author: BEATTY, Justice.

text:
    J. Stanley FRAZER, etc. v. ALABAMA STATE POLICEMEN'S ASSOCIATION, INC., etc.
    SC 2378.
    Supreme Court of Alabama.
    June 3, 1977.
    William J. Baxley, Atty. Gen. and Jerry L. Weidler, Asst. Atty. Gen., for appellant.
    Edward L. Hardin, Jr., Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal to review an order of the Circuit Court of Montgomery County granting a preliminary injunction. By that order the defendant, as Director of the Alabama State Personnel Department, was enjoined from filling a vacancy in the position of Director of the Division of Marine Police in the Alabama Department of Conservation and Natural Resources, by means other than by promotion. We reverse and remand.

The suit was brought by the Alabama State Policemen’s Association, Inc., a nonprofit domestic corporation. Membership in this Association is composed of law enforcement officers in the State of Alabama, including those of the Department of Public Safety, the Alcoholic Beverage Control Board, and the Department of Conservation. Also, some of the Association members are State Merit System employees who hold permanent status as Conservation Enforcement Officers III and IV. The Association has as one of its purposes: “To advocate and strive for uniform application of the Civil Service Merit System for appointment and promotion.”

On March 26, 1976 the plaintiff-Association filed a complaint for “A declaration and construction of Title 55, § 311,” Alabama Code (Recomp.1958), alleging that it and its members would suffer irreparable harm if the vacancy, described above, were filled by the defendant in the manner described by Merit System Announcement No. 76-55, that is, by a combination of “open-competitive” and “promotional” examination. Plaintiff maintains that its members who hold classifications as Conservation Enforcement Officers are eligible for promotion, and that the existing vacancy is required to be filled by promotion “if practicable.” The Association also contends that this method of filling vacancies is required by the established State of Alabama policy for filling senior administrative positions. Plaintiff asserts that it being “practicable” to fill this vacancy by promotion, an “open-competitive” examination register would cause plaintiff and its members to suffer irreparable harm. The irreparable harm, plaintiff argues, would occur because “plaintiff would not have achieved its purpose to secure uniform application of the Civil Service Merit System and in that morale in the law enforcement agencies of the State of Alabama, whose employees are members of plaintiff would be harmed in that incentive to strive for exceptional performance in order to gain promotion would be diluted.”

Plaintiff made further allegations attacking the announced qualification for taking the examination as unreasonable, erroneous, subjective, and unequal.

The defendant responded to the two-count complaint by filing a motion to dismiss alleging the plaintiff’s failure to state a claim upon which relief could be granted and the lack of a justiciable controversy. Following denial of that motion, defendant filed an answer reiterating as defenses that the complaint failed to state a claim which could be afforded relief and denying that plaintiff was entitled to the relief sought in its complaint.

On April 15, 1976, a hearing was held on a motion for a preliminary injunction, after which the trial court granted the Association’s motion for preliminary injunction.

The threshold question presented in this case is whether the incorporated Association has standing to enforce the individual rights of its members. Except for the statement contained in the plaintiff’s brief that “representatives of the Association, acting as bargaining agents for the members of the Association, met with the appellant . . .,” it does not appear from the record that this suit was grounded on behalf of any person, real or statutory, other than the Association itself. The plaintiff’s reference in brief in support of its vicarious right as a bargaining agent for the members does not support plaintiff’s conclusion. That reference is to the personnel director’s testimony concerning a discussion he had with several Association representatives:

I pointed out to them, among other things, that we had people apply for this examination in good faith on the basis of the open competitive announcement, and I thought they had some rights in the matter as well as the members of the State Policeman’s Association, or employees of the Department.

This language cannot qualify as proof of a bargaining agency, or of a recognition of any such authority. The Association, accordingly, must rely upon its own being for the standing to maintain this action. In addition, the defendant contends that the Association does not possess the requisite standing in its own capacity.

Rule 17, ARCP, speaks to this point:

(a) . . . Every action shall be prosecuted in the name of the real party in interest. . . .

The “real party in interest” is the party “. . . who possesses the substantive right being asserted under the applicable law. . . .” Wright & Miller, Federal Practice and Procedure: Civil § 1541 at 635.

Reference to Federal Rule 17(a), which is identical to Alabama’s Rule 17(a), is helpful in clarifying the present issue. Decisions under the Federal Rule 17(a) have denied to incorporated associations the standing to assert in court the personal rights of its members, absent statutory authority (which is not asserted by the plaintiff here). Statutory authority was asserted in Ala. Independent Service Station Ass’n, Inc. v. Shell Petroleum Corp., 28 F.Supp. 386 (N.D.Ala.1939) and the court, in dismissing the association corporation as a plaintiff, stated:

The association corporation named shows no legal right to receive compensation for the damages of its members, nor does it have such a property right as an injunction . . . will protect. Its charter power to act for the benefit of its members to prevent violations of laws does not give it capacity to maintain a suit of this kind. . . . The capacity of the association corporation to sue generally is not questioned, but its capacity to enforce the separate property rights of its individual members seems unfounded in any authority or law.

The absence of standing was also used in Farmers Co-op Company v. Socony-Vacuum Oil Company, 133 F.2d 101 (8th Cir. 1942), to deny to a cooperative oil company the right to maintain an action on behalf of its members to recover damages for violations of the Clayton Act; the same result attended the attempt by a non-profit milk producers corporation to maintain an anti-trust action for treble damages when there was no showing that the claim asserted was that of the organization and not that of its members. South Carolina Council of Milk Producers, Inc. v. Newton, 241 F.Supp. 259 (D.C.S.C.1965).

Moreover, while it is true, as the defendant states, that both the Alabama Constitution, Article 12, § 240 and Tit. 10, § 70(2) of the Alabama Code allow corporations the right to sue “in all Courts and like cases as a natural person,” these provisions themselves do not grant to corporations, such as the plaintiff, the standing to use the courts to enforce the separate property rights of its individual members.

Plaintiff is correct, that under Tit. 7, § 166, Alabama Code, “no declarations shall prejudice the rights of persons not parties .” But this section contemplates situations in which

. one or more may not be included when there are parties who represent the merits of the conflict. [Trammel v. Glens Falls Indemnity Co., 259 Ala. 430, 66 So.2d 537 (1953)]. (Emphasis Supplied.)

Since the Association has failed to establish by pleading or proof that it has a substantive right to assert in the selection process utilized by the defendant, and that no joinder or substitution by any real party in interest has accrued as authorized by Rule 17(a), we conclude that plaintiff has no standing by itself to bring this action. For aught appearing, those of its members presently employed by the Department of Conservation who are eligible for promotion would have standing to contest the personnel director’s action. This follows from Tit. 55, § 311, Alabama Code:

Within the discretion of the director, vacancies in positions shall be filled, insofar as practicable, by promotion from among regular employees holding positions in the classified service

Judicial knowledge, which is authorized in State v. Friedkin, 244 Ala. 494, 14 So.2d 363 (1943), is taken of Rule VIII, § 2 of the Rules of the State Personnel Board:

The Director shall hold competitive promotional examinations which shall be open only to persons in the classified service who have held for six months or more positions which are determined by the Director to be within the lines of promotion to the class of positions for which the examination is held.

The defendant also contends that because there was no justiciable controversy, the trial court had no power to grant injunctive relief. Since we find that the Association has no standing to maintain this action, we need not reach this issue.

For the failure of standing the case is reversed and remanded with directions to the Circuit Court of Montgomery County to enter an order dissolving the preliminary injunction. Because of the necessity for this action, it is unnecessary to address the other questions presented for review.

REVERSED AND REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

license: Public Domain

text:
    Jerry VASKO v. W. N. JARDINE.
    SC 2400.
    Supreme Court of Alabama.
    June 3, 1977.
    James H. Reid, Jr., Fairhope, for appellant.
    John V. Duck, Fairhope, for appellee.
   BEATTY, Justice.

This is an appeal from the grant of a motion for summary judgment. We reverse.

The complaint in this case is one of several which have been instituted over recent years because of controversies involving the same real property. The parties are adjoining landowners, and their lands front on a small stream. The lot of land belonging to the plaintiff, Jardine, is west of the lot of land owned by the defendant, Vasko.

On December 12, 1975, the plaintiff filed this complaint in the Circuit Court of Baldwin County, alleging the dimensions of the property owned by each by metes and bounds; that the plaintiff had constructed a boathouse “on the point of land as described in his deed;” that plaintiff’s predecessors in title in 19[5]2, had successfully sued the defendant in ejectment; that defendant, in 1973, had sued the plaintiff unsuccessfully over a peninsula described in plaintiff’s deed; that defendant was ignoring these judgments; that defendant, in 1975, had erected a barbed-wire fence along a bulkhead on a portion of plaintiff’s land back to the plaintiff’s boathouse, had erected “No Trespassing” signs on plaintiff’s land, and was committing continuous trespasses. The complaint asked for the removal of the fence, the signs, and a permanent injunction against entry.

The defendant filed an answer to this complaint alleging ambiguities in the deed descriptions to the lots, denying the trespasses, denying that he was ignoring the previous legal judgments, and denying that the fence is upon the land of the plaintiff. Defendant requested a declaratory judgment to “settle once and for all the issues in this suit,” maintaining that the property descriptions contained ambiguities and (hence) the boundary lines were uncertain. He also alleged that the physical terrain had changed due to the plaintiff’s construction of a bulkhead behind which the land had been “filed” [sic], including defendant’s property.

