author: HEFLIN, Chief Justice.

text:
    Lambert ATKINSON and Larcille Atkinson v. Clarence D. ANDERSON and Margie Shelton Anderson.
    SC 2054.
    Supreme Court of Alabama.
    Jan. 14, 1977.
    Francis M. James, Fayette, for appellants.
    C. M. Holder, of Holder, Moore & Gro-eholski, Fayette, for appellees.
   HEFLIN, Chief Justice.

This appeal involves a boundary line dispute between adjoining and coterminous land owners. The plaintiffs-appellees, Clarence and Margie Anderson, filed a complaint asking the circuit court to decree that they were the legal title holders to certain described land. The defendants- appellants, Lambert and Larcille Atkinson, answered the complaint in part by asserting a claim to 5.1 acres of land described in the complaint by prescription or alternatively by adverse possession. Prior to trial, a court ordered survey was made. Testimony was taken ore tenus before the trial court and the court found in favor of the Ander-sons. In the trial court’s final decree the findings of fact included the following:

“3. That the plaintiffs [Andersons] have a good and valid claim of title to the S V2 of NE Vi of NW Vi lying East of the Highway; S V2 of NW V2 [sic] of NE Vi and NE Vi of NE Vi, Section 24, Township 15 South, Range 13 West, Fayette County, Alabama, and
“That the defendants [Atkinsons] have a good claim of title to the N V2 of NW Vi and [sic] NE Vi and N V2 of NE Vi of NW Vi lying East of the Highway, Section 24, Township 15 South, Range 13 West, Fa-yette County, Alabama.
“4. That neither the defendants nor their predecessors in title have any title or color of title to the lands of the plaintiffs’ and that neither the defendants nor their predecessors in title have ever assessed for taxation or paid taxes on the land of the plaintiffs’.
* * * * * *
“7. That the fence (one of the wire fences running East and West) which defendants claim to be the true East and West line between the parties, is a meandering fence built by a prior owner who owned both the lands of plaintiffs and defendants before a division thereof was made.
“8. That the survey made by Mr. W. G. Mitchum, a licensed land surveyor * * correctly represents and depicts the true and correct boundary line between the property of the parties.
“9. That part of the NE Vi of the NE 14 lying West of branch was used by the defendants and their predecessors in title for watering of their stock with the permission of the then owner of said 40; and when defendant’s predecessors in title laid claim thereto the then owner had it surveyed and the corners put up in the presence of defendant’s predecessor in title who acquiesced in said survey.
“10. That defendants have never been in the actual, open, peaceable, notorious exclusive and continuous possession of any of the lands owned by the plaintiffs.”

The Andersons’ parcel of land contains approximately 82 acres and resembles the letter “T” lying on its side with the head of the “T” pointing East. The Atkinsons’ land is north of the Andersons’ land and lies in the crook of the “T," such that there are two common boundary lines with the An-dersons. Both of the boundaries were in question in the trial below. The amount of land under dispute along the latitudinal boundary line, which constitutes the southern boundary of the Atkinsons’ land, comprised 1.5 acres, while the longitudinal boundary line dispute involved 3.6 acres. These two parcels will be treated separately here with the 1.5-acre tract designated tract “1” and the 3.6-acre tract designated tract “2.”

The Andersons acquired title to the property which they contend includes the 1.5 acres in tract 1 from Mrs. Anderson’s mother, Mrs. Hughes, in 1968, who had acquired title from Mr. and Mrs. Bobo. The Bobos received title from one Jim Dowd. In 1974, Clarence Anderson received title to the land which involves tract 2 from Mr. and Mrs. Musgrove who had acquired the property in 1955 through the Will of Mrs. Musgrove’s father Tom McConnell. Tom McConnell’s ownership traces back to 1928.

The Atkinsons acquired a remainder interest in their property in 1955 from Mrs. Atkinson’s parents, the Stoughs, who retained a life interest in the property. Mr. Stough acquired his title to the property in 1944 from the Bobos, who had received title from Mr. and Mrs. Moore in 1944, who in turn, acquired their title from Jim Dowd in 1943.

At the time this action was commenced Mr. Stough was deceased and Mrs. Stough was still living and exercising her life estate by residing on the property. The At-kinsons took up residence on the property in 1971 apparently with the approval of Mrs. Stough because they owned no present pos-sessory interest in the property. For the sake of simplification this property will be described as that of the Atkinsons, although it is recognized they have a future interest.

The Atkinsons contend that the latitudinal boundary which affects tract 1 is a barbed wire fence which they claimed was put up by Mr. Stough in 1944. The Atkin-sons also contend that the longitudinal boundary is an old barbed wire fence and that such fence is the existing boundary of tract 2. Both fences are rather crooked because a substantial portion of each line is made up of strands of wire nailed to trees which causes the fence to zig-zag. Testimony at trial was that both of these fences were in a state of disrepair when the litigation began.

