author: BRADLEY, Judge.

text:
    Richard Lynn GUTHRIE v. CIVIL SERVICE BOARD OF the CITY OF JASPER, Alabama.
    Civ. 956.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1977.

      Joel P. Robinson, Elliott, O’Rear & Robinson, Jasper, for appellant.
    Morris W. Savage, Bankhead, Savage & Stephens, Jasper, for appellee.
   BRADLEY, Judge.

Richard Lynn Guthrie, a permanent employee of the Police Department of the City of Jasper, Alabama, was discharged on March 22, 1974 by the Jasper Chief of Police for “conduct unbecoming to his official position or job.” Section 17 of the rules and regulations promulgated by the Jasper Civil Service Board provides that a city employee can be discharged, inter alia, for “conduct unbecoming to his or her official position or job.”

On March 26, 1974 Guthrie appealed his discharge to the Civil Service Board. After several continuances a hearing was had before the Board on December 5, 1974. The Board sustained Guthrie’s discharge and ruled that the discharge was to be effective retroactively to March 22, 1974.

Guthrie appealed the Board’s ruling to the Walker County Circuit Court. In its decree that court stated that it was bound by the Board’s finding of fact and that after a careful search of the record it found no error of law. Guthrie then filed a motion for new trial, alleging that the charge made against him, i. e. that his conduct was unbecoming to his official position or job, is unconstitutionally vague and therefore unenforceable, and that the procedure which permits a city department head to discharge an employee without first informing the employee of the charges and affording the employee an opportunity to be heard is violative of due process. The new trial request was denied.

Guthrie appeals to this court from the trial court’s affirmance of the Board’s decision and the denial of his request for a new trial.

Appellant-Guthrie appears first to be asking us to decide that an off-duty policeman’s appearance in public while drinking or intoxicated is not “unbecoming conduct” as a matter of law, for in his brief he refers us to Barney v. City of Ashland, 220 Ky. 657, 295 S.W. 998 (1927), which held that the taking of a drink of intoxicating liquor by a policeman does not, of itself, justify his removal where such conduct is not made a ground for removal by the statute or by the rules and regulations of the police department. In effect Guthrie’s argument is that we decide afresh whether his conduct in public by openly drinking beer and being noticeably intoxicated was unbecoming, although the Civil Service Board previously decided that very same question against him.

As we view it, we are precluded from such an examination. Rather the first issue for our consideration is whether there was sufficient evidence presented to the Civil Service Board to support its finding that Guthrie’s public drinking and intoxication while off duty in a dry county amounted to conduct unbecoming to his job as a policeman and warranted his discharge.

The City of Jasper operates under a civil service system established by Act No. 113, Acts of Alabama 1965, 1st Sp. Sess., p. 162, which governs the appointment, removal, tenure and official conduct of employees of the city. Section 14 of the act provides:

“(a) The governing body of the city, any member of the governing body, or the head of any department or office can remove, discharge, or demote any employee . . . provided that within five days a report in writing of such action is made to the Board, giving the reason for such removal, discharge, or demotion. The employee shall have ten days from the time of notification of his discharge, removal, or demotion in which to appeal to the Board. The Board shall thereupon order the charges or complaint to be filed forthwith in writing and shall hold a hearing de novo on such charges. No permanent employee, officer, or official of the city whose employment comes within the jurisdiction of this Act, and whose probationary period has been served, shall be removed, discharged, or demoted except for some personal misconduct, or fact, rendering his further tenure harmful to the public interest, or for some cause affecting or concerning his fitness or ability; and if such removal, discharge or demotion is appealed to the Board, then the same will become final only after a hearing upon written charges or complaint has been had and after an opportunity has been given him to face his accusers and be heard in his own defense. Pending a hearing on said appeal, the affected employee may be suspended; and after such hearing the Board may order said employee reinstated, demoted, removed, discharged, or suspended, or take such other disciplinary action as in their judgment is warranted by the evidence and under the law. .
“(b) Any person aggrieved by a decision of the Board may appeal such decision to the circuit court of Walker county in equity within thirty days from the rendition of such decision by the Board. Review by the court shall be without a jury and be confined to the record, and to a determination of the questions of law presented; the Board’s findings of fact shall be final and conclusive.”

Subsection (b) provides that the findings of fact made by the Civil Service Board are final and conclusive. On appeal the circuit court is limited to a review of the record made before the Board and questions of law presented. Under such circumstances this court’s review is also based on a review of the record made before the Board and we look only to see if its findings are supported by substantial evidence. See City of Mobile v. Personnel Board for Mobile County, 57 Ala.App. 516, 329 So.2d 570 (1976); Edmondson v. Tuscaloosa County, 48 Ala.App. 372, 377, 265 So.2d 154 (1972).

Furthermore, after a careful reading of subsection (a), we conclude that the legislature intended to give broad quasi-judicial powers to the Jasper Civil Service Board. In Edmondson v. Tuscaloosa County, supra, we reviewed a similar statute and held that where there is substantial evidence to support the discretionary authority of the discharging board, no authority is reposed in the reviewing circuit court to supplant the board’s judgment with its own.

In the situation presented by the case at bar, the review by the circuit court is in effect that of certiorari. Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285, cert. den. 291 Ala. 458, 282 So.2d 291 (1973). On such review the court is restricted to examining only the external validity of the proceeding. Alabama Electric Cooperative v. Alabama Power Co., 278 Ala. 123, 176 So.2d 483 (1964); Phelps v. Public Service Commission, 46 Ala.App. 13, 237 So.2d 499 (1970). We do not believe that we can violate these restrictions any more than could the circuit court in deciding the question presented by appellant. We are, therefore, precluded from deciding whether Guthrie’s public conduct was unbecoming. The Board found as a fact that Guthrie’s public drinking and intoxication, even though he was off duty and out of uniform at the time, was conduct unbecoming a policeman and tended to foster disrespect for the city police department and law enforcement.

The testimony elicited at the hearing before the Board showed that Guthrie was observed drinking beer and being intoxicated in a public place, in a dry county and in the presence of young people. Not only was Guthrie openly violating a law he was sworn to uphold, but he was also degrading law enforcement by fostering disrespect for the law on the part of the young people who saw him openly violating the law. We cannot say that the evidence presented to the Board does not substantially support its decision to discharge Guthrie as a policeman.

The next question Guthrie asks us to decide is whether he was discharged from the police department on March 22, 1974 or December 5,1974. Section 14(a) of Act No. 113, supra, provides that a department head may discharge an employee if within five days of that action a written report is filed with the Civil Service Board stating the reasons for discharge. Guthrie was notified by letter dated March 23, 1974 that as of March 22 he was discharged by the police chief, the appropriate authority under Section 14(a).

Section 14(a) further provides that if a permanent employee appeals his or her discharge to the Civil Service Board, the discharge will become final only after a hearing before the Board. The hearing in the present case was not held until December 5,1974. At that time the Board upheld and sustained Guthrie’s discharge by the chief of police as of March 22, 1974. The effect of the Board’s action was to make the police chief’s discharge the final action. We find such a result to be contrary to the specific statutory directive of Section 14(a).

Section 14(a) clearly reflects the legislative intent that the hearing before the Board be a new proceeding, to be conducted as if nothing had occurred prior to the hearing relative to the termination of a city employee’s services, for the statute provides that the hearing before the Board is to be “de novo.” This portion of the statute also provides that after the hearing the Board may order the employee “ . . . reinstated, demoted, removed, discharged, or suspended, or take such other disciplinary action as in their judgment is warranted by the evidence and under the law.”

In construing similar language in Edmondson v. Tuscaloosa County, supra, we said:

“ . . . It is not a question of sustaining the action of the official making the discharge. The hearing before the Board is upon the formal charges made by the discharging authority, but the hearing before the Board is entirely de novo and the Board is free to take such action as in its judgment is warranted by the evidence.” 48 Ala.App. at 377, 265 So.2d at 158.

In the present case the Board, after hearing the charges de novo, was, as we said in Edmondson, “free to take such action as in its judgment [was] warranted by the evidence.” It discharged Guthrie from the Jasper Police Department. Such discharge, according to Section 14(a), supra, became final with the Board’s action. Absent a contrary intent, words in a statute are to be given the meaning accepted in popular, everyday usage. Republic Steel Corp. v. Horn, 268 Ala. 279, 105 So.2d 446 (1958). The Board’s decision did not relate back to March 22, 1974, the date the police chief notified Guthrie that he was discharged, but became “final” on December 5, 1974, when it discharged Guthrie as a policeman. Consequently Guthrie, who had not been suspended by the Board from his employment pending the outcome of the appeal, was not finally terminated as a policeman for the City of Jasper until December 5, 1974.

The third issue raised by Guthrie is whether he was entitled to a hearing before being discharged by the chief of police, i. e. does procedural due process require such a hearing prior to discharge.

The long-standing rule in Alabama is that a permanent employee can be summarily discharged without a prior hearing as long as a post-discharge hearing is provided. Simpson v. Van Ryzin, 289 Ala. 22, 265 So.2d 569 (1972); Pool v. Williams, 280 Ala. 337, 194 So.2d 87 (1967). In the instant case Section 14(a) of Act No. 113, supra, specifically provides that a permanent employee cannot be finally discharged — if the review procedure is requested by the employee — until a de novo hearing is conducted, the employee given an opportunity to face his accusers and be heard in his own defense, and a board decision made. If an appeal is filed, the discharge by the appointing authority or the authorized supervisory employee merely triggers the review process, ■ and the ultimate decision is made by the Board after the due process hearing has been held. In the case at bar Guthrie had a full-blown due process hearing before his final discharge by the Civil Service Board, all in accordance with the statute and civil service rules. We find no error here.

The next issue raised by Guthrie is whether Section 17 of the rules and regulations promulgated by the Jasper Civil Service Board, which is the basis for his discharge, is so vague as to be unconstitutional. That section provides:

“Any person subject to the above rules and regulations and under the jurisdiction of the Board found guilty of violating a rule or regulation or of any one of the following offenses, will be subject to repremand [sic], suspension, forfeiture of pay, discharge, or suffer such other lawful punishment as the Board may direct:
“4. Conduct unbecoming to his or her official position or job.”

