author: HOLMES, Judge.

text:
    Charles F. CAYLOR v. Elsbeth Stachan CAYLOR.
    Civ. 991.
    Court of Civil Appeals of Alabama.
    March 30, 1977.
    Jack W. Smith, for Smith & Smith, Do-than, for appellant.
    Joel M. Nomberg, Daleville, for appellee.
   HOLMES, Judge.

This is a divorce case.

The only issue substantially argued on appeal by the appellant-husband is that the trial court abused its discretion in the award of alimony and division of property. We find no such abuse and affirm.

Viewing the trial court’s decree with the attendant presumption of correctness, the record reveals the following pertinent facts: The parties were married in 1972 and divorced in 1976. No children were born of the union. The husband held a civil service job, making over $9,000 a year. In addition to his employment he received over $8,500 a year disability retirement from the United States Navy. The retirement pay was nontaxable. The evidence further revealed that during the marriage, the husband attended school for which he received from the United States Government in excess of $300 per month. Additionally, the husband had approximately $9,000 in various bank accounts and owned various stocks of an undetermined value.

The wife owned two lots of a total value of approximately $5,500. In addition, a minor child of the wife by a former marriage had a bank account of approximately $6,000. The wife testified that the child’s bank account was in large measure accumulated from gifts to the child from the child’s grandparents.

In addition to the above, the parties during marriage or immediately prior thereto acquired a home. The purchase price was $25,000 and there remained a balance on the mortgage of over $20,000. Additionally, during the marriage, the parties acquired four acres of land near Enterprise. The value of this land is approximately $6,000. Various automobiles and personal property were also acquired.

The evidence shows the wife was not regularly employed during the marriage, nor does she have any special training or skill. She was, however, attending school to learn a trade. Furthermore, the wife is of foreign birth and has some minor health problems.

The wife’s testimony, which in large measure was contradicted by the husband, showed the marriage to have been a “stormy one.” Specifically, she testified that immediately prior to the divorce the husband had hit and choked her and otherwise physically abused her.

After the ore tenus hearing, the learned trial judge entered a decree of divorce, dissolving the bonds of matrimony on the ground of incompatibility of temperament. Each was awarded an automobile. The husband was awarded various personal property and the four acres of land. The wife was awarded the home with the responsibility for paying the mortgage. The husband was allowed to retain his bank accounts and stock and the wife was allowed to retain the two lots mentioned above. A tax refund of approximately $1,200 was equally divided.

In addition, the husband was ordered to pay to the wife $250 per month as alimony until the wife remarries or “until future orders of the court.” Counsel for the appellant during oral argument of this case informed this court that the wife has remarried since this appeal.

From the above decree, as noted earlier, the husband appeals.

As this court has stated on numerous occasions, a division of property does not have to be equal but one which is graduated to the nature of the case. Griffin v. Griffin, Ala.Civ.App., 338 So.2d 416 (1976).

Furthermore, a division of property is within the sound discretion of the trial court and the exercise of such discretion is reversible only for determination of palpable error and abuse. Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863 (1973). We find no such palpable error or abuse in this instance regarding the division of property.

In determining the amount of alimony to be awarded, the trial court may properly consider the earning ability of the parties, their future prospects, their ages, sex and station in life, the duration of their marriage, and the conduct of the parties relative to the cause of the divorce. Segars v. Segars, Ala.Civ.App., 334 So.2d 684 (1976). We would specifically note that the factors enumerated may be considered where the ground of divorce is incompatibility of temperament. See Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974).

The amount of alimony is a matter addressed to the trial court’s discretion and will not be reversed on appeal in the absence of abuse. Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974). Considering the factors as stated in Segars, supra, we find no such abuse. While the learned trial judge’s decree might not be what this court would have done, it is not our function to substitute our judgment for that of the trial judge. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975). We therefore find no reversible error in the, award of alimony.

The appellant-husband in the “Summary” portion of his brief makes the following statement:

“Furthermore, the award of alimony to the wife based only on the fact of marriage is unconstitutional as a denial of equal protection to the husband under the 14th amendment to the constitution. . . ”

This is the only reference to this issue. This issue was not raised in the trial court.

It has long been the law in this state that constitutional questions not raised in the court below will not be considered for the first time on appeal. See Gamble v. Gamble, supra; 2 Ala. Digest Appeal & Error 170(2). Appellant’s contention thus cannot be treated by this court. However, we note that on March 16, 1977, in Orr v. Orr, Civ. 1006, this court held Alabama’s alimony statutes to be constitutional.

AFFIRMED.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Troy PITTS, Individually and for the use and benefit of Hartford Accident and Indemnity Company v. Johnny Wayne HULSEY.
    Civ. 995.
    Court of Civil Appeals of Alabama.
    March 30, 1977.

      William A. Donald, III, of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Ronald H. Strawbridge, Vernon, for ap-pellee.
   BRADLEY, Judge.

This is an automobile negligence case. The plaintiff, Troy Pitts, was passenger and owner of a car driven by his wife, Lennis Pitts, which collided with a car driven by Johnny Wayne Hulsey. Mr. Pitts sued Mr. Hulsey for wantonness and simple negligence. Hulsey denied guilt of any wanton or negligent conduct and raised by way of defense Mrs. Pitts’ contributory negligence. The jury returned a verdict in favor of the defendant, Mr. Hulsey, and Mr. Pitts appealed.

The collision occurred on a narrow, unpaved road in Lamar County near the foot of a hill. The usual path of traffic where the collision occurred was in the middle of the road.

Mr. Hulsey came from over the top of the hill; he said he could not see the Pitts’ vehicle until he topped the crest of the hill. He admitted he was traveling approximately thirty miles per hour. Mrs. Pitts said she could not see the Hulsey vehicle until it came over the hill. She said she was traveling about fifteen miles per hour.

The testimony regarding the position of the two vehicles in the road was hotly disputed. Mrs. Pitts and her witnesses said that she had been traveling to her right of the road, rather than in the middle, and that the Hulsey car left skid marks in the middle of the road. Mr. Hulsey and his witnesses testified that he had been traveling to his right of the road and that the Pitts’ vehicle was in the middle of the road when he hit it. The force of the impact pushed the Pitts’ car into the ditch on her right, and his car left skid marks on his right side of the road rather than the middle.

The issues raised by Mr. Pitts deal with the trial court’s charge to the jury on contributory negligence and imputed contributory negligence. Pitts argues the trial court committed reversible error in its charge to the jury mainly in three areas:

1. The oral charge singled out and gave undue prominence to certain of the defendant’s evidence.
2. The oral charge on contributory negligence was erroneous in that it was an inaccurate statement of law.
3. The oral charge on imputed contributory negligence was erroneous in that it is a misstatement of law and it invaded the province of the jury.

We must first determine in each instance whether the plaintiff properly preserved any error the trial court may have made in its charge to the jury by complying with the requirements of Rule 51, ARCP. The sum of appellee-Hulsey’s argument in brief is that Pitts failed to comply with Rule 51.

Rule 51 provides in pertinent part:

“. . .No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

Pitts’ attorney made the following exceptions to the trial court’s oral charge. This quotation, as well as other quotations from the record appearing in this opinion, was taken verbatim from the record and no attempt was made to correct the errors contained therein:

“Let the record show we presented a motion to strike the plea of contributory negligence and that was refused and we except and object to the portion of the oral charge hereto which the Court gave on contributory negligence in this case. We object to the portion of the oral charge where the Court instructed the jury regarding where she did not get on her side of the road. We except to the portion where the Judge charged the jury that she was the plaintiff and could not recover. We object to the portion wherein the Court said it was not negligence per se, this violates the rules of the road as to the part of contributory negligence. We object to Court explaining charge that as result of the wreck and she was driving Mr. Pitts could not hide behind that as that can be rebutted by evidence. We object to the portion wherein the Court comments on the evidence that Mrs. Pitts was driving the car and whether it was done with his consent. There was not evidence she was driving the car without her husband consent. We except to the family purpose doctoring portion of the charge as family purpose doctoring has not part in this case and should not be considered by the jury. We except to the portion of the charge on joing venture when Court explained. There was no joint venture, there was nothing said before or after she entered the driver’s side of the car. We except to last portion wherein the Court charged on contributory negligence.”

The difficulty Pitts encounters with regard to Rule 51 on appeal is his failure to state grounds for his objections. The general rule is that in order to preserve error made in jury instructions for review on appeal the complaining party not only must have objected to the charge but also must have stated adequate grounds for the objection as required by Rule 51, ARCP. Great Northern Land and Cattle, Inc. v. Firestone Tire & Rubber Co., Ala.Civ.App., 337 So.2d 1323 (1976). However, both this court and our supreme court, while adhering to the general rule, have recognized and allowed exceptions in specific instances.

Pitts maintains that in giving its charge on contributory negligence the trial court unduly emphasized certain evidence adduced by Hulsey regarding the position of the Pitts’ vehicle in the road, yet failed to make reference to Pitts’ conflicting evidence. The pertinent portion of Pitts’ objection seems to be:

“We object to the portion of the oral charge where the Court instructed the jury regarding where she did not get on her side of the road.”