The Andersons contend that the boundaries are the government survey lines as laid out by Mr. W. G. Mitchum in his survey just prior to trial. As pointed out earlier, the trial court established the boundaries as being the government survey lines.

The Atkinsons argue that the judgment of the trial court, that they have not gained title to the disputed land by adverse possession or by prescription, is unsupported by the weight of the evidence and is also contrary to the law of adverse possession.

In boundary dispute cases between coterminous land owners the evidentiary prerequisites of adverse possession as specified in Title 7, § 828, Alabama Code of 1940 (Recompiled 1958) are not controlling. In Sylvest v. Stowers, 276 Ala. 695, 166 So.2d 423 (1964), this court enunciated the requirements needed to prove adverse possession by a coterminous land owner in the following manner:

“If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. * * *” 276 Ala. 695, 697, 166 So.2d 423, 426 (1964).

Tract 1 in this case is in the shape of an elongated right triangle with the closest point between the two disputed boundary lines measuring 4' and the greatest distance measuring 76' across. The boundary by the government survey line runs a distance of 1748.8'.

The Atkinsons presented testimony that Mr. Stough built a fence along this boundary in 1944 and that he exercised exclusive possession over the disputed 1.5 acres for over 10 years. They also presented testimony to the effect that this fence continued to be recognized as the boundary until 1974 when the Andersons started to construct a fence along the government survey line.

The Andersons presented evidence that at one time there were two barbed wire fences at or near the location of this disputed fence, which created a lane to give access for cattle to get to a branch. There was testimony which supported the contention that the fence claimed to have been built by Mr. Stough was actually one of the lane fences. Testimony was taken which indicated that these two fences were constructed by Mr. Dowd when he owned both of the parcels of land which are divided by this disputed boundary.

The trial court in its findings of fact number 7 concluded that the fence claimed by the Atkinsons to be the true boundary was not built by Mr. Stough but was in fact “a fence built by a prior owner who owned both the lands of plaintiffs and defendants.”

This court has on countless occasions stated that when a case is heard ore tenus by the trial court, that that court’s findings will, on appeal, be presumed to be correct and will not be altered unless plainly erroneous or manifestly unjust. See, e.g., Kjelstrom v. First National Bank of Montgomery, Ala., 335 So.2d 647 (1976), and the cases cited therein.

Under the evidence before this court and the authorities cited, it cannot be said that the trial court’s finding that the latitudinal boundary was the government survey line is plainly erroneous or manifestly unjust or that the trial court misapplied the law of adverse possession to these facts.

This opinion will next consider the disputed longitudinal boundary which affects tract 2. This parcel is also in the form of a right triangle with the closest point between the two disputed lines being 89' and the furthest distance being 348', with the government survey line running 736' and the barbed wire line running 804'.

Apparently the discrepancy as to the boundary of tract 2 arises from the presence of a branch which is enclosed by the barbed wire fence and runs the entire length of the parcel. The evidence regarding these boundaries and the use of tract 2 over the years was in conflict. The Atkin-sons contend that their predecessors in title have been in exclusive possession of this 3.6 acres for well over 10 years dating back to 1944 when Mr. Stough first acquired his land. They presented testimony that Mr. Stough maintained the fence in order to allow his cattle to water at the branch and to graze on the available foliage. The At-kinsons also presented evidence that their predecessors in title, as well as themselves, had cut timber on tract 2 and that the Andersons and their predecessors in title had cut timber all the way up to the fence during the last 29 years but had never crossed the fence. Finally, there was testimony that the Andersons and their predecessors in title for the last 20 years were aware that there was a dispute as to the boundary line in this parcel and that all they did during this period was to have it surveyed twice.

The Andersons presented evidence that this fence was erected by agreement between Mr. Dowd (predecessor in title to the Stoughs) and Mr. McConnell (predecessor in title to the Andersons) so that Dowd’s cattle could water at the branch. Testimony was presented that at one time there were two barbed wire fences creating a lane (across tract 1) which ran easterly and opened into tract 2 allowing cattle to come onto tract 2 for water at the branch.

The trial court in its finding of fact number 9, which has been previously quoted, found that the Atkinsons and their predecessors in title had been allowed to use tract 2 by permission and thus could not acquire title by adverse possession. There was ample evidence presented to allow the trial court to conclude that the use of tract 2 on the part of the Atkinson’s predecessors in title was permissive. As noted previously the ore tenus rule prevents this court from altering the trial court’s findings where those findings are not clearly erroneous or manifestly unjust.