Guthrie raised the constitutional question for the first time in his motion for a new trial. We are of the opinion that the constitutional question was raised too late for our consideration. Dale v. Dale, 54 Ala. App. 505, 310 So.2d 225 (1975), and cases cited therein.

Guthrie’s final issue for decision is whether the police chief’s discharge directive had the effect of also suspending him from his job pending appeal to the Civil Service Board and whether he is entitled to receive his salary for the period of time from March 22, 1974 to December 5, 1974.

We note initially that the police chief’s order discharging Guthrie would have been final if Guthrie had not appealed to the Civil Service Board. This being so, suspension would have been superfluous. However Guthrie did appeal his discharge to the Civil Service Board and his termination, in view of this development, could not become final until after hearing by the Board. Where the appeal procedure is invoked, the statute clearly authorizes an employee to be suspended by the Board pending the outcome of his appeal. The record does not reflect that Guthrie was ever suspended pending the outcome of his appeal. We conclude, therefore, that Guthrie remained an employee until December 5, 1974, when he was finally discharged by the civil Service Board. Having been an employee of the City of Jasper from March 22, 1974 until December 5, 1974, Guthrie is entitled to his salary for that period of time.

The judgment of the trial court is affirmed in part, reversed in part and remanded for the entry of an order in conformance with this opinion.

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

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    INDUSTRIAL MAINTENANCE CLEANING CONTRACTORS, INC., a corporation v. SALES CONSULTANTS OF NEW ORLEANS, INC., d/b/a Management Recruiters of Mobile.
    Civ. 959.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1977.

      John W. Donald, Jr., Mobile, for appellant.
    Gary P. Alidor, Mobile, for appellee.
   WRIGHT, Presiding Judge.

From judgment for money due on account or by contract, defendant appealed. We affirm.

Plaintiff, Sales Consultants of New Orleans, Inc., claimed $6,250 from defendant, Industrial Maintenance Cleaning Contractors, Inc. contending that it had performed a service for defendant for which defendant had promised to pay. The court heard the evidence orally without a jury and entered judgment against defendant for $3,450.

Plaintiff was in the business of finding personnel needed by businesses to fill particular management positions. One Wink, on April 16, 1975, filed with plaintiff an application for a position. Plaintiff contacted employers to determine if they were in need of the particular service of Wink. The evidence of plaintiff was that on May 1 it referred Wink to defendant for an interview and sent to defendant notice of its fee in the event Wink was employed at a particular salary. It was agreed orally that a fee of $6,250 was to be paid by defendant if Wink was hired at a salary of $25,000.

Meetings were held between Wink and defendant and on May 28, Wink began working for defendant on a commission and expenses basis.

On May 28, plaintiff’s manager, Manale, called Hester, defendant’s president, to determine if Wink had gone to work. Hester told him that they had not completed an agreement and that the fee of $6,250 was more than he could afford. After discussion Manale and Hester renegotiated the fee down to $3,240.

On June 4 Manale again called Hester to confirm the amount of the fee and that Wink went to work for defendant on May 28. An invoice for $3,240 was mailed to defendant.

On June 27 Hester wrote Manale informing him that Wink had not yet gone to work but that they were working on an agreement which was expected to be completed in a few days. When the agreement was finalized he would send plaintiff a copy so the fee could be figured.

On July 11, 1975, Manale wrote Hester and recapitulated the events occurring between plaintiff and defendant since May 1, 1975. There was included in the letter statement of the original agreement by defendant to pay a fee of $6,250. Reference was made to the telephone conversation of May 28 during which the fee was lowered to $3,240. It was then stated that if the fee was not paid in 10 days the matter would be turned over to an attorney. Defendant did not respond to that letter.

On July 18, 1975, plaintiff’s attorney wrote defendant referring to an agreement to pay a fee of $6,250. A demand was made to pay or be sued.

On July 21, 1975, Hester wrote the attorney denying any agreement with plaintiff to pay a fee. He advised that defendant and Wink were still negotiating. However, he said that upon Wink’s approval of a contract, defendant would contact plaintiff and see if a fee was owed. Subsequent to this letter plaintiff filed suit.

In December of 1975, defendant and Wink executed a written contract and Wink was employed by defendant at the time of trial.

The testimony of Hester was in essence as follows: He had known Wink for several years as a competitor in the same kind of business. He had talked with him at times about working for defendant; Wink had contacted him on April 29 or May 1, 1975, about a job and he had told him to come on up and talk; Wink subsequently talked with him three or four times before going to work on a commission basis in May; he never received from plaintiff any referral, order, invoice or fee schedule; though he received several calls from plaintiff’s representatives inquiring if he had reached an agreement with Wink, there was never any discussion of the amount or payment of a fee if Wink was hired; he did not recall receiving Manale’s letter of July 11, 1975, recapitulating prior discussions about a fee and demanding payment; in referring to a fee in his letters to plaintiff and its attorney, he was assuming that plaintiff had a contract with Wink for payment of a fee.

Defendant's first contention on appeal is that there was no contract between plaintiff and defendant for payment by defendant of a fee upon hiring of Wink.

It is easily seen from the previous statement of the evidence submitted by the parties, that there was conflicting testimony as to the making of a contract. The existence of a contract under such a state of the evidence is a question of fact. Maryland Casualty Co. v. First National Bank of Eufaula, 276 Ala. 575, 165 So.2d 359 (1964). The judge as the trier of fact in this case determined there was a contract. From comments of the judge made during the testimony, it appears that the judgment was upon a finding that there was an oral agreement to pay $3,240 made between Ma-nale for plaintiff and Hester for defendant during their telephone conversation of May 28, 1975. Though Hester denied such conversation and agreement, the credibility of witnesses and the weight to be given their testimony is for the trier of fact. Accident Indemnity Ins. Co. v. Feely, 279 Ala. 74, 181 So.2d 889 (1966). Upon appeal of a judgment rendered by the court after oral hearing, such judgment is presumed correct and will not be set aside if supported by credible evidence. Pirtle v. Harris, 338 So.2d 1018 (Ala.Civ.App.1976). It appears clear that the court believed the evidence of plaintiff and based judgment thereon. We cannot say such judgment is not supported by the evidence and thus palpably wrong. Daniel v. Matthews, 46 Ala.App. 568, 246 So.2d 457 (1971).

Defendant’s second contention of error is that defendant did not hire Wink as the result of any service rendered by plaintiff. This contention, as was the first, is founded upon the sufficiency of the evidence. We respond to it as we did the first. There was a conflict of evidence to be resolved by the trier of fact. It did so in favor of plaintiff. There is support for its action. We cannot reverse on appeal.

The third issue presented relates to the admission into evidence of a copy of an instrument termed a “job order.” Defendant submits that its admission into evidence over objection violated the “best evidence” rule. We agree that the copied instrument in this case was erroneously admitted in evidence. Public National Life Insurance Co. v. Highsmith, 47 Ala.App. 488, 256 So.2d 912 (1971). However, as previously stated, there was testimony to support the judgment totally aside from and unrelated to the “job order.” We find the admission of the job order not to be material or injurious error and invoke Rule 45, ARAP,

Finding no reversible error, we affirm the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Marcia SANDERS v. Bruce SANDERS.
    Civ. 973.
    Court of Civil Appeals of Alabama.
    Feb. 9, 1977.
    Von G. Memory, Montgomery, for appellant.
    Jesse M. Williams, III, Montgomery, for appellee.
   BRADLEY, Judge.

This appeal is from a judgment of the Circuit Court of Montgomery County modifying a previous award for child support and periodic alimony.

On May 19, 1976 Bruce Sanders filed a petition to modify a previous decree requiring him to pay $300 per month child support and $50 per month alimony. The petition was set for hearing on June 3, 1976. On that date the cause was continued to June 10, 1976 at the request of Marcia Sanders. At 9:00 a.m. on June 10, the appointed time for the hearing, Marcia Sanders did not appear in court and the hearing was continued until 3:00 p.m. that same day.

At 3:00 p.m. on June 10, 1976 a hearing was held in the chambers of Judge Perry Hooper on the petition to modify. Both parties were present. Marcia Sanders was not represented by counsel and requested to proceed pro se; Bruce Sanders was represented by counsel. No court reporter was present, since one had not been requested, and the proceedings were not reported.

On June 14, 1976 the trial court handed down a judgment reducing child support to $50 per week and alimony to $10 per week, and setting a hearing for October 11, 1976 to again review the financial status of Bruce Sanders.

On July 12, 1976 Marcia Sanders filed a motion to vacate, alter or amend the June 14, 1976 judgment pursuant to Rule 59(e) ARCP. The principal grounds of the motion were that: (1) Bruce Sanders was in arrears in child support payments and modification should not have been granted under the circumstances; (2) the June 14, 1976 judgment was not supported by the evidence and was predicated on misrepresentations and unsworn testimony; (3) Marcia Sanders was not given proper notice of the real import of the hearing; and (4) Marcia Sanders was not given an opportunity to request that the modification hearing be reported. After a hearing this petition was overruled July 20, 1976.

Marcia Sanders then filed a petition on July 29, 1976 to clarify the June 14, 1976 decree so that the said decree would reflect that Bruce Sanders was required to pay Marcia Sanders $65 per week, broken down as $45 per week child support and $20 per week alimony. The court ordered the June 14, 1976 decree so amended and corrected, and retained the October 11, 1976 review date.

The notice of appeal states that the appeal is taken from the June 10, 1976 decree. We assume this to be a typographical error and that Mrs. Sanders is appealing from the June 14,1976 order since this is the date the trial court rendered its decision modifying the previous decree and which is the subject of the Rule 59(e) motion.

