are four children. The eldest is eighteen years of age and is a National Merit finalist with a scholarship at Johns Hopkins University. A girl, age fourteen, is mentally defective and a permanent resident of Partlow School. Sons John and Pat, ages twelve and ten, reside with their mother in Montgomery. The net pay of the father is $1,127 monthly. The mother is employed as a teacher of Spanish at St. Jude School and her net salary is $472 per month. She is not certificated as a teacher and thus has no tenure.

There was evidence that the wife owned some fifty acres of land in El Salvador upon which coffee was grown and from which she receives a material income. The wife insists that her mother has a life estate in the land and receives the income although the wife aids in management and has been given some money by her mother.

The parties are joint owners of a home in Montgomery with an equity of some $19,-000. The mortgage payments are $250 per month. After oral hearing the trial court entered judgment on June 22, 1978 as follows: Custody of the children was given to the wife; the husband was ordered to pay $850 per month as support for the children; when John, age twelve becomes nineteen the support is to be reduced to $300 per month and support is eliminated when Patrick, age ten, becomes nineteen; the husband may claim the children as dependents for tax purposes; the husband is to maintain life and hospital insurance with the children as beneficiaries; the wife is given title to the home with the obligation of paying the mortgage payments; the husband is given a vested interest in the home in the sum of $12,500 to be paid when the home is sold but no later than when the youngest child reaches majority, marries or becomes self supporting; the wife is awarded alimony of $15 per month and $500 attorney fee.

The wife contends the judgment is erroneous in the award of support and alimony and in the division of the home, the only material asset of the parties. She also contends the judgment when considered in its entirety is so unfair and inequitable to the wife as to amount to an abuse of discretion. We agree with the latter contention.

The husband has stable career employment with good retirement benefits. His salary now provides a net income of over $1,100 per month. It must be anticipated that his income will increase in the future. The income of the wife is dependent upon only the beneficence of her employer and if her employment continues, it is unlikely to substantially increase. Her income of $472 per month plus receipt of $365 per month in child support and alimony will total $837 per month. This is immediately depleted by payment of the $250 mortgage payment down to $587. From that amount she must support herself, two young children and aid the oldest in college and pay the substantial sums necessary to maintain and keep in repair the house. With these burdens and obligations, she does not have the right to claim the children as dependents on her tax return. In making the mortgage payments she will be paying property taxes, insurance and maintenance costs to protect the vested interest of the husband. That vested interest represents some two-thirds of the present net value of the home. It is in that portion of the judgment that the court imposed an unfair burden on the wife and perhaps brought the judgment within the prohibition against the wife paying the husband alimony established by the decision in Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966). However, we do not hold the judgment erroneous for that specific reason. We do find it erroneous because when taken in its entirety, it is so unfair to the wife as to become a palpable abuse of the discretion of the trial court. It is for that reason we reverse the judgment as to child support and division of property and remand with positive suggestions for change.

It is the placing of the large and heavy burden of making the mortgage payments on the wife that we perceive as the root of inequity in the judgment. That payment protects the interest of the husband as well as the wife. She must also pay the taxes, insurance and maintenance to protect the husband’s vested interest as well as her own. The sum of $12,500 is guaranteed him on or before the coming of the majority of the youngest child. He need do nothing to protect that interest. If the wife is unable to meet the obligation of the mortgage payments, she loses her home and, under the evidence, if the home is sold on the market, she would receive only $6,500 while the husband would receive $12,500. The inequity is clear and obvious. Therefore, to adjust, we suggest possible alternatives: (a) The wife be given the entire interest and title to the home if she is to make the payments; (b) Title remain jointly in the parties with the husband making the mortgage payments and maintenance with equal division at sale by agreement or when the youngest child reaches majority. A reduction of child support might be proper in such a case.

We think it was a proper consideration for the court to grant nominal alimony to the wife with opportunity for modification at a future time if proper change in circumstances is shown. We do not consider that the alleged separate estate of the wife in El Salvador is worthy of great consideration. It has played no substantial part in the economics of the marriage, except to apparently provide opportunity for trips by the wife and children which were in part educational. It is the primary obligation of the husband to support his family from his income and estate, the financial condition of the wife notwithstanding. Collier v. Collier, 57 Ala.App. 208, 326 So.2d 769 (1976).

We therefore reverse the judgment of the trial court insofar as the provisions relating to support of the children and division of property and remand the same for further proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

      . It has been held that the effect of a large mortgage payment upon the amount of expendable income available for support of the wife and children is a matter for consideration by the court. Whitfield v. Whitfield, 283 Ala. 433, 218 So.2d 146 (1969); Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974).


text:
    Raymond L. LITTLE v. Alice R. LITTLE.
    Civ. 1662.
    Court of Civil Appeals of Alabama.
    March 7, 1979.

      Maury Smith, John S. Bowman, David R. Boyd, Montgomery, for appellant.
    Richard H. Gill, Montgomery, for appel-lee.
   BRADLEY, Judge.

Former husband appeals from an order by the Circuit Court of Montgomery County granting former wife’s motion to dismiss the husband’s petition to modify divorce decree, and from other orders granted by the same court. We affirm.

The parties to this appeal have been before this court previously. See Little v. Little, Ala.Civ.App., 349 So.2d 48 (1977). No purpose would be served by a lengthy reiteration of the facts involved in that former appeal nor in the present one.

For purposes of this appeal suffice it to say that after a twenty-six year marriage the parties to this proceeding were divorced by the Circuit Court of Montgomery County in 1975 on the ground of incompatibility. The divorce decree incorporated an agreement previously entered into by the parties for the settlement of property interests and the award of alimony. Under the terms of the agreement, the husband was to “pay the wife as monthly periodic alimony the sum of $1,000.00 per month . . . until the demise of the wife.”

In 1976 Mr. Little petitioned the trial court to terminate the periodic alimony payments required by the agreement. In this petition he alleged as changed circumstances the remarriage of his ex-wife. The trial court’s denial of Mr. Little’s petition was affirmed by this court. Little v. Little, supra.

On April 27, 1978 Act No. 596, Acts of Alabama 1978, became effective. That act, currently codified as Code of Alabama 1975, § 30-2-55, provides that:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.

On May 17, 1978 Mr. Little again petitioned the trial court to modify the original divorce decree by terminating his obligations to make the monthly alimony payments. Once again he alleged as grounds for the petition that the wife had remarried in May 1976.

Mrs. Little responded by moving to dismiss Mr. Little’s petition. She listed several grounds in support of her motion, among which was a contention that Mr. Little should be denied access to the court inasmuch as he was in contempt for failure to pay alimony; that Act No. 596, Acts of Alabama 1978, which was the basis for the modification petition, was not only unconstitutional but also did not apply to the instant case; and that the agreement incorporated into the original alimony decree amounted to “an integrated bargain.”

Although the record on appeal and both briefs suggest that Mr. Little could have been in arrears with his alimony payments at the time of the order dismissing the modification petition, counsel for both parties at oral argument assured this court that contempt for alimony arrearage was not an issue on appeal; consequently, no consideration will be given to that ground of the dismissal motion.