The conclusion of law reached by the trial court, that permissive use cannot ripen into adverse possession, is amply supported by case law developed by this court. See, e.g., Enterprise Lodge No. 352 of the Knights of Pythias, Inc. v. First Baptist Church of Evergreen, 292 Ala. 579, 298 So.2d 17 (1974); White v. Williams, 260 Ala. 182, 69 So.2d 847 (1954).

Accordingly, the trial court’s ruling that the government survey line constitutes the longitudinal boundary is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Luther R. MYERS, Jr. v. BANK OF PRATTVILLE.
    Div. SC 2227.
    Supreme Court of Alabama.
    Jan. 14, 1977.
    Horace N. Lynn, Montgomery, for appellant.
    George M. Taylor, Jr., Prattville, D. Coleman Yarbrough, Montgomery, for appellee.
   HEFLIN, Chief Justice.

Luther Myers, Jr. brings this appeal after having had a directed verdict entered against him in the amount of $46,904. The Bank of Prattville filed a complaint against appellant Myers, Harry Jehle, J. K. Francis, W. Jean Hicks alleging that all were liable on a defaulted note in the amount of $32,-500 plus interest, attorneys fee, and cost, with Myers being liable as the maker and the other three liable as endorsers. Myers then filed a crossclaim against his three co-defendants. Defendants Jehle, Francis, and Hicks allowed a consent judgment to be entered against them in the amount of $46,-904 in favor of the bank. Myers took his case to a trial by jury with the result being that the trial court entered a directed verdict against him in the amount of $46,904 but also awarded him a judgment in the same amount against the three co-defendants on his crossclaim.

Prior to the trial the parties stipulated that Myers had in fact executed the promissory note. There also appears to be no dispute that the note is a negotiable instrument, that the Bank of Prattville is a holder in due course of the note, and that Myers had no direct dealings with the Bank.

Myers contends that there was misrepresentation on the part of Jehle, Francis, and Hicks in inducing him to sign the note. But he does not contend that he was either forced to sign the note against his will or that he was unaware that the note could be negotiated.

Title 7A, § 3-305(2), Alabama Code of 1940 (1966), lists the defenses which are valid against a holder in due course by a party who has had no dealings with the holder, which in this case is the bank. None of these defenses was either pleaded or proved here. Thus, the prima facie case made by the Bank of Prattville has not been overcome and the directed verdict in favor of the bank is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    Madge BRAMLETT v. ALABAMA STATE TENURE COMMISSION.
    Civ. 961.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1977.

      Joseph E. Carr, IV, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the Ala. State Tenure Commission, appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a writ of mandamus by the Circuit Court of Randolph County, Alabama. We affirm.

This matter arose as follows: Madge Bramlett, a tenured teacher, employed by the Randolph County Board of Education, received written notice on August 22, 1975, from the Board that she was assigned to teach seventh and ninth grade English in the 1975-76 school year. She had previously taught tenth and twelfth grade English in the same school.

On August 26, 1975, Bramlett requested in writing a hearing under the provisions of Title 52, Sec. 356 (Teacher Tenure Act). The Board failed to provide a hearing. Bramlett filed a direct appeal to the Alabama State Tenure Commission as permitted by Title 52, Sec. 361(9). After hearing, the commission found that it was without jurisdiction to consider the appeal because the action of the school board was not a transfer within the meaning of Title 52, Sec. 355.

Petition for writ of mandamus to be directed to the Tenure Commission was denied by the circuit court. Appeal was taken from such denial to this court.

The single issue is essentially whether Bramlett was transferred by the Board of Education for the year 1975-1976 within the provisions of Title 52, Sec. 355. That statute is as follows:

“Transfer of teacher. — Any teacher on continuing service status, upon the recommendation of the superintendent and the approval of the employing board of education, may be transferred for any succeeding year from one position, school, or grade to another by being given written notice of such intention to transfer by the employing board, except that such transfer shall be without loss of status or violation of contract, and such transfer may not be for political or personal reasons.”

The meaning of the word “grade” as it appears in the statute, when considered in light of the facts of this case, provides the resolution of the issue.

The commission determined that the acts of the Board of Education in changing Bramlett from teaching tenth and twelfth grade English to teaching seventh and ninth grade English was not a transfer within the meaning of the statute but was merely a reassignment in the same school. Thus, there was no right to hearing under Sec. 356 of Title 52, nor right to appeal to the Commission under Sec. 361(9). The circuit court refused to consider the finding of the Commission upon mandamus.

We find the meaning of the word “grade” to be what it customarily means in the schools and educational systems of the state. We are cited to no case in this or any other jurisdiction which is remotely helpful. It does not appear reasonable to search for a strained or exotic meaning for the word “grade” used by the legislature. We know of no use, nor are we cited to any, of the term “grade” in our educational system except to designate a level of attainment. A “grade” relative to perfection is attained upon an examination. A “grade” indicative of the level of study is attained in the system. The latter “grade” is that referred to in the statute. It clearly is not the first.