Mrs. Sanders first contends that the reduction of child support and periodic alimony was contrary to the weight of the evidence adduced at the hearing and constitutes an abuse of the trial court’s discretion. As mentioned above, the June 10, 1976 hearing, which culminated in the June 14, 1976 decree, was not reported and there is no evidence in the record on which to base an analysis of the propriety of the trial court’s decree modifying the previous decree by reducing child support and alimony payments. In the absence of the evidence heard by the trial court, this court is in the position of having to assume that the evidence fully supported the June 14, 1976 decree. Park v. Elliott, 282 Ala. 110, 209 So.2d 393 (1968); Thompson v. Thompson, 50 Ala.App. 564, 281 So.2d 277 (1973).

Mrs. Sanders next attacks the June 14, 1976 decree in that the minor children were not represented by counsel at the June 10 hearing where their support was in issue and, consequently, the court erred by reducing their support payments. This issue was raised for the first time in brief and was not presented by Mrs. Sanders to the trial court.

Matters on which the trial court has not had an opportunity to rule cannot be reviewed by an appellate court. Only rulings of the trial court can be appealed and reviewed in the appellate courts. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975); Allen Trucking Co. v. Adams, 56 Ala.App. 478, 323 So.2d 367, cert. den. 295 Ala. 390, 323 So.2d 373 (1975).

The final error alleged by Mrs. Sanders is the trial court’s denial of her Rule 59(e) motion to vacate, alter or amend the June 14, 1976 decree. Rule 59(e) provides:

“A motion to alter, amend, or vacate the judgment shall be served not later than 30 days after entry of the judgment.”

In brief Mrs. Sanders argues in effect that at the hearing on her 59(e) motion she should have been allowed to retry the issues raised and decided at the modification hearing on June 10, 1976. The record reflects that Mrs. Sanders’ lawyer placed Bruce Sanders on the stand and attempted to prove his financial ability to continue his alimony and support payments prior to the June 14, 1976 modification order. The trial court ruled that this was an attempt to retry the modification proceedings, which he had already heard and decided, and refused to permit Mrs. Sanders to pursue this aspect of the 59(e) motion. Her lawyer then made an offer of proof to show what testimony he expected to elicit from both Bruce and Marcia Sanders. The record contains nothing further in support of the other aspects of the 59(e) motion. Mrs. Sanders suggests that she should have been permitted to introduce the oral testimony of the parties in support of her 59(e) motion on the theory that she would have been permitted to introduce affidavits in support thereof.

Support for Mrs. Sanders’ position can be found in Rule 43(e) ARCP, which provides in part:

“When a motion is based on facts not appearing of record the court . may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.”

Unlike Rule 59(c) with respect to motions for new trial, we also note that Rule 59(e) makes no mention of supporting affidavits. Further, it is unlikely that the rule was intended to exclude oral testimony as support for a motion to alter, amend or vacate a judgment. Therefore, we must examine the testimony which the trial court heard and that which it disallowed.

In her Rule 59(e) motion Mrs. Sanders alleges that at the time of the June 10, 1976 hearing there existed evidence known to both parties but unpresented to the trial court which evidence, had it been before the court, would have compelled a different result in the June 14,1976 decree. It was this known but unpresented evidence which Mrs. Sanders sought to introduce before the court and which the court refused to allow. We think that through the testimony allowed and the offer of proof the trial court was adequately informed of the grounds of the Rule 59(e) motion, which is all that is required. Without knowing what transpired at the June 10 hearing, we are unable to say that the trial court erred in refusing to allow Mrs. Sanders a second full-blown hearing of the same issues tried at the June 10 hearing.

Nor can we say that the trial court erred in refusing to grant the Rule 59(e) motion. The scope of review of an order denying a Rule 59(e) motion is whether there has been a manifest abuse of discretion. See Safeway Stores v. Fannan, 308 F.2d 94, 98 (9th Cir. 1962). The essence of Mrs. Sanders’ Rule 59(e) motion is that because she was not represented by legal counsel she was denied a fair hearing in that she was not given proper notice of the real import of the hearing, the evidence allowed at the hearing was unsworn and contained misrepresentations, and she was not given an opportunity to request that the modification hearing be reported.

Mrs. Sanders chose to proceed in the trial court without the aid of legal counsel and cannot now be heard to complain.

Pierce v. American Communications Co., 280 F.2d 278 (1st Cir.), cert. den. 364 U.S. 902, 81 S.Ct. 235, 5 L.Ed.2d 195 (1960), is similar to the case at bar. There the appellant, by way of motion under Rule 59(e), Fed.R.Civ.P., attacked a summary judgment. One of her contentions was that she had been deprived of a fair and full opportunity to present her case at the summary judgment hearing in that, due to an informal conference prior to the hearing, her lawyer understood the summary judgment issues to be more restricted than those the court considered and therefore the lawyer was unprepared to present her case on the broader issues taken up for decision at the summary judgment hearing. Counsel for the appellee contradicted the appellant’s version of what transpired at the informal conference. The United States Court of Appeals for the First Circuit concluded:

“The informal conference was not reported so we have no positive way of knowing which version is correct. The action of the court in denying the motions, however, satisfies us that it agreed with the defendants’ version. At least, the plaintiff has not established that her version is correct.” 280 F.2d at 288.

The trial court having seen and heard the witnesses testify in the modification proceedings and there being no record of those proceedings for us to review, we cannot say that the trial court manifestly abused its discretion in denying Mrs. Sanders’ Rule 59(e) motion.

Our refusal to reverse the judgment of the trial court does not preclude Mrs. Sanders from any further remedy. Child support and temporary alimony awards are never res judicata, and the trial court, upon sufficient proof of changed circumstances, can always modify an original award for temporary alimony and child support in a divorce decree. See Shepard v. Shepard, Ala.Civ.App., 338 So.2d 1016 (1976); Williams v. Williams, 54 Ala.App. 703, 312 So.2d 396 (1975).

It appearing that the trial court committed no error, we affirm its judgment.

AFFIRMED.

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


text:
    Janice ROLAND v. KRAZY GLUE, INC.
    Civ. 978
    Court of Civil Appeals of Alabama.
    Feb. 9, 1977.

      Richard L. Taylor, Birmingham, for appellant.
    John B. Tally, Jr., Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from the denial of a motion for new trial on the ground of inadequacy of damages. We reverse and remand.

Plaintiff purchased a tube of glue sold by defendant through a local drug store. While applying pressure to expel the glue, a seam at the unopened end of the tube ruptured. Glue splashed into plaintiff’s left eye. The eye was immediately irrigated and she was transported to a hospital. She suffered excruciating pain from burns to the cornea of her eye. Her eye was irrigated with a saline solution throughout the night, in the hospital. She was given anti-inflammatory and pain relieving drugs and was seen by an ophthamologist the next morning. Examination disclosed minor burns to the epithelium of the cornea. Eye drops and medication for pain were prescribed. She was dismissed from the hospital. She was seen again by the physician the following day. Her eye healed in three days but it was some three weeks before her eye ceased being sensitive to light. There was no permanent injury.

Plaintiff presented evidence of special damage as $15 for drugs, $65 for the doctor, $257 for the hospital and $254.50 for lost wages, a total of $591.50. The jury returned a verdict for plaintiff in the amount of $100. Motion for new trial upon the ground of inadequacy of damages was denied. Whether the verdict was inadequate and the court erred in denying a new trial therefor is the issue on appeal.

The questions presented on a motion for new trial on the ground of inadequacy of damages are whether the verdict is so opposed to the clear and convincing weight of' the evidence as to clearly fail to do substantial justice and does the verdict fail to give substantial compensation for substantial injuries? Smith v. Winkles, 49 Ala.App. 454, 273 So.2d 215 (1973). As a general rule a jury verdict is presumed to be correct and should not be set aside on the ground of inadequacy unless the amount is so inadequate as to plainly indicate that the verdict was the result of passion, prejudice or improper motive. Spears v. Bishop, 339 So.2d 75 (Ala.Civ.App.1976); Lipham v. McElroy, 57 Ala.App. 96, 326 So.2d 290 (1976); King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495 (1970). But there is a strong presumption of correction which attaches to a trial court’s refusal of a motion for new trial. Brooks v. Cox, 285 Ala. 267, 231 So.2d 302 (1970).

Plaintiff contends that since the jury returned a verdict in her favor, she was entitled to recover substantially more than $100 if she were entitled to recover anything. She further contends failing to award damages for medical expenses, lost wages and pain and suffering was capricious and not in accordance with the great preponderance of the evidence. Defendant contends the evidence failed to show as damages any expenses or losses borne by plaintiff in excess of the jury verdict.

Plaintiff is not required to prove she actually paid the expenses claimed as damages but only that she was liable for payment of them. Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543 (1929); Birmingham R., Light & Power Co. v. Humphries, 172 Ala. 495, 55 So. 307 (1911); Bates v. General Steel Tank Co., 36 Ala.App. 261, 55 So.2d 213, cert. dismissed 256 Ala. 466, 55 So.2d 218 (1951).

Construing the verdict most favorably, we do not find it compensated plaintiff for any lost wages or hospital expenses and perhaps only minimally for pain and suffering.

The testimony of plaintiff as to loss of wages was as follows:

“Q As a result of this injury to your eye, did you lose any time from your work?
A A week.
Q And how many working days was that?
A That was five working days.
Q And what would have been your rate of pay for these four or five working days?
A At that time, it was $254.50.”

Defendant contends this testimony failed to establish that plaintiff actually lost any wages. We disagree. Plaintiff is not required to negate the possibility that she was compensated by her employer for the time she was absent from work as a result of the injury to her eye. Birmingham Electric Co. v. Baker, 219 Ala. 324, 122 So. 316 (1929); Central of Georgia Ry. v. Storrs, 169 Ala. 361, 53 So. 746 (1910); see Annot., 7 A.L.R.3d 516 at 536-38. The last question shown above is phrased with the inference that she was not compensated by her employer. The question was what would have been your rate of pay (had you been paid), not what was your rate of pay at that time. As the court in Central of Georgia Ry. v. Storrs, supra, stated, if plaintiff had been compensated by her employer, defendant could have brought that fact out on its cross-examination of plaintiff. Without any evidence- that plaintiff’s wages were paid, we find she sufficiently showed a loss of wages as the result of her injury. It is undisputed that she lost $254.50 in wages for the time she was absent from work.