The issues that were argued concerned the constitutionality and applicability of Act No. 596; whether the agreement for the payment of alimony incorporated into the original divorce decree could be denominated “an integrated bargain” as suggested by Judge Holmes in his special concurrence in Little v. Little, supra; and whether the trial court abused its discretion in awarding Mrs. Little $2,000 for attorney’s fee. The issue that we consider dispositive of this appeal, however, is the applicability of Act No. 596 to the facts in the present case. The effective date of Act No. 596 is April 27, 1978, and Mrs. Little remarried in May 1976, almost two years before the passage of said act.

We said in Smith v. Smith, Ala.Civ.App., 365 So.2d 88 (1978), a case concerned with the retrospective or prospective application of Act No. 596, that:

The language of § 30-2-55 does not express the legislative intent that the statute be applied retrospectively. We do not think it applies to suits arising out of events which occurred prior to the effective date of the statute, regardless of the fact that the decree of May 15, 1978 was rendered after the effective date of the statute. Cf. City of Brewton v. White’s Auto Store, Inc., Ala., 362 So.2d 226 (1978).

It is clear in the case at bar that Mrs. Little’s second marriage took place prior to the effective date of said act. Consequently, Act No. 596 would have no application to the second marriage of Mrs. Little. The trial court properly dismissed the modification petition.

In view of the inapplicability of Act No. 596 to the instant case, the constitutionality of said act will not be discussed, nor will we concern ourselves with whether the “integrated bargain” principle applies to the instant case.

As to Mr. Little’s contention that the trial court abused its discretion in awarding Mrs. Little $2,000 as an attorney’s fee, we point out that the allowance of such fees rests in the sound discretion of such court, Jernigan v. Jernigan, Ala.Civ.App., 335 So.2d 178 (1976); and we find no abuse of that discretion here.

We award Mrs. Little $500 as an attorney’s fee incurred in defending this appeal.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P. J., recuses himself.


text:
    Frederick B. ALFORD v. Molly Sue ALFORD.
    Civ. 1673.
    Court of Civil Appeals of Alabama.
    March 7, 1979.

      Earl V. Johnson, Andalusia, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

This is a case of modification of custody and support. The husband requested change of custody of a fourteen-year-old daughter and a reduction in support and alimony. The wife counterclaimed for increased support. The trial court denied the request of the husband and granted an increase of support from $200 to $300 per month. The husband appeals. The parties were divorced in 1970. A separation agreement incorporated into the decree provided custody of the daughter to the wife; the husband to pay the wife $200 in child support and $200 in periodic alimony; the wife to retain a life estate in the parties’ residence, and the husband to make the mortgage payments of $157 a month.

The husband’s most recent petition was the last of multiple actions filed by both parties citing failure to abide by the decree. In January of 1978, the active judges of the circuit recused themselves from the case. Retired Judge Telfair Mashburn was assigned to the case, and oral hearing was had in June of 1978.

The evidence showed the wife to be a forty-eight-year-old licensed practical nurse (LPN), who lives in the former marital residence with the daughter, Amy, now fourteen years of age. The husband has remarried and lives in Florida with his new wife and stepdaughter. The parties’ two adult sons work with their father in a family corporation, Alford and Associates.

Alford and Associates includes a carpet store in DeFuniak Springs, Florida; two country stores selling general merchandise, one in Opp and one in DeFuniak Springs; and several mobile home parks. The husband runs Alford and Associates’ interests in DeFuniak Springs and is president of the corporation. The sons run the store in Opp and the trailer parks. The husband testified that the corporation’s liabilities exceed its assets and that it had no taxable income in 1977. Although the husband is president, he testified that he transferred his majority stock to his oldest son who assumed the indebtedness of the corporation in February of 1977. The husband receives a salary of $125 weekly, and his new wife draws $50 weekly from the corporation.

The husband stated that the only property owned by him is the reversionary interest in the home where the wife lives, valued at approximately $30,000, and a lot worth $1,500 in Florida. He said that his only income was the salary from Alford and Associates. There was no contrary evidence of the husband’s present financial condition presented by the wife.

The wife testified that she could not work as an LPN because the requirement that she work rotating shifts would necessitate leaving Amy home alone at night. She has worked at odd jobs since the divorce and had recently taken a job in a department store at minimum wage. She said she was financially destitute.

There were various charges of misconduct by each party against the other. The wife denied accusations concerning her sexual conduct, and the husband denied charges that he was a problem drinker. The daughter testified that she wished to remain with her mother.

After hearing, Judge Mashburn issued an order sustaining custody in the wife. The husband was found to be in arrears on support payments. Support was increased to $300 per month.

The issues presented by the husband’s appeal are whether the court abused its discretion in not awarding him custody of his daughter, and whether the increase in the support payment was supported by the evidence. We find the first issue against the husband. We find the second issue in favor of the husband and reverse the judgment increasing support and remand.

There is a presumption of correctness which accompanies the judgment of the trial court in every case upon review where the evidence was presented orally before the court. Collum v. Collum, 53 Ala.App. 6, 296 So.2d 907 (1974). There is also a rule of repose applicable to a petition to modify a prior judgment as to custody of a child. Perez v. Hester, 272 Ala. 564, 133 So.2d 199 (1961). To overcome both the presumption of correctness and the rule of repose there must be evidence of a material change in circumstances occurring since the last judgment so affecting the best interest and welfare of the child as to disclose an obvious and overwhelming necessity for change. Gray v. Gray, 45 Ala.App. 331, 230 So.2d 243 (1970). The judgment entered by the court must be so unsupported by or contrary to the evidence as to be clearly an abuse of the court’s judicial discretion and thus palpably wrong and unjust. Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977).

We have carefully reviewed the record and fail to find the evidence of a material change of circumstances affecting the welfare of the child, Amy, so strong and convincing as to overcome the presumption of correctness supporting the judgment as to custody. The wish of the child to remain with her mother is not compelling on the court, but such wish is for consideration and might have affected the judgment in this case. Parks v. Parks, 275 Ala. 613, 157 So.2d 212 (1963).

As to the issue of support in the evidence for the increased amount of support, we must hold that there is no such support. The income of the husband at the time of the original judgment was shown to exceed $20,000 annually. There was no substantial evidence to dispute his testimony that his income was now $125 weekly. The wife offered no record of tax returns or rebuttal that her son now owned the husband’s stock in the corporation and enjoyed whatever benefits accrued to such ownership. Other than the testimony of the husband, there was no evidence of income or liquid personal assets available for payment of the ordered increase in support. To the contrary, the evidence submitted would support a decrease as requested by the husband. The court is bound by the legal evidence or lack of it. It is not free to speculate as to the ability of the husband to pay. An order of support is encompassed by evidence of needs of the child and the financial ability of the father to meet those needs. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975). There is insufficient evidence in the record to support the order of increase. We therefore reverse that part of the judgment and the prior judgment is reinstated. We remand the matter to the trial court for such further proceedings as the parties wish to request and the court determines it may properly entertain, including taking additional testimony and entering further judgment.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BOWEN, Judge.

text:
    James Randall SMITH v. STATE.
    6 Div. 125.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.
    Rehearing Denied May 2, 1978.

      Judith S. Crittenden, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

This is an appeal from a conviction for rape and a twelve year sentence. At trial and on appeal the appellant is represented by court appointed counsel.

On January 18, 1975, the prosecutrix went to Robby’s Game Room in Tarrant City, Alabama. Around 10:00 o’clock that night a friend of hers introduced her to the appellant. The appellant and three other male youths were going to take the friend of the prosecutrix to her home and offered to take the prosecutrix home. The prosecu-trix accepted the ride with her friend and her new acquaintances.