This court rejected a similar objection in State Farm Mutual Automobile Insurance Co. v. Wright, 57 Ala.App. 356, 328 So.2d 608 (1976). There the appellant did object to a portion of the charge which the appellant alleged commented on the evidence. However, since that was not stated as the ground of the objection, this court refused to review the charge.

Our supreme court has articulated the reason for requiring an objecting party to state the grounds for objection in Gardner v. Dorsey, Ala., 331 So.2d 634 (1976), at page 636:

“The purpose of stating grounds for objections is to give the trial court an opportunity to correct the instructions and to avoid the waste of time and money from reversals that result from oversight, technical omissions, or remedial mistakes.”

The court then stated the exception, i. e. that strict compliance with Rule 51 by requiring grounds of objection is not necessary to preserve error where the objection made is specific, adequately informs the trial court of its error, and affords an opportunity for the trial court to correct the error. See also Great Northern, supra.

Here plaintiff’s objection, although specific, did not adequately inform the trial judge of the alleged error. A reading of the objection in context indicates the instruction somehow relates to contributory negligence. Yet in brief the complaint is that the charge unduly emphasizes a portion of the evidence. Nor does it appear that this objection afforded the trial judge an opportunity to correct its error, if any. Therefore, Pitts has not preserved the error, if error it be, for our review.

Pitts’ second issue is whether the trial court’s charge on contributory negligence was erroneous. Again we must first determine whether any error in this respect was properly preserved.

The only exception to the trial court’s charge on contributory negligence appears to be:

“. . . [W]e except and object to the portion of the oral charge hereto which the Court gave on contributory negligence in this case. . . . We except to last portion wherein the Court charged on contributory negligence.”

No grounds for error were assigned.

Here again the objection cannot fall within the exception stated in Gardner v. Dorsey, supra, and Great Northern, supra. The objection was general, rather than specific, and in no way informed the trial court of any error.

It is possible that the following language in Gardner v. Dorsey, supra, could be construed as relieving the objecting party of its required burden to adequately inform the trial court where the court’s instruction erroneously states the substantive law being charged:

“This is not to say that the practice of specifically reciting objectionable portions of a charge will normally relieve a party from stating grounds for objection; however, this case is an exception because of the nature of the error involved. The trial Judge’s instruction in the instant case misstated a point of substantive law. Federal courts, in narrow and limited circumstances, have held that misstatements of substantive law in jury instructions can be preserved for review without specifically stating grounds for objection.” 331 So.2d at 637.

Pitts contends the charge erroneously states the substantive law. However, we construe this language to mean that the judge is presumed to be familiar with the applicable substantive law; therefore, simply pointing out a misstatement is sufficient to put a judge on notice of his or her error. The court continues:

“To hold otherwise is to test the imagination of the objecting party in formulating his grounds. Indeed, what would he state as grounds for his objection to a misstatement of substantive law, as here, other than to say, ‘Your Honor, that is not the law’? Surely, the Rule does not contemplate that the objecting party, in order to preserve for review an erroneous instruction, is required to deliver a discourse before the trial judge on the applicable law of the case.” 331 So.2d at 637.

Without doubt there is a considerable difference between the objection in question and requiring plaintiff’s lawyer “to deliver a discourse before the trial judge on the applicable law of the case.” Furthermore the objections made in Gardner were quite specific, which is not the case here. To hold that this objection is sufficient to preserve error would, in effect, establish a “practice of specifically reciting objectionable portions of a charge [thereby relieving] a party from stating grounds for objection.” 331 So.2d at 637. This we do not do. Hence no error was preserved for review.

Pitts finally claims the trial court should be reversed because of its charge on imputed contributory negligence. He says not only is the charge a misstatement of law, but additionally the effect of the charge on bailment, the presumption regarding Mrs. Pitts’ agency on behalf of her husband, the family purpose doctrine, and whether Mr. and Mrs. Pitts were engaged in a joint venture was to remove from the jury’s consideration the question whether Mrs. Pitts’ contributory negligence could be imputed to her husband.

A careful reading of Pitts’ objection to the trial court’s charge, set out above, indicates that the bulk of his objection was aimed at the imputed negligence charge, and that he assigned grounds for his objection with sufficient specificity to inform the trial court of its error. Thus any error on the part of the trial court is preserved for our review.

The charge on imputed contributory negligence as revealed in the record is as follows:

“There was a question here that came up about bailment, members of the jury, because Mrs. Pitts was driving the car of her husband. That law is that: That arises from the ownership of the vehicle a legal presumption that the driver of the vehicle was operating it as the owner’s agent or servant and that the driver was acting within the line and scope of his authority or employment as the owner’s agent or servant. You heard the testimony there, she said she drove this car at various times, She drove it various times when he was along. She drove it that way sometimes because his back was hurt. But there is no evidence here that it was not done with Mr. Pitt’s consent, that he was along, it was his automobile, this was his wife and any operation that she did as a matter of law is that she was driving with his consent. She was driving with his consent and therefore if she was gulty of negligence then Mr. Pitts could not hide behind that, he couldn’t say, no, I can’t go along with that my wife was driving. I charge you that if she was guilty in any way then Mr. Pitts here could not say there was no bailment here, she was not my agent, there was no presumption, she was driving with my consent.
“I might add this, members of the jury, so you might understand all the law. Alabama does not follow the family purpose doctrine. It was once. We all argued back here a few years ago that if the person was a member of the household, like your son or daughter gets the car and goes out on a date, that there was a presumption there of agency because they were a member of the family, but that is not true. In a case here in Pa-yette, Ala. was the first case that opened it up and then a case up in Marshal County in which the Supreme Court says there is no family doctrine. And it means this, that if you or any member of your family has your car to go out on a date, if that young man or young girl has a wreck, then the father is not responsible unless the law is, unles he knew that girl or boy or anyone else was an incom-petant driver. That is known as Family purpose clause. That is what we used to go on but you don’t have that here. The owner of the car was along on this occasion and it was a joint adventure. They went to see his mother, which would be the driver of the car mother-in-law and they left there and went back home, joint venture, going to the nursing home and a joint venture going back home. There was nothing said there about don’t you drive this car. I am going into details because I want the jury to understand. Every bit of the law that applies to a case because you need to have it all, so therefore the Court says that you can consider the plea of contributory negligence and it is for you to say whether or not Mrs. Pitts did anything on this occasion while the husband was along that contributed. Was she on her side of the road, was she in the middle of the road, did she give the other car his part of the road, did she stop or did she give him enough room to get by on. That is for you to say whether or not those things existed. It is not for me to say, it is not for the attorneys to say because that is in your province and your province only.”

Pitts says the trial court should be reversed for charging the jury on the family purpose doctrine. The answer is that the trial court did not instruct on that doctrine. The judge merely said that Alabama at one time recognized the family purpose doctrine but that it is no longer the law in this state. While the digression perhaps made the charge more difficult to follow, it does not call for reversal.

With regard to what Pitts’ attorney phrases as the question of bailment, the court gave the following instruction to the jury:

“. . . That arises from the ownership of the vehicle a legal presumption that the driver of the vehicle was operating it as the owner’s agent or servant and that the driver was acting within the line and scope of his authority or employment as the owner’s agent or servant.”

It appears this statement was taken from Foster v. Floyd, 276 Ala. 428, 163 So.2d 213 (1964). The Foster statement has been adopted by our supreme court as charge 3.08, “Owners Present in Vehicle,” Alabama Pattern Jury Instructions — Civil. The charge therefore correctly stated the substantive law.

In connection with the same charge, Pitts further contends that the trial court in effect instructed the jury that Mrs. Pitts was driving with Mr. Pitts’ consent, thereby establishing the fact of agency. Pitts maintains that the question of agency was for the jury, not the trial court, to decide. We agree.

In Smith v. Johnson, 283 Ala. 151, 214 So.2d 846 (1968), a wife had driven her husband’s car from Gadsden to Port Payne. In route she collided with a truck. The husband, who was not in the automobile at the time of collision, brought suit against the driver of the truck for damages to his car. The trial court charged the jury that if it found contributory negligence on the part of the wife, the husband could not recover. The effect of the charge was to take from the jury the question of agency between the husband and wife. The supreme court found that the wife’s testimony concerning the circumstances in which she was driving the car was not contradicted nor had her credibility been questioned. Her testimony was enough to overturn the presumption arising from the husband’s ownership of the vehicle that the wife had been acting as her husband’s agent at the time of the collision. Since the presumption had been rebutted, the trial court committed prejudicial error by giving the charge complained of and the judgment was reversed.

In the case at bar, both Mr. and Mrs. Pitts testified that although the car involved in the collision with Mr. Hulsey was owned by Mr. Pitts, Mrs. Pitts usually drove the car. Prior to the accident, they had not discussed who would drive; instead they had simply walked to the car, Mrs. Pitts got in on the driver’s side and Mr. Pitts entered the car on the passenger’s side. This testimony was neither contested nor contradicted.

As in the Smith case, we think this evidence was sufficient to rebut the presumption of agency and therefore the question of agency should have been presented to the jury. Instead, the trial court told the jury they had to conclude that Mrs. Pitts was driving as Mr. Pitts’ agent. This, we think, invaded the province of the jury. For such prejudicial error, the trial court must be reversed.