Plaintiff introduced an itemized hospital bill which showed that it was estimated $257 of her expenses would be covered by Blue Cross Insurance, that if the insurer did not pay that amount the patient would be required to do so, and that no payment was due at that time. There was testimony that $257 was a reasonable amount for the treatment she received.

Defendant contends the collateral source rule is a rule of evidence which merely prevents a showing by a defendant that payments have been made to plaintiff by a collateral source, such as an insurance company; Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963); Jones v. Keith, 223 Ala. 36, 134 So. 630 (1931); Allen v. Zickos, 37 Ala.App. 361, 68 So.2d 841 (1953); but that it does not excuse a plaintiff from showing he was paid or is obligated to pay.

Without agreeing or disagreeing with defendant’s contention, we find the damages recoverable by plaintiff should not be diminished by the fact that she has been wholly or partially indemnified for her loss by hospital insurance to which defendant did not contribute. Annot., 13 A.L.R.2d 355; 22 Am.Jur.2d Damages Sec. 210; 25 C.J.S. Damages Sec. 99(2). It was improper for the jury to disregard plaintiff’s hospital bill as an element of her damages because of the possibility it might have been paid by her insurer. The evidence is undisputed that the reasonable cost of plaintiffs hospital treatment was $257. A jury cannot disregard competent evidence as to damages and substitute its own judgment. State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965); Hyde v. Starnes, 247 Ala. 26, 22 So.2d 421 (1945).

Defendant further contends that even if $591.50 in damages had been proven, the discrepancy between the undisputed damages and the amount of the verdict is not so great as to establish that the verdict was wrong and unjust. When damages are small, at first glance there may not appear a great discrepancy. However, in this case it is almost six to one. If we were dealing in thousands of dollars rather than hundreds, the spread would be most noticeable. We find that the verdict is so contrary to the unconflicting evidence as to injury and damages and to the charge of the court that it must be set aside and a new trial granted.

The jury found that defendant was liable in damage for its tort. The jury may not act capriciously in awarding just compensation to the plaintiff. The denial of a new trial was error. We reverse the judgment of the trial court and remand for a new trial.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: HARRIS, Judge.

text:
    Wayne MOORE v. STATE.
    1 Div. 620.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.

      Thomas M. Haas and Neil L. Hanley, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of grand larceny and sentenced to eight years in the penitentiary. Throughout the trial proceedings he was represented by retained counsel. He pleaded not guilty at arraignment. After conviction he gave notice of appeal and his sentence was suspended pending appeal. New counsel was employed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“INDICTMENT
“THE STATE OF ALABAMA,
NO. 83 CIRCUIT COURT, SPRING TERM, 1975
CLARKE COUNTY
“The Grand Jury of said County charge that before the finding of this indictment Wayne Moore, whose name is otherwise unknown to the Grand Jury, feloniously took and carried away money, lawful currency and coins of the United States of America, the exact denominations of which are unknown to the Grand Jury, and checks, of the value of, to-wit, $22,-766.68, the personal property of Dianne K. Johnson, Mack Kelly and Mack Kelly Corporation, against the peace and dignity of the State of Alabama.
/s/ HARDIE B. KIMBROUGH District Attorney First Judicial Circuit
“A TRUE BILL
/s/ HAROLD E. DIXON, Foreman of the Grand Jury
“Presented in Open Court to the Presiding Judge by the Foreman of the Grand Jury in the presence of 17 other Grand Jurors, this 27 day of February, 1975.
/s/ S. A. ARMISTEAD. Clerk
“Filed in Open Court this 27 day of February, 1975.
/s/ S. A. ARMISTEAD. Clerk
“Bail is fixed at $5,000.00 /s/ WM. G. LINDSEY. Presiding Judge
NO. 83 Page _
Case # 4580-A
THE STATE OF ALABAMA, CLARKE COUNTY CIRCUIT COURT, SPRING TERM, 1975
THE STATE '■ VS WAYNE MOORE INDICTMENT FOR GRAND LARCENY STATE WITNESSES:
Mack Kelly
Ray Sheffield
Hubert Jackson
Helen Roberts
H. B. Bradford”

The evidence for the State tended to show that Mack Kelly was in the trucking business and had his office in Grove Hill, Clarke County, Alabama. That on the night of February 19, 1975, Kelly closed his business for the night and locked all doors to the building. He had a combination safe in his office in which he had $7,000.00 in cash, over $15,000.00 in checks and a box containing silver dollars. He went to his office around 7 o’clock the next morning and found that his safe had been broken into and that the money and checks were missing. He also found the back door was open. He stated that all the money and checks except a number of two-dollar bills and the silver dollars belonged to the corporation of which he was President. The two-dollar bills and the silver dollars belonged to his daughter, Dian Johnson. Photographs were made of the broken safe and admitted into evidence without objections. Upon discovering the burglary Kelly immediately called the Sheriff, who, along with other officers, immediately began conducting an investigation.

Kelly identified State’s Exhibit 3 as a check in the amount of $136.92 drawn on the Commercial National Bank of Demopo-lis, Alabama, by Coleman Lumber Inc., and payable to E. W. Kelly Corp., which he put in his safe when he locked the safe on the night of February 19, 1975. The check was not correctly made payable to the payee but Mr. Kelly testified that he endorsed it just like it was made out, viz., “E. W. Kelly Corp.”. This check was endorsed by Eddie W. Moore, the appellant herein. Mr. Kelly stated Eddie W. Moore’s endorsement was not on the check when he put it in his safe. Defense counsel stipulated that it was appellant’s signature on this check. Kelly further testified that he next saw this check at the Sheriff’s Office a week later when the Sheriff turned over to him $15,-272.00 in checks and the box containing 234 silver dollars.

On cross-examination Kelly testified that there was a gambling game at his place of business on most Monday and Saturday nights and that appellant had gambled there on several occasions.

Mrs. Charles Wilson worked for Mack Kelly in his office and handled business transactions dealing with checks. She testified that she was working on February 19, 1975, when her husband, Charles Lewis Wilson, brought his payroll check to her and she asked Mr. Kelly if he would cash this check and he said yes.' Mrs. Wilson endorsed the check in the name of “Charles Lewis Wilson” and also endorsed her name “Rebecca Wilson” and gave the check to her mother to cash. Her mother also worked in Mr. Kelly’s office and after cashing this check, it was put in the cash box in the safe. There were no other endorsements on this check when it was put in the safe.

Mrs. Helen Roberts testified that on February 26, 1975, she was employed at Junior Food Mart in Grove Hill and that the appellant brought her a check and asked her to cash it for him. She stated she asked appellant where he got the check and he told her he had done some work for Charles Lewis’ wife and that’s the way she paid him. She identified State’s Exhibit 4 and stated that the endorsements bore the names of “Charles Lewis Wilson” and “Rebecca Wilson” and that appellant endorsed his name “Wayne Moore” on the check in her presence and she then cashed it. She stated that Mack Kelly’s name did not appear on the check. She further testified that on the same day she cashed the check Officer Hubert Jackson came to the store and picked up this check. Defense counsel stipulated that appellant’s name was endorsed on State’s Exhibit 4.

H. B. Bradford testified that on February 26, 1975, he saw Wayne Moore lose money gambling with Mack Kelly at Kelly’s office. He cashed a check for Moore and identified it as State’s Exhibit 3.

Eddie Slayton, Deputy Sheriff, went to Mack Kelly’s place on February 26, 1975, and arrested appellant and took him to jail. Moore’s pickup truck was at Kelly’s place when he was arrested and the officer also took appellant’s truck to the jail. While the truck was at the jail, the officer looked behind the seat of the pickup truck and found a wooden box containing silver dollars and a number of checks under the box. The Deputy did not touch the box or the checks but called the Sheriff who took custody of the box and the checks.

The Sheriff delivered the checks to Mr. Kelly and kept the box of silver dollars until the date of trial.

Ray Sheffield, Sheriff of Clarke County, testified that he was also at Mack Kelly’s on February 26, 1975, to arrest appellant. The Sheriff took possession of the box containing the silver dollars that Deputy Slay-ton had found and stated that it contained $15,000.00 worth of checks payable to Mack Kelly. He gave the checks to Mr. Kelly and kept the box of silver dollars for evidence. This box was introduced in evidence without objections.

The appellant testified that he and his brother had seen Mack Kelly at a coffee shop around 2 o’clock on the morning of the alleged crime and he asked Kelly if he wanted to shoot dice. All three went to Kelly’s office and while appellant and Kelly began shooting dice, appellant’s brother went to the car and went to sleep. Appellant claimed he began winning heavily and Kelly said he didn’t have any more cash but that he had some checks. That they began shooting for higher stakes and appellant continued to win heavily until Kelly lost all the checks and silver dollars. Appellant claimed that Kelly asked him to hold the checks until he could get up the money. He said he asked Kelly several times for the money but Kelly put him off. Appellant admitted cashing two checks.

James Moore, appellant’s brother, stated that he and Wayne Moore went to Kelly’s office and he watched them start shooting dice on the morning of the alleged theft, but he got sleepy and went to the car. He said just before daylight appellant came out to the car and showed him some checks and silver dollars he had won.

Mr. Kelly testified in rebuttal that he did not shoot dice with appellant on the night of February 19, 1975, and that he did not know appellant had gotten his checks and silver dollars out of his safe until he saw all of these at the Sheriff’s Office the night appellant was arrested.

There was no motion to exclude the State’s evidence; there was no motion to suppress the evidence found in appellant’s truck after his arrest;' there was no objection to the testimony relating to the $15,-000.00 in checks and the silver dollars found in the box in appellant’s truck; there was no request for the affirmative charge; there were no exceptions reserved to the oral charge of the Court, and no adverse rulings by the trial court which contained any merit. Appellant did file a motion for a new trial but no evidence was taken on this motion. In this state of the record nothing is presented to this Court for review. Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Stokes v. State, 54 Ala.App. 112, 305 So.2d 387; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Bass v. State, 55 Ala. App. 88, 313 So.2d 208; Jones v. State, 55 Ala.App. 466, 316 So.2d 713.