Plaintiff moved for a summary judgment, and as grounds stated:

This Motion is based upon the fact that a Civil Suit was brought against JERRY VASKO by DORA W. & LUSTER L. BASS, Civil Case 1694 wherein the Circuit Court of Baldwin County, Alabama rendered a Judgment against the said JERRY VASKO on the 25th day of February 1952 as follows: “ . . . Judgment in favor of the Plaintiffs and against the Defendant for the land sued for in the Complaint . . . Defendant taxed with costs . . ”
Further, that Defendant herein, JERRY VASKO, filed a suit against Your Complainant, and that the said lawsuit was filed in the Circuit Court of Baldwin County on the 28th day of November 1973 claiming to own the peninsula property as described in Your Complainant’s deed and claiming the sum of $10,000.00 damages. This cause was tried before a Jury under case No. 11,610, and a verdict returned in favor of Your Complainant herein on the 22nd day of July 1975.

In support of this motion, the attorney for plaintiff filed an affidavit stating that he represented Jardine in the Vasko v. Jardine suit which litigated the position of the peninsula and Vasko’s riparian rights. He stated that judgment was entered for the defendant (the present plaintiff, Jardine). He also stated that in that trial part of the evidence consisted of a civil judgment against Vasko in the Bass v. Vasko ejectment suit, which inferentially, tried title to the parties’ land as described in their respective deeds. No additional documents were filed in support of the motion for summary judgment which the trial court granted on November 4, 1976, ordering defendant to remove the fence, the signs, and enjoining him from entering the plaintiff’s lands.

Among other issues he presents, defendant asserts that summary judgment was erroneously granted by the trial court because there were genuine issues of material fact presented in the pleadings, e. g, the location of the fence, and the facts of the alleged trespasses. In that connection, we take note that plaintiff’s complaint alleges that the erection of the fence and the defendant’s trespassory incursions occurred after the two actions which, we may presume from the pleadings, tried the title to land then in dispute.

But how could those judgments affect the present controversy, especially since Vasko now claims that his fence is not upon Jardine’s property, and denies that he has trespassed upon Jardine’s land? The matters touched upon by the supporting affidavit did not settle any questions of present trespass. Ejectment is an action for trial of title to land, McCormick v. McCormick, 221 Ala. 606, 130 So. 226 (1930), while trespass is a remedy for interferences with possessory right. Legal title is not a necessary element of an action of trespass, Pigford v. Billingsley, 38 Ala.App. 28, 84 So.2d 661, aff’d 264 Ala. 29, 84 So.2d 664 (1956), although when possession of land is disputed, the legal title holder is deemed to be in possession and his contestor is considered a trespasser. Davenport v. O’Neal, 270 Ala. 436, 119 So.2d 226 (1960). In short, the location of the fence, and any continuing trespass resulting therefrom, have not been litigated previously, and the location of the fence was not resolved previously to the extent that the trial court could conclude presently that its location was not an issue of fact. “Where the evidentiary matter in support of the motion (for summary judgment) does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.” 2 Lyons, Alabama Practice, p. 352; Rule 56(e), ARCP; 6 Moore's Fed. Prac., par. 56.15 (2nd ed. 1971).

We conclude, therefore, that the trial court erred in granting plaintiff’s motion for summary judgment.

REVERSED AND REMANDED.

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


author: PER CURIAM. FAULKNER, Justice

text:
    MOBILE, ALABAMA-PENSACOLA, FLORIDA BUILDING AND CONSTRUCTION TRADES COUNCIL, etc., et al. v. Robert R. WILLIAMS, etc., et al. Robert R. WILLIAMS, etc., et al. v. MOBILE, ALABAMA-PENSACOLA, FLORIDA BUILDING AND CONSTRUCTION TRADES COUNCIL, etc., et al.
    SC 1983, SC 1983-X.
    Supreme Court of Alabama.
    June 3, 1977.
    Thomas M. Galloway for Collins, Galloway & Smith, Mobile, for appellant.
    Victor T. Hudson, Abram L. Phillips, William H. Armbrecht III, Mobile, for appel-lees.
    Harold D. Parkman and William C. Tid-well, Mobile, for Tonsmeire Construction Corp., amicus curiae.
    Allen Poppleton, James P. Alexander and Alan K. Zeigler, Birmingham, for Associated Builders & Contractors, amicus curiae.
   PER CURIAM.

This is the second appeal of this case. See Mobile, Ala.-Pensacola, Fla. Building and Construction Trades Council et al. v. Williams et al., 331 So.2d 647 (Ala.1976).

Because we hold that the order of the trial Court is in full and exact compliance with our mandate on reversal and remand of this cause in the first appeal, we affirm summarily.

AFFIRMED.

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

FAULKNER, J., dissents.

FAULKNER, Justice

(Dissenting).

I dissent.

This is an appeal from an order granting a motion to dismiss an action seeking an injunction for the violation of the Alabama prevailing wage statute. I would affirm in part, reverse in part, and render.

A trades council, an association of unions, sought an injunction against the issuing of bids for the erection of the Hall-Rain Middle School, a Mobile public school, unless § 375(8)-(24) of Title 26 of the Code of Alabama 1940 (Recomp.1958), pertaining to minimum wages for public works undertaken by the state, was complied with. The Circuit Court of Mobile County granted summary judgment against the Trades Council.

On appeal, this court in Mobile, Ala.-Pensacola, Fla. Building and Construction Trades Council v. Williams, 331 So.2d 647 (Ala.1976), reversed and remanded, holding that the prevailing wage statute was applicable to the Mobile Board of School Commissioners’ contract for the construction of the Hall-Rain school. Between the issuance of the Circuit Court decision and this court’s decision, the Board entered into a contract with Tonsmeire Construction Co. for the construction of the Hall-Rain school. This contract, along with certain others entered into by the Board after the original complaint was filed, did not require the payment of the prevailing wage. No contractors for any of these projects were parties to this cause at any time.

Subsequent to the decision of this court, the Circuit Court enjoined the Board from constructing the Hall-Rain school without complying with § 375, from allowing any work to continue on any construction subject to § 375 until all workers who have performed any work on the construction have been paid the applicable wage, from paying additional money to present contractors performing work on any construction in progress, and from performing any other construction work in progress or hereinafter undertaken without complying with § 375. The injunction also stated that the cost of paying the prevailing wage rates shall be borne by the contractor. However, the Board’s motion to stay the injunction was granted.

The Trades Council then filed an amended complaint, alleging that some Board construction contracts entered into after the original complaint was filed failed to comply with § 375 and seeking an injunction restraining the Board from making any further payments under the contracts until § 375 was complied with and until all workers have been paid the prevailing wage, as well as from entering into any contracts without complying with § 375. The Trades Council further asked that all non-complying contracts subject to § 375 and issued subsequent to the filing of the original complaint be declared void. In response, the Board filed a motion to dismiss.

The Circuit Court, holding that the Board is required to comply with the prevailing wage statute on the Hall-Rain school construction from May 21, 1976, when this court denied rehearing, but not on any other construction projects begun prior to May 21, granted the Board’s motion to dismiss for lack of standing and failure to state a claim, but not for the absence of indispensable parties. The Circuit Court further decreed that the Board increase the contract price to allow the contractor to pay the prevailing wage.

The Board then filed a motion to stay enforcement of this order or, in the alternative, to alter or amend the order. The Circuit Court has not ruled on this motion. The Trades Council appeals and the Board cross-appeals.

The sole issue is whether the Trades Council has standing to maintain this action. I say that it does not.

The question of standing to sue goes to the existence of a cause of action and may be raised at any point in the proceeding. Parker v. Bowron, 40 Cal.2d 344, 254 P.2d 6 (1953). There is a difference between capacity to sue and standing to sue. A plaintiff may have capacity to sue but if the complaint shows that the plaintiff is not the real party in interest and, thus, lacks standing, the cause will be dismissed. Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co., 31 Cal.App.3d 220, 107 Cal.Rptr. 123 (1973). To have standing, the plaintiff “must show an injury or threat to a particular right of [its] own, as distinguished from the public’s interest in the administration of the law.” Perkins v. Lukens Steel, 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940).

In Parker, the Supreme Court of California affirmed the lower court’s dismissal of a mandamus proceeding on the ground that a trades council and an individual lacked standing to maintain a suit to compel the city to pay the prevailing wage in accordance with the city charter. The California court stated that no facts were alleged which showed any right or beneficial interest of the unions or the individual in the actions. The court further said that, “[w]here the complaint states a cause of action in someone, but not in the plaintiff, a general demurrer for failure to state a cause of action will be sustained.”

In the original complaint, the Council sought an injunction against the issuing of bids for the construction of Hall-Rain. However, by the time this court ruled that § 375 was applicable to the Mobile School Board, the Board had already entered into a contract. Thus, for the Circuit Court to have granted an injunction against the issuing of bids would have been a useless exercise which this court should not perform.

In its amended complaint the Council sought an injunction restraining the Board from making any further payments under any contracts entered into after the original complaint was filed and failing to comply with § 375, until § 375 was complied with, and from entering into any contracts without complying with § 375, as well as asking that the non-complying contracts be declared void.