Furthermore the trial judge told the jury that it must find that Mrs. Pitts was driving with the consent of Mr. Pitts. Mr. and Mrs. Pitts’ testimony in no way compelled such a conclusion; the jury just as easily could have inferred that no consent had been given. Therefore, the trial court reversibly erred by instructing the jury on the question of consent. In Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594 (1967), our supreme court said, at 281 Ala. 593, 206 So.2d at 602:

“Unless the evidence is entirely free from doubt or adverse inference, the question is one for the jury; . . . .”

It is for the jury, not the trial judge, to determine the credibility of the evidence and resolve any conflicts that appear, to find the facts, to apply the law as given in the charge to the facts, and to express their conclusion in their verdict. Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972); Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1965).

The same is true with the court’s charge on joint venture. Rather than instructing the jury as to what constitutes a joint venture, and leaving the jury to decide from the facts, whether Mr. and Mrs. Pitts were actually engaged in a joint venture, the trial court told the jury that Mr. and Mrs. Pitts were on a “joint adventure,” again erroneously invading the province of the jury. Cf. Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49 (1924).

For the errors committed in the charge to the jury, the trial court’s judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Thomas C. HUDSON, Jr. v. DuraWEAR CORPORATION.
    Civ. 1001.
    Court of Civil Appeals of Alabama.
    March 30, 1977.
    W. L. Thuston, Birmingham, for appellant.
    Harry Asman, Birmingham, for appellee.
   HOLMES, Judge.

This is an appeal by Thomas C. Hudson, Jr., from a decree of the Circuit Court of Jefferson County. That court, sitting without a jury, awarded $2,000 in damages and injunctive relief to the DuraWear Corporation.

The primary issue on appeal is whether Hudson was an employee of the DuraWear Corporation or an independent contractor. We find no reversible error in the trial court’s finding that Hudson was not an independent contractor and, accordingly, affirm.

The controversy arises out of the following facts:

In January of 1975, Hudson was hired as a traveling salesman for DuraWear. Pertinent provisions of the agreement he signed with DuraWear are as follows:

“(b) You shall devote your full working time and energy to the business of our Company, DuraWear Corporation, and you shall not directly or indirectly engage in any other business or commercial venture during the continuance of your employment with us without our permission.
“(c) Our Company’s catalog and price list, which may be amended or modified from time to time, will be furnished you. You shall strictly adhere to the provisions thereof.
“(d) You will not accept payment from a customer in any form other than by check, money order or draft payable to DuraWear Corporation. Such payments shall be immediately forwarded to our office in Birmingham, Alabama.
“3. You will receive a vacation in accordance with our Company’s policy.
“4. From time to time we will provide you with sales kits, presentation material and promotional merchandise. Memorandum charges to your account will be made for such items at prices established upon delivery to you. .
“7. You will indemnify and save harmless our Company from any and all loss, claim, damage and costs (including reasonable attorney’s fees) that the Company may sustain or become liable for, by reason of claims against it, on account of any illegal or wrongful or negligent acts committed by you. We may require of you, at your expense, to maintain sufficient liability insurance, as determined by us, to protect our interests in such respect.
“9. For a period of two (2) years after the termination of your employment with us, you will not, within the area described in ‘Exhibit A’ attached hereto, directly or indirectly, own, manage, operate, control, be employed by, participate in, or be connected in any manner with the ownership, management, operation, or control of any business similar to the type of business conducted by us at the time of the termination of your employment. In addition to any other rights or remedies available to us, the breach of the provisions contained in this paragraph shall entitle our Company to enforcement by court injunction.
“11. Any and all inventions, improvements, discoveries or results of research, whether patentable or not, which are made, invented or discovered by you, either singly or jointly with others, during your employment with us, which relate in any manner to products of our Company or to any process, material, apparatus, equipment or article worked on in connection with your employment, shall be promptly disclosed by you to us and shall become the exclusive property of our Company. .
“13. DuraWear Corporation may use your name and photograph for publicity and advertising purposes.”

The agreement further specified that customer lists and customer control cards received and maintained by Hudson were restricted confidential business information to be returned to DuraWear upon its request.

Upon joining DuraWear, Hudson was given a “job description” which specified his duties with the company. Bruce Bean, Hudson’s area supervisor and DuraWear’s regional manager, also taught Hudson selling techniques during his first one or two days on the job by allowing Hudson to observe Bean making sales. While with the appellee-company, Hudson was required to submit detailed weekly activity reports to Bean. Additionally, Hudson stated that he was supervised by and reported to Bean on a weekly basis. Hudson also testified that the company’s national sales manager provided him with a monthly sales quota.

Hudson further testified that Bean traveled with him about one day per month. On those occasions, Bean did not plan Hudson’s sales route, but merely rode with Hudson to places of the latter’s choosing. Apparently, Hudson’s sales routes were never planned for him by DuraWear, although the DuraWear president, Harold P. Caine, stated that on more than one occasion he had directed Hudson to call on specific customers.

While with DuraWear, Hudson drove his car, paid his gasoline and other automobile expenses, paid his food and lodging expenses, and procured insurance for his automobile.

Hudson completed an “Employee’s Withholding Allowance Certificate” to enable DuraWear to withhold federal income tax on him. The company also paid social security for Hudson during his tenure with the company. Hudson was paid on a commission basis.

On January 27, 1976, Hudson submitted his resignation to the company. Shortly thereafter, he began doing business as Hud-co Industrial Products. He sold different lines of industrial products, some of which were similar in both content and use to DuraWear’s plastic and ceramic products. Hudson sold these products to some of the same customers to whom he had sold or attempted to sell DuraWear products while working for the latter. He made at least $2,000 “gross profit” in these transactions. This profit was derived sooner than two years after his resignation from DuraWear.

On June 17, 1976, DuraWear filed a complaint seeking damages and injunctive relief from Hudson’s alleged breach of the “noncompetition” clause (paragraph 9 set out hereinabove) of their agreement.

Although contracts in restraint of trade are generally prohibited in Alabama (Tit. 9, § 22, Code of Alabama 1940, as amended), § 23, of Tit. 9 provides an exception to the general rule.

“[0]ne who is employed as an agent, servant, or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof, so long as the buyer or any person deriving title to the good will from him, and so long as such employer carries on a like business therein.”

Hudson contends that his agreement with DuraWear does not fall within this exception because he was an independent contractor.

Other pertinent facts reveal that on July 9, 1976, Hudson filed a motion to dismiss, alleging, inter alia, that DuraWear’s complaint did not allege the requisite control over him to show that he had been a servant or an employee of DuraWear and thus subject to the terms of the noncompetition provision of the agreement. This motion was denied by the trial court on July 23, 1976.

Both Caine, the president of DuraWear, and Hudson were deposed on August 10, 1976. At this proceeding, Caine refused to answer questions relating to the identity of his past and present suppliers of ceramic and plastic materials. Hudson filed a motion to compel Caine to answer these questions on August 16, 1976. The following day, this motion was denied by the trial court. Questions regarding this subject matter were also propounded to Caine at trial; objections to the questions were sustained.

Trial was had in the Circuit Court of Jefferson County on September 8, 1976. On that same date, the trial court entered a decree which awarded $2,000 in damages to DuraWear and further provided:

“The Defendant [Hudson] is hereby enjoined, for a period of one year from January 27, 1976 from making solicitations or sales to any of the customers of Plaintiff [DuraWear] within the territory set forth in the employment contract.”

The court found that Hudson was not an independent contractor. As noted earlier, from that decree, Hudson takes this appeal.

As previously stated, Hudson contends he is not bound by the terms of the agreement with DuraWear. He states that Tit. 9, § 23, permits agreements which restrict the operation of a lawful business only between employees, servants, agents, and their employers. He states that his relationship with DuraWear was that of an independent contractor.

The Supreme Court of Alabama has stated the following with regard to whether the relationship of employer-employee or independent contractor exists:

“[I]t is the reserved right of control rather than its actual exercise that furnishes the true test of whether the relationship between the parties is that of an independent contractor or of employer and employee — master and servant. .
“For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the result to be accomplished or, in other words, not only what shall be done, but how it shall be done. . ” (Weeks v. C. L. Dickert Lumber Company, 270 Ala. 713, 714, 121 So.2d 894, 895 (1960).

Hudson states the following facts conclusively establish that the trial court’s finding that he was not an independent contractor is plainly and palpably erroneous: that, contrary to driving a company car, he operated his automobile while traveling his sales routes; that he paid for his gasoline; that he paid his personal expenses; that he traveled when and where he pleased within the territory assigned him in search of customers; and that he was paid on a commission basis. He cites numerous cases wherein more than one of the above facts have served as a basis for a court’s holding that a salesman was not an employee of the company for whom he was working. Dortch Baking Co. v. Schoel, 239 Ala. 266, 194 So. 807 (1940); Greenwald v. Russell, 233 Ala. 502, 172 So. 895 (1937); General Refrigeration Sales Co. v. Taylor, 229 Ala. 479, 158 So. 314 (1934); Aldrich v. Tyler Grocery Co., 206 Ala. 138, 89 So. 289 (1921). However, our examination of these authorities discloses that in none of these cases did the alleged “employer” retain as much control over the individual in question as did Du-raWear over Hudson in this instance. Numerous specific contractual provisions, as well as testimony regarding the daily activities of Hudson, reveal that DuraWear retained the requisite degree of control over Hudson’s activities to sustain the finding of the trial court that he was not an independent contractor.