The four young men took the two girls to a wooded area where each male, including the appellant, raped the prosecutrix. The appellant physically and repeatedly struck the prosecutrix about her face in an effort to subdue her and force her to submit to the sexual assaults of himself and his friends.

Tony Smith, one of three youths who raped the prosecutrix, testified for the appellant. He stated that the prosecutrix told him that night that she had taken twelve “hits” of “speed” and was high. She voluntarily went “parking” with them into the wooded area to drink some beer and, after they stopped, voluntarily went “walking around” with the appellant and another youth, Charles Darwin. Smith testified that after the prosecutrix returned to the car she voluntarily had sex with him. He did not notice any bruises or swollen areas on her face that night.

I

The appellant contends that he was placed in double jeopardy by his trial because of the findings and adjudications made in juvenile proceedings in Family Court which preceded his trial as an adult in the Circuit Court of Jefferson County.

The appellant’s contentions necessitate a review of the procedure followed in this case. On January 21,1975, a complaint was filed in the Family Court of Jefferson County charging that the appellant, a fourteen-year-old child, was “delinquent” in that he did rape the prosecutrix.

An “adjudicatory hearing” was held in the Family Court of Jefferson County at which time the complaints were read to the appellant who entered a plea of “truth”, admitting the allegations of each complaint. On that basis the judge of the Family Court entered the following order.

“This cause coming on to be heard, and the said child being present in court, and his father, mother and attorneys being present with him, and the court having first explained the nature of the proceedings to each of them; said child admits the allegations contained in the petition filed herein. Having heard the evidence in this cause, including the following witnesses, _ and having considered same, and it appearing to the court that said child is a delinquent child, male, under 16 and about 14 years of age, and in need of the care and protection of this court as alleged in the petition; it is therefore ordered, adjudged and decreed by the court that the said child is a ward of this court, and it further appearing to the court that it is to the child’s best interest, the said child is hereby committed to Juvenile Hall and this case is continued to April 4, 1975, at 2:00 P.M. for disposition.”

On April 4th a “transfer hearing” was had and the appellant was ordered transferred to the jurisdiction of the Circuit Court to be treated as an adult. The record reflects that:

“Upon hearing the sworn testimony, including that of Patricia Ann McCrary, Vickie Triplett, Joan Mims, and James Dupree, the records and exhibits admitted in evidence, the oral arguments of the attorneys and careful consideration of the same, and
“Upon it being shown that said child was placed on probation by this court on April 5, 1974, that he was discharged from probation on August 16, 1974, that he was found delinquent due to an act of homicide on December 23, 1974, at which time he was committed to the Alabama Boys Industrial School from which he escaped on January 10, 1975, and on this date he has admitted to two charges of Rape and two charges of Assault and Battery which displayed a severe lack of self-control over his emotions and behavior,
“The Court is convinced that said minor cannot be made to lead a correct life and cannot be properly disciplined under the Juvenile Court Laws, the matter is hereby transferred to the Criminal Division of the Tenth Judicial Circuit of Alabama as provided by Title 62, Section 325, Code of Alabama 1940, recompiled 1958.”

The May 1975 session of the Grand Jury returned an indictment against the appellant. Upon arraignment the appellant pled not guilty.

On the day the case was scheduled for trial defense counsel filed a Plea of Autre-fois Convict and a Motion to Quash the indictment, both pleadings raising a defense of former jeopardy.

Relying on Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the thrust of the appellant’s argument is that he was first convicted and adjudged guilty of the rape in Family Court and thereafter again tried and convicted in Circuit Court.

Testimony was presented on the plea and the motion. John Fox, a deputy public defender, represented the appellant in Family Court. He testified that an “Adjudicatory Hearing” was held in that court. That hearing is for the purpose of taking pleas— either a “true” or a “not true” plea. A “true plea” is the same as a guilty plea in “adult court”, and an admission of the charges pending against the minor. Testimony may also be taken at an adjudicatory hearing and some people refer to is as a “trial”.

At the hearing on the motion to transfer, testimony was taken as to whether the appellant could be made to lead a “correct life”.

The Deputy District Attorney who represented the state in the Family Court testified that the purpose of an adjudicatory hearing is to determine the guilt or innocence of the defendant or the truth or absence of truth of the allegation of the petition. At the appellant’s adjudicatory hearing, the allegations of the petition were read to him and he admitted to all the charges involved, which was the equivalent of a guilty plea. After this hearing the state filed a Motion to Transfer the appellant to Circuit Court to be treated as an adult.

Additional testimony on this issue was presented on the hearing of the Motion for new trial. Jim Shaw had been retained by the parents of the appellant to represent their son in Family Court. He testified that at the transfer hearing

“Patricia McCrary and Vickie Triplett and they testified as to the alleged rapes and what had happened to them. They also_Mrs. Mims of ABIS (Alabama Boys Industrial School) testified as to what she would recommend as to how he should be treated and she recommended that he be placed in the positive learning center as soon as it reopened.”

This testimony was presented although the appellant had already entered a plea of guilty to the charges.

“Then there was James Dupree, Director of Positive Learning Center, also testified that he would be willing to accept Randy (the appellant) into this facility. The only question that was before Judge Bell when I was representing Randy was whether or not Randy was to be kept within the Juvenile Court process or to be sent to Circuit Court. There was no question of whether or not he was guilty at that point left open.”

Following the hearing and argument on the issue of jeopardy, the trial judge overruled the plea and the motion and put the appellant to trial.

In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the United States Supreme Court held that to subject a defendant to an adjudicatory proceeding whose object is to determine whether the juvenile has committed acts that violate a criminal law as distinguished from a proceeding limited to the question of transfer, and then, instead of sentencing, transfer him to an adult trial, amounts to double jeopardy. Breed does not preclude separate juvenile and adult proceedings but closely limits the issues which may be considered in the first proceeding. If the juvenile court determines that the juvenile has actually violated a criminal law, adjudges the juvenile delinquent and unfit for treatment as a juvenile and transfers him to the Circuit Court for treatment as an adult offender, jeopardy has attached under the doctrine announced in Breed, and the juvenile would be placed in double jeopardy by trial in the Circuit Court. The juvenile court is only authorized to make a finding of probable cause concerning the specific act leading to the delinquency petition before transferring the juvenile for trial in Circuit Court. Boyd v. State, Ala., 341 So.2d 680 (1977). See also Government of Virgin Islands v. Smith, 558 F.2d 691 (3 Cir.1977). Any adjudicatory finding of delinquency in the juvenile court that the juvenile had violated a criminal statute would cause jeopardy to attach. Breed, supra; Boyd, supra.

Before deciding whether an adjudicatory finding was made in the Family Court, we must first determine whether Breed v. Jones is applicable under the facts of this case. While the appellant’s juvenile hearing was held before Breed was decided, his criminal trial occurred after.

On March 14, 1975, the appellant admitted the charge of rape and was adjudged delinquent by the Family Court. On April 4th, that court transferred the appellant to the Criminal Division of the Circuit Court. An indictment was returned against the appellant on May 9, 1975.

On May 27, 1975, the United States Supreme Court decided Breed v. Jones, supra. The court made no comment with respect to retroactivity. The defense of former jeopardy announced in Breed was rejected by the Circuit Court and the appellant was tried and convicted in November of 1975.