However, the Council lacks sufficient interest and, hence, standing to make these requests. See Parker. The Council does not allege that it represents any of the employees of any of the contractors who are parties to the Board contracts. It cannot show any injury or threat to a particular right of its own. At most, it has an interest in the administration of law and that interest alone is insufficient to give it standing. Prospective bidders have no standing to represent the public’s interest in the government’s compliance with the prevailing wage act. See Perkins. The Circuit Court cannot both grant a motion to dismiss and grant relief where dismissal bars the party from requesting such relief.

Therefore, I would affirm the Circuit Court’s order to the extent that it grants the Board’s motion to dismiss for lack of standing, but not to the extent that the order decrees that any contracts are not void or that the Board must comply with § 375 by providing for the payment of the prevailing wage.

It may be noteworthy to point out that there was a motion to dismiss for lack of standing in the previous case cited at 331 So.2d 647. The trial court did not rule on the motion. On the other hand, a summary judgment was granted, and the appeal was taken from that order. In this case the appeal was from the dismissal order. The same order is applicable to both cases; that is, dismissal for lack of standing to sue.


author: PAUL, Retired Circuit Judge.

text:
    Ralphiene Suzanne Horne HAWKINS v. Claude Don HAWKINS, Sr.
    Civ. 1024.
    Court of Civil Appeals of Alabama.
    June 1, 1977.

      Edward B. McDermott, McDermott & Deas, Mobile, for appellant.
    Irvin J. Langford, Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.
   PAUL, Retired Circuit Judge.

This appeal is from the alimony, child support and property division provisions of a divorce decree. We affirm.

Mr. and Mrs. Hawkins were married on October 20,1972. A daughter, Elisa Aliene, was born on May 28, 1973. The parties separated on or about April 1, 1975, and on April 7 Mrs. Hawkins filed for divorce on the ground of incompatibility. Mr. Hawkins answered on April 21 and denied the incompatibility. The parties were reconciled between May 24 and October 15 when they again separated. Mr. Hawkins amended his answer on December 1 to admit the incompatibility and cross-billed for divorce.

The case proceeded to trial on March 18 and May 19, 1976, when the court took it under submission. On September 21 the court entered its decree granting the divorce to the parties, awarding custody of Elisa to Mrs. Hawkins with certain specified visitation rights for Mr. Hawkins, ordering Mr. Hawkins to pay $200 monthly child support and $10,000 alimony in gross (in $2,000 increments each 60 days). Mr. Hawkins received the family home, household furniture, appliances and furnishings (except for baby furniture and clothing and Mrs. Hawkins’ clothing and personal effects), six horses, farm equipment and a 1975 Thunderbird. Mrs. Hawkins received a 1972 Mercury Montego. Mr. Hawkins was required to pay all bills of the parties incurred during the marriage, hospitalization insurance for the child, extraordinary medical and dental expenses of the child, and $1,000 fee for Mrs. Hawkins’ attorney. Mrs. Hawkins appeals.

Mr. Hawkins was previously married to Gloria Hawkins for 19 years. Their union produced three children. Mr. Hawkins and his first wife were divorced on June 5,1972. Under the decree of the Circuit Court of Putnam County, Florida, he was ordered to pay $200 monthly alimony; and the house and car were awarded to Gloria Hawkins. Mr. Hawkins was also ordered to pay $400 monthly child support ($133.33 each) but now pays nothing because two of the children are no longer minors and the third is residing with Mr. Hawkins.

Mr. Hawkins (age 46 at the time of trial) was an engineer employed by Moss Thornton Construction Company for work on Disney World at Orlando. When that work was completed, he was transferred to the Mobile area to begin work on an Interstate 10 project. Mr. Hawkins met Suzanne Horne and hired her to work in the Moss Thornton office as an account clerk. Later she was promoted to office manager. Around April of 1971 Mr. Hawkins and Suzanne began dating, engaged in sexual intercourse, and as a result Suzanne became pregnant. When she confronted Mr. Hawkins with this fact they got married. The couple apparently fared well from then until about six months before the first separation. Many problems led to the demise of this marriage: Mr. Hawkins’ adverse relationship with Mrs. Hawkins’ mother, Mrs. Hawkins’ inability to supervise Mr. Hawkins’ two sons by his prior marriage, Mr. Hawkins’ long hours at work leaving little time for his family. We see no need to further extend this opinion with a discussion of the basis for this divorce. The evidence indicates the parties were entitled to a divorce. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71, cert. denied, 290 Ala. 370, 274 So.2d 80 (1973).

At the time of the divorce trial Mr. Hawkins was Vice President and Operations Manager of C. D. Hawkins Construction Company which was involved in other work on Interstate 10. He owns no stock in the company, two others having supplied the financing, but will receive a percentage of the net profit upon completion of the project. His salary is $3,000 per month ($1,054 net take home pay every two weeks). He also receives $200 monthly automobile allowance and an expense account. At Christmas of 1975 he received a $3,000 bonus. Every year since 1971 he has earned at least $20,000. Between May 31,1974, and April 30,1975, he and another operated Bridge Coatings, Inc. for one project and received a $19,000 commission, but the corporation is now dormant. Mr. Hawkins has only minimal assets in banks — a checking account with a balance of $407.95 on April 26, 1975, and a savings account of $200. Mr. Hawkins owns five horses; a sixth is owned by a son. The six are valued at $9,000. Mr. Hawkins purchased a 1975 Thunderbird after the parties separated in April and still owes $3,500 on it. Mr. Hawkins paid $2,500 for the Monte-go which was awarded to Mrs. Hawkins.

The only other asset is the 3,600 square-foot family home. Mr. Hawkins received a bonus of $50,000 paid in materials by Moss Thornton on the completion of the project he headed. He used this material to build the house. He purchased the land (20 acres) for $1,000 per acre prior to the marriage with Suzanne. Work began on the house in July 1972 prior to the marriage in October. Mr. Hawkins testified he was building the house as an investment rather than as a home. The house and 20 acres have an appraised fair market value of $126,000. Mrs. Hawkins estimated the value of the house at between $200,000 and $275,000. A mortgage for $72,000 on the house is being repaid at the rate of $653.58 per month; between $70,000 and $71,000 of the principal is still to be paid. Mr. Hawkins testified that it would require $20,000 to finish the work on the house. The power bill on the all-electric home has averaged $140 a month for the last year. Mr. Hawkins had not reported $20,000 of the $50,000 bonus he received in materials, but will report it $10,000 per year for two more years and will be due to pay income tax thereon.

Mr. Hawkins has incurred the following additional debts: $3,000 loan from C. D. Hawkins Construction Company; $10,000 loan from American National Bank; $2,000 from First National Bank; $9,500 for work on the house by Kennedy Electric; $300 for lawn furniture; and $170 for a bedroom suite.

Mrs. Hawkins (age 29 at the time of trial) after the last separation was employed by Nelson Brantley Glass Company for $120 a week. She lives with her parents. (Prior to the marriage she had her own apartment.) She pays $26 each week for a nursery to keep the child during the day.

Mrs. Hawkins alleges error in the failure to award periodic alimony, the failure to award a larger amount of child support, and an inequitable division of property.

When the evidence is heard orally before the trial court, it is presumed to be correct just as a jury verdict and will not be disturbed on appeal unless plainly erroneous or manifestly wrong. Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281 (1968). Mrs. Hawkins contends in brief and oral argument that this presumption of correctness should not apply because of the length of time between trial and the rendering of the decree. We find no merit in this contention that the ore tenus presumption should not be followed.

The trial court is vested with great discretion in making an award of child custody and setting the amount of child support and will not be reversed except for palpable abuse. Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891 (1969); Colombaro v. Colombaro, 54 Ala.App. 157, 306 So.2d 23 (1975). We find no abuse of discretion in the award.

Likewise a trial court has a large amount of discretion in awarding alimony, Lee v. Lee, 283 Ala. 275, 215 So.2d 718 (1968); Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975), and in making a division of property. Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185 (1976); Clary v. Clary, 56 Ala.App. 494, 323 So.2d 380 (1975). An award of alimony in gross may compensate the wife for her inchoate marital rights and also represent a division of the fruits of the marriage where the liquidation of a couple’s jointly-owned assets is not practicable. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). The only major asset here was the family home. It was not necessary to order its sale and divide the proceeds. The award of alimony in gross adequately compensates Mrs. Hawkins for the loss of her inchoate marital rights as well as representing her share of the property. While we might have fashioned a different relief more favorable to Mrs. Hawkins had we been sitting as the trial judge, we do not perceive any palpable abuse or error in the award of alimony or in the property settlement.

It is our duty to affirm the decree of the trial court when it is fairly supported by credible evidence, regardless of what our view of the evidence is or whether we would have reached a different result had we been the trial judge. Dunlavy v. Dunlavy, supra; Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (1973).

In view of the above we decline to award a fee to the attorney for Mrs. Hawkins on this appeal. Hewitt v. Hewitt, 285 Ala. 516, 234 So.2d 283 (1970); Campbell v. Campbell, 51 Ala.App. 295, 285 So.2d 105 (1973).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Sitting by order of the Chief Justice pursuant to § 6.10 of the Judicial Article, Amendment No. 328 of the Constitution.


author: BRADLEY, Judge.

text:
    Ernest Wayne BARBER v. Joyce P. BARBER.
    Civ. 1052.
    Court of Civil Appeals of Alabama.
    June 1, 1977.
    James C. Francis, Decatur, for appellant. David H. Bibb, Coleman, Cauthen & Bibb, Decatur, for appellee.
   BRADLEY, Judge.