The agreement between the parties provided that Hudson could neither work for anyone other than DuraWear nor engage in other business or commercial ventures during his “employment” with the company without the latter’s consent. DuraWear retained the right to alter Hudson’s area of sales and his duties and to discharge him. Hudson was required to “strictly adhere” to the company’s list prices for the products he sold. He was forbidden to accept cash payments from the customers. The time during which he might vacation was regulated by the company. DuraWear could have required him to purchase liability insurance for the company’s protection. Also, Du-raWear retained title to any “inventions, improvements, discoveries,” etc., which were related to company products and made by Hudson while he was working for the company.

In addition to the preceding contractual elements of control, testimony of the parties revealed other means by which the company retained control over Hudson’s company related actions. Hudson, himself, testified that he reported to his area supervisor, Bean, on a weekly basis. Hudson had to meet his sales quota, which was established by DuraWear’s national sales manager. Moreover, Hudson was required to submit detailed weekly activity reports to Bean, who occasionally traveled with Hudson.

Likewise, the company withheld federal income taxes and made social security payments on behalf of Hudson.

Caine, DuraWear’s president, also testified that on more than one occasion, he had specifically directed Hudson to call, on a given customer.

The above evidence shows that DuraWear retained control over what, in the language of the court in Dickert, supra, was to be done and how it was to be done. A given dollar volume in sales, i. e., Hudson’s sales quota, which was established by Du-raWear’s national sales manager, constituted what was to be accomplished. A certain degree of leeway was permitted Hudson in achieving this objective; however, the company retained a significant amount of control over his activities. Hudson was required to abide by the company’s price list. He was given customer cards by the company to aid him in contacting prospective buyers. While he did plan his daily activities, these were subject to weekly review by his supervisor. Moreover, his supervisor occasionally traveled with him. Caine had directed Hudson on more than one occasion to call on a specific customer.

“[I]t is not possible to lay down a hard and fast rule or state definite facts by which the status of men working and contracting together can be definitely defined in all cases as employee or independent contractor. Each case must depend upon its own peculiar facts.” (Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 195, 189 So. 757, 762 (1939)).

Accord Dortch, supra; Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74 (1933).

The findings of fact of the trial court sitting without a jury are entitled to the same weight as a jury verdict. Walker v. Roe, 295 Ala. 79, 323 So.2d 349 (1975); Blue Cross-Blue Shield of Alabama v. Thornton, 56 Ala.App. 678, 325 So.2d 187 (1975). Circumstances similar to those herein have been held sufficient to warrant submission to a jury for the determination of whether an individual was an employee or an independent contractor. Moore-Handley, supra. Furthermore, less evidence than contained herein has been held to constitute a jury question for a determination of the individual contractor-employee issue. Luquire Ins. Co. v. McCalla, 244 Ala. 479, 13 So.2d 865 (1943); Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608 (1937). In this instance, we cannot say that the finding of the trial court that Hudson was not an independent contractor was clearly erroneous, thereby warranting reversal.

Hudson, in an excellent brief, also correctly states that the evidence fails to demonstrate that DuraWear “exercised such control over Hudson to the extent that it controlled all the details of the work performed by Hudson.” DuraWear need not have actually exercised control over all of Hudson’s activities in order for him to be considered an employee of the company.

“It is not the fact of actual interference, but the right to control, that makes the difference between an independent contractor and a servant or agent. . ” (Philabert v. Frazier, 35 Ala.App. 549, 551, 51 So.2d 381, 383 (1950))

We need not at this point recount each element of control DuraWear retained over Hudson. Suffice it to say that the company retained sufficient right of control over his activities to have enabled it to specifically direct his activities.

Hudson also contends that the trial court erred to reversal by not requiring Caine to answer questions regarding DuraWear’s suppliers of ceramic and plastic materials. He states that Rule 26(b)(1), ARCP, permits discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” [Emphasis supplied.] Given Hudson’s testimony to the effect that the products he sold subsequent to leaving DuraWear were “basically” similar in content and use to those he sold while at DuraWear, we fail to perceive the relevance of the answers to the challenged questions. DuraWear’s complaint alleged Hudson had engaged in a “business similar” to that of the company. Hudson’s above testimony established the fact that he was selling the same type of products, or engaging in the type of business activity, prohibited by the agreement. Hence, who supplied DuraWear’s products was irrelevant to the proceeding in the trial court, as that information, in all likelihood, would only have established the nature of the type product sold by DuraWear.

Moreover, even if the information was relevant, the refusal of the trial court to compel disclosure would not require reversal. The lower court’s ruling would fall within Rule 61, ARCP, “Harmless Error.”

“No error in either the admission or the exclusion of evidence ... is ground for granting a new trial or for setting aside a verdict . . . unless refusal to take such action appears to the court inconsistent with substantial justice. . . . ”

Given the nature of DuraWear’s complaint, to wit, general business “pirating,” we cannot say that refusal to compel specific disclosure of supply sources in this instance was “inconsistent with substantial justice.”

Hudson, in reliance on Premier Industrial Corporation v. Marlow, 292 Ala. 407, 295 So.2d 396 (1974), also contends the trial court erred by overruling his motion to dismiss DuraWear’s complaint for failure to specifically allege the requisite control over Hudson to show the latter was a DuraWear employee. We find no error to reversal in this contention. Premier, supra, was not decided pursuant to the Alabama Rules of Civil Procedure. The latter provide only that the pleading set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a), ARCP. The Committee Comments to this rule state:

“The intent and effect of the rules is to permit the claim to be stated in general terms. The rules are designed to discourage battles over mere form of statement which often delay trial on the merits or prevent a party from having a trial because of mistakes in statement.”

Dura Wear's complaint was not defective under the pleading standards established by the Alabama Rules of Civil Procedure. We also point out that DuraWear incorporated the contractual agreement between the parties into its complaint.

We note that DuraWear, in brief, seeks to have this court hold that the in-junctive relief should be in force and effect for two years as opposed to the one year as ordered by the trial judge. We initially note that no appeal was taken from the trial court’s order by DuraWear.

The “issue” of the one year injunction is not stated to be an issue by either appellant or appellee. The matter is raised for the first time in the concluding paragraph of appellee’s brief where he states:

“It is noted, however, that the trial court enjoined the defendant from competing for only one (1) year from January 27, 1976 (the date of defendant’s termination). Also, the injunctive relief only applied to sales made to plaintiff’s customers within the territory set forth in the employment contract rather than the territory itself . . . . To allow the in-junctive relief to end January 27, 1977, would be unjust considering the fact that Mr. Hudson has been in continuous violation of his employment agreement from the date of his employment termination.”

As noted earlier, DuraWear, the appellee, has taken no cross appeal, and we do not find the manner in which it has sought to raise the issue in this instance to be sufficient for our review. See 2A Ala. Digest Appeal & Error @=>747(2), ARAP 4(a)(2).

The decree of the trial court is to be affirmed.

AFFIRMED.

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


author: HARRIS, Judge.

text:
    Joe SENN, alias v. STATE.
    4 Div. 440.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    Rehearing Denied Dec. 7, 1976.

      J. Paul Lowery, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

By agreement of the parties appellant was put to trial upon two indictments charging grand larceny. The grand jury of Pike County indicted appellant for the theft of a 1965 model Ford truck, the personal property of Carter Brothers Manufacturing Company, Inc., a corporation, and he was indicted for the theft of a John Deere farm tractor, model 4230, the personal property of Ferrell Gibson. Appellant was represented by counsel of his choice and at arraignment pleaded not guilty. The jury returned separate verdicts of guilty as charged in each indictment and the Court sentenced appellant to five years imprisonment in the penitentiary in each case. Appellant gave notice of appeal and the sentences were suspended pending appeal. Appellant was admitted to bail in the amount of $3,000.00 in each case pending appeal.

At the conclusion of the State’s case, appellant made a motion to exclude the State’s evidence on the grounds that the State failed to prove a prima facie case and failed to adduce any evidence to corroborate the testimony of the two accomplices who testified for the State. The motion was overruled and this puts us to a recital of the evidence in the case.

Mr. Ferrell Gibson testified that he lives about eight miles south of Troy, Alabama, on Highway 231, and appellant lived two or three miles from his place. He had known appellant all of his life. He stated that on July 25, 1974, he owned a John Deere tractor which was parked near a peanut drying shed located approximately one hundred yards from his home. That the tractor was practically new and was worth eight to ten thousand dollars. He missed the tractor the following afternoon and immediately notified the Sheriff of Pike County.

He further testified that it rained the previous afternoon and he was able to track the tractor from the place where it had been parked to Highway 231 and across the highway into a field for about a quarter of a mile and he could tell that the tractor was loaded on a truck. He described the place where the tractor was loaded on a truck. He said there was a dug out place so that the wheels of the truck would be low enough to get the tractor on the truck. He stated there was a cross-tie at the loading place and the truck body made of wood and metal had been torn or broken off the truck and was on the ground at the loading site.