Counsel for the Commission argues that the decision of that body should be given special weight because it possesses a particular expertise in the field of education. The premise of expertise in the special area of education may be conceded without concession of expertise in the construction or interpretation of the acts of the legislature. That specialty must be conceded to the judiciary and in the last instance to the appellate courts.

We do not believe that the case of Loehr v. Board of Education, 12 Cal.App. 671, 108 P. 325 (1910), cited by the Commission has relevance to our statute. It appears that the statutes of California gave a specific meaning of the word “grade”, relating it to types of teaching certificates. There is no comparable statutory reference in our law. The individual boards of education in Alabama have nothing whatever to do with certification of teachers. That is done by the State Board of Education. Title 52, Sec. 20, Code.

It must follow that the legislature knew that a county board of education had no authority to affect the grade of a teacher’s certificate, even if there is a graded certificate. (Such is not in evidence.)

The Commission appears to consider that the application of the provisions of the transfer statutes to a mere change from teaching at one grade level to another in a school would be highly burdensome. We do not see it so.

It is readily understandable that a change of assignment in the same school might be as objectionable to the teacher as would a change to an assignment to another school. It could just as easily be a vehicle for exerting political or personal reasons. It would ordinarily be expected that such change of teaching assignment in the same school, if supported by valid administrative reason, would be completed without resort by the affected teacher to the hearing and appeal procedures of the Teacher Tenure Act. However, if the change is suspected for personal or political reasons, there is no legitimate complaint for the teacher using the procedures provided to secure the reason and have a hearing thereon.

This court has heretofore stated that if the transfer is not for personal or political reasons, reasonable administrative cause is sufficient to sustain a transfer. Tenure Commission v. Anniston City Board of Education, 57 Ala.App. 198, 326 So.2d 760 (1976).

We find the Tenure Commission to have jurisdiction to consider Bramlett’s appeal under Sec. 361(9) for the act of the Board of Education of Randolph County was a transfer under Sec. 355.

However, this court must take notice that the appeal to the Commission by Bramlett from the denial of her requested hearing on transfer by the Board was not timely taken. Her petition to the Tenure Commission states that she was notified of transfer on August 22, 1975. She made written demand for hearing on August 26, 1975, within 15 days of notice of transfer, as required by Sec. 356, Title 52, Code. No hearing was granted by the Board within 15 days after receipt of the request. Bramlett did not file her petition for direct appeal to the Commission until subsequent to November 25, 1975, and prior to December 12, 1975, or three months after request for hearing.

Though Sec. 361(9) fails to specify a time after denial of hearing by the Board for the taking of a direct appeal to the Tenure Commission, construing Sections 356 and 359 in pari materia with 361(9), the failure to declare denial of hearing cannot toll the time for taking the appeal. Section 356 requires the Board to hold a hearing within 15 days after receipt of demand. If the hearing is held, the teacher has the right to appeal within 15 days after decision of the Board to the Tenure Commission. It cannot be reasonably said that the time for direct appeal to the Commission upon failure of the Board to grant a hearing within 15 days of request is open-ended and without limitation. We construe the statute, Sec. 361(9), to intend that appeal must be filed directly with the Commission within 15 days after the 16 days for granting the requested hearing have expired without response; i.e., 30 days after receipt of request for hearing.

The Tenure Commission had no jurisdiction to consider an appeal not filed within the statutory time. Alabama Public Service Commission v. McGill, 260 Ala. 361, 71 So.2d 12 (1954). We affirm its dismissal, though not on the grounds stated in the order. We affirm the denial of mandamus of the Circuit Court of Randolph County. Jurisdiction of a body granted limited statutory judicial powers must affirmatively appear from the record. The reviewing court must ex mero motu take cognizance of a lack of jurisdiction of such inferior body apparent from the record. Craig v. Root, 247 Ala. 479, 25 So.2d 147 (1946).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    Gary Lee ELY v. James T. CASTEEL and wife, Barbara Casteel.
    Civ. 858.
    Court of Civil Appeals of Alabama.
    Jan. 12, 1977.

      John R. Formby, Jr., Formby, Doggett & Harris, Florence, for appellant.
    J. Douglas Evans, Higginbotham, Evans & Howard, Florence, for appellees.
   BRADLEY, Judge.