This appeal is from that aspect of a divorce decree awarding the wife a one-third interest in a house and lot owned by the husband and awarding to the wife’s counsel an attorney’s fee of $900 for services rendered.

The parties to this proceeding were divorced on September 8, 1976 from their common-law marriage by the Morgan County Court for incompatibility of temperament and irretrievable breakdown of the marriage. Custody of the parties’ two minor children was given to the wife. The husband was ordered to pay to the wife $60 per week as child support, $250.00 to aid in the satisfaction of certain indebtedness incurred by the wife, and $900 for her attorney’s fee. Additionally the wife was awarded an undivided one-third interest in the house and lot owned by the husband with the condition that she reconvey that interest to the husband upon his tender of $6,000 within one year from the date of the decree. The husband’s motion for new trial was overruled and he appeals to this court. Pending the appeal a supersedeas bond was filed by the husband to stay execution by the wife on the judgment.

The parties married in 1962 while in late adolescence and divorced in 1969. During their first marriage two children were born, a boy and a girl. In July 1971 the parties entered a common-law matrimonial relationship which lasted until November 1974 when the husband was employed in Puerto Rico. He worked in Puerto Rico until June 1975. The wife and children remained in the United States. The husband regularly sent money for his family’s support until December 1974; thereafter, the payments became sporadic. The wife also worked to contribute to the children’s support.

By the time the husband left Alabama for Puerto Rico the parties’ relationship had again deteriorated and they had decided to permanently separate. Ignorant of their legal status as husband and wife, they agreed to simply reinstate the divorce decree of 1969. During the time the husband was in Puerto Rico, the wife established a relationship with another man and the husband entered into a ceremonial marriage with another woman. Upon the husband’s return from Puerto Rico and after the wife’s consultation with an attorney, the present action was initiated.

The first alleged error argued by the husband is the trial court’s award to the wife of an undivided one-third interest in the house and lot where the parties lived prior to their separation.

The lot upon which the house in question was built was given to the parties during their first marriage by the husband’s father. Both husband and wife participated in the construction of the house, and, as a consequence, they borrowed only a small amount of money to complete it. However after it was damaged by a tornado in April 1974, the house was rebuilt and enlarged, so that its worth at the time of trial was estimated to be between $30,000 and $60,-000. The wife was divested of her interest in the house and lot by the 1969 divorce decree; thus the husband is the sole owner of this property. The wife testified that she wants no interest in the realty for herself but she does want the children to have some permanent interest in it.

With regard to the parties’ financial status, the husband is a pipe fitter and currently nets $232 per week. He owes about $12,000 on the house, which will be paid off in 1982, and approximately $250 on another debt, which will be paid in five months. His other weekly expenses amount to about $150.00.

The wife earns $81.00 per week. She owns the 1969 trailer in which she and the children live and which was given to her in the 1969 divorce decree. She also has by consent of the husband a 1974 trailer on which she has assumed the mortgage obligation and which she rents. When the trailer is empty, the wife must absorb the full amount of the mortgage payment and the rental payment.

In Hendrix v. Hendrix, 56 Ala.App. 178, 180, 320 So.2d 684, 686, cert. den., 294 Ala. 758, 320 So.2d 687 (1975), we said:

. . where the evidence in a divorce case is heard ore terns by the trial court its findings are presumed correct and will not be overturned without a showing of an abuse of discretion, and this rule has particular application as regards an award of alimony. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794.
“In this case we cannot determine whether the award to the wife is an award of alimony in gross or a property division, but under the authority of Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159, we are not required to make such a determination.
“In either event the award must depend upon the facts and no mathematical formula can determine what is an appropriate award. However, certain cases indicate that an allowance to the wife of from one-third to one-half of the husband’s estate can be sustained, depending upon the circumstances.”

In the case at bar the court awarded the wife either a one-third interest in the house owned by the husband or $6,000. The house had an estimated value of between $30,000 and $60,000. Thus, whether the award be considered a property division or an award of alimony in gross, the most the husband is required to give the wife is a one-third interest in his property. Such an award is certainly within the acceptable limits of an allowance for a wife. Furthermore, at the husband’s option he can pay the $6,000 cash, which is one-fifth to one-tenth the total value of the house. We find no detriment to the husband on the part of the trial court here.

The other issue raised by the husband is that the trial court erred in requiring him to pay $900 of the wife’s attorney’s fee.

In Gamble v. Gamble, 53 Ala.App. 168, 174, 298 So.2d 254, 258-59, cert. den., 292 Ala. 721, 298 So.2d 260 (1974), we said:

“The law in Alabama is clear to the effect that an allowance of an attorney’s fee rests in the sound judicial discretion of the trial court, who must consider, among other things, the earning capacities of the parties, Hewitt v. Hewitt [285 Ala. 516, 234 So.2d 283]; Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637, and the financial circumstances of the husband as shown by the record. Evans v. Evans, 278 Ala. 573, 179 So.2d 320.”

At the end of the trial below, the wife’s attorney requested the court to award to his client an attorney’s fee. He then filed with the trial court an itemized statement of the services rendered to the wife in this matter and the affidavit of another attorney practicing before that court stating that a reasonable fee for the services rendered the wife was $1,000. Based on the evidence presented to the court by the parties as to their respective financial circumstances and earning capacities and the reasonable value of the services rendered as set out in the affidavit supplied to the court, we cannot say that the trial court abused its discretion in requiring the husband to pay $900 toward the wife’s attorney’s fee.

The judgment of the trial court is affirmed.

AFFIRMED.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.


text:
    I. S. MEYER v. Geraldine MEYER.
    Civ. 1087.
    Court of Civil Appeals of Alabama.
    June 1, 1977.

      Ralph E. Slate, Decatur, for appellant.
    Roger H. Bedford of Bedford & Bedford, Russellville, for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment of the Circuit Court of Franklin County denying the husband’s request for modification of the alimony provision of a previous divorce decree.

The parties to this appeal were divorced by the Circuit Court of Franklin County on January 16, 1976. Among other awards, the court ordered the husband to pay $800 per month periodic alimony to the wife. There was no appeal from that decree. The husband now seeks to have the divorce decree modified by reducing the $800 per month alimony due to his changed financial circumstances.

The husband is a physician. At the time of the divorce he practiced in Russellville, Alabama and earned, after expenses and taxes, approximately $2,300 per month. After the divorce, and prior to filing the petition for modification, the husband left his practice in Russellville and in May 1976 started a new practice in Hartselle, Alabama. This new practice is the change in circumstances upon which the husband relies.

The husband testified that he incurred heavy debts in the establishment of a new medical practice, including the purchase of expensive laboratory and X-ray equipment. Whereas he had earned $26,000 during the first four months of his practice in Russell-ville in 1976, just prior to his move to Hartselle, he grossed only $12,000 to $13,000 in the first six months of his Hartselle practice. To meet his operating expenses and pay his salary during those first six months he had to borrow from $7,500 to $7,800. His projected office expenses beginning in January 1977 were between $4,600 and $6,000 per month.

With regard to personal assets, the husband owns sixty-six acres of land in Franklin County with an indebtedness of' $8,000 or $9,000 and a small warehouse in Morgan County with an indebtedness of approximately $12,000. He and another person have purchased an old apartment complex in Decatur, Alabama, subject to an indebtedness of $50,000. The husband has about $3,000 in bank accounts, a stamp and silver collection valued by him at $1,000, and a jewelry collection which he said was appraised to be worth $5,000.

With regard to expenses, the husband says house rental, insurance and utilities cost approximately $375 per month. His car payment and operation expenses are from $380 to $390 per month.

The doctor stated that he is fifty-seven years old. In about a year he expects to be earning enough money to pay himself a salary but he does not foresee ever being able to earn more than $15,000 to $20,000 a year above his expenses in Hartselle. He contends that the $800 per month alimony payment amounts to two-thirds of his projected net income and greatly exceeds his present earnings.

The supreme court said in Whittle v. Whittle, 272 Ala. 32, 34, 128 So.2d 92, 93 (1961):

“The granting or denying of an application for modification of a decree of alimony or maintenance on the ground of a change in the financial circumstances or needs of a party rests in the sound discretion of the trial court, and an order denying modification will not be disturbed on review unless that discretion has been abused.” (Citations omitted.)

The burden of proving a change in the financial circumstances of a party as a basis for modifying an alimony award is on the party seeking such change. Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902 (1972).

In the case at bar the husband had the burden of proving changed financial circumstances since he was the modification movant. We do not believe he sustained that burden.

Although the evidence concerning the financial status of the husband at the time of the hearing is, to say the least, confusing, we have gleaned from the record evidence to the effect that the doctor’s monthly income while in Hartselle has increased by leaps and bounds. His gross income in May 1976, his first month in Hartselle, was $345; in June it was $1,200; in July $1,300 to $1,400; in August approximately $3,000; and in September and October about $4,000 each. In addition to this, approximately $7,000 from Medicare, Medicaid and insurance patients is due to be paid the doctor. Also, the several thousand dollars he earned from the hospital emergency room in Hart-selle was not included in his gross income.

Considering the present income of the husband, his obviously considerable potential for earning money (the rapidity with which his gross earnings increased monthly after beginning a new practice in a new city speaks for itself), his equities in real estate, and his jewelry collection, we are unable to say that the trial court plainly erred in refusing to modify the $800 a month alimony payment the husband is required to make to his ex-wife. Consequently, we affirm the trial court’s judgment.