Since May 27, 1975, the date Breed was decided, the highest courts of three states have had occasion to consider whether, and the extent to which, Breed should be given retroactive application.

“The Supreme Court of California, relying on Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), held Breed fully retroactive and reversed a conviction where both the juvenile hearing and the adult trial preceded May 27, 1975. In re Bryan, 16 Cal.3d 782, 129 Cal.Rptr. 293, 548 P.2d 693 (1976). In contrast, finding Robinson v. Neil, supra, distinguishable, the Supreme Judicial Court of Massachusetts held Breed prospective only. Stokes v. Commonwealth, Mass., 336 N.E.2d 735 (1975). Further, the Massachusetts Court determined that the crucial event in terms of the application of Breed was the juvenile hearing rather than the criminal trial (as if an adult), reasoning that official reliance attached at the juvenile level:
‘It was at that moment that the situation became irreversible, for by subjecting the defendant to former jeopardy in the . . (juvenile court), any subsequent trial would necessarily constitute double jeopardy under the reasoning of Breed.’ Commonwealth v. A Juvenile (No. 2), Mass., 351 N.E.2d 521, 525 (1976).
Thus, under the approach of the Massachusetts Court, Breed does not bar the adult trial after May 27, 1975, of a juvenile subjected to former jeopardy at an omnibus hearing held before May 27, 1975. Commonwealth v. A Juvenile (No. 2), supra.” State v. Knowles, Me., 371 A.2d 624, 627 (1977).

The Massachusetts case of A Juvenile (No. 2) was found controlling in Commonwealth v. A Juvenile (No. 1), Mass., 360 N.E.2d 324 (1977).

The United States Court of Appeals for the First Circuit upheld the view of the Massachusetts Court in Jackson v. Justices of Superior Court of Massachusetts, 549 F.2d 215 (1st Cir. 1977), cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 1667, 52 L.Ed.2d 370 (1977). The Sixth Circuit Court of Appeals, relying on Robinson v. Neil, supra, but stating that the result would be the same even if the retroactivity criteria of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) were utilized, held Breed v. Jones retroactively applicable. Holt v. Black, 550 F.2d 1061 (6th Cir. 1977).

The most recent case found on this issue is State v. Knowles, Me., 371 A.2d 624 (1977). Finding persuasive the reasoning of the Supreme Judicial Court of Massachusetts as upheld by the First Circuit majority in Jackson, the Supreme Judicial Court of Maine followed the holding of Jackson and ruled that Breed v. Jones was not retroactive as applied to the instant conviction.

Jackson, in effect, held that Breed should be applied retroactively only in those cases where the state had obtained some undue advantage or benefit from disclosures made by the defendant at the hearing on the juvenile complaint and this should be determined on a case by case basis.

“The second purpose of Breed — avoiding the unfairness of making the defendant ‘tip his hand’ before trial — can call for relief from pre-Breed proceedings, at most, only in cases where handtipping occurred. Whether or not the defendant was prejudiced, and if so, to what extent, depends on precisely what took place in the juvenile court, and whether the prosecution thereby gained, and later used, a tactical advantage in the adult trial. If this benefit to the state can be redressed, or obviated, on an individual basis, there is no need for retroactivity at all.
* * * * * *
“The balance of these matters may not compel a single answer, but we believe it reasonably permits one. The seriousness of the impact on the state of granting retroactivity is obvious. The most significant aspect of denying it, so far as petitioners are concerned, would be if the state obtained some benefit from disclosures made at the initial hearing. Since this is remediable, general retroactivity would be overkill; the extent, if any, of the state’s undue advantage may be determined on an individual, case by case basis.” Jackson, at 549 F.2d 219, 220.

Holt v. Black, supra, decided two months after Jackson, did not mention the later case.

In considering the three factor test of Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), to determine between retroactivity and prospectivity of a new rule, the First Circuit Court of Appeals in Jackson found: (1) That the “ends of public justice” would be unwar-rantedly frustrated by barring the juvenile’s superior court trial, now that it is too late to prosecute him in a single trial, solely to avoid the pressures and burdens of a second trial where the state did not gain any unfair advantage from the juvenile proceedings; (2) that the fact that the decision in Breed may have been to some extent foreshadowed does not require its retrospective application and (3) that it would be impossible to overestimate the seriousness of affording retroactivity to the Breed rule with regard to its effect on the administration of justice.

We find the court’s reasoning in Jackson persuasive and decide that Breed v. Jones is without applicability to require reversal of the instant conviction on grounds of double jeopardy. In so doing we note that the appellant failed to make “a particularized showing of prejudice” that the state had gained “undue advantage” from the initial juvenile hearing. In fact, the state gained no advantage for while the testimony of two prosecution witnesses was presented at the transfer hearing, no defense was offered by the appellant. For the reasons set forth in Jackson, Breed is not applicable to the facts of this case.

II

The second contention of the appellant is that it was error for the trial court to deny his motion for a continuance due to the absence of a material witness.

Two indictments were returned against the appellant. One involved the rape of Patricia Ann McCrary and the other the rape of Vickie Triplett, the prosecutrix in this case. On the day of trial the state and defense announced ready but it was then discovered that Ms. McCrary was in the hospital. Ms. McCrary had been subpoenaed by the state but the defense did not subpoena her until the day the case was scheduled for trial. Defense counsel represented to the trial court that

“we did not subpoena her until yesterday but she has been served by the State subpoena. She has a history of not coming to court in these cases. She did not show up at the preliminary and her own case was dismissed and brought to the Grand Jury. She is a material witness
* * * * * *
“Had we known the victim of one of the cases in which the state announced ready was not available, we would certainly not have announced (ready).”

The trial judge then declared that it was the rule of the court that when two cases against one defendant are announced ready for trial, the lowest numbered indictment, the indictment returned first, will be the first one tried. Ms. Triplett, the prosecu-trix, was the victim in the lowest numbered cause.

The trial judge also found that the “clerk’s office subpoena docket” did not show that Ms. McCrary had been subpoenaed by anyone except the State of Alabama, though he assumed an instanter subpoena had been requested by defense counsel.

After the state rested its case and before the testimony for the defense had begun, the court informed defense counsel that he had received a note that Ms. McCrary was in Room 516 at Children’s Hospital in fair condition. Counsel replied that he “did get something to that effect”.

The record does not reveal that defense counsel informed the trial court of the substance of Ms. McCrary’s testimony at any time before the request for a continuance was denied. At the hearing on the motion for new trial the trial judge stated:

“However, I would bring to the attention of counsel there has never been shown to the court what defense counsel expected Miss McCrary to testify to that would in any way exculpate this defendant.”

The action of the trial court in denying the continuance was proper for several reasons. The refusal to grant a continuance for the absence of a witness is not error (1) in the absence of a showing as to what the witness would testify, Castona v. State, 17 Ala.App. 421, 84 So. 871 (1920); White v. State, 86 Ala. 69, 5 So. 674 (1889); Sparks v. State, 46 Ala.App. 357, 242 So.2d 403, cert. denied, 286 Ala. 738, 242 So.2d 408, cert. denied, 402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650 (1970); (2) in the absence of a showing that the defendant could probably locate and have the witness served within a reasonable time, Myers v. State, 19 Ala.App. 98, 95 So. 331 (1923); and (3) where there was no effort to secure the presence of the witness until the day of trial. Reese v. State, 32 Ala.App. 449, 26 So.2d 723 (1946).