Mr. Gibson further testified that between 1:00 and 2:00 p. m. on the afternoon of the date his tractor was removed from his premises he saw appellant and a black man drive by the place where he was working on two occasions and appellant was driving at a very high rate of speed. He subsequently learned that the black man in the car with appellant was Arthur Lee Griffin. Griffin turned out to be one of appellant’s accomplices in the theft of the truck and tractor.

Several months later this tractor was recovered by the Sheriff’s Department and was brought to Troy where Mr. Gibson checked the serial number on the tractor with the bill of sale given him at the time he purchased the tractor and the serial numbers on the tractor and the bill of sale were identical. The tractor was surrendered to Mr. Gibson.

Mr. W. W. Carter testified that he lived five miles from Brundidge, Alabama, at a place called Hamilton’s Cross Roads. He stated that on the night of July 25, 1974, a 1965 Ford model F600 long wheel base Ford truck with a 20 foot body on it was taken from the premises of Carter Brothers Manufacturing Company, Incorporated. He described the truck as having a metal floor and it had a wood-slat body on it. He valued the truck and body at fifteen hundred dollars. He said they used this truck quite often around the plant and the tire rack had come loose. On Thursday afternoon, July 25,1974, he instructed one of the employees to weld the tire rack back in place Friday morning. On Friday morning this employee went to get the truck and found it missing. He further testified that he had not seen the truck since it was taken from the premises of the company.

Arthur Lee Griffin, a co-indictee of appellant, testified for the State in this case. He stated he had known appellant all of his life and had worked for him at times, but not on a regular basis. He lived in Brun-didge, Alabama, and on the date the truck and tractor were stolen appellant came to see him at Moultry Service Station in the town of Brundidge. Appellant was driving a blue Oldsmobile Cutlass car and asked Griffin to get in the car and ride around with him. Appellant stopped and bought some beer and both drank some beer and appellant asked Griffin if he wanted to make some fast money and Griffin asked appellant how much money he had in mind for him. Appellant told him five hundred dollars and this amount of money was agreeable to Griffin. Appellant then drove Griffin to Carter Brothers Manufacturing Company and pointed to a truck on the premises and told Griffin he wanted him to get the truck. Appellant asked Griffin if he could “hot wire” the truck and Griffin said he did not know anything about hot wiring a truck. Appellant then wanted him to talk to Willie James Moultry about hot wiring the truck and Griffin agreed to talk to Moultry. Appellant then drove the route he wanted Griffin to take after he and Moultry got the truck. The route led to Mr. Ferrell Gibson’s home on Highway 231 where appellant showed Griffin the tractor parked near a peanut shed and told him he wanted to get this tractor and load it on the truck they were to get from Carter Brothers Manufacturing Company. Appellant and Griffin rode around looking for a place where they could load the tractor. They spotted a place about a quarter of a mile from Mr. Gibson’s home in a field that belonged to the Haisten brothers. Appellant picked Griffin up at about 1:00 p. m. on the date they were to steal the truck and tractor, and after showing him the route to take, the tractor he wanted to steal, and the place where it was to be loaded, the time was about 3:00 p. m. Appellant then took Griffin back to Brundidge with the understanding he was to see Willie James Moul-try about hot wiring the truck. Appellant had previously offered to pay Moultry $500.00 to help steal the truck.

Griffin went home and he and some friends started barbecuing. Appellant came to Griffin’s house about dark on the same day and Griffin left with appellant in the same car they had been in earlier that afternoon and went to Willie James Moul-try’s house to pick him up. Moultry got in his pickup truck and drove to appellant’s home. Appellant then drove Griffin and Moultry to Carter Brothers Manufacturing Company. In the car at that time was appellant’s girl friend. Appellant left Griffin and Moultry to get the truck and drove away with his girl friend.

Moultry “hot wired” the truck and Griffin drove the truck to' appellant’s home where he was waiting for them to bring the stolen truck. When Moultry learned that appellant planned to steal Mr. Gibson’s tractor, he decided that he was not going to get involved in any more stealing. The truck was low on gas and appellant asked Moul-try if he would go to his father’s service station and get a five-gallon can of gas. Moultry agreed to do this, but when he brought the can of gas back, he left and went home. Moultry was also indicted for the theft of the truck and tractor. He testified that he was never paid the $500.00 promised him by appellant.

Griffin further testified that after Moul-try left, he and appellant drove the truck to the field where they were going to load the tractor. He stated that appellant went to get the tractor and he stood on the side of Highway 231 with a flashlight. Appellant instructed him to signal to him with the flashlight when he heard a truck or trucks approaching on the highway and he would crank the tractor and drive it across the highway to the place where they had decided to load it on the stolen truck. When Griffin heard trucks approaching, he sig-nalled appellant with the flashlight and appellant cranked the tractor and drove it across Highway 231 and into the field where the truck was parked.

Appellant and Griffin discovered they could not get the tractor on the truck with the truck bodies on it. Appellant tied a chain to the body of the truck and to the tractor and used the tractor to pull the bodies off each side of the truck. Then they took a shovel and dug out a place for the back wheels of the truck to get low to the ground to load the tractor. They tried to drive the tractor onto the bed of the truck but were unable to do so because the ground was wet. Appellant left and went somewhere and got a cross-tie and with the use of the cross-tie they were able to drive the tractor upon the bed of the truck. They carried the truck and tractor to the State of Georgia and left them at some town or city — either Hines City or Bain-bridge. Appellant’s girl friend followed them in appellant’s car and they came back to Alabama with appellant driving. Griffin testified that appellant never paid him the $500.00 which he promised him for his part in stealing the truck and tractor.

The truck bodies and cross-tie were left in the field where the truck was loaded and were found by Mr. Gibson when he traced the tracks of his tractor to the field where it was loaded on the truck.

Winston Fraizer testified that he lived in Brundidge and knew appellant and Arthur Lee Griffin. He stated that he recalled the occasion, but not the date, that the truck and tractor were stolen. That he was at Griffin’s house on that date barbecuing and appellant drove up in a blue Oldsmobile car about 8:00 p. m. and Griffin went to the car. After talking to appellant for a few minutes, Griffin told him to clean up the barbecue and he got in the car with appellant and left and he did not see them anymore that night.

Appellant did not testify but he offered the testimony of his mother whose testimony was in the nature of an alibi. She testified that appellant was with her on the afternoon and night in question. Appellant also offered the testimony of two witnesses who testified to his good character.

Appellant’s major contention for a reversal in this case is the failure of the State to adduce evidence to corroborate the testimony of the accomplices. We do not agree.

Under the statute requiring corroboration of the testimony of accomplices to authorize conviction of a felony (Title 15, Section 307, Code of Alabama 1940), the corroborative evidence need not be strong, nor sufficient of itself to support the conviction, the criterion being that it legitimately tends to connect the accused with the offense. Moore v. State, 30 Ala.App. 304, 5 So.2d 644; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358; Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62.

Nor need such corroborative evidence directly confirm any particular fact stated by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776; Cameron v. State, 49 Ala.App. 482, 273 So.2d 242.

“Any circumstantial evidence is sufficient to corroborate if it proves that the accused was connected with the criminal act, or tends to connect him with the commission thereof, or if such connection may reasonably or clearly be inferred from the corroborative evidence; and where the accomplice is strongly corroborated by facts and circumstances connecting accused with the crime, a conviction will be sustained.” 23 C.J.S. Criminal Law, § 812(3), page 109.

The corroborating facts and circumstances in this case certainly connected appellant with the crime charged in the indictment. He was seen by the owner of the stolen tractor between 1:00 and 2:30 p. m., with one of the accomplices in his car, on the date the tractor was stolen driving at a high rate of speed near the place where the tractor was parked. He was seen by an independent witness that same night when he came to the home of one of the accomplices and picked him up and drove away. The owner of the tractor traced the route taken by the tractor to the field where it was loaded on a truck. At the place where the tractor was loaded on the truck the owner of the truck found a dug out place in the ground so that the back wheels of the truck could be lowered closer to the ground to facilitate putting the tractor on the bed of the truck. The bodies of the truck were found on the ground at the loading place along with a cross-tie that had been used in the loading of the tractor. All of these physical facts corroborated the testimony of accomplice Griffin in minute detail and tended to connect appellant with the commission of the crime.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict of the jury. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Washington v. State, 55 Ala.App. 116, 313 So.2d 544; Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813.

The State’s case rested on circumstantial evidence. Circumstantial evidence is entitled to the same weight as direct evidence provided it points to the guilt of the accused. Creel v. State, 53 Ala.App. 504, 301 So.2d 267.

The evidence presented by the State was sufficient to support the judgment of conviction.

AFFIRMED.

TYSON and DeCARLO, JJ., concur.

BOOKOUT, J., concurs in the result.

CATES, P. J., not sitting.


author: BLOODWORTH, Justice.

text:
    In re Joe David SENN v. STATE. Ex parte Joe David Senn.
    SC 2274.
    Supreme Court of Alabama.
    Feb. 25, 1977.
    J. Paul Lowery, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, respondent.
   BLOODWORTH, Justice.