The wife’s motion for an attorney’s fee for the representation she received on this appeal is denied.

AFFIRMED.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.


author: HARRIS, Judge.

text:
    McArthur GRAY v. STATE.
    8 Div. 851.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 5, 1976.

      Donald H. Spencer, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for robbery. He was convicted of grand larceny and the trial judge sentenced him to ten years imprisonment in the penitentiary. Prior to arraignment he was found to be indigent and counsel was appointed to represent him at arraignment and trial. He pleaded not guilty. After conviction he gave notice of appeal. He is in this Court with a free transcript and trial counsel represents him on this appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge, that before the finding of this indictment, McArthur Gray, also known as McAuthur Gray, also known as Spooky, whose name is unknown to the Grand Jury other than as stated, feloniously took, to-wit: $200.00 lawful monies of the United States, a further description of same being unknown to the Grand Jury, the personal property of The City of Huntsville, Alabama, a Municipal Corporation, from the person of William Harris, or from or in his presence, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

The evidence is in hopeless conflict and only a jury could unscramble the conflicting testimony and arrive at a verdict.

The State’s entire case was based on the testimony of one witness, William E. Harris, a police officer with the City of Birmingham. Harris testified that he had been a police officer for about two and a half years and had considerable experience in drug enforcement work. He received his training with the Drug Enforcement Administration, which is a Federal Narcotics Agency, during a two-year period. He stated that he had testified in Court in 47 cases of drug prosecutions and there were convictions gained in all 47 cases.

He further testified that in July, 1975, he was assigned from the Drug Enforcement Administration to be on loan to the Huntsville Police Department for a period of approximately four months to work “under cover” in purchasing narcotics in the Huntsville area. On July 22, 1975, he was in Huntsville in furtherance of his duties to buy drugs from pushers and he posed as a pusher himself. On that date he had made arrangements to purchase approximately one teaspoon of heroin from appellant' known to him as “Spooky” Gray. He met appellant at the Regency Apartments, 102 Winchester Road, in Huntsville, in Madison County, Alabama, where the sale and purchase were to take place. The time was about 4:00 p. m. and he initially met appellant who was alone at that time.

Appellant told the officer that he had been unable to contact his source and get the heroin but he would be able to get it later that evening from his connection and instructed the officer to wait around for about 30 minutes and in the meantime he would get in touch with his connection and have the heroin ready for him. The officer was seated in an adjoining apartment at the Regency Apartments complex. About an hour later appellant returned and told the officer he had made his contact and the heroin was ready for him to buy.

The officer and appellant rode together to Apartment B-10 of the Regency Apartments. On the way to the appointed place the officer noticed that appellant had a pearl handled .38 caliber pistol tucked in his pants and he questioned him about the weapon and appellant responded that it was not unusual for him to have a gun at the time he was processing a sale of narcotics or heroin. It should be noted here that the officer thought initially that he was going to make the buy from appellant.

The officer and appellant entered Apartment B-3 at the Regency Apartments. The officer remained near the front doorway and appellant walked to a bedroom in the back. The officer heard appellant tell someone, “the dude is here.” Shortly thereafter appellant and one black male, who the officer later learned was Charles Jordan, came out of the bedroom. The officer saw appellant give his pistol to Jordan who went back into the bedroom. Appellant asked the officer to follow Jordan.

The officer and Jordan stayed in the bedroom for approximately ten minutes. During this time the bedroom door was open and the officer saw appellant pass the open door on at least two occasions. While the officer and Jordan were in the bedroom, Jordan offered the officer a foil package. The officer inspected the foil package and realized that the contents were not heroin, but brown sugar. The officer told Jordan that he was not going to buy it as it was not heroin. Jordan became upset and angry and pulled the .38 pistol that appellant had given him and pointed it at the officer and threatened to kill him unless he gave him $200.00. The officer reached in his pocket and gave the man with the pistol ten twenty dollar bills or $200.00. At one point during the robbery appellant stopped at the bedroom door and saw Jordan pointing the pistol at the officer.

Jordan and appellant left the apartment together and as they were going down the stairway the officer heard appellant ask Jordan, “How much did you hit him for?” Jordan replied that he hit him for $200.00 and appellant laughed. The officer saw Jordan hand the pistol back to appellant.

According to the officer’s testimony he did not see anyone else in the apartment other than appellant and Jordan, but he heard voices. He could not say they were voices of other people present somewhere in the apartment or voices from a television set. Officer Harris made a positive in-court identification of appellant ás being a participant in this robbery.

On cross-examination the officer testified that he positively saw appellant hand the pistol to Jordan and that he was positive that appellant witnessed the holdup as he stopped by the opened door to the bedroom and saw Jordan pointing the pistol directly at him. He was also positive that after the robbery he saw Jordan give the pistol back to appellant. The State rested and appellant made the following motion:

“Mr. Spencer: Your Honor, at this time the defendant would make a motion to exclude the State’s evidence. Our grounds for this motion are based on the fact that the charge here is robbery. I do not think they have proved that my client took part in the robbery, or even proved that he was an accessory, as defined by the laws of this state. Also, I feel that ' there is a variance in the indictment and the proof, in that there was no proof that this money belonged to the City of Huntsville or to the State’s prosecuting witness, the victim. As I recall, there has been no proof as to who the money belonged to.
“The Court: I will have to overrule your motion, based on the fact that the law requires that it be taken from him or in his presence and the property which either belonged to him or which was under his personal protection and control. The money was under his protection and control. Therefore, I will have to deny your motion.
“Mr. Spencer: Judge, I don’t recall any direct testimony that the money was under his control or under his protection. “The Court: He said he had it in his pocket, in his possession, and reached in his pocket and pulled money out, peeled off ten twenty dollar bills.
“Mr. Spencer: I except to your ruling.”

Appellant called several witnesses in his behalf. Sam Crockett testified that he was an acquaintance of appellant and was present at the Regency Apartments, Apartment B-3, on July 22, 1975. Also in the apartment were appellant, Charles Jordan, David Clemons, and Charles Story. That Crockett was taking a shower at approximately 5:00 p. m. and he stated that when he came back to the living room, he saw Officer Harris. That Clemons had introduced the officer as his cousin from Mobile. That everyone appeared to be in good spirits. Approximately one week later Clemons informed Crockett that appellant had sold Officer Harris brown sugar instead of heroin.

Charles Story testified that he was present at B-3 Regency Apartments on July 22, 1975. That he, appellant and Charles Jordan were conversing around a table when David Clemons and Officer Harris arrived. Shortly thereafter, Jordan and Officer Harris went to the back of the apartment for several minutes. Jordan came back and asked for change for a twenty dollar bill. Jordan went to the back of the apartment again and in a few minutes he and Officer Harris came back into the room. Officer Harris then left the apartment saying to Jordan, “Thank you, man. I’ll check you later on.”

Charles Jordan testifed that he was also at the Regency Apartments, B-3, on July 22, 1975. He stated that on that day he sold a bag of brown sugar to Harris which he represented to Officer Harris as heroin for $150.00. He further testified that the transaction took place in the bedroom of the apartment and that during this entire transaction appellant was in the living room. He stated that this money was not forcibly taken from Officer Harris and that no weapon was involved.

Appellant took the stand and admitted that he and Charles Jordan worked together to sell Officer Harris a substitute for the heroin he was trying to buy. He testified that Jordan and the officer went to the back of B-3 Regency Apartments to transact the sale but that he remained in the living room during the whole time that Jordan and the officer were in the bedroom. Appellant denied ever owning a pistol or that he gave his pistol to Jordan on the occasion in question. He also denied any intent to rob Officer Harris.

David Clemons was an informant for the Huntsville Police Department. He testified that he tried to arrange for Officer Harris to buy heroin from appellant but at that particular time appellant did not have any to sell. Later he asked Officer Harris and appellant to go to Charles Story’s apartment — B-3 Regency Apartments. That when they arrived, appellant and Charles Jordan went to the back of the apartment and in a few minutes appellant came for Officer Harris and sent him back to the bedroom where Jordan was waiting and that appellant remained in the living room with Clemons, Sam Crockett and Charles Story. Clemons stated that this was the second time that he had accompanied Officer Harris to this apartment, and that on the first visit Harris bought some marihuana. He further said that when Officer Harris came back in the living room, that he and Harris left the apartment together and Harris told him that he had been forced to buy some brown sugar.

On cross-examination he testified that he had introduced Harris to all the people in the apartment as his cousin from Atlanta— not Mobile. He admitted this was the last occasion that he worked as an informer.

Officer Harris was called by the State on rebuttal and testified that David Clemons was with him on July 21, 1975, when he purchased some marihuana from one David Meredith but that Clemons was not present with him on July 22, 1975, when he was robbed of $200.00. He further stated that appellant and Jordan were not present where he made the marihuana buy from Meredith on July 21, 1975. Harris further testified that three days after the robbery Clemons told him that he knew that the robbery was going to take place and the reason he didn’t go with the officer on July 22, 1975, was because he didn’t want to get involved with what was going to take place.

The indictment alleged in specific terms that the $200.00 taken from Officer William Harris at gunpoint was the personal property of the City of Huntsville, a municipal corporation. There is not one thread, glimmer or scintilla of evidence in the entire record to show that Officer Harris had any connection with the City of Huntsville as agent, servant or employee, or that any official of the City of Huntsville ever turned over to Harris any money in the performance of his duties as an undercover agent. There was no evidence that he ever had custody of any money belonging to the City of Huntsville as agent, bailee or otherwise.