Review by this Court is limited to those matters on which a ruling or action of the trial court was invoked at nisi prius. Canady v. State, 55 Ala.App. 473, 316 So.2d 720.

In reviewing the refusal of a motion for a new trial this Court will indulge every presumption in favor of the correctness thereof. Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624; Clark v. State, 54 Ala.App. 217, 307 So.2d 28.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Wayne MOORE.
    SC 2111.
    Supreme Court of Alabama.
    Feb. 25, 1977.
   FAULKNER, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur.


text:
    David CURRINGTON v. STATE.
    6 Div. 87.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 26, 1976.
    Stephen K. Griffith, Cullman, for appellant.

      William J. Baxley, Atty. Gen., Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of burglary in the second degree and sentenced to imprisonment in the penitentiary for ten years.

The only eyewitness to the alleged burglary was a fifteen-year-old boy, whose first name is Tim, a cousin of defendant’s wife, who was living with defendant, a twenty-six-year-old man, and his wife at the time of the alleged crime.

Tim testified that about 1:30 on the afternoon of January 21,1975, he and defendant went in defendant’s truck, driven by defendant, to the mobile home of Mr. George Seckford, stopped the truck and talked to a lady who lived in a house close to Mr. Seckford’s mobile home and who was identified by other witnesses as the mother of Mr. Seckford. After talking with Mr. Seekford’s mother they drove down the road in the truck, sat there for a while, and went back to the mobile home of Mr. Seek-ford; defendant “opened the window and cut the screen and went inside the trailer”; Tim “moved some clothes and opened the back door”; defendant then entered the trailer and started “picking up stuff.” They carried out a tape player and a box of tapes, a radio and some beer; defendant took a safe out of the trailer; they put the “stuff” in the truck, went on down the road to a creek and opened the safe with a hammer and a screwdriver. Therefrom they obtained some money and observed some papers in the safe and left the safe and papers there. Before the weekend after the burglary, defendant repainted the truck. On cross-examination of Tim, it was shown that he had confessed and had been placed on probation.

The principal contention of appellant is that defendant was convicted on the uncorroborated testimony of an accomplice, in violation of Code of Alabama, Title 15, Section 307, as follows:

“A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

No question is presented, and no question can reasonably be presented, as to the sufficiency of the corroborative evidence of the corpus delicti or of the circumstances of the burglary, and we limit our consideration to whether Tim’s testimony is “corroborated by other evidence tending to connect the defendant with the commission of the offense.”

The circumstantial evidence testified to by other witnesses showed that two persons, and only two persons, committed the burglary. Two sets of human tracks, made by different types of shoe soles, and two sets only, were found leading from the mobile home. One set was identified by a witness other than Tim as the tracks of his shoes. Defendant was identified by the wife of Mr. Seckford as the man who had come to the mobile home of the Seckfords about three months before the burglary and had obtained a payroll check from her for work he had done for another, for whom Mrs. Seckford was a bookkeeper. Mr. Seck-ford’s mother testified that on January 21, 1975, about 1:30 P.M., defendant and Tim came to her house in a truck, which was identified by her and by other witnesses as a truck owned and driven by defendant, that defendant inquired of her where a Mr. Johnson lived. She said she told him “There is no Johnson living around here” and that “they then went back to the truck and drove out of the yard.” About two hours afterwards, Mr. Seckford’s daughter returned to the mobile home from school. It was then discovered that the home had been burglarized.

Additional evidence need not be narrated, for the foregoing is sufficient to show that Tim’s positive testimony as to defendant’s connection with the burglary was corroborated by other evidence.

Evidence corroborating the testimony of an accomplice need not be strong, nor sufficient in and of itself to support a conviction. Its sufficiency is tested by whether it legitimately tends to connect the accused with the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675; Peoples v. State, 56 Ala.App. 290, 321 So.2d 257; Cummingham v. State, 54 Ala.App. 656, 312 So.2d 62; Simmons v. State, 54 Ala.App. 291, 307 So.2d 96; Kelsoe v. State, 54 Ala.App. 179, 306 So.2d 47, cert. denied 293 Ala. 764, 306 So.2d 50.

In an apparent effort to impeach Tim by attempting to show a self-contradictory statement by him, he was asked on cross-examination whether he had said to an investigator for the State: “that you went to your girl friend’s house twice on the day of the crime,” to which question, Tim answered:

“No, sir, I haven’t, not that I have been there twice, no.”

On interrogation of the particular investigator for the State, he was asked by defendant’s counsel whether Tim told him, “that he went to his girl friend’s home prior to the burglary and was delivered there by Mr. Currington and picked up by Mr. Cur-rington, all prior to the burglary of the Seckford home.

Appellant urges that the objection to the question to the State’s investigator, on the ground that a predicate therefor had not been laid, was erroneously sustained. It is to be seen that the question asked Tim (the witness sought to be impeached) is different from the question asked the witness by whom defendant was seeking to impeach Tim. It is not a mere verbal difference; there is a difference in substance, a material difference in meaning. The objection was properly sustained. Bridges v. State, 225 Ala. 81, 142 So. 56; Murph v. State, 153 Ala. 67, 45 So. 208.

The attorney representing defendant on the trial of this case was appointed by reason of defendant’s indigency. About one month thereafter and about five months before trial, the attorney filed a motion to allow him to withdraw as attorney for the defendant and that the court appoint another attorney to represent him. The motion was grounded on the averment that the chief investigator for the sheriff’s department of Cullman County, who prepared the case for the State, had thereafter become a full-time employee of the law firm of which defendant’s appointed attorney was a member. It seems that this motion was never ruled upon, and the record does not show that it was ever brought to the attention of the court. Two continuances intervened between the filing of the motion and the trial. The same attorney was appointed to represent defendant on appeal, and he has done so. Appellant’s counsel takes the position in his brief that he should have been allowed to withdraw as attorney for defendant and that other counsel should have been appointed to represent him. He states:

“Appellant’s counsel was placed in a position that the appearance of impropriety could be conveyed to the public.”

He expresses the axiom that an attorney “should avoid even the appearance of professional impropriety.” We think it unfortunate and regrettable that there was no ruling on the motion of defendant’s attorney to be allowed to withdraw. It is also unfortunate and regrettable that there is no explanation for the failure to rule on the motion. That he should have been allowed to withdraw, we have no doubt whatever, unless a situation had developed that prevented a withdrawal without prejudice to defendant. Notwithstanding the puzzling circumstance now considered, we have nothing before us upon which we can hold that any error prejudicial to defendant occurred.

Our review of the record convinces us that it is free of error prejudicial to defendant and that the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

ON REHEARING

In applying for a rehearing, appellant has filed and submitted a stipulation of the parties that a certified supplemental record (attached to the stipulation) be made a part of the record in this case. We have ordered that the rules be suspended under Rule 2(b), ARAP, and the stipulation be accepted as a part of the record.

The record as supplemented contains material that reveals a comprehensive hearing and determination by the trial court, in the presence of defendant and his appointed counsel, of counsel’s motion that he be allowed to withdraw. The record now shows a plenary disclosure to defendant of any and all circumstances that could conceivably have affected the question whether his appointed counsel should have been allowed to withdraw. An extended colloquy among the trial judge, defendant and his appointed counsel ended as follows:

“THE COURT:
“. . . The purpose of our being here today is to be sure that you feel secure in the attorney that represents you and if, this makes any difference to you or you would feel more comfortable or feel that you would be better represented — have a better chance to be found not guilty of this charge with another attorney, then I will certainly appoint one for you today and Mr. Knight will understand that. As I said, it is not anything personal, but it is just a matter of you feeling that you have the best, possible defense, best circumstances, everything working together to give you the best chance of being found not guilty.
“MR. CURRINGTON: Well, I am satisfied with Mr. Knight.
“THE COURT: You want to continue on with Mr. Knight, your attorney, knowing full well.
“MR. CURRINGTON: Yes, sir.
“THE COURT: You understand?
“MR. CURRINGTON: Yes, sir, I understand it all.
“THE COURT: You understand everything that we have discussed here, you comprehend it and understand it?
“MR. CURRINGTON: Fully understand it.
“THE COURT: All right, Mr. Knight, we will go ahead on then.”

Counsel for defendant measured up to the very highest standard of professional conduct. The court made it clear to defendant that other counsel would be appointed to represent him if he so desired. Defendant made it clear to the court that he desired for his appointed attorney to continue to represent him. In weighing the matter as between defendant and his appointed counsel, the court decided it in favor of defendant. There is no contention, and no basis for any contention, that any other attorney or attorneys would have rendered defendant a better service than that rendered by his counsel on the trial and his counsel on appeal. The ruling of the trial court was neither erroneous nor injurious to defendant.

The application for rehearing is overruled.

APPLICATION OVERRULED; OPINION EXTENDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte David CURRINGTON.
    SC 2169.
    Supreme Court of Alabama.
    Feb. 25, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: DeCARLO, Judge.

text:
    Joseph CIERVO v. STATE.
    3 Div. 519.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      L. H. Walden, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Child molestation; two years.

The indictment charged that Joseph Cier-vo:

“. . . did take or attempt to take immoral, improper, or indecent liberties with ... a female child under 16 years of age, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of the said JOSEPH CIERVO or of such child, or of both the said JOSEPH CIERVO and such child by kissing her on the cheek and fondling her private parts, or did commit, or attempt to commit a lewd or lascivious act upon or with the body, or a part or member of the body of such child, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of the said JOSEPH CIER-VO or of such child, or both the said JOSEPH CIERVO and such child by kissing her on the cheek and fondling her private parts, . . .

The appellant pled not guilty and not guilty by reason of insanity, and on November 22, 1974, he was tried and convicted. A motion for a new trial was denied on January 8, 1976, and defendant’s request for probation was subsequently denied on February 9, 1976.