This action was initiated when Mr. and Mrs. Casteel, maternal grandparents of the minor child Michele Renee Ely, filed a petition in the Colbert County Circuit Court seeking temporary and permanent custody of the child. On that same day they were awarded temporary custody. Gary Lee Ely, the natural father of Michele, responded by filing a motion seeking to have set aside the order awarding temporary custody to the Casteels and attacking the trial court’s jurisdiction to decide the question of custody in the face of a Florida court’s order giving custody of the child to him. After an ore tenus hearing the trial court rendered judgment, finding it did have jurisdiction of the matter, that Mr. Ely was unfit to be the child’s custodian, that Michele’s best, interests and welfare would be served by placing her custody in the Casteels, that Mr. Ely would not be required to contribute to Michele’s support and that he would not be allowed to visit Michele. From this decree, the father appeals.

Michele Renee Ely, the subject of this action, was born to Mr. Ely and Angela Jean Ely, his second wife. The couple was married in Lakeland, Florida, where each had grown up, but moved to Alabama where Angela’s parents, Mr. and Mrs. Cas-teel, who had also moved from Lakeland, were living. Angela and Mr. Ely were divorced by the Circuit Court of Colbert County in May 1973 and Angela was given custody of Michele. After the divorce Angela returned with Michele to Lakeland, Florida; Mr. Ely also moved back to Lake-land. In November 1973 Angela married Donald L. Tomlinson.

Around April 12, 1974 Mr. Ely appeared at the home of Mr. and Mrs. Tomlinson, the parents of Angela’s second husband, and picked up Michele, who was visiting with her stepgrandparents, to exercise his Easter visitation with the child. However, instead of returning Michele to Angela, Mr. Ely removed the child from Florida and took her first to Kokomo, Indiana, where his grandmother lived, and then to Rock Island, Illinois, where he had other relatives. At the time of the abduction, a restraining order and petition for suspension of visitation rights filed by Angela was pending against Mr. Ely.

Mr. Ely kept Michele until September 1975. During that time he did not notify Angela of the child’s whereabouts. Angela and the Casteels made extensive efforts to locate the child, spending approximately $7,000 in the process. Finally, in August 1975, Angela learned that Mr. Ely and Michele were in Rock Island. During the first part of September 1975 Angela, her husband Donald, and a friend went to Illinois and recovered the child.

On the return trip to Lakeland, the family stopped in Florence, Alabama to visit the Casteels and Mr. and Mrs. Tomlinson, who had by this time also moved to Alabama. This was the first time the grandparents had seen Michele since she had been taken by her father sixteen months previously.

One day after Angela, Donald and Michele arrived back in Lakeland, September 14, 1975, Angela was fatally shot when a gun fell from a box being moved into an apartment, struck the floor and fired. Upon learning of the accident, the Casteels immediately drove to Lakeland. Angela died on September 16th. Several hours after Angela’s death, Mrs. Casteel, without knowledge of Mr. Ely’s presence in Florida, left Lakeland with Michele and returned to Florence. Michele has remained in Florence ever since that time.

Also on September 16th Mr. Ely arrived in Florida, unknown to the Casteels, and filed a petition for writ of habeas corpus against Donald Tomlinson seeking custody of Michele. Mr. Tomlinson was served with ■ notice as he left his wife’s funeral. The Florida court on that same day entered an ex parte order granting custody of Michele to her father, Mr. Ely, due to the death of the mother, and directing Mr. Tomlinson to return the child to the jurisdiction. The Casteels refused to allow Michele to return with Mr. Tomlinson to Florida.

On September 22, 1975 the Casteels, with full knowledge of the pending Florida proceedings and the Florida decree, filed the petition initiating the case now before this court.

In brief appellant presents three questions for us to decide:

1. Whether the Circuit Court of Colbert County had jurisdiction to grant custody of the minor child Michele to her maternal grandparents.
2. Whether the Circuit Court of Colbert County should have given full faith and credit to the Florida decree granting custody of Michele to her father.
3. Whether the Circuit Court of Colbert County erred in awarding custody of Michele to her grandparents rather than to her father.

I.

In this state a court of equity has inherent authority to act to protect the welfare and best interests of a child physically present within the court’s jurisdiction. The court’s equity jurisdiction is invoked by any pleading which on its face shows that the welfare of the child requires an order regarding the child’s custody or support. Gray v. Department of Pensions and Security, 53 Ala.App. 19, 296 So.2d 918 (1974); Watkins v. Brannon, 54 Ala.App. 424, 309 So.2d 464, cert. den. 293 Ala. 778, 309 So.2d 468 (1974). It follows, then, that the existence of a valid decree of another state regarding custody of a child does not of itself defeat the jurisdiction of equity courts of this state where jurisdiction otherwise properly exists.

In the case before us, Michele was physically present in Colbert County and thereby within the jurisdiction of the circuit court of that county. Her welfare and custody were brought before the court by a petition alleging that the child was in ill health, was without a legal guardian and that her best interest would be served by placing her in the custody of her maternal grandparents. We therefore conclude that the Colbert County Circuit Court had jurisdiction of this action.