A material variance in the allegation of an indictment and the proof offered in support thereof is fatal to a conviction. The motion to exclude the State’s evidence on this ground should have been granted. Wideman v. State, 269 Ala. 49, 110 So.2d 298.

No proposition of law is more fundamental than the one requiring that the proof at trial must correspond with the material allegations of the indictment. Stone v. State, 115 Ala. 121, 22 So. 275; Prentice v. State, 24 Ala.App. 587, 139 So. 437; Owens v. State, 46 Ala.App. 591, 246 So.2d 478; Gilmore v. State, 99 Ala. 154, 13 So. 536; Lindsay v. State, 19 Ala. 560; Johnson v. State, 35 Ala. 363.

It was wholly unnecessary to have alleged in the indictment that the money taken was the personal property of the City of Huntsville. Having done so it was incumbent upon the State to prove this allegation. Harris v. State, 44 Ala.App. 449, 212 So.2d 695.

The motion to exclude the State’s evidence on the ground there was a fatal variance between the allegations laid in the indictment and the proof offered at trial should have been granted.

The judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: TORBERT, Chief Justice. SHORES, Justice

text:
    In re McArthur GRAY v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2106.
    Supreme Court of Alabama.
    June 3, 1977.

      William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
    Donald H. Spencer, Huntsville, for respondent.
   TORBERT, Chief Justice.

The petition in this case was based on an alleged conflict with prior decisions of the Court of Criminal Appeals, however, the petitioner failed to comply with the requirements of Rule 39(c)(4), ARAP, in preparing his petition. For this reason the writ must be quashed as having been improvidently granted.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.

SHORES, Justice

(dissenting):

I respectfully dissent.

Although I agree that a strict construction of Rule 39 would have justified denial of the writ on preliminary examination, having granted it, however, this court, in my opinion, should address the merits of the petition.

MADDOX, JONES and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Rosie Lee REYNOLDS v. STATE.
    4 Div. 520.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied May 3, 1977.

      Harry D. Raymon, Tuskegee, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted by a grand jury of Bullock County, Alabama, for the first degree murder of Rufus Pickett “by shooting him with a gun or pistol”. A jury found the appellant guilty of murder in the second degree and set her punishment at twenty years in the state penitentiary. Accordingly, the trial court entered judgment and sentence. Following conviction and notice of appeal, the trial court determined the appellant to be indigent and appointed her privately retained trial counsel to represent her on appeal.

The evidence presented at trial showed that the deceased, Rufus Pickett, was a “friend” and one-time companion of the appellant and the father of one of her two children. In March of 1976, Mr. Pickett came to the appellant’s home in Fitzpatrick, Alabama, and requested that the appellant return a television set which, according to the appellant, he had given her as a present several months earlier. The appellant told him that he wasn’t going to get the T.V. and an argument ensued. During the course of this argument Mr. Pickett pushed the appellant onto a sofa and twisted her arm.

Pickett grabbed the television and ran out of the house. The appellant ran after him carrying a .22 caliber rifle which she retrieved from one of the bedrooms. Pickett ran around the house three times and then headed for the pasture laughing all the while. However, the appellant had been running after Pickett “trying to make him to put the television set back in the house”. Before Pickett had gone more than one hundred yards out into the pasture the appellant fired. Pickett turned and fell, telling the appellant that she had shot him.

Pickett’s body was found by the sheriff who observed the appellant leaning over the body and a rifle and television set lying nearby. A deputy coroner testified that death resulted from severe hemorrhage caused by a gunshot wound in the back.

I

The appellant complains of several errors committed by the trial court upon which this case must be reversed. Initially, the appellant contends that it was error to allow the deputy coroner to testify as to his opinion regarding cause of death without being qualified as an expert.

It is true, as asserted by the appellant, that the mere fact that a person holds the office of coroner does not qualify him to express an opinion as to the cause of death, nor is he considered an expert witness unless shown to be qualified by training and experience. Carter v. State, 53 Ala.App. 248, 298 So.2d 668 (1974); Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Jones v. State, 53 Ala.App. 542, 302 So.2d 126 (1974); Page v. State, 41 Ala.App. 153, 130 So.2d 220, cert. denied, 273 Ala. 5, 130 So.2d 227 (1961).

The general rule is that the competence of an expert witness to testify is an inquiry substantially within the discretion of the trial judge. This court, on appeal, will not disturb the trial judge’s determination of expert qualifications unless .there is a clear abuse of this discretion. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973); Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied, 294 Ala. 764, 318 So.2d 341 (1975).

A deputy coroner may render an opinion as to the cause of death where it is shown by preliminary examination that he is qualified by knowledge and experience to give such an opinion. Snow v. State, 50 Ala.App. 381, 279 So.2d 552 (1973); Willingham v. State, 50 Ala.App. 363, 279 So.2d 534 (1973); Hicks v. State, 247 Ala. 439, 25 So.2d 139 (1946). The criterion for the admission of expert testimony is that the witness, by study, practice, experience, or observation as to the particular subject, should have acquired a knowledge beyond that of the ordinary witness. White v. State, 294 Ala. 265, 314 So.2d 857 (1975). The record before this court indicates that the witness had been a deputy coroner of the county for two years; that he had “observed, as (his) initial duties, bodies”; and that prior to becoming coroner he had had some “education and training on determining cause of death” at Jacksonville State Junior College.

Considering the facts that the appellant admitted chasing the deceased with a rifle and that she “guessed” she shot him, plus her testimony that the deceased told her that she had shot him, we do not think there was error in allowing the deputy coroner to give his opinion as to the cause of death. Ward v. State, 44 Ala.App. 229, 206 So.2d 897 (1966); Alabama Rules of Appellate Procedure, Rule 45. Additionally, the deputy coroner was shown by study and experience, though somewhat minimal, to have acquired a knowledge beyond that of the ordinary layman. Thus we cannot say that the trial judge abused his discretion in allowing him to testify.

II

THE CONFESSION

The appellant insists that the trial court committed reversible error in admitting in evidence an extrajudicial confession made by the appellant. It is true than an extrajudicial confession is prima facie involuntary and inadmissible, and the duty rests in the first instance on the trial court to determine whether or not the confession is voluntary and unless it so appears, it should not be admitted. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, cert. denied, 291 Ala. 772, 286 So.2d 72 (1973).

The record reflects that before the confession was admitted, a deputy sheriff testified that he had an occasion to talk to the appellant in the Sheriff’s office concerning the shooting; that he did not promise, threaten, or coerce her in any way to make a statement; and that he advised the appellant “of her rights that she could make a statement or not make a statement and have a lawyer”. The state then introduced a typewritten form entitled “Waiver Of Counsel By Defendant In Custody” acknowledging that the appellant had been advised of her specific constitutional rights and waived them, had knowingly and intelligently waived her right to counsel, and had knowingly and voluntarily made the statement to the officers. This form was signed by the appellant. No objection was interposed to its admission by counsel for the appellant.

A.

All of the testimony concerning the voluntariness of the confession of the appellant was taken in the presence of the jury. While the proper procedure for determining the admissibility of a proposed confession is for the defense attorney to move to suppress and for the trial court to hold a voir dire examination outside the presence of the jury, the failure to do so in the instant case was not error. Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967). Here, as in Taylor v. State, 282 Ala. 567, 213 So.2d 566, cert. denied, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1968), the question as to the voluntariness of the confession was presented in the presence of the jury. No request was made by appellant’s counsel that such hearing be held outside the presence of the jury and there was no contradiction of the testimony adduced in the presence of the jury relative to the voluntariness of the confession. No effort was made by counsel for the appellant to present any witness, the defendant or others, to rebut the testimony presented by the state relative to the voluntariness of the confession. Taylor, supra, 282 Ala. at 571, 213 So.2d 566. There is no reversible error in failing to hear evidence on the voluntariness of the confession outside the presence of the jury where there is no request for a hearing and there is no conflict in evidence as to the voluntariness on the main trial. Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Tiner v. State, 279 Ala. 126, 182 So.2d 859 (1966); Freeman v. State, 46 Ala.App. 640, 247 So.2d 682 (1971).

After the state has established prima facie admissibility of a confession by laying the Miranda and pre Miranda predicates, there is no duty on the trial court ex mero motu to withdraw the jury where the accused has not made a motion to do so, Johnson v. State, 56 Ala.App. 627, 324 So.2d 341 (1975); Love v. State, 44 Ala.App. 85, 203 So.2d 140 (1967).

B.

While counsel for the appellant did not object, and specifically so stated, to the introduction of the signed waiver of rights form, he did object to an admission of the actual confession on the grounds that (1) the state did not show when, where and who was present when the confession was given and (2) because the state had failed to prove the corpus delicti of the charged crime. In the brief on appeal, the appellant argues that after the confession was admitted, on cross examination of the deputy sheriff it appeared that someone else was present during the period of time that the appellant was being questioned. The waiver itself affirmatively reflects the fact that another officer was present during the confession as at the end of the waiver appears the following, “Witnessed by: Cpl. A. G. Tew”. Under the signature of the appellant Deputy Sheriff Cole signed a statement acknowledging that he had advised and explained the constitutional rights listed on the waiver to the appellant and she had voluntarily waived those rights. Included in the paragraph was the following statement:

“No threats, promises, tricks, or persuasion were employed by me or anyone in my presence to induce him to waive his rights to an attorney and to make a statement without an attorney.” (Emphasis added)

Thus under the circumstances of this case, the state presented the proper foundation for the admission of the confession and a proper showing that it was freely and voluntarily given.