By granting the petition for writ of certiorari we have undertaken to review the decision of the Court of Criminal Appeals in 4 Div. 440, Senn v. State [M.S.1976] 344 So.2d 187.

The issue presented is whether there is sufficient corroboration of the testimony of the two accomplices so that petitioner’s conviction for grand larceny can stand. We answer in the negative and reverse and remand this cause to the Court of Criminal Appeals.

Petitioner was tried and convicted for the grand larceny of a John Deere tractor and a Ford truck, belonging to Carter Brothers and to Ferrell Gibson, respectively. Petitioner was sentenced to five years’ imprisonment in the penitentiary in each case. The Court of Criminal Appeals affirmed the judgments of conviction. The facts of the case are well stated in the opinion of that court and need not be repeated here. Essentially, the testimony of two accomplices is that petitioner was the ringleader in the thefts.

Alabama, by virtue of Tit. 15, § 307, Code of 1940, requires corroboration of accomplices’ testimony. It provides, viz.:

“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.”

At common law and in the federal courts such is not the rule. It has been stated that Alabama’s statute is in derogation of the common law; it has been suggested that it is also in derogation of common sense. Dobbins v. State, 45 Ala.App. 190, 227 So.2d 820 (1969, per Cates, J.).

Recently, Justice Faulkner re-enunciated our rule with respect to corroboration. He wrote for the Court:

“. . . The proper test for determining whether there was sufficient corroboration of the testimony of an accomplice has been set out in Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947). The court held that, first, the evidence of the accomplice must be eliminated, and then, if upon examination of all other evidence, there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration. . .

Miller v. State, 290 Ala. 248, 275 So.2d 675, 677 (1973).

The corroboration which is sufficient to support the accomplices’ testimony must be of some fact tending to prove the guilt of the defendant.

“. . .It must be of a substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt. . . .”

Sorrell v. State, 249 Ala. 292, 31 So.2d 82, 83.

Such corroborative testimony need not be sufficiently strong in itself to support a conviction. “[I]t is sufficient if it legitimately tends to connect the accused with the offense.” Isbell v. State, 57 Ala.App. 444, 329 So.2d 133, 139, (1976, per Bookout, J.).

Analyzing the testimony in the case at bar we have the following corroborative evidence:

(1) Petitioner and accomplice Griffin were seen by the owner of the tractor about 1:30 or 2:00 p. m. on the day before the tractor turned up missing driving at a high rate of speed on a road petitioner seldom used and near where the tractor was parked; and,

(2) Petitioner was seen by a witness at accomplice Griffin’s house the evening before the tractor turned up missing when he picked up accomplice Griffin with whom he drove off.

We are convinced that this testimony is not sufficient to corroborate the two accomplices.

Other “corroborating” details mentioned in the opinion of the Court of Criminal Appeals are physical facts which simply corroborate the “commission of the offense” but do not tend to connect the petitioner therewith.

Being seen in the company of an accomplice in close proximity in time and place to the commission of a crime is not in itself always sufficient corroboration to meet our statutory requirements. Tidwell v. State, 37 Ala.App. 228, 66 So.2d 845 (1953, per Harwood, J.) On the other hand, if the accused and accomplice are seen together in unusual places and in close proximity in time and place to the scene of the crime, which was committed at an unusual hour, the requirements of corroboration may be met. Tidwell, supra.

This case is factually very close to Kemp v. State, 24 Ala.App. 591, 139 So. 437 (1932), wherein it was stated:

“. . . The only evidence of corroboration claimed in this case by the state is that this defendant was seen on the streets of the village where the crime was committed in company with the accomplice, riding in a model T. Ford car, on the night of the burglary; that they passed up the street in open view three times, the last time going in the direction of defendant’s home. Nobody saw them doing anything out of the ordinary, and nobody testifies as to when the store alleged to have been broken into was entered. The corroboration required by the section of the Code cited must be of some fact connecting defendant with the crime which will strengthen or make stronger the testimony of the accomplice. Segars v. State, 19 Ala.App. 407, 97 So. 747; Wallis v. State, 18 Ala.App. 108, 90 So. 35.” (Emphasis added.)

Likewise, in Commander v. State, 28 Ala.App. 42, 178 So. 241 (1938), it was held that the fact defendant was seen in the company of an admitted accomplice on the afternoon of the night of the alleged crime, which, from the testimony, was committed several hours thereafter, was no corroboration of the accomplice’s testimony.

Even the State candidly, and we add, commendably admits, in brief, “Granted that this is not the strongest case of grand larceny prosecuted by the State , . .”

In sum, we do not disagree with the legal principles enunciated in the opinion of the Court of Criminal Appeals. We simply disagree with the application of the law to the facts.

It is thus that we conclude that the corroborating testimony was insufficient to meet the requirements of our statute. This case is reversed and remanded to the Court of Criminal Appeals.

REVERSED AND REMANDED.

All the Justices concur.


author: PER CURIAM.

text:
    Joe SENN, alias v. STATE.
    4 Div. 440.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
   PER CURIAM.

REVERSED AND REMANDED on authority of Ex Parte Senn (Senn v. State) Ala., 1977, 344 So.2d 192.

All the Judges concur.


author: PAGE, Circuit Judge.

text:
    Ormon HOCUTT, alias Orman Hocutt v. STATE.
    6 Div. 257.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.

      Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State, appellee.
   PAGE, Circuit Judge.

On September 1, 1965, appellant was indicted by the Grand Jury of Tuscaloosa County on a charge of murder in the first degree. The victim was the natural father of appellant. On September 24, 1965, appellant was ordered to Bryce Hospital for a determination by that agency of his mental competency. Appellant remained in that institution until September 4, 1975, at which time he was returned to Circuit Court of Tuscaloosa County, Alabama, to stand trial under the ten-year-old indictment. Appointed counsel for the appellant and the Assistant District Attorney jointly moved the trial court to hold a hearing to determine the competency of appellant to stand trial. The trial court impanelled a jury pursuant to Title 15, Section 426, Code of Alabama, 1940, Recomp.1958, and a hearing was held on November 17, 1975. The jury found that appellant was competent and able to assist his counsel in preparation of the defense and conduct of the trial. On January 12, 1976, appellant stood trial before a jury on the murder indictment. On arraignment appellant had entered pleas of not guilty and not guilty by reason of insanity. He was found guilty of murder in the second degree and sentenced to thirty years imprisonment as punishment for his crime. Motion for a new trial was overruled. The trial court ordered that the defendant be credited with all actual time spent incarcerated prior to trial. On April 29, 1976, appellant gave notice of appeal. The Public Defender was appointed to prosecute the appeal in forma pauperis, and a free transcript was furnished.

TRIAL OF ISSUE OF COMPETENCY TO STAND TRIAL

After the jury was chosen to determine whether appellant was competent to stand trial, and sworn by the Clerk, a juror asked of the trial judge:

“Would the question be important as to what the result would be of what the jury finds, not able to stand trial or able to stand, as to what would happen then?”

to which the judge responded:

“Well, if he is able to stand trial, well, then, he will later — his trial would be set, and he will stand trial.
“If the jury decides that his mental condition is such that he is not able to stand trial, then he would be committed to the Court; I would issue an order committing him to Bryce Hospital. It is an important matter . . . .”

Counsel for appellant made no objection or exception to the statement of the trial judge at that point. After opening statements by the prosecuting attorney and counsel for appellant and after the testimony of the first witness for the defense had been concluded, in chambers and outside the presence of the jury, the attorney for appellant moved for a mistrial. For ground of the motion, counsel insisted that appellant was prejudiced by the court’s statement in informing the jury of the consequences of the verdict. The trial judge overruled the motion for a mistrial and advised counsel for appellant that the jury would be specifically instructed on the point again by the court. Appellant excepted to the ruling which denied the mistrial.

Later, in the oral charge to the Jury, the trial court instructed the jury:

“. . .if you find that he is competent to stand trial, then at some date, he will be — His case will be set, and he will be tried. If you find that he is not competent to stand trial, the Court will have to issue an order that he be returned to the Alabama — I believe it is the Alabama Mental Hospitals, to receive further treatment until such time, and be held by them until such time that he can stand trial. So that is the importance of your decision. And the decision is yours.”

Counsel for appellant duly excepted to the instruction dealing with the consequences of the jury’s verdict.

We know of no authority, case or statutory, which would require that the case be reversed because the trial court instructed the jury on the effect of their verdict. The trial judge determines competency and the use of the procedure set out in Title 15, Section 426, supra, is a discretionary tool he may use to aid him in his decision. Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197 (1971); Duncan v. State, 46 Ala.App. 732, 248 So.2d 771 (1971). Had the trial court perceived any error in the verdict of the jury on the issue of competency the verdict would undoubtedly have been disregarded. The issue of the instruction on the effect of the verdict arose in trial of the appellant’s competency to stand trial. It did not arise in the case-in-ehief. The holding here should not be applied to a trial on the issue of guilt or innocence wherein the effect of the verdict under a plea of not guilty by reason of insanity is argued to the jury. Such would constitute improper argument. Boyle v. State, 229 Ala. 212, 154 So. 575 (1934).