The prosecutrix, in this case, was a twelve-year-old female child in the seventh grade of George Washington Junior High School, and the defendant was her “step-uncle by marriage.”

The prosecutrix’s parents were divorced and she lived with her mother. On a Friday night in March of 1974, she went to her uncle’s to spend the night. When she and her four-year-old sister arrived, the defendant, his wife Juanita, and her cousins, Susan and Kenneth Wade Bowden, were present.

About 6:30 that evening, the defendant and the prosecutrix’s aunt went to a baseball game and she went to Kenneth’s room to watch television while her little sister watched the television in the den with Susan. The prosecutrix stated that the door to Kenneth’s room was closed while they watched the television and that she and Kenneth laid in bed and kissed and hugged.

About 12:30 A.M., the defendant and his wife came into the house through the back door. At that point, the prosecutrix left Kenneth’s room and went to the den and picked up her little sister. She carried her to Susan’s bedroom and placed her in bed. It was about ten minutes later when the defendant came to the doorway and said he was going to kiss her goodnight and prose-cutrix responded, “Okay.” At that point he came over, kissed her on the cheek, and then reached down and raised her night gown to her waist. He then put his hand down into her panties and touched her private parts. She explained that her “private parts” were: “. . .in between — it’s in between my legs and my skin.” The prose-cutrix moved his hand and said, “ ‘What do you think you’re doing?’ ” At that point the appellant laughed and left the room.

In about five minutes appellant returned and gave the prosecutrix a dollar and told her to buy something for her little sister and herself the next day. The prosecutrix said that after the appellant left she went in and told Kenneth what had happened. Even though prosecutrix saw her mother on Saturday, she did not tell her what happened until Sunday. She said she did not tell her mother or aunt because she was afraid, and that the next day after breakfast she went to her grandmother’s.

During cross-examination the prosecutrix stated that she was dressed during the time she was in Kenneth Bowden’s room and denied engaging in sexual intercourse with him. She explained:

“When y’all said intercourse, I thought it just meant hugging and kissing and stuff like that.”

Further she denied calling defendant’s house the next day and inquiring about spending Saturday night.

The State concluded its case at the end of the prosecutrix’s testimony and the defense made a motion to exclude the State’s evidence. Counsel alleged that the State had failed to prove the charges in the indictment and requested that a directed verdict be given-in the defendant’s favor. He argued that the testimony presented merely showed an assault and battery and there was no, evidence of any intent of arousing or gratifying sexual desires.

Kenneth Wade Bowden was fifteen years old and the stepson of the defendant. He testified that his mother and step-father had been married for about a year and a half and that they lived at 6 Kiwanis Street, Montgomery, Alabama. He recalled the incident when the prosecutrix claimed that she was molested by his step-father, but did not recall the exact time when his mother and step-father left for the game. Bowden stated it was about 10:30 P.M. when the prosecutrix came to his room to watch television. The door to his room was closed during that time and the prosecutrix took off her clothes. Bowden did not state what transpired from the time the prosecu-trix came into his room until the time they heard his parents come in the back door. He recalled that she stayed just long enough to dress and then went into Susan’s room.

According to Bowden, the prosecutrix’s sister was already in bed when he and pros-ecutrix went into Susan’s bedroom. He then went through Susan’s room into the kitchen where his mother and step-father were. At that time he saw the defendant go to the bathroom and not to the room where the prosecutrix was sleeping. Further, after twenty or twenty-five seconds, appellant left the bathroom, and prosecu-trix came to Bowden’s room. She got in bed with him and told him that Ciervo had given her a dollar. Bowden testified that she did not make any statement to him about appellant bothering or molesting her and he denied making the statement that it: “. . . was just like Joe to do something like that.” Bowden said that on her second visit to his room the prosecutrix stayed until the television went off at 1:30 A.M. and recalled that she telephoned his home on Saturday afternoon.

During cross-examination Bowden denied telling anyone that the prosecutrix came to his room and said that appellant had put his hand between her legs and on her private parts.

Susan Bowden was the twenty-year-old retarded stepdaughter of the defendant. She recalled that her mother and step-father had gone to a baseball game about 6 o’clock on the night in question. According to Susan the prosecutrix’s sister was asleep in her room and Kenneth Bowden and the prosecutrix were with her in the living room. Later Kenneth and the prosecutrix went into his room and closed the door. When Susan’s step-father and mother returned, she was watching television in the living room. The prosecutrix was still in Kenneth’s room When she went to bed at 12:30 A.M. About five minutes later, the prosecutrix came into Susan’s room and went to bed. She was wearing a gown and did not go right to sleep.

According to Susan, the prosecutrix became angry at appellant because he would not allow her to spend Saturday night at the house with Kenneth. During cross-examination, Susan admitted that she had talked to her mother about the incident but denied going over what she was to say.

Joseph Ciervo testified that he was a truck driver and lived with his wife, Juanita and children at 6 Kiwanis Street in Montgomery. About 6:00 P.M. on the night in question, he and his wife went to a baseball game and returned about midnight. He saw Susan in the living room but did not see Kenneth or the prosecutrix. After Ciervo walked through the house he returned to the kitchen where he drank some coffee with his wife. He recalled they remained in the kitchen for fifteen or twenty minutes before his wife went to their bedroom and he went to the bathroom.

Appellant explained that to get to the bathroom, one had to go through Susan’s room. He recalled that when he went through her room, he did not see the prose-cutrix but when he returned from the bathroom, she was there in bed.

Ciervo stated that about the time he stepped into the bedroom, prosecutrix said: “ ‘Are you going to kiss me goodnight?’ ” and he responded: “ ‘Yes.’ ” At that point he went over to the prosecutrix, kissed her on the cheek and after grabbing her stomach said: “Okay Fatty.” Appellant said he then returned to his bedroom and went to bed.

Ciervo denied putting his hands down into prosecutrix’s panties but admitted giving her a dollar and telling her: “. to buy a Coke for her and some candy for her and Diane [her sister] and Susie.” [Bracketed material added.] He also admitted that on the night in question he and his wife stopped at the Elk’s Club and drank some beer. Appellant stated that the pros-ecutrix left the next day at 10:30 or 11:00 A.M.

Lena N. Taylor was called as a rebuttal witness by the State. She testified that she was prosecutrix’s grandmother and that the defendant was her son-in-law. According to Taylor, immediately after the preliminary hearing her grandson, Kenneth Wade Bowden, talked to her about the case.

At the completion of Mrs. Taylor’s testimony both sides rested.

I

It is contended that the trial court committed reversible error in permitting the victim to testify regarding the substance of her complaint to Kenneth Bowden.

Generally, the fact that a complaint was made is admissible in a prosecution for a sexual offense, but details of the complaint cannot be shown. Oakley v. State, 135 Ala. 15, 33 So. 23.

An exception exists to this rule where the complaint is part of the res ges-tae. Daniell v. State, 37 Ala.App. 559, 73 So.2d 370; White v. State, 237 Ala. 610, 188 So. 388; Lang v. State, 40 Ala.App. 705, 122 So.2d 526. In order for the complaint to come within the res gestae, it is not necessary that it be contemporaneous in point of time with the sexual offense. If it springs from the sexual offense, is voluntary and spontaneous, and is made at a time so near the alleged act as to preclude the idea of deliberate design, it may be regarded as contemporaneous and admissible. Lang, supra.

In the present case, the prosecutrix testified that after appellant committed the alleged offense, he laughed and left the room. She recalled he came back in about five minutes, gave her a dollar and said: “Here, buy, y’all something tomorrow,” then left the room. At that point the prosecutrix said she got up and went into her cousin’s room and told him what had happened.

Under this testimony by the prosecutrix, it appears that the alleged sexual offense and the giving of the money was one continuous transaction and the complaint sprang from it. Further the declaration was so closely connected with the incident as to preclude the idea that it was by design.

In view of the facts in this particular case, the opinion of this Court is that the trial judge was correct in holding that the complaint was a part of the res gestae.

II

The appellant contends that the trial court committed reversible error when it permitted the State to use prior felony convictions for impeachment without an in camera showing that the defendant had an attorney at the time of those convictions. Counsel maintains that when prior convictions are used for impeachment purposes and the record that the State relies on to show the conviction does not affirmatively show that the defendant was represented by counsel at the time of such convictions, then a presumption exists that the defendant was denied his constitutional right to counsel.

In support of this contention, the appellant cites Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319. In that case the petitioner was convicted of “ ‘assault with malice aforethought with intent to murder; repetition of offense.’ ” The indictment presented not only the assault with intent to murder charge but alleged four previous felony convictions in the remaining counts of the indictment. Pursuant to the Texas recidivist statute if the allegations were found to be true then the petitioner would have been subject to a sentence of life imprisonment upon the conviction of the assault with intent to murder offense. At the trial, the State offered in evidence a certified copy of one Tennessee conviction showing that the defendant was without counsel at the time and nothing to indicate that counsel had been waived. A second version of that conviction was offered but with no specific showing of counsel being present. The Supreme Court said that the certified records of the Tennessee conviction on their face raised a presumption that the petitioner was denied his right to counsel and therefore the conviction was void. The court stated that admissions of prior criminal convictions which were constitutionally infirm under the standards of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, are inherently prejudicial. The court went on to say that the instructions to the jury not to consider the prior convictions would not render their introduction harmless.

A distinction exists between Burgett v. Texas, supra, and the case presently before us. In Burgett, the prior convictions, even though they were excluded from the jury’s consideration by instruction of the court, were not at the outset shown to be convictions where counsel was present. They were offered to show petitioner’s guilt as a recidivist under the Texas statute. Under our facts the convictions were shown not to prove appellant’s guilt but for the purpose of impeachment.

In our judgment, the Supreme Court in Burgett, supra, was holding the prior convictions presumptively void where no counsel was shown in attendance, if they were specifically used for the “guilt phase” of the trial.