C.

Finally, the appellant claims that the confession should not have been admitted because the corpus delicti of the murder had not been proven. It is, of course, well established that a confession without independent evidence of the corpus delicti is not sufficient to support a conviction and the burden is upon the state to prove the corpus delicti independently of the confession. King v. State, 49 Ala.App. 111, 269 So.2d 130 (1972); Robinson v. State, 45 Ala.App. 74, 224 So.2d 675 (1969). The appellant contends that in a prosecution for murder, in order to establish the corpus delicti, it is the duty of the state to offer evidence tending to establish a causal connection between the criminal agency of the accused and the death of the deceased. This argument is based on a misunderstanding of the law. For the purpose of introducing the confession of a defendant, ordinarily the corpus delicti is not composed of that element of the crime commonly called the agency of the defendant. Parker v. State, 40 Ala.App. 244, 112 So.2d 493, cert. denied, 269 Ala. 699, 112 So.2d 496 (1959). Proof of the corpus delicti does not necessarily include evidence connecting the defendant with the crime. The term corpus delicti means the body or the substance of the crime and connotes the commission of the offense by the criminal agency of someone. Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976); Arnold v. State, 57 Ala.App. 172, 326 So.2d 700 (1976); Beans v. State, 36 Ala.App. 65, 52 So.2d 238 (1951).

“To make a confession of guilt by the defendant admissible, it is not necessary that there be evidence connecting the defendant with the crime, the requisite being that the evidence show that the deceased died from force unlawfully applied—that is, that death was not the result of natural causes, accident or suicide, but the criminal agency of another.” Peoples v. State, 256 Ala. 612, 56 So.2d 665 (1952).

Before a confession may be admitted, it is not incumbent upon the state to introduce evidence tending to identify the accused as the guilty agent applying the unlawful force causing death. Jones v. State, 260 Ala. 341, 70 So.2d 629 (1954); Gaddis v. State, 39 Ala.App. 630, 106 So.2d 268 (1958).

The evidence presented by the state tended to show that the deceased suffered a wound in his back resulting from a gunshot. A .22 caliber rifle was found at the scene of the crime. Thus the state proved the fact of death feloniously caused. This evidence was ample in its tendencies to satisfy the burden cast upon the state to establish the corpus delicti. Duck v. State, 38 Ala.App. 652, 92 So.2d 55 (1957).

III

The motion to exclude the state’s evidence filed by the appellant was properly overruled by the trial court. This court has previously demonstrated that the state met its burden of proving the corpus delicti in this case. There was a reasonable inference of the existence of the corpus delicti which could be inferred from the evidence. Thus the court was bound to submit the sufficiency and weight of the evidence tending to support that inference to the jury. Davis v. State, Ala.Cr.App., 331 So.2d 813 (1976); Welden v. State, 57 Ala.App. 379, 328 So.2d 630 (1976).

IV

CHARGES TO THE JURY

A.

In its oral charge to the jury, the trial court stated:

“. . . The law presumes malice from the use of a deadly weapon unless the evidence which proves the killing shows also that it was done without malice. . For instance, if a killing is done with a deadly weapon, such as a rifle, the law authorizes the jury to presume malice from the killing unless the evidence which proves the killing shows that it was done without malice.”

The appellant took exception to and cites error on this portion of the court’s charge on the ground that by giving this instruction, the court did not leave the jury the discretion of inferring malice but stated that malice was presumed. The appellant alleges that a proper charge would read that the jury may infer, not presume, malice from the use of a deadly weapon. The trial court will not be put in error as its charge was correct. Stidwell v. State, 107 Ala. 16, 19 So. 322 (1894) (infers); Heningburg v. State, 153 Ala. 13, 45 So. 246 (1907) (presumes); McDowell v. State, 238 Ala. 482, 191 So. 894 (1939) (presumes); Newsom v. State, 15 Ala.App. 43, 72 So. 579 (1916); Barber v. State, 22 Ala.App. 322, 116 So. 322, cert. denied, 217 Ala. 330, 116 So. 323 (1928). The contention of the appellant is perhaps best answered by the case of Humber v. State, 19 Ala.App. 451, 99 So. 68 (1923) wherein the following charge was refused by the court as being misleading and not correctly stating the law:

“The court charges the jury that malice as applied to cases of murder is in law the killing of a human being without legal justification, excuse or extenuation; that malice is an inferential fact and is inferred from facts and circumstances positively proven and may be inferred from the intentional use of a deadly weapon, but malice as an ingredient of murder cannot be presumed from intentional use of a deadly weapon when the same is used only in self-defense, as self-defense has been defined and charged to you by the court.”

B.

The appellant cites the trial court for error in refusing to give the following requested charge:

“The Court charges you, Gentlemen of the Jury, that if you believe the evidence in this case that the evidence establishes mere negligence on part of the defendant on the occasion of the deceased’s death, and nothing else but mere negligence, then you must find the defendant not guilty.”

The appellant’s authority for this requested charge is Crisp v. State, 21 Ala.App. 449, 109 So. 282 (1926). Crisp involved a prosecution for second degree manslaughter by striking the deceased with an automobile. There it was held that the refusal to instruct that mere negligence is not a basis for finding the accused guilty of second degree murder was error. The basis for this holding is the principle that proof that shows no more than the death of a person resulting from a violation of a speed regulation is wholly insufficient to authorize a conviction for manslaughter in the second degree. In Crisp, the crime was predicated upon negligence in the performance of a lawful act. Here, the facts reveal a homicide in the commission of an unlawful act not amounting to a felony. See Title 14, Section 167, Code 1940, making it a misdemeanor for anyone to point a firearm at another.

Here the appellant testified that she did not intentionally point the rifle at the deceased, that she did not remember pulling the trigger, and that she did not intend to kill him. The state’s evidence tended to show that the appellant fired twice and shot the deceased at some distance. These two factors indicate that the shooting was intentional. The refused charge was properly refused because it ignored the question of whether the appellant was intentionally pointing the rifle at the deceased. If she was, then she would be guilty of at least involuntary manslaughter, even though the firing of the rifle was without purpose or motive, but was accidental. Campbell v. State, 13 Ala.App. 70, 69 So. 322 (1915); Fitzgerald v. State, 112 Ala. 34, 20 So. 966 (1895); Bynum v. State, 8 Ala.App. 79, 62 So. 983 (1913); Henderson v. State, 98 Ala. 35, 13 So. 146 (1893). The requested charge was properly refused because it was not a full and correct statement of the law under the facts and because it ignores a portion of the evidence.

C.

The appellant also urges reversal on the refusal of the trial judge to instruct the jury on the effect of proof of good character taken in connection with all the evidence. The identical charge requested by the appellant was approved in Clayton v. State, 23 Ala.App. 150, 123 So. 250 (1929), see 23 Ala.App. at 151, Charge No. 53, 123 So. at 251. It is fundamental that upon proof of good character an accused is entitled to have the jury instructed as to the effect of this type of evidence when taken in connection with all the other evidence. Kilpatrick v. State, 37 Ala.App. 165, 66 So.2d 441, cert. denied, 259 Ala. 212, 66 So.2d 445 (1953). We hold that the trial judge will not be put in error for refusing to give the requested charge because the same principle of law was covered and more clearly stated in another written charge given at the request of the appellant. Ball v. State, 51 Ala.App. 270, 284 So.2d 296 (1973); Kilpatrick, supra.

V

As there was substantial evidence tending to make out a case against the appellant the request for the affirmative charge was properly refused. Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62 (1975). Where the evidence supports a verdict of guilty this court will not disturb a ruling of the trial court in denying a motion for a new trial. Kellam v. State, 47 Ala.App. 660, 259 So.2d 869 (1972). The appellant’s motion for new trial was properly denied.

Having reviewed the entire record as required by law we find no errors adverse to the rights of the appellant and this case is due to be, and is hereby

AFFIRMED.

All Judges concur.


author: BLOODWORTH, Justice.

text:
    In re Rosie Lee REYNOLDS v. STATE of Alabama. Ex parte Rosie Lee Reynolds.
    SC 2574.
    Supreme Court of Alabama.
    June 10, 1977.
    Harry D. Raymon, Tuskegee, for petitioner.
    None for the State, respondent.
   BLOODWORTH, Justice.

In denying this writ, we may say that we agree with the Court of Criminal Appeals’ opinion, 346 So.2d 979, except as to its holding with respect to laying the predicate for the confession. We cannot agree that Deputy Cole’s ex parte statement lays a sufficient predicate as to the other officer present.

We have gone to the record for a more complete understanding of those features of the case treated in the Court of Criminal Appeals’ decision, there being no dispute as to these facts. Wilbanks v. State, 289 Ala. 171, 266 So.2d 632 (1972). We think that the record sufficiently shows that Cpl. Tew, although present part of the time, never talked to petitioner at all and that he, Deputy Cole, was the only person present who talked to her. In such circumstances it was harmless error to fail to lay the predicate as to Cpl. Tew. Rule 45, ARAP.