Though the state had subpoenaed the absent witness, a defendant desiring a witness cannot rely on the fact that the state has issued process for him. Breckenridge v. Commonwealth, 176 Ky. 686, 197 S.W. 395 (1917); Sanders v. State, 36 Okl.Cr. 120, 252 P. 855 (1927); State v. Bolyn, 143 S.C. 63, 141 S.E. 165 (1928); State v. Jackson, 250 La. 1100, 202 So.2d 264 (1967).

Ill

Though the appellant challenges the constitutionality of the “one for one” strike procedure for selecting a jury in Jefferson County, we have consistently upheld the constitutionality of Section 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958. See Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, Ala., 335 So.2d 688 (1976) and cases cited therein at 335 So.2d 685; White v. State, Ala.Cr.App., 347 So.2d 566 (1977).

IY

The appellant maintains that the evidence was insufficient to support a conviction because there was no proof of penetration and no proof of force or threat.

The prosecutrix testified in response to questioning by the prosecution that the appellant placed his private parts into her private parts. This was sufficient to show penetration. Thomas v. State, 53 Ala.App. 232, 298 So.2d 652, cert. denied, 292 Ala. 755, 298 So.2d 657 (1974); Beckley v. State, Ala.Cr.App., 353 So.2d 542 (1977).

The prosecutrix’s testimony as to the degree and nature of her resistance was sufficient to present a question of fact for the jury. The testimony of the prosecutrix need not be corroborated in order to sustain a conviction. Boddie v. State, 52 Ala. 395 (1875); Daniels v. State, Ala.Cr.App., 343 So.2d 566 (1977).

V

Finally the appellant maintains that the trial court erred in charging the jury on the law of conspiracy in that the charge was misleading and unsupported by the evidence.

Joint participants in a crime may be denominated “conspirators” and a joint act or scheme may be called a “conspiracy” since these words do not lose all of their ordinary meaning and content merely because there exists a separate crime of conspiracy. United States v. Snyder, 5th Cir., 505 F.2d 595, cert. denied, 420 U.S. 993, 95 S.Ct. 1433, 43 L.Ed.2d 676 (1974).

The evidence demanded an instruction on conspiracy. The prosecutrix testified that the appellant and Charles Thomas got her out of the car and dragged her down the road back into the woods; that “they” started taking off her clothes and pushing her on the ground; that Thomas was taking off her clothes while the appellant was hitting, beating and choking her and that the appellant held her down while Thomas raped her; then Thomas held her down while the appellant “did the same thing”. Then “they” told her “they” were going to take her back.

While a conspiracy involves a community of purpose, it may be formed in a flash or an instant without prearrangement. Ray v. State, 32 Ala.App. 556, 28 So.2d 116 (1947); Smith v. State, 57 Ala. App. 151, 326 So.2d 680, cert. denied, 295 Ala. 419, 326 So.2d 686 (1975); Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976). The conspiratorial agreement may arise on the spur of the moment. Mabry v. State, 40 Ala.App. 129, 110 So.2d 250 (1959); Cotton v. State, 36 Ala.App. 418, 57 So.2d 125 (1952). Thus, under the evidence, a jury instruction on conspiracy was proper.

Additionally we find that the charge given was not indefinite, uncertain or misleading.

“Hypercriticism should not be indulged in in construing charges of the court (S. & N. R. R. Co. v. Jones, 56 Ala. 507; McGuire v. State, 2 Ala.App. 218, 223, 57 So. 57); nor fanciful theories based on the vagaries of the imagination advanced in the construction of the court’s charge, which is usually — as it is here, and as it should be — expressed in plain language that is susceptible of the ordinary understanding.” Addington v. State, 16 Ala. App. 10, 19, 74 So. 846, 855 (1916).

The appellant has been well represented by court appointed counsel on appeal. In light of this and our statutory duty we have carefully searched the record for error. Finding none, we are of the opinion that the judgment of the lower court is due to be affirmed.

AFFIRMED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex parte James Randall SMITH.
    77-523.
    Supreme Court of Alabama.
    March 9, 1979.
   ALMON, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur except JONES and SHORES, JJ., who dissent.


author: BOOKOUT, Judge.

text:
    Carl Arthur PERRY v. STATE.
    8 Div. 958.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.
    Rehearing Denied June 20, 1978.

      Wesley M. Lavender, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen. for the State, appellee.
   BOOKOUT, Judge.

Robbery; sentence: eighteen years imprisonment.

The appellant did not elect to testify in his own behalf nor did he present any evidence. The issues on appeal concern the trial court’s denial of a mistrial and the refusal to give certain requested instructions to the jury.

I

The appellant contends that his motions for mistrial should have been granted because the misconduct of an accomplice during the trial prejudiced him.

Billy Joe King testified that he, Thomas Wilson, and the appellant planned and executed a bank robbery in Decatur. King drove the get-away car while the other two actually committed the robbery in question. During the course of his testimony, the State had Thomas Wilson brought to the courtroom for purposes of identification whereupon the following occurred:

“Q. Is that the man that was with you and Carl Arthur Perry on this occasion?
“A. Yes, sir.
“Q. Okay, fine.
“MR. WILSON: Ain’t no way he could know that. My mother was a prostitute and I could be a bastard. He don’t know that.
“MR. NELSON: Judge, at this time based on the conduct of the gentleman that came out and the curse words in front of the Jury, we would have to ask for a mistrial. We object to it and ask the Court to exclude it and ask for a mistrial, and I assign the grounds that it is nothing but prejudicial to our client, being one and the same man was paraded by our table and the Jury. We object to it and ask for a mistrial.
“THE COURT: Motion for a mistrial denied.”

In that motion for a mistrial, counsel for appellant referred to an earlier incident involving the same accomplice. Prior to the first witness being called, the following occurred:

“MR. NELSON: May it please the Court, at this time we object to going to trial with this defendant because some gentleman just walked through the courtroom here, stopped at the table, said he wanted to speak to me. I think he is Mr. Wilson, who was also charged with this robbery in this same case. He walked in front of jury, was put in a room over here in front of the jury. We object on the ground it is prejudicial to our client, Mr. Perry, and I ask that this case be continued until we eradicate this prejudicial affect.
“THE COURT: Motion denied. Are you gentlemen ready to go to the Jury?
“MR. MOEBES: Yes, sir, Your Honor.
“MR. NELSON: Yes, sir.”

However, page four of the record reveals that the jury had been sent out of the courtroom and was in the venire lounge at the time the accomplice Wilson stopped at the counsel table and spoke to the appellant’s attorney. The appellant could not therefore have been prejudiced by the incident in any way. The denial or granting of a motion for a continuance rests in the sound discretion of the trial court, and the denial is not reviewable on appeal absent a showing of gross abuse. Sowells v. State, Ala.Cr.App., 339 So.2d 1090 (1976).

The second motion for a mistrial was based upon the misconduct of the same accomplice at the beginning of the second day of trial. After the State announced “ready,” the following occurred:

“MR. NELSON: Judge, we would like to make one objection in the record, if we may at this time. We move for a mistrial again on the grounds that approximately five minutes ago the man named Thomas Wilson was handcuffed and was brought over here and put in this small room with a chair in the presence of the Jury, and some few minutes later the deputy sitting beside the door opened the door and said he could not have a chair and he could not smoke, and whereupon Mr. Wilson went into another tirade something about, ‘has the judge gone crazy’ and this sort of thing in front of these twelve folks here, and we object to that and move for a mistrial on the grounds that all the conduct by this fellow is prejudicing our client.
“THE COURT: Is that your motion?
“MR. NELSON: We move for a mistrial.
“THE COURT: I say is that it?
“MR. NELSON: Yes, sir.
“THE COURT: All right. Is there anybody on this Jury that feels what they saw or heard would disturb their judgment and interfere with their ability to try this case on the law and the evidence? Is there — if there is, would you hold up your hand. All right. Let the Jury go out. Take the Jury back to the room.”