II.

Mr. Ely next contends that the Colbert County Circuit Court was required to give full faith and credit to the Polk County, Florida Circuit Court decree giving custody of Michele to her natural father. Since the Casteels do not attack the validity of the Florida decree, we consider the decree validly rendered and one that must be dealt with.

The Supreme Court of the United States has held that where a forum court is faced with a custody decree rendered by the courts of a sister state, the forum court has as much leeway to disregard, qualify or depart from the foreign judgment as do the courts of the state where the judgment was rendered. People of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). Following that decision we have said that if the courts of the state where a custody decree was rendered have the power to modify that decree, such decree is not conclusive in the courts of this state, and the courts of this state, on proper petition, have the same right to modify the decree as do the courts of the state where rendered. Gray v. Department of Pensions and Security, supra; Lawton v. McGough, 53 Ala.App. 423, 301 So.2d 188, cert. den. 293 Ala. 764, 301 So.2d 191 (1974).

According to Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933), a child custody decree rendered by a Florida court is modifiable except as to facts and circumstances before the court at the time of the decree. Thus the Circuit Court of Colbert County could consider any changed circumstances which occurred between the time custody of Michele was awarded to Mr. Ely in Florida and the time of its final decree giving custody of Michele to the Casteels, and also could consider any new evidence not presented to the Florida court.

The Florida proceeding was ex parte; the Florida court did not see the Casteels or hear evidence presented on their behalf concerning their fitness to have custody of Michele. In Halvey, these facts alone were sufficient to allow the court of the forum to issue a decree contrary to that of a sister state. Therefore the Colbert County Circuit Court had the authority to modify the custody of Michele as decreed by the Florida court.

III.

The last question to be answered is whether the trial court erred by awarding custody of Michele to her maternal grandparents rather than to her natural father. We conclude there was no error.

Where the dispute over custody of a child is between the child’s natural parent and a party who is not the child’s natural parent, the natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interests and welfare of the child are controlling in child custody cases. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).

Ordinarily there is no conflict between these two principles, since it is presumed to be in the child’s best interests to place custody in the parent. Kennedy v. State Department of Pensions and Security, 277 Ala. 5, 166 So.2d 736 (1964); Smith v. Jones, 275 Ala. 148, 153 So.2d 226 (1963). However, when the parent’s fitness for custody is challenged, the principle of the best interests of the child outweighs parental rights. White v. Appleton, 53 Ala.App. 702, 304 So.2d 206 (1974); Borsdorf v. Mills, supra. To remove custody from the natural parent in such a case, there must be clear and convincing evidence that it would be against the best interests of the child to remain with the natural parent. Caine v. Caine, 51 Ala.App. 607, 288 So.2d 147 (1973); Borsdorf v. Mills, supra.

We think the circumstances under which the Casteels assumed custody of Michele were clear and- compelling. At the time Mrs. Casteel took Michele to her home in Florence, Alabama, Michele had no legal guardian since her mother, the legal guardian under a divorce decree, had been accidentally killed.

There is evidence that Mr. Ely loved and properly cared for his child during the sixteen months she lived with him in Rock Island, but during this period the mother, the legal custodian, had no knowledge of the whereabouts of the child. A statement by the police officer who assisted Angela and Donald in obtaining Michele from Mr. Ely indicated that Mr. Ely’s home was very clean and neat and that Michele seemed to be a well-adjusted and happy child. However, the Casteels and the Tomlinsons, Michele’s stepgrandparents, testified that when they saw Michele after she had been recovered from Mr. Ely she had sores on her head and bruises on her legs and buttocks. The sores did disappear after she was bathed. Michele also appeared to be quite frightened, would not speak, and was careful to lock doors behind her wherever she went.

The report prepared by a welfare worker in Rock Island said that the Ely home was clean and neat and that it was apparent Michele was loved and well-cared for. Mr. Tomlinson, on the other hand testified that at the time they picked up the child in October 1975 the outside of appellant’s house was in disorder and had a rundown appearance. The foster mother who took care of Michele after she was removed from Mr. Ely and before she was given to Angela said that Michele was a happy, well-adjusted child.

After Michele was returned to her mother’s custody, Mr. Ely made extensive efforts to obtain legal custody of his daughter. However, it also appears that Mr. Ely neglected his parental duties prior to the time he had physical custody of Michele. Mr. Ely has two children by his first marriage. During a period of three years from 1971 to 1974 both his first wife and Angela instituted various proceedings in the Circuit Court of Polk County, Florida, regarding non-support, requests for suspension of visitation rights, and restraining orders. There is evidence that Mr. Ely never made child support payments for Michele as directed by the decree divorcing him from Angela.