WRIT DENIED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur,


author: SUNDBERG, Justice.

text:
    CITY OF JACKSONVILLE, Petitioner, v. Frank Lee GRIFFIN and Sophie Lee Griffin, his wife, Individually and d/b/a F. L. Griffin Company, Inc., Respondents.
    No. 47745.
    Supreme Court of Florida.
    March 31, 1977.
    Rehearing Denied June 28, 1977.
    Harry L. Shorstein, Gen. Counsel, Frederick J. Simpson, Acting Gen. Counsel, and William Lee Allen, Asst. Counsel, Jacksonville, for petitioner.
    O. O. McCollum, Jr. of Thames & McCol-lum, Jacksonville, for respondents.
   SUNDBERG, Justice.

This is a petition for writ of certiorari to review a decision of the First District Court of Appeal, reported at 314 So.2d 605, which is asserted to be in conflict with Canal Authority v. Miller, 243 So.2d 131 (Fla.1970); Canal Authority v. Litzel, 243 So.2d 135 (Fla.1970); and Central & S. Fla. Flood Control Dist. v. Wye River Farms, Inc., 297 So.2d 323 (Fla. 4th DCA 1974). Because we find a conflict in decision between this case and the cited cases for the reasons hereinafter expressed, jurisdiction vests pursuant to Article V, Section 3(b)(3), Florida Constitution.

On May 15, 1973, petitioner City of Jacksonville filed a complaint for condemnation in eminent domain together with a declaration of taking. The trial court entered an order of taking without first hearing testimony or receiving any other evidence as to necessity. The District Court of Appeal, First District, granted certiorari and reversed and remanded for the purpose of taking such testimony. Griffin v. City of Jacksonville, 299 So.2d 90 (Fla. 1st DCA 1974).

After remand the trial court again entered an order of taking. The evidence then before the court established that the City adopted a Neighborhood Development Plan (NDP) pursuant to the Community Redevelopment Act of 1969. Chapter 163, Florida Statutes, Part III. The NDP assigned respondent’s land a designation of C-2 with a number one priority for rehabilitation, clearance, and redevelopment as a residential area after making a determination, as required by Chapter 163, that

“. . . [t]he [affected] areas are slum areas and are a detriment and a menace to the safety, health and welfare of the inhabitants and users thereof and of the locality at large because of a predominance of buildings or improvements which by reason of delapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation or open spaces, high density of population and overcrowding or in the existence of conditions which endanger life or property by fire or other causes, or any combination of such factors, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency or crime, and the members of this governing body have been fully apprised and are aware of these facts and conditions;

In its opinion, the District Court found that, other than the resolution authorizing the taking of the land for use in its NDP, the City adopted no specific plan for redevelopment, did not specify respondent’s land for any particular use, did not decide whether the redevelopment should be by the City or by private enterprise, and did not take any official action toward other land within the C-2 area that had already been taken by eminent domain except to raze the buildings and level the land.

Upon petition for certiorari to the circuit court, the District Court of Appeal, First District, again reversed and remanded, citing Ball v. City of Tallahassee, 281 So.2d 333 at 337 (Fla.1973), which states:

“The city must present evidence pinpointing the need for the particular property . sought to be condemned. No such evidence being submitted by the city, its petition for eminent domain . cannot be approved.” (Emphasis supplied)

The District Court also.noted that respondent’s land was adjacent to a railroad track and other property owned by the railroad and that such property was also within the C-2 area of the NDP. Since the City indicated it had no present plan to acquire the adjoining property, the District Court deemed it relevant to inquire as to the necessity of acquiring respondent’s property while permitting the adjoining property owned by the railroad (exclusive of the railroad right-of-way) to remain unmolested. After further observing that the City had made no determination as to what the zoning should be or which streets should be located in the affected area, it concluded:

“. . .In the absence of some specific plan for development of the property in the reasonably foreseeable future, including plans for financing such a vast undertaking, no need is demonstrated for the displacement of residents from their homes and business from their locations.” 314 So.2d 605 at 607.

Although petitioner presents three points as being involved in these proceedings, we believe the essential issue is whether the City made a showing of reasonable necessity for the condemnation of respondent’s land. The District Court answered this question in the negative, relying almost in toto upon Ball v. City of Tallahassee, supra. That court seemed to base its decision on two points: (i) the City failed to demonstrate a present necessity for the taking of respondents’ specific parcel as the court deemed to be required by Ball and (ii) the City abused its discretion and discriminated against respondents in selecting their land to be taken while leaving adjacent property owned by the railroad unaffected.

We believe that the district court misperceived the import of the Ball case and, therefore, its decision is in conflict with Wye, Miller, and Litzel, supra. The Ball decision stands principally for the proposition that there is a two-tier model to be observed when determining whether a condemning authority has met its burden of proving reasonable necessity for the taking. In the first instance, the condemning authority is obliged to show a reasonable necessity for the condemnation. Canal Authority v. Miller, supra, 243 So.2d at 134. Once such a reasonable necessity is shown, the exercise of the condemning authority’s discretion should not be disturbed in the absence of illegality, bad faith or gross abuse of discretion. Inland Waterway Development Co. v. City of Jacksonville, 38 So.2d 676 (Fla.1948); Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527 (1929); Staplin v. Canal Authority, 208 So.2d 853 (Fla. 1st DCA 1968). Although it will not be presumed that a condemning authority abused its discretion or acted illegally or in bad faith in making its finding of reasonable necessity in a resolution of taking, such authority, in order to meet its burden, must put on some evidence of reasonable necessity for the taking. Once this is shown, however, the landowner must then either concede the existence of a necessity or be prepared to show bad faith or abuse of discretion as an affirmative defense. Canal Authority v. Miller, supra, 243 So.2d at 134.

The question really is whether the petitioner came forward with some evidence showing a reasonable necessity for the proposed taking. This Court in Ball agreed that the City of Tallahassee presented evidence showing a reasonable necessity for a taking of an easement but concluded that there was no proof of a reasonable necessity for the taking of a perpetual easement over the property of Mr. Ball because the City’s proof did not support a “vaguely asserted ‘future need’.” Ball v. City of Tallahassee, 281 So.2d 333 at 337. The decision then expressed the view that the City of Tallahassee was obligated to “present evidence pinpointing the need for the particular property, i.e., parcel 18, sought to be condemned.”

It is apparent from even a cursory reading of Ball that it adopted the rule enunciated in the Canal Authority cases, i.e., that the condemning authority need only present some evidence showing a reasonable necessity for a taking. It went further, however, to place a gloss upon the Canal Authority cases rule based upon the facts of that case by requiring that the City’s evidence pinpoint the need for the particular property. The Court there concluded that the evidence of future need for the particular easement in question was so speculative that it failed to support a finding of necessity. The District Court of Appeal arrived at the same conclusion in the instant case; however, the project herein is entirely different. Here the parcel in question is an integral part of an overall neighborhood development plan which has been approved. The District Court concluded that there was no definitive plan of redevelopment, no plan as to how the land will be used, no plan as to how zoning will be effectuated, no revision by the City of the layout of the streets in the area to be redeveloped, and no program of financing to defray the cost of the redevelopment. The trial court found otherwise, and our review of the record discloses:

(1) a map (Petitioner’s Exhibit 4) showing a comprehensive plan of redevelopment;
(2) a map (RP Map No. 3) demonstrating that respondents’ land will be used for medium density residential purposes;
(3) a map (RP Map No. 4) depicting not only the current zoning, but proposed zoning changes; and
(4) appellant’s RP Map No. 3 reflecting that First Street will be realigned as a designated “major collector.”

And as was stated in the Wye case, supra:

. . [I]t is not necessary that a condemnor, representing the state or a political subdivision of the state, have funds on hand, plans and specifications prepared and all other preparations necessary for immediate construction before it can determine the necessity for taking property for a public use. In point of fact, it is the duty of public officials to look to the future and plan for the future. . . . ” (Emphasis supplied) 297 So.2d at 326.

Apart from the factual distinctions in the evidence presented in the instant case as opposed to the Ball case, we are persuaded that the latter placed an unreasonable gloss upon the rule of law enunciated in the Canal Authority cases. To the extent that Ball requires that a condemnor must present evidence pinpointing the need for the particular property sought to be condemned, we recede from that case and reaffirm the rule of law expressed in the Canal Authority cases.

Respecting the query of the District Court as to ostensible discrimination or abuse of discretion by petitioner in selecting respondents’ property, we believe this point was reached and decided in Inland Waterway Development Co. v. City of Jacksonville, 38 So.2d 676 (Fla.1948), where it is stated at page 678:

“From these cases it follows that a broad discretion is vested in those clothed with power to determine what property and how much is necessary to condemn for public purposes and the application will not be denied unless a clear abuse of discretion is shown.”

In a project of the magnitude here at issue, it must be obvious that the City must start somewhere within the total area to be redeveloped. Were the City not permitted to exercise its discretion in good faith as to the sequence of the parcels to be condemned, then each landowner would be able to raise the question, “Why not my neighbor?” and thereby effectively frustrate commencement or continuation of the project. Such is not and cannot be the law. See Canal Authority v. Miller, supra; Catholic Burse Endowment Fund v. State Road Dept., 180 So.2d 513 (Fla. 2d DCA 1965).

Accordingly, the petition for writ of cer-tiorari is granted, and the decision of the District Court of Appeal, First District, is quashed, with instructions to remand to the trial court for further proceedings not inconsistent herewith.

It is so ordered.

OVERTON, C. J., and BOYD and ENGLAND, JJ., concur.

HATCHETT, J., dissents.