The law in Alabama is clear that a prior conviction of a crime involving moral turpitude can be used to discredit a witness. T. 7, §§ 434, 435, Code of Alabama 1940, Recompiled 1958. Evidence of such prior convictions may be shown by the oral testimony of the witness himself, by the court record of such conviction or by a properly certified copy of the conviction. Thompson v. State, 100 Ala. 70, 14 So. 878; Wright v. State, 38 Ala.App. 64, 79 So.2d 66. Proof of such convictions is for the purpose of impeachment and not to “support guilt or enhance punishment.”

In our judgment, prior convictions involving moral turpitude can be used to impeach a witness’ credibility without a showing that defendant at the time of conviction was represented by counsel.

In determining this issue we found, upon examination of the record, that counsel made an inquiry on this point at the time he made a motion to exclude the State’s evidence. This was done outside the presence of the jury. From our reading of that portion of the record, we find a discussion of certain aspects of this question, but no objection or exception to any ruling by the court. Further, we did not find any objections to the State’s questions to the appellant concerning his convictions. Under these facts, the question was not properly preserved and it cannot be raised for the first time on appeal. Greathouse v. State, 47 Ala.App. 71, 250 So.2d 609.

III

Appellant alleges that the trial court committed reversible error when it did not permit Kenneth Wade Bowden to answer defense counsel’s question: “How much of her clothes did she [prosecutrix] take— [off?]” [Bracketed material added.]

In Birmingham Electric Co. v. Glenn, 224 Ala. 620, 141 So. 537, the Supreme Court of Alabama gave the following rule:

“Drawing out on cross-examination testimony wholly immaterial did not entitle defendant to introduce testimony to contradict the witness. A witness cannot be thus impeached.”

See also: Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516.

Therefore even though the prosecu-trix said she was dressed while in Bowden’s room, the trial court was not in error when it would not allow defense counsel to use contradicting evidence for impeachment on this point.

IV

Appellant insists the trial court committed reversible error when in response to his request for instructions, the court responded: “Disregard the comment by the Counsel for the Defendant, they don’t want it answered.” Appellant complains this is a comment on the evidence but in our search of the record we fail to find any support for this contention. The record reflects:

“MR. THOMAS: [District Attorney] We’ll withdraw the question, Your Hon- or, if Mr. Walden doesn’t want him to answer it.
“MR. WALDEN: [Defense Counsel] I don’t want him to answer it because it’s not right—
“THE COURT: Well, he withdrew the question, so you don’t have to make a speech about it. Go ahead with—
“MR. COLLIER: Well, Your Honor, I would ask that the Jury be instructed to disregard Mr. Thomas’ comment that we don’t want it answered.
“THE COURT: All right. Disregard the comment by the Counsel for the Defendant, they don’t want it answered.” [Bracketed material added.]

V

The appellant complains that the State was allowed to impeach the testimony of a defense witness without first establishing the proper predicate. Counsel argues that during the testimony of defense witness, Kenneth Wade Bowden, the State did not ask the proper predicate questions concerning time, place, persons present and the exact statement made. He maintains that the testimony of Lena Taylor, concerning specific statements made by this defense witness, went beyond the predicate laid by the State when it cross-examined him.

In determining this issue we examined the questions the prosecution asked Kenneth Wade Bowden and found the following:

♦ * s{c * %
“CROSS-EXAMINATION: (Continued) BY MR. JAMES EVANS: [District Attorney]
“Q Wade, immediately after the preliminary hearing, did you have a conversation with your Grandmother concerning this case?
“A It depends on what she said.
“Q Do you remember going down to the City, City Court?
“A (No response from the witness.)
“MR. EVANS: I’ll have to get the date to be precise, Your Honor.
“MR. COLLIER: It was June 1, 1974.
“MR. EVANS: All right.
“MR. WALDEN: Can’t you have somebody to look it up?
“THE COURT: Go ahead.
“BY MR. JAMES EVANS: (Continuing) “Q Wade, on or about June 1st, 1974, on the night of June 1st, did you have a conversation with your Grandmother concerning this case?
“A Yeah, but I don’t know what she said.
“Q Did you talk to your Grandmother about this case, the defendant, and the charges that . . . [prosecutrix] said that the man did? Did you talk to her at all about it?
“A No, sir.” [Bracketed material added.]

After considering all the circumstances, we believe the witness understood the place, the time and the person involved in the supposed contradiction. Under these facts, Kenneth Bowden should have known with reasonable certainty that he was being asked about a conversation he had with his grandmother on the night of the preliminary hearing. We believe that the predicate questions were sufficient and did not mislead the witness with reference to the conversation under inquiry. Phillips v. State, 11 Ala.App. 168, 65 So. 673; Burton v. State, 115 Ala. 1, 22 So. 585; Independent Life Ins. Co. v. Carroll, 222 Ala. 34, 130 So. 402; Sparks v. State, 261 Ala. 2, 75 So.2d 103.

In so far as the content of the supposed contradictory statement is concerned we do not believe it is materially variant in meaning from the statement specified in the predicate question.

Prom the record, the question reads:
“Q Did you talk to your Grandmother about this case, the defendant, and the charges that . . . [prosecutrix] said that the man did? Did you talk to her at all about it?
“A No, sir.
“Q You never had a conversation with her?
“A My Grandmother?
“Q Yes.
“A No, sir.” [Bracketed material added.]

The testimony of Lena Taylor involving a contradictory statement by Kenneth Wade Bowden was:

“Q Now, Mrs. Taylor, back immediately after the Preliminary Hearing down at City Court did you have occasion to have a conversation with Wade, Kenneth Wade, touching upon or concerning the prosecution in this case here today?
“A He just said he was going to have to come to Court.
“Q Did he make a statement to you at that time relating to you in his statement to you in his statement that . [prosecutrix]—
“MR. COLLIER: [Defense Counsel] We are going to object. He’s leading.
“BY MR. JAMES EVANS: [District Attorney] (Continuing) I’ll ask you whether or not Kenneth Wade Bowden told you—
“MR. COLLIER: Your Honor, we are going to object again. The witness has just testified that the only conversation she had with him was that he was going to have to come to Court.
“MR. EVANS: No, sir—
“MR. WALDEN: He’s going to impeach his own witness.
“THE COURT: I don’t think she said that, the only conversation—
“MR. EVANS: No, sir.
“THE COURT: I don’t think she said that was the only conversation.
“MR. EVANS: No, sir. What’s what Mr. Collier said. But that’s not what she said.
“THE COURT: I overrule the objection.
“MR. EVANS: All right, sir.
“BY MR. EVANS: (Continuing)
“Q I’ll ask you whether or not Kenneth Wade Bowden, Mrs. Taylor, that’s your grandson.
“A That’s right.
“Q Told you that . . . [prosecu-trix], the little girl in this case, the victim, had told you, that the Defendant, Joe Civero [sic], placed his hand down in her private parts around her sexual organs?
“MR. WALDEN: We are going to object to that question, Your Honor, it’s not a proper predicate been [sic] laid and his question is not within the predicate that has been laid. It’s an impeaching question, Your Honor. It’s not the proper predicate—
“THE COURT: Yeah, I’ll sustain it on that grounds.
“MR. EVANS: All right.
“THE COURT: You can ask the same— where it was asked of the witness, it would be admissible.
“BY MR. JAMES EVANS: (Continuing) “Q Did Kenneth Wade Bowden tell you that . . . [prosecutrix] told him that the Defendant placed his hands on her vagina, her private parts—
“MR. COLLIER: We object.
“THE WITNESS: Yes.
“MR. WALDEN: Don’t answer his question, please Ma’am. There’s an objection—
“THE WITNESS: Well, he asked me.
“THE COURT: But you have to wait until I rule on it.
* * * * # #
“BY MR. JAMES EVANS: (Continuing) “Q Mrs. Taylor, immediately after the Preliminary Hearing did you have a conversation with Kenneth Wade Bowden about the prosecution in this case?
“A He talked to me about it.
“Q In that conversation, did Kenneth Wade Bowden tell you that [prosecutrix], on the night this happened, came into his room and told him that the Defendant kissed her on the cheek, placed his hands around in the are [sic] of her vagina, between her legs, and gave her a dollar?
“MR. WALDEN: Wait just one minute—
“THE WITNESS: Yes.
“MR. WALDEN: We object to that, Your Honor, on the grounds that this is not within the proper predicate, no proper predicate has been laid, and no predicate is laid for this question, and the proper predicate is not laid for impeachment, because no time has been specified, no questions concerning who was present at this alleged conversation and exactly where it took place.
“THE COURT: I think he’s laid the proper predicate, so I’ll allow it. I overrule the objection.
“BY MR. EVANS: (Continuing)
“Q Did Kenneth Wade tell you that?
“A Yes, he told me that.” [Bracketed material added.]

This court in Duck v. State, 38 Ala.App. 652, 92 So.2d 55, stated:

“Substantial similarity and not identity is required to exist between the predicate laid and the proof adduced by the impeaching witness’ testimony.” [Citations omitted.]

We do not believe there was a variance between the statement with which Kenneth Wade Bowden was confronted and that of his grandmother, the impeaching witness, great enough to cast doubt on whether the two witnesses were recalling the same statement.

VI

Appellant asserts the trial court committed reversible error when it refused to instruct the jury on assault and battery as a lesser included offense and that they could affix a fine.

We have searched this record and find that appellant’s counsel did not request any written instructions covering either the lesser included offense or the jury’s prerogative to set a fine. These matters were first raised by counsel when he excepted to the court’s oral charge:

“MR. WALDEN: Your Honor, I wish you would charge the Jury that they could affix a fine. The law provides, I think, of a fine up to a thousand dollars and the Jury would be the one to fine him and put the fine on him. So, could we have an exception to the Court’s Charge to it that there is only two verdicts that could be rendered as the Court gave them instructions regarding its Charge to the Jury and that they could fine this defendant.
“THE COURT: I think that is up to the Court and not the Jury.
“MR. WALDEN: Could we have an exception to it?
“THE COURT: Yes, sir.
“MR. WALDEN: Well, another thing. We would request a charge on assault and battery which I believe is a lesser included offense. Under that charge the Jury could fix a fine of whatever it is, on assault and battery.
“THE COURT: I don’t think it is a lesser included offense and you may have an exception to that.
“MR. WALDEN: All right, sir.”