Outside the presence of the jury, the trial judge had a discussion with the attorney for the accomplice Wilson and instructed the sheriff on how the in-court identification of Wilson would be conducted. The court then denied the appellant’s motion for a mistrial.

The record does not indicate exactly what happened except by way of the grounds stated in the appellant’s motion for a mistrial. Before denying the motion, the trial judge satisfied himself that Wilson’s conduct would not disturb the judgment of the jury or interfere with their ability to try the case on the law and the evidence. The trial judge also took appropriate precautions to prevent Wilson from further disrupting the trial.

The granting or denying of a motion for mistrial is within the sound discretion of the trial judge because he is in a much better position to determine what effect, if any, some occurrence may have had upon the jury’s ability to decide the defendant’s fate fairly and justly. This is particularly true where a disturbance at the trial is not completely incorporated into the record as in the present case. We will not interfere with the trial judge unless there has been a clear abuse of his discretion. Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967). We do not find that the trial judge abused his discretion in denying the motion for a mistrial in either instance recited in the record. See also England v. State, Ala.Cr.App., 333 So.2d 207 (1976), wherein this court upheld the trial court’s denial of a motion for a mistrial due to a disturbance in the courtroom by the mother of an accomplice.

II

The trial court refused to give the following written charges requested by the appellant:

“DEFENDANT’S WRITTEN REQUESTED JURY CHARGE NO. 14
“I charge you, Members of the Jury, that the defendant, by a plea of not guilty, denied the charges against him, and does not have to prove a thing; that the failure of the defendant to testify cannot be used against him, and that no inference of guilt can be drawn therefrom, and the fact that he did not testify or present evidence in this cause shall not be considered by you against him or prejudice him in any way.”
“DEFENDANT’S WRITTEN REQUESTED JURY CHARGE NO. 26
“I charge you, Members of the Jury, that the defendant, by a plea of not guilty, denied the charges against him, and does not have to prove a thing; that the failure of the defendant to testify cannot be used against him and that no inference of guilt can be drawn therefrom and the fact that he did not testify or present evidence in this cause shall not prejudice him in any way.”
“DEFENDANT’S WRITTEN REQUESTED CHARGE NO. 27
“I charge you Members of the Jury, that you must return a verdict of not guilty in this case.”

Charges 14 and 26 were formulated on the basis of Title 15, § 305, Code of Ala.1940 (now § 12-21-220, Code of Ala.1975), which in pertinent part provides:

“. . . the person on trial shall, at his own request, but not otherwise, be a competent witness; and his failure to make such a request shall not create any presumption against him, nor be the subject of comment by counsel. . . . ”

This court found the refusal of a similar charge to be without injury where the defendant’s failure to testify had not been the subject of comment by counsel or referred to in any manner in Turner v. State, 29 Ala.App. 13, 191 So. 392, cert. denied (with opinion), 238 Ala. 352, 191 So. 396 (1939). The basis of the ruling in Turner was old Supreme Court Rule 45, now Rule 45, Ala. Rules of Appellate Procedure, which in pertinent part is as follows:

“No judgment may be reversed or set aside ... on the ground of . giving or refusal of special charges . unless in the opinion of the court to which the appeal is taken ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Adhering to the principle set forth in Turner, supra, we find that the trial court’s refusal to give Charges 14 and 26 in the instant case resulted in no injury to the appellant. Nowhere in the record is there an indication that any attempt was made by counsel to comment on the appellant’s failure to testify. This lack of comment and the fact that the evidence without material conflict disclosed that the appellant and his cohorts robbed the bank in question brings this ease squarely within the holding in Turner, supra.

Charge No. 27 was an affirmative charge and was properly refused by the trial court.

The appellant contends that the affirmative charge should have been granted because a conviction for a felony cannot be had on the testimony of an accomplice unless corroborated by independent evidence tending to connect the accused with the commission of the offense. Title 15, § 307, Code of Ala.1940.

Nettie Wilson, the mother of Thomas Wilson and grandmother of Billy Joe King, supplied the independent corroborating evidence to support the appellant’s conviction. She testified that on the morning of the date of the robbery, Thomas Wilson, Carl Perry, and Billy Joe King were at her residence. She overheard Wilson and Perry talking about robbing a bank. Thomas Wilson got a pillow case from his mother, and the trio left the house. Shortly thereafter, they returned with the pillow case full of money which they counted out on a bed and divided. The appellant put his share in a brown paper bag and left with it.

It is the appellant’s position that Nettie Wilson, because of her cooperation, became an accomplice; therefore, her testimony could not corroborate that of other accomplices pursuant to Title 15, § 307, supra. The classic test of determining whether one is an accomplice is whether he could have been indicted and convicted of the offense charged, either as principal or accessory. If he could not be so charged, he is not an accomplice. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). Mere presence at the scene of the crime or failure to raise a hue and cry does not make a person an accessory. Leonard v. State, 43 Ala. App. 454, 192 So.2d 461 (1966). Compulsion or duress which is present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done, will excuse an act which would otherwise be a crime. Haywood v. State, 43 Ala.App. 358, 190 So.2d 725 (1966). If the evidence in this regard is in dispute, a question of fact is presented, and it is for the jury to decide. Fairbanks v. State, 46 Ala.App. 236, 239 So.2d 908 (1970).

There was evidence from which the jury could find that Nettie Wilson was not an accomplice. Billy Joe King testified that his grandmother’s life was threatened two or three times. Nettie Wilson also testified that she was afraid she would make the wrong move and that she would be killed. Moreover, the trial judge extensively charged the jury concerning accomplices and gave five of the appellant’s requested instructions on the subject.

Where there is doubt whether a witness is in fact an accomplice and the testimony is susceptible to different inferences, a jury question is presented. Perry v. State, Ala.Cr.App., 340 So.2d 895, cert. denied, Ala., 340 So.2d 896 (1976); Daniels v. State, 50 Ala.App. 88, 277 So.2d 364 (1973); Doss v. State, 220 Ala. 30, 123 So. 231 (1929); Skumro v. State, 234 Ala. 4, 170 So. 776 (1936). Before the prohibition of Title 15, § 307, supra, may be invoked in favor of a defendant, it must clearly appear that the witness in question is an accomplice. Ross v. State, 74 Ala. 532 (1883); Lowery v. State, 38 Ala.App. 505, 88 So.2d 854 (1956). The burden of proving that a witness is an accomplice is upon the defendant who alleges it for the purpose of invoking § 307, supra. Fairbanks, supra; Snowden v. State, 27 Ala.App. 14, 165 So. 410 (1936).