Furthermore, while Michele was in Angela’s legal custody, Mr. Ely took Michele from her contrary to the directives of a court decree and kept the child for sixteen months, during which time Angela had no knowledge of the child’s whereabouts, even though she had used every means available to find her daughter. Mr. Ely relinquished the child only after Angela had used the authorities to enforce her legal claim to the child.

There was evidence that during the past two years Mr. Ely has held several different jobs. He has recently moved back to Florida where he briefly lived with his cousin, an ex-felon on parole. His third wife has begun divorce proceedings against him; however, she testified that she has directed her lawyer to cancel that action.

On the other hand, the Casteels appear to be fit to have custody of Michele. They are in their early forties and are healthy. Both work and the family income is substantial; they own their house. The welfare report stated that the Casteel home is nice, adequately furnished and clean. Michele has her own bedroom, of which she seemed proud. Michele was in good health, laughed, talked and appeared to be well-adjusted. Mrs. Casteel said that if awarded custody of Michele she would stop working and devote her full time to the child.

Where a case is heard ore tenus, it is for the trial court to resolve disputed testimony. The court’s findings and conclusions will not be disturbed unless deemed to be plainly wrong. Sherk v. Sherk, 55 Ala.App. 345, 315 So.2d 437 (1975). Where the trial court has the benefit of seeing and hearing the witnesses and there is legal evidence to support its decree, this court will not substitute its judgment for that of the trial court. Harrell v. Long, 49 Ala.App. 322, 272 So.2d 248 (1973).

In view of the conflict in the evidence as to the fitness of the father to be the child’s custodian, we cannot say that the trial court was plainly and palpably wrong in awarding the custody of Michele to her maternal grandparents. Consequently, the trial court’s decree is affirmed.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P. J., concurs specially.

WRIGHT, Presiding Judge,

concurring specially:

The opinion of the court discusses jurisdiction of the Colbert County Circuit Court and the principle of full faith and credit as if the judgment granting custody of the child to the Casteels resulted from an original exercise of jurisdiction. This ignores its own recitation of the background of the case. The Colbert County Circuit Court had jurisdiction of the matter of. custody because it had divorced the parents and entered the first order of custody in May, 1973. It was the original order of custody of the Colbert court that the Florida court modified ex parte upon the petition for writ of habeas corpus of the father.

The petition of the Casteels merely brought the attention of the court to the welfare of the child, a matter of which it had continuing jurisdiction because of its original action. There is no question of full faith and credit actually involved. There should not even be a question of comity, when it is considered that the Florida decree was entered ex parte at a time when the child was physically in the jurisdiction of the Colbert court.

Simply stated, my position is that I would reach the same destination as the majority, but under the facts find no cause for taking their complicated route for arrival.


author: LEIGH M. CLARK, Supernumerary Circuit Judge. DeCARLO, Judge

text:
    Samuel CAMPBELL v. STATE.
    1 Div. 643.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of murder in the second degree and a sentence of ten years imprisonment in the penitentiary.

The plea was not guilty, to an indictment charging murder in the first degree. Defendant shot the alleged victim, Willie Bonner, with a shotgun. They were across-the-street neighbors. They had just had a fight at a nearby barbecue stand that resulted in Bonner’s shooting defendant in the leg with a pistol. Thereafter each went to his home. Defendant got a shotgun, came out of a door of his house and shot Bonner as he was standing behind a screen door of Bonner’s house. Defendant said that he did so as Bonner was sticking his hand, with the gun in it, out of the door. Whether the killing of Bonner was justified by the principle of self-defense, as explained fully by the trial court, was a jury question, and there is no contention on appeal to the contrary.

Four photographs of Bonner were taken at the Mobile General Hospital, after he had expired there on the table while being operated upon for his gunshot wounds. Detective Leslie Nobles, who took pictures of Bonner at the hospital and who observed Bonner both before and after he died and who said he had previously seen from five to ten people who had been blasted with a shotgun and died, was asked by the State, “And in light of that past experience, do you have an opinion as to the cause of death of this man?” Thereupon the following occurred:

“MR. BARNETT: Judge, I’m going to ' object to that; improper predicate.
“MR. HALE: That’s more than the average juror, Judge, to help them .
“THE COURT: Go ahead. Overruled.
“A From a gunshot wound to the chest-stomach area.