Appellant charges reversible error on trial of the issue of competency to stand trial in the admission into evidence of reports of the Forensic Evaluation Board of Bryce Hospital dated August 20 and September 14,1975. These reports were admitted over objection of appellant during re-direct examination of Dr. Jerold Lower, Chairman of the Forensic Program at Bryce Hospital, a witness for the State. Dr. Lower was one of the members of the Evaluation Board. On direct examination of Dr. Lower, the prosecution elicited, without objection, that on August 20 and September 14, 1975, he and the other members of the Board were of the unanimous opinion that appellant was competent to stand trial. No reference was made to either of the written reports by the witness or the prosecutor during direct examination. Dr. Lower also testified that in his opinion the appellant was competent to stand trial at the time of the trial. Appellant argues that such reports are inadmissible as hearsay citing Benton v. State, 245 Ala. 625, 18 So.2d 428 (1944) and Ex parte Moody, 41 Ala.App. 367, 132 So.2d 758 (1961). The record reflects that, on cross-examination of Dr. Lower, counsel for appellant exhibited the reports to the witness, examined the witness touching the wording of the reports and the meaning of the terms used in the reports. This was prior to introduction of the reports on re-direct examination of the witness and prior to any reference to the reports in the record. Our law is clear to the effect that when in the examination or cross-examination of a witness a party brings out a part of a transaction or conversation, the other party may inquire fully into the matter and bring out the whole of the subject matter on further examination. Palmer v. State, 168 Ala. 124, 53 So. 283 (1910); Richardson v. State, 237 Ala. 11, 186 So. 580 (1938); Key v. State, 240 Ala. 1, 197 So. 363 (1939); Colvin v. State, 260 Ala. 338, 70 So.2d 654 (1954); Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967). No doubt, it would have been better to exclude the reports. We find its inclusion, however, to be at most harmless error. Rule 45, Alabama Rules of Appellate Procedure. Benton and Moody, supra, held it not to be error to exclude the lunacy report from evidence in the trial. Those cases do not hold it to be error to allow a jury to consider the lunacy report on trial of the issue of competency to stand trial. The holding here is fully in account with the previous ruling of this court in Holmes v. State, Ala.Cr.App.1976, 342 So.2d 28. It should be noted that in Moore and in this case, the lunacy reports were admitted not on trial of the guilt or innocence of the defendant, but during the hearing to determine appellant’s competency to stand trial. See Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434 (1971); Stinson v. State, 45 Ala.App. 5, 221 So.2d 397 (1968).

TRIAL OF THE CASE-IN-CHIEF

On August 11,1965, Prentiss Hocutt, who is appellant’s son, saw appellant at the home of Prentiss between 5:30 and 6:00 P.M. Appellant had been drinking alcoholic beverages and consuming capsules which appellant said were Yellowjackets. The bottle containing the capsules was unlabeled. Appellant left the residence. About one and one-half hours later Prentiss received a telephone call after which he went to the home of his grandfather, F. D. Ho-cutt, Sr., the father of the appellant. He saw the body of his grandfather. He did not see appellant.

Josephine Hocutt, the eleven-year-old niece of appellant, was at her home with her younger brother and sisters. Their home was across the street from the home of F. D. Hocutt, Sr. At a time between 7:00 and 7:30 P.M. appellant knocked loudly on the door and was admitted into the residence. Appellant cursed and the young girl became frightened. She asked appellant to leave. He replied that his brother and sister did not want him at home. Appellant stumbled and fell and then left the house. Later, Josephine heard a noise outside her house. She looked out a window and by porch light saw appellant being held on the ground by her uncle, F. D. Hocutt, Jr., and his wife, Margie. She went onto the porch and saw F. D. Hocutt, Sr. lying on the sidewalk across the street. She later saw appellant in an ambulance and he was bleeding about his head.

Mattie Elizabeth Woolbright, a neighbor of the deceased, was called as a witness for the State. She was in her yard when she heard a noise in the direction of the home of the deceased and walked to his yard. She looked into a bedroom window of the deceased’s home and saw the appellant looking down toward the floor and stomping his feet. Appellant was saying something, but she could not understand what was being said. Mrs. Woolbright went to the home of Margie Hocutt and had a conversation with her. She then went back into her own home. From this vantage she saw appellant dragging something from the house to the sidewalk. She saw F. D. Ho-cutt, Jr. run up to appellant and engage him in a fight. She later saw appellant in an ambulance and heard appellant say to Margie Hocutt, “You redheaded-, you will be next.” The appellant was laughing and singing.

James Woolbright, the husband of Mattie Elizabeth Woolbright, testified that he saw appellant dragging or carrying something from deceased’s house. He then saw F. D. Hocutt, Jr. holding appellant on the ground in front of deceased’s house. He saw some luggage in the front yard. F. D. Hocutt, Jr. told the witness to check on F. D. Ho-cutt, Sr. The witness did so and found him dead.

F. D. Hocutt, Jr., the brother of appellant, was watching television at his home when Mrs. Woolbright came and talked with his wife. He called the police and started toward his father’s house. He saw appellant dragging their father out onto the porch, pulling him by the hand and striking him. The witness asked appellant why he was striking their father. Appellant said, “I will just kill hell out of you,” and struck at his brother. They fought and the witness held appellant on the ground until the police arrived. Margie Hocutt took a paring knife away from appellant and threw it into the garden nearby. The knife was not recovered. After the police took appellant into custody the witness examined his bloody father and found he was dead.

Rufus Strickland, the then Coroner of Tuscaloosa County, examined the body of F. D. Hocutt, Sr. at the scene. He found a stab wound in the chest which penetrated three inches, a cut on the throat, wounds about the head, and the sex organs had been cut off. He testified that the primary cause of death was a stab wound in the chest which resulted in extensive hemorrhage. The wound was consistent with a knife wound. The witness saw the mutilated private parts of the deceased inside the house.

Bobby Miller, a professional photographer, went to the scene at the behest of the Coroner. He saw the body of the deceased outside the house and photographed the interior of the house. He observed the private parts of a male on the floor of a bedroom, blood and a broken knife. There was a trail of blood from the bedroom to the porch, to the sidewalk. There was blood in the kitchen sink and bloody towels in the kitchen.

At this point the State rested its case. The appellant moved to exclude the evidence. The motion was overruled.

James Woolbright was re-called by the appellant. He testified that when he examined the body of the deceased it was wrapped in a blanket. He did not see appellant kick or strike the deceased.

Appellant also called as witnesses Eddie Clements, P. M. Bolton, Dr. James C. Thompson and Townsend Murray. The testimony of these witnesses concerned the mental condition of appellant and is outlined in this opinion.

Appellant argues that the trial court erred in overruling his motion to exclude the evidence at the conclusion of the State’s case and in denying his motion for new trial. The thrust of appellant’s argument is that there was no direct testimony that appellant killed the deceased. Guilty agency, being a part of the corpus delicti of a crime, must be shown by substantial evidence. It may be shown by circumstantial evidence. Vernon v. State, 239 Ala. 593, 196 So. 96 (1940); Spain v. State, 37 Ala.App. 311, 68 So.2d 53 (1953). In this case there was substantial evidence establishing criminal agency, that is, that the deceased died from causes which were other than accidental or natural. The trial court correctly submitted the case to the jury for determination of the guilt or innocence of appellant. Smith v. State, 54 Ala.App. 237, 307 So.2d 47 (1975).

Appellant further argues that the verdict is not sustained by the great preponderance of the evidence in that the evidence adduced on trial of the case-in-chief to the effect that appellant was insane at the time of the offense was so strong and cogent that there was no evidence from which the jury could reasonably draw an inference of sanity. On trial the appellant presented one expert and three lay witnesses who testified concerning appellant’s mental condition. We agree with appellant that in exceptional cases the evidence of insanity may be so strong and uncontradicted that a verdict of acquittal should be directed. Boyle v. State, 229 Ala. 212, 154 So. 575 (1934). It should be noted that in Boyle our Supreme Court said:

“. . . courts should be careful not to invade the province of the jury in cases of this character. Although the evidence may be offered only by the defense, and all tend to one conclusion, yet, in view of the presumption of sanity, if the evidence is inconclusive, and reasonable inferences may be drawn that the act was that of a sane man as defined by law, the affirmative charge should be refused.”
229 Ala. at p. 222, 154 So. at p. 583.

The trial judge properly instructed the jury under the rule of Parsons v. State, 81 Ala. 577, 2 So. 854 (1887), including the presumption of sanity. Upon appellant’s urging that the motion to exclude should have been granted and that a new trial should have been granted, we will review the evidence on the issue of insanity.

Captain Townsend Murray of the Tuscaloosa Police Department was the Desk Sergeant when appellant was brought to jail on the night of the fatal encounter. He had known appellant some four or five years prior to that time and he and appellant were friends. Appellant never gave any indication during the booking procedure that he recognized the witness and never responded to any question put to him by the witness. The appellant was “abnormal” in the opinion of the witness.