The issue of whether Nettie Wilson was an accomplice was put squarely before the jury and was decided adversely to the appellant. We cannot say as a matter of law that the evidence did not support the finding of the jury in this regard. Nettie Wilson’s testimony therefore corroborated the testimony of Billy Joe King. Thus, the affirmative charge was properly refused.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    In re Carl Arthur PERRY v. STATE of Alabama. Ex parte Carl Arthur PERRY.
    77-639.
    Supreme Court of Alabama.
    Jan. 5, 1979.
    Rehearing Denied Feb. 16, 1979.
    Wesley M. Lavender, Decatur, for petitioner.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State (opposed), for respondent.
   JONES, Justice.

We granted the Defendant’s Petition for Writ of Certiorari to review the Court of Criminal Appeals’ affirmance of Defendant’s conviction for robbery. Our review is limited to a “conflict” ground asserted in the petition pursuant to Rule 39, ARAP, relating to the propriety of the trial Court’s refusing a requested written instruction to the jury.

The Appellant, after exercising his constitutional right not to testify in his own behalf, requested the following written charge:

“I charge you, Members of the Jury, that the defendant, by a plea of not guilty, denied the charges against him, and does not have to prove a thing; that the failure of the defendant to testify cannot be used against him, and that no inference of guilt can be drawn therefrom, and the fact that he did not testify or present evidence in this cause shall not be considered by you against him or prejudice him in any way.”

Here, the Court of Criminal Appeals states that there was no injury to the Appellant as a result of the trial Court’s refusal of the requested instruction, citing Turner v. State, 29 Ala.App. 13, 191 So. 392, cert. denied (with opinion), 238 Ala. 352, 191 So. 396 (1939). The conflict arises because the Court of Criminal Appeals in Swindle v. State, 50 Ala.App. 403, 279 So.2d 574 (1973), held that a refusal to give requested instructions on the defendant’s right not to take the stand and be a witness in his own behalf constitutes reversible error.

In Turner, the petitioner elected not to become a witness in his own behalf and requested a jury instruction relative thereto. The Court of Appeals applied Supreme Court Rule 45 (Rule 45, ARAP), which states:

“No judgment may be reversed or set aside, nor new trial granted by any court in this State in any ease, on the grounds of misdirection of the jury, the giving or refusal of special charges . . . unless in the opinion of the court, it should appear that the error complained of has probably injuriously affected substantial rights of parties.”

The Court interpreted the Rule to mean that the appellate court should determine whether the refusal probably caused injury affecting the substantial rights of the parties, holding that a refusal was not injurious per se. The Supreme Court of Alabama concluded that it could not review the findings of the Court of Appeals for error without injury unless there was a misapplication of the Rule. Finding no misapplication of the doctrine of error without injury under Rule 45, the Supreme Court denied the writ.

In Swindle v. State, supra, the Court of Criminal Appeals reversed the conviction for the refusal of Appellant’s requested charge as follows:

“The Court charges the jury that the fact that the Defendant did not testify in this case cannot be considered in determining the Defendant’s guilt or innocence.
“No inference or conclusion should be drawn by the jury from the fact that the Defendant, Thomas Swindle, was not sworn and put on the witness stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict.” 50 Ala.App., at p. 404, 279 So.2d, at p. 575.

The Court noted that the defendant did not testify, the charge was not abstract under the evidence, and no other instruction, general or specific, referred to the right of the defendant not to take the stand.

In Salvadori v. State, 33 Ala.App. 372, 33 So.2d 752 (1948), the defendant alleged error in the refusal of the trial court to give the following written charge:

“ ‘The Court charges the Jury that the fact that the defendant did not testify in this case cannot be considered in determining the defendant’s guilt or innocence.’ ” 33 Ala.App., at p. 373, 33 So.2d at p. 753.

In Salvadori, the Court of Appeals observed that there was no reference or explanation at all that the accused did not testify, citing a similar charge in Turner, which justified the refusal because it was error without injury. The Salvadori Court further noted that the writ in Turner was denied because the Supreme Court was not privileged to review the findings of that court on the question of error without injury, unless the intermediate appellate court opinion disclosed some misapplication of the Rule.

The Salvadori Court also noted that in Alston v. State, 248 Ala. 163, 26 So.2d 877 (1946), the Supreme Court justified the refusal because it was covered substantially in the trial court’s oral charge. There, the Court stated that, unless Supreme Court Rule 45 can be applied to the action of the trial court, its ruling, refusing the subject charge, was reversible error. Salvadori did not overrule Turner, but distinguished it, finding probable injury when error is apparent.

The Appellant, here, also relies on Thomas v. State, 139 Ala. 80, 36 So. 734 (1903). There, the defendant requested the court to charge the jury that “no inference or conclusion should be drawn by the jury from the fact that the defendant was not sworn and put on the stand as a witness in his own behalf, nor should this fact have any weight with the jury in reaching a verdict.”

The Supreme Court in Thomas reversed, holding:

1) The charge in substance states the law applicable to the case;

2) It was a fact that the defendant failed to make the request to testify in the case and the charge should not be condemned as being abstract;

3) The charge cannot be condemned as being argumentative because it contained nothing more than the statement of an admitted fact and the law applicable under the statute.

The statute referred to in Thomas is presently codified in § 12-21-220, Ala.Code 1975, which provides in pertinent part:

“ . . . the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel. . . . ”

We find that there is, in fact, a “conflict” in the decisions of the Court of Criminal Appeals; and we reaffirm the rationale of Swindle v. State, supra. We hold that the trial Court’s refusal to give the requested jury instructions in the present case constitutes reversible error.

In summary, then, we observe that it has long been the law of this State that the constitutional guarantee against self-incrimination (Art., § 6, Alabama Constitution 1901), as augmented by the above-referenced statute, renders the refusal of a requested jury instruction on the legal effect of an accused’s exercise of that right reversible error. The “conflict” consists not in contrary holdings, but in the application of the “harmless error” rule in some cases and not in others. In other words, cases that have affirmed the conviction in face of the trial court’s refusal to give the subject charge have done so admitting (or assuming) error. Indeed, the application of Rule 45, by its very terms, assumes error.

Our holding effectively eliminates the application of Rule 45 in the factual context of the instant case. Whether the constitutional right “not [to] be compelled to give evidence against himself” implicitly gives an accused the further right to have the jury instructed on the legal effect of his exercise of that right, we need not here decide. The legislative expression of the public policy emanating from that organic guarantee is clear; and this statutory right that “his failure to make [a request to testify] shall not create any presumption against him” is so inexorably tied to the fundamental right against self-incrimination as to defeat any application of the harmless error doctrine. Subjective analysis on a case-by-case basis, to determine whether such error has affected the substantial rights of the accused, has no field of operation where, as here, the denial of the requested instruction is tantamount to the denial of the fundamental right of the accused, as constitutionally and statutorily mandated, to elect not to testify.

For the Federal rule in accord with our holding, see Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939); see also, Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) (affirming the Supreme Court of Oregon’s holding that it was not reversible error to so instruct even over the defendant’s objection).

REVERSED AND REMANDED.

All the Justices concur, except BLOOD-WORTH, J., not sitting.

      . Defendant also requested a second charge which was substantially the same as the one here set out.


text:
    Carl Arthur PERRY v. STATE.
    8 Div. 958.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
   After remand by the Supreme Court of Alabama, REVERSED AND REMANDED on mandate of the Supreme Court, 368 So.2d 310, without opinion.

All the Judges concur.


text:
    James Edward ALLUMS v. STATE.
    4 Div. 684.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    Dwight Hixon, Union Springs, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted for robbery. A jury convicted as charged and the court imposed a ten year sentence.