In Winstead v. State, 53 Ala.App. 222, 298 So.2d 642, this court stated:

“Matters of this kind cannot be raised by mere exception to the oral charge . Rather, counsel must submit written instructions covering the omitted principle in order to preserve the alleged error for appellant review.”

See also: Reed v. State, 55 Ala.App. 138, 313 So.2d 564.

The court’s action was proper.

VII

We reviewed the facts in the case and found the evidence was sufficient to support the conviction. Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326. The motion for a directed verdict was properly denied.

No error appears in the record.

AFFIRMED.

TYSON, HARRIS and BOOKOUT, JJ., concur.


text:
    Ex parte Joseph CIERVO.
    SC 2198.
    Supreme Court of Alabama.
    Feb. 25, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: KENNEDY WILLIAMS, Circuit Judge.

text:
    Willie Fred GAFFNEY v. STATE.
    3 Div. 541.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.
    J. Ronald Boyd, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   KENNEDY WILLIAMS, Circuit Judge.

A jury found defendant (appellant) guilty of manslaughter in the first degree, the jury fixed his sentence at imprisonment in the penitentiary for the term of five years, and he was sentenced by the Court accordingly.

The defendant was indicted by the grand jury of Butler County for murder in the first degree, was arraigned and tried on December 12, 1975, and found guilty of manslaughter in the first degree.

On the night of May 10, 1975, defendant had been arguing with several persons and was asked to leave, with these persons, the building wherein the argument was taking place. After leaving the building the defendant continued the argument with the deceased in a nearby parking lot where the defendant shot the deceased with a 22 caliber pistol. After the trial it was reported to defense counsel that one of the jurors had spoken to the mother of the deceased during a recess of the jury.

(1) The appellant assigns as error on his motion for a new trial and the overruling of said motion, the fact that a juror conversed with the mother of the deceased during a jury recess while the trial was in progress. The transcript does not show what was said or what any conversation was that was had between the two. The appellant called a witness who testified that he saw the designated juror speak to the deceased’s mother but that he could not hear what was said. In rebuttal the State called the juror and the mother of the deceased to testify and both stated that nothing was said between the two concerning the case or any facts connected therewith. The prejudicial effect of communications between jurors and others, especially in a criminal case, determines the reversible character of the error. Whether there has been a communication with the juror and whether it has caused prejudice are fact questions to be determined by the Court in the exercise of sound discretion. The evidence pertaining to the conduct of this jur- or was submitted at the hearing on motion for a new trial. It became the duty of the trial Judge to exercise his reasonable discretion in weighing and determining such evidence and making his decision thereon. His ruling and determination will not be disturbed in the absence of a showing of abuse of discretion. Such abuse was not, in our opinion, in anyway evident.

We cite the following; Adams v. State, 32 Ala.App. 367, 26 So.2d 216; Prestwood v. Ivey, 273 Ala. 281, 138 So.2d 713; Am. Jur.2d, Trial, Section 999.

(2) The second point raised by the appellant is that on a motion for a new trial the Court refused to allow the appellant to take evidence of jurors concerning deliberations in the jury room after the case was completed. The appellant failed to make known to the Court any direct point involving failure of jurors to answer qualification questions or any direct factual matters which would have disqualified any of the jurors from serving. The appellant fails to cite any Alabama cases which would allow him to proceed in showing any deliberations of the jury. We are of the opinion that the trial Judge acted correctly in his ruling concerning the offering of evidence of what took place within the jury room concerning the jury’s deliberations.

The appellant argues no further points in his brief. We have considered the entire record and have failed to find any error in the record prejudicial to the defendant.

We conclude that the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Kennedy Williams, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Willie Fred GAFFNEY.
    SC 2206.
    Supreme Court of Alabama.
    Feb. 25, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: AB POWELL, III, Circuit Judge. BOOKOUT, Judge

text:
    Arthur Lee THOMAS v. STATE.
    4 Div. 394.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.
    Myron H. Thompson, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Stephen M. Langham, Asst. Atty. Gen., for the State.
   AB POWELL, III, Circuit Judge.

Appellant was convicted before the Circuit Court of Houston County, Alabama, of possession of marijuana and was sentenced to eleven years imprisonment in the penitentiary of Alabama.

On the evening of July 30, 1975, Arthur Lee Thomas was employed in the Dothan City Civic Center as an operator of the lighting system used in the production of a musical concert. The appellant had parked his black van truck in the City Civic Center parking lot sometime during the afternoon of July 30, 1975, where it remained until approximately 11:00 P.M. Approximately 7:30 P.M., July 30,1975, Dothan Police Officer Sorrells received a telephone call informing him that a large quantity of marijuana was contained in and being sold out of a black van truck at the Dothan Civic Center. Officer Sorrells suggested that the informant accompany the police to the Do-than City Civic Center and identify the van and this was done between 8:00 and 9:00 P.M. the night of July 30, 1975. At that time the van was parked unattended whereupon two Dothan police officers, two ABC agents and one Geneva County law enforcement officer set up surveillance of appellant’s black van truck. No officer made an effort to obtain a search warrant authorizing a search of appellant’s van. Approximately 11:00 P.M., the appellant, Arthur Lee Thomas, entered the van and the law enforcement officers asked him to step out. When appellant stepped out of the van into the parking lot he was placed under arrest for possession of marijuana and the officers at the scene proceeded to search the van, uncovering seventy-eight cellophane bags containing marijuana.

The appellant’s contentions are as follows:

(1) That the indictment was deficient and unconstitutional in that it failed to apprise appellant as to whether he was charged with a misdemeanor or a felony.
(2) That the search of appellant’s van and the seizure of seventy-eight bags of marijuana was in violation of the Fourth Amendment of the Constitution of the United States.
(3) That the trial court erred in various rulings on evidentiary matters during the course of the trial.

The indictment returned against the appellant read as follows:

“The Grand Jury of said county charge that before the finding of this indictment Arthur Lee Thomas, alias Arthur L. Thomas, whose name to the Grand Jury is otherwise unknown did have in his possession marijuana, contrary to law, against the peace and dignity of the State of Alabama.”

Examining appellant’s contention that the indictment failed to apprise him as to whether he is charged with a misdemean- or or a felony, our courts have held that the misdemeanor offense of possession of marijuana for personal use only is a lesser included offense under a felony indictment charging possession of marijuana. Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760 (1975); Powers v. State, 49 Ala.App. 690, 275 So.2d 369 (1973). Thus, the indictment apprised appellant that he was charged with possession of marijuana, a felony, which included the misdemeanor charge of possession of marijuana for personal use only. We hold therefore that the indictment is sufficient and that the constitutional necessity of clearly informing an accused as to the nature of the charges against him is satisfied by the indictment returned against appellant. Alabama Constitution of 1901, Article 1, § 6.

Appellant contends that the warrantless search of his van and the seizure of marijuana therefrom was an unreasonable search and seizure and a violation of the Fourth Amendment to the Constitution of the United States. On trial, appellant objected to the introduction of the evidence relating to the discovery of marijuana in the van, moved the court to exclude the State’s evidence assigning the illegal search specifically as grounds and presented the question of illegal search again on motion for new trial. The trial court admitted the evidence and denied appellant’s motion to exclude the State’s evidence and appellant’s motion for new trial.

A warrantless search is a prima facie unreasonable search unless the search can be justified under one of the six exceptions as defined by Justice Bloodworth in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). The State contends that the search and seizure was not unreasonable because it was “incident to a lawful arrest” or “exigent circumstances” existed co-incidental with probable cause.

The officers had probable cause to arrest appellant based on the information received from a reliable informer. The question then presented is whether the ensuing search of the van was “incident” to the lawful arrest of appellant. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the United States Supreme Court sanctioned the warrantless search of an impounded automobile where the officers had probable cause to believe that it contained evidence of a crime. See: Suggs v. State, 49 Ala.App. 118, 269 So.2d 136 (1972). The evidence in Chambers uncovered by the search were fruits of a robbery. Here, the officers had probable cause not only to arrest the appellant, but also to believe that appellant’s van contained marijuana, the very possession of which is in itself a criminal offense. Since probable cause existed justifying appellant’s arrest, the officers were authorized to search the van for fruits of a crime under the reasoning in Chambers. If the search is valid as to fruits of a crime it is certainly valid as to contraband, the possession of which is a crime. We hold therefore, that the war-rantless search of appellant’s van and the seizure of the marijuana contained therein was not unreasonable because it was incident to the lawful arrest of appellant. Chambers, supra; Cook v. State, 56 Ala.App. 250, 320 So.2d 764 (1975); Suggs, supra; Culbert v. State, 52 Ala.App. 167, 290 So.2d 235 (1974); Osner v. State, 54 Ala.App. 520, 310 So.2d 241, cert. denied 293 Ala. 769, 310 So.2d 247 (1975).

We have considered the trial court’s rulings on evidence adverse to appellant during the course of the trial and conclude that the rulings of the trial court were in all respects correct.

We have considered the entire record under Code of Alabama 1940, recompiled 1958, as last amended; T. 15, § 389, and from this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by Honorable AB POWELL, III, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code of Alabama 1940, recompiled 1958, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge

(concurring specially):

I concur in the results on the basis that the search was based upon probable cause, coexistent with exigent circumstances, Daniels, supra. Probable cause was supplied by a reliable informant who saw the marijuana in the van. The exigent circumstances arose from the mobility of the van. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The instant opinion is correct on that basis, however, the facts of the instant case do not constitute classic examples of either (a) search of an impounded vehicle pursuant to Chambers v. Maroney, supra; or (b) incident to a lawful arrest, per Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 685 (1969), i. e., limited to appellant’s reach area.

For the latest discussion by the United States Supreme Court on the subject of automobile searches, see: South Dakota v. Oppermar, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).


text:
    Ex parte Arthur Lee THOMAS.
    SC 2213.
    Supreme Court of Alabama.
    Feb. 25, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.