Eddie Clements, a bailiff of Circuit Court of Tuscaloosa County, a witness for appellant, had known appellant some forty years and had worked with appellant in 1930. He had not seen appellant in the time between 1930 and 1965. About two weeks after the appellant’s arrest the witness went to the jail where he saw appellant. Appellant did not appear to recognize the witness and would not carry on a conversation with the witness. Appellant told the witness he did not remember him. The witness testified that in his opinion appellant was crazy. On cross-examination the witness said he had no opinion as to appellant’s sanity on the night of the killing which had occurred two weeks before.

Mr. P. M. Bolton, a witness for appellant, had known appellant for thirty years before the fatality. The witness went to the jail to see appellant about two weeks after appellant was arrested. The purpose of the visit was to shave the appellant’s beard which was dirty and unkept. The witness testified that appellant was “real radical”, and “way out in left field” and that on the day of that visit in the jail appellant “wasn’t in his right mind”. On cross-examination it was brought out that the witness had not seen appellant for a period of nine months preceding the time of the offense and did not see him on that day. The witness had no opinion as to the condition of appellant on that date.

Dr. James C. Thompson, a psychiatrist at Bryce Hospital, next testified for the defense. He first saw appellant in 1968. Based on his personal observation of appellant, and the Hospital records prepared by other staff members at the institution beginning December 2, 1965, the witness was of the opinion that at the time his father was killed appellant did not know what he was doing or did not realize the consequences of what he was doing if he did kill his father. Dr. Thompson was of the opinion that appellant was suffering from paranoid schizophrenia.

Where there is a conflict in the evidence on the issue of insanity at the time of a homicide that issue should be presented to the jury under proper instructions. Such evidence should be weighed by the jury along with all the other evidence in the case. Cunningham v. State, 47 Ala.App. 730, 261 So.2d 69 (1972). The affirmative charge is properly refused under such circumstances. This Court has held that the opinions of expert witnesses as to insanity are not conclusive and, even though it is without conflict, the jury may reject it all. Smith v. State, 54 Ala.App. 237, 307 So.2d 47 (1975); Burgess v. State, Ala.Cr.App., 339 So.2d 121 (1976). The issue of insanity was properly submitted to the jury and the Court did not err in refusing to exclude the evidence or in denying the motion for new trial in this regard.

Appellant complains of error in the refusal of Charges 1 and 6 requested in writing. Analyzing the charges refused in the light of those given both in writing and in the Oral Charge, we conclude that the jury was fairly and adequately charged on the defense of insanity under our law.

We have considered the entire record under Code 1940, Title 15, Sec. 389, including all rulings and actions which might be construed as being adverse to appellant. From this examination, we conclude that error is not made to appear.

The foregoing opinion was prepared by Hon. William D. Page, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Sec. 38, Title 13, Code of Alabama, 1940, Recomp.1958; the Court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


text:
    David Albert ROLLINS v. CITY OF BIRMINGHAM.
    6 Div. 280.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.

      John C. Fox and G. Bennett Haynes, Birmingham, for appellant.
    W. 0. MacMahon, III, Birmingham, for appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of presenting a pistol at another person in violation of an ordinance of the city of Birmingham. The jury fixed defendant’s punishment at a fine of fifty dollars, and the trial court imposed a sentence of ten days hard labor for the city as additional punishment.

According to the testimony of Officer Norma K. Hunt, of the Birmingham Police Department, she was driving south a little after midnight in her personal automobile when she observed another automobile traveling at a speed in excess of eighty miles per hour. Officer Hunt at the time was on her way home from the preceding day’s tour of duty; she was still in uniform. As the other automobile passed her, as it changed lanes causing her to veer, she pursued the automobile, and driving alongside it she put up her right hand and the automobile slowed down. The driver, who was afterwards identified by the witness as defendant, pointed a small nickel-plated pistol at her. She then “fell behind the defendant’s car and just followed him.” After they had passed beyond the corporate limits of the city of Birmingham and had entered the municipality of Hoover and had left 1 — 65 and were proceeding along Highway 31 they came to a street intersection where she made a turn and blinked her lights in an effort to get the other automobile to stop, at which time Sergeant Franklin, of the Hoover Police Department, pulled up; she told Sergeant Franklin that the man had pulled a gun on her and requested that Sergeant Franklin stop the car, which he immediately proceeded to do, blinking the blue light of the police car. She first attempted to follow, but they were traveling too fast, and she returned to the point where Sergeant Franklin commenced his pursuit of the automobile driven by defendant.

In his testimony, Sergeant Franklin corroborated the testimony of Officer Hunt as to movements of the automobiles in Hoover, the speed of the automobile being driven by defendant, the statement of Officer Hunt that he had presented a pistol at her, and the request of Officer Hunt for Sergeant Franklin to stop the automobile. According to Officer Franklin, the automobile was traveling at a speed in excess of the limit in the municipality of Hoover, failed to stop at at least two intersections where there were stop signs, and he was unable to overtake the automobile until they had traveled almost a mile. He then “pulled it over,” walked up to the automobile and asked defendant “to get out and placed him under arrest. I frisked him down and placed him in the back seat of the automobile.” He then opened the door of the automobile driven by defendant, and as he was attempting to get in the automobile he saw a pistol underneath the front seat of the automobile.

Defendant took the stand and positively denied any knowledge of the pistol’s being in the automobile. He said he did not present any pistol at Officer Hunt, that he never recognized her as an officer as she was signaling to him. The automobile was not owned by defendant. His own testimony, corroborated by another witness, was to the effect that defendant’s own automobile was being worked on and the automobile he was driving was a substitute for the night for his own automobile.

We can well see the possibility of defendant’s innocence of the offense charged against him, without in any way questioning the integrity and sincerity of the witness, Officer Hunt, by accepting his testimony that he did not point any pistol at her and that he never recognized her as an officer or as anyone else attempting to obtain his attention for any lawful purpose, and that Officer Hunt could have been honestly mistaken as to what she said she saw in his hand. Even so, the testimony does not so strongly lead to such a conclusion that we can find it insufficient to support the jury’s verdict. There is no contention to the contrary.

The only ground of asserted error is as to the action of the trial court in overruling a pre-trial motion for the suppression of evidence as to the location of the pistol in the automobile, the testimony of the officer as to finding it there and the introduction of the pistol into the evidence. The testimony of Sergeant Franklin was offered by defendant on the hearing of the motion to suppress. It was the only evidence offered in support of the motion. The substance of his testimony on the hearing of the motion to suppress, as well as on the trial, has been narrated above.

Appellant urges that the action of Sergeant Franklin constituted an unreasonable search of the automobile and an unreasonable seizure of the pistol, in violation of Amendment IV of the Constitution of the United States. He premises his conclusion in this respect upon the contention that Officer Franklin’s arrest of defendant was illegal. In so contending, he relies upon the rule that probable cause is not sufficient to justify a warrantless arrest for a misdemeanor, that one who has committed a misdemeanor is not subject to a valid arrest therefor unless the misdemeanor was committed in the presence of the arresting officer. Code of Alabama 1940, Tit. 15, § 154.

We are persuaded that the arrest was valid, that even though the misdemeanor alleged to have been committed was not committed in the presence of the officer arresting defendant, he, according to the testimony, did commit a misdemeanor in the presence of the officer, in driving the automobile at an illegal rate of speed and in an illegal manner, which of itself justified his arrest. After the arrest of defendant, some disposition for the time being needed to be made of the automobile he was driving. According to the testimony, it was still in a traveled portion of the street and it should have been removed therefrom. The officer had “patted down” defendant, had found no pistol on him, but there was every reason to believe at that time that a pistol was in the automobile. It would have been unreasonable to expect the officer in that circumstance to have directed defendant to get into the automobile he was driving and move it. The officer was acting with due regard for the public, defendant and the safety of the officer himself in handling the situation as he did. His action could hardly be classified as a “search,” but even so, it was not unreasonable. Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200.

In addition, we note that Officer Hunt, in whose presence the alleged misdemeanor was committed, had the legal right to arrest defendant anywhere in Jefferson County. In making a valid arrest a police officer is not limited to the territory within the corporate limits of the municipality of which he is a police officer; he may legally arrest in any part of the county in which the municipality is situated. Code of Alabama 1940, Tit. 15, Sec. 152; Williams v. State, 44 Ala. 41; Hutto v. State, 53 Ala.App. 685, 304 So.2d 29; Reed v. State, 48 Ala.App. 120, 262 So.2d 321. Due to the circumstances stated, Officer Hunt was unable to arrest defendant and called upon Sergeant Franklin for assistance. His duty is tersely stated in Code of Alabama 1940, Tit. 15, § 156, as follows:

“It is the duty of every person, when required to do so by an officer, to assist him in making an arrest.”

Perhaps we should also note that appellant’s contention fails in that the arresting officer had probable cause for believing that defendant had committed a felony, which of itself would justify the arrest without a warrant. An assault upon a peace officer in the performance of his duties constitutes a felony. Code of Alabama 1940, 1973 Cumulative Pocket Part, Tit. 14, § 374(19). The intentional presentation of a pistol or gun at another, within effective range, under such circumstances as denote an intention to shoot the other, coupled with the ability to do so, constitutes one method of accomplishing an assault. Tarver v. State, 43 Ala. 354. The arrest was not illegal; neither the search nor the seizure was either illegal or unreasonable.

We find no error in the record prejudicial to defendant. The judgment 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 adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All Judges concur.