The record indicates that defendant was represented by appointed counsel at his trial in camera and on the merits of the case; also is here represented by the same appointed counsel.

It appears in the evidence adduced at the nisi prius trial on the merits that the victim was a middle-aged female who was attacked, molested sexually, and robbed while she was walking alone on an isolated road near her home in Bullock County at a spot near Union Springs. She resisted, but was overpowered manually by defendant. Defendant took about $70 in cash. She was abused and bruised.

It further appears that the victim immediately identified the defendant as her assailant. Likewise, the investigating officers found a watch at the scene of the alleged attack which they identified as the property of defendant.

Defendant took the stand after being fully and clearly advised in camera by the trial judge as to his rights to testify. He denied his presence at the scene, denied the attack and claimed an alibi. He also denied ownership of the watch. Defendant’s father also testified that the watch did not belong to the defendant. The jury decided the factual issues in favor of the state.

I

Appellant here contends inter alia that the trial court erred in refusing to quash the indictment because of improper proceedings in the juvenile court to which defendant was committed because of his age. He was fifteen years of age at the time of the commission of the alleged robbery.

Appellant-defendant asserts that the juvenile court did not comply with the “explicit procedural requirements and safeguards,” set forth in Section 12-15-34, Code of Alabama 1975.

We have examined the record and find therein a copy of an order of the judge of the district court wherein it appears that the court heard evidence relative to the criminal record of appellant, who was then and there represented by an appointed attorney.

The court held that the defendant, based on a prior criminal record, was incorrigible and should be tried as an adult on the several charges of robbery, rape and assault with intent to murder, for which he authorized the execution of criminal warrants.

There was no appeal from this order.

The record before us does not disclose specifically what evidence was taken in the district court. There is nothing in the record coming to our attention which indicates that the district court did not comply with the mandates of Section 12-15-34, supra, relative to the transfer of cases from juvenile court to criminal court. In the absence of an affirmative showing to the contrary, we are unwilling to say that the juvenile court did not consider the mandatory provisions of said Section 12-15-34, supra. The judge of the circuit court did not err in overruling the motion to quash the indictment because of such alleged omissions on the part of juvenile court.

II

The second assertion of error is that the trial judge at nisi prius erred in declining to quash the indictment because of improper “waiver of counsel and of a preliminary hearing.”

We think the record discloses that defendant, when he appeared in district court for a preliminary trial, did not have counsel and that he waived such hearing and thereupon was bound over to the action of a grand jury which, within a short while, returned an indictment.

We conclude that the waiver of a preliminary hearing was a nullity. Fletcher v. State, 52 Ala.App. 303, 291 So.2d 757(1).

Appellant’s motion to quash the indictment because he was not represented by counsel when he undertook to waive a preliminary hearing is without merit. Because the waiver was without legal efficacy, the magistrate did not lose jurisdiction of the case. Ex parte Simpson, 3 Ala.App. 222, 57 So. 518; Fletcher, supra.

Defendant could have “invoked appropriate legal procedure to obtain a hearing within the time and manner required by law, or, failing, that he be released from prosecution” in the district court. Fletcher, supra.

The defendant, as we observe, suffered no injury while the complaint against him lay dormant and inactive in the district court. In the absence of injury, we do not think that he can here complain. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Fletcher, supra. The trial court properly overruled the motion to quash the indictment as here asserted.

Ill

A third contention is that the trial court erred in failing to grant a mental examination and a continuance of the trial.

We will not hold the trial court in error for overruling the motion.

The movant assumed the burden of proof on this issue. Miniefield v. State, 47 Ala.App. 699, 260 So.2d 607(4). Defendant has no right to receive a mental examination as to his sanity whenever he requests one, and absent such a right, trial court is screening agent as to such request. Pace v. State, 284 Ala. 585, 226 So.2d 645(3); Robinson v. State, Ala.Cr.App., 337 So.2d 1382(5). Defendant’s testimony in camera and at nisi prius on the merits fails to show any signs of insanity. His evidence shows him to have been quite alert. The adverse ruling of the court on the motion, supra, was free of error.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Charles SIMMONS v. STATE.
    5 Div. 436.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.

      Billy L. Carter of Watkins & Carter, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Paul E. Johnson, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for robbery and convicted of the lesser included offense of grand larceny. Sentence was fixed at five years’ imprisonment.

I

The appellant maintains that he was unlawfully arrested by a private citizen and that the trial court should have granted his motion to suppress the evidence admitted as a result of his arrest (his confession which led to the recovery of the victim’s purse and pistol-the objects stolen).

We need not detail the facts surrounding the alleged arrest of the appellant by a private citizen. The evidence on this matter was in direct conflict. If the State’s evidence is believed, the appellant freely, voluntarily, and under no threat or coercion of any type, went with Grady Story to the Tuskegee Police Department about a stolen chain saw. Conversely, the appellant testified that he was forced at gunpoint into Story’s truck and taken to the police department.

The trial court, upon this conflicting evidence, denied the motion to suppress and admitted the confession. The court found, “In the first place, I don’t think it was an arrest, it appears to be voluntary, and it didn’t have anything to do with this particular crime”.

A review of the trial court’s ruling in connection with a motion to suppress a confession is limited to determining whether its finding was clearly erroneous. United States v. Greer, 566 F.2d 472, 473 (5th Cir. 1978). This is simply an application of the well settled rule that, where the trial court finds on conflicting evidence that a confession was voluntarily made, such finding is entitled to great weight and will not be disturbed on appeal, unless it appears contrary to the weight of the evidence or is manifestly wrong. Vernon v. State, 239 Ala. 593, 599, 196 So. 96 (1940); Burks v. State, 353 So.2d 539 (Ala.Cr.App. 1977); Thompson v. State, 347 So.2d 1371 (Ala.Cr. App.), cert. denied, 347 So.2d 1377 (1977); Hunter v. State, 38 Ala.App. 351, 83 So.2d 737 (1956).

Here there is evidence to support the finding of the trial judge that there was no illegal arrest and that the confession was voluntary. His decision was not arbitrary, contrary to the weight of the evidence, or manifestly wrong. Therefore the judgment of the trial court will not be disturbed.

The appellant’s argument that the confession was involuntary and inadmissible is based on the holding of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), that in-custody statements which stem from an illegal arrest are not rendered admissible merely because the defendant had been given the Miranda warnings prior to making the statements. No other contention of inadmissibility is advanced and in brief the appellant concedes, apart from the illegal arrest, “it would appear that said inculpatory statement should be admissible because they were voluntarily given”. Our review convinces us that the confession was voluntary and was properly admitted into evidence.

II

The trial court properly refused the appellant’s ten requested charges. Some of the requested charges were covered in the court’s oral charge. Others were mere statements of legal principles, without instruction as to the effect upon or application to the issues and were not hypothesized on a “belief from the evidence”. Hudson v. State, 335 So.2d 208, 211 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala. 1976). Still other charges were improper because they conclude with a citation to case authority. State v. Ingalls, 27 Ala. 562, 567, 173 So.2d 104 (1965); St. John v. State, 55 Ala.App. 95, 313 So.2d 215, cert. denied, 294 Ala. 768, 313 So.2d 218 (1975).

Ill

A review of the evidence reveals that it is sufficient to support a conviction for grand larceny. We have searched the record and found no error prejudicial to the appellant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.