Whether the objection made sufficiently raised the question of the witness’ qualification to give his opinion as to the cause of Bonner’s death need not here be decided, for we think under the circumstances, taking into consideration the photographs themselves, as well as the other evidence as to Bonner’s injury, the court was correct in allowing the witness to testify as he did. Whether a particular witness is qualified to testify as to the cause of death depends greatly upon the circumstances. Whenever a purely medical question is obvious, one is hardly an expert unless he has had experience in the medical field. In this case, however, the testimony of medical personnel was not necessary. In Jones v. State, 155 Ala. 1, 46 So. 579, it was held that nonexpert witnesses could not testify that a bullet in the abdominal cavity of the alleged victim of homicide was the cause of his death. However, in Birmingham & A. Ry. Co. v. Campbell, 203 Ala. 296, 298, 82 So. 546, in holding that a lay witness could testify as to whether her husband had had “any other troubles” between the time of his injury and death and in distinguishing Jones, it was said, “The case of Jones v. State, 155 Ala. 1, 46 South. 579, is not to the contrary. In harmonizing Jones, it has been stated:

“ ‘To authorize a witness to give an opinion as an expert, it must appear that, by study, practice, experience, or observation as to the particular subject, he has acquired a knowledge beyond that of ordinary witnesses.’ ” Clemons v. State, 167 Ala. 20, 52 So. 467, 471.
“In the rather recent case of Hicks v. State, 247 Ala. 439, 25 So.2d 139 cited in our original opinion, the Supreme Court held: ‘The nature of a wound or injury, its probable cause and effect can be stated by expert medical witnesses, or witnesses shown to be familiar with such questions; such as, an undertaker, or other showing competency. Whether a witness is shown to possess the requisite qualifications is a preliminary question said to be largely within the discretion of the court.’ ” Scott v. State, 34 Ala.App. 18, 37 So.2d 670, cert. denied 251 Ala. 440, 37 So.2d 674.

In the case now before us, there was no controversy as to the cause of death. The whole case revolved around the question whether defendant was acting in self-defense. Defendant objected to the photographs of the victim by reason of their allegedly inflammatory nature, that is, the horrible injury the photographs show that he received. Testimony of Officer Nobles as to the cause of death is not to be equated with the testimony of a nonexpert as to a purely medical question. The witness saw Bonner in his wounded condition, while on the operating table, and soon thereafter he observed his corpse in the morgue. As pointed out by Judge Tyson in Cobb v. State, 50 Ala.App. 707, 282 So.2d 327,

“. . . [T]he mere fact that a witness is not a physician does not preclude his testimony as to cause of death. However, the fact that the witness is a coroner, mortician, professor, or toxicologist does not per se qualify him as an expert on causes of death.”

No case in Alabama has been brought to our attention on the question whether an experienced police officer can testify as to the cause of death in a homicide case, and we think that probably testimony by persons other than those mentioned in the quotation from Cobb, supra, or like professionals, should not be encouraged in cases in which there could be reasonable doubt as to the cause of one’s death, even though he had been felled, to rise no more, by the load from a shotgun. Where, as here, there could have been no reasonable doubt, and the witness is shown by the testimony to have had more knowledge on the subject than that of an ordinary witness, we are convinced that no error prejudicial to defendant resulted from the court’s overruling defendant’s objection to the question asked Officer Nobles.

The remaining questions raised by appellant relate to the action of the court in permitting the prosecution to show statements by defendant soon after his arrest, in conflict with his testimony on the trial.

While questioning Detective Nobles on rebuttal, State’s counsel interrogated him rather extensively as to two written statements defendant made after he was arrested, one the day of his arrest and the other three days after. Defendant had been questioned by the prosecution on cross-examination of him as a witness, and he had admitted that the written statements were incorrect in two or three particulars. He explained that the first written statement was made after he was advised by some of his fellow prisoners that he had “better say that [the gun with which defendant shot Bonner] was his [Bonner’s] gun,” but that upon talking with his mother, she had persuaded him to tell the truth, and that he had corrected the errors of the first statements in making the second statement some three days thereafter. During this interrogation, it appears that counsel for prosecution was reading from one or the other of said statements, but neither statement was offered in evidence, and we do not have the benefit of either. In rebuttal, while interrogating Officer Nobles, counsel for the prosecution questioned the witness as to the first statement. The court at first sustained defendant’s objection as shown by the following:

“Q. Now, could you tell us what he told you concerning that second shooting out there'on West Clark Street when Willie Bonner was killed?
“A. You want the first statement he gave me on the 22?
“Q. The one on the 22nd, what he told you that particular . the second shooting, if you can .
“MR. BARNETT: Judge, I’m going to object to that. Improper predicate.
“THE COURT: Sustained.
“Q. Officer Nobles, did he make you a statement?
“A. Yes, he did.
“MR. BARNETT: I’m going to object to that. Improper predicate.
“THE COURT: Sustained.

Immediately thereafter the following occurred.

“MR. HALE: Judge, it’s for impeachment purposes.
“MR. BARNETT: They’ve cross-examined him at length and I think that’s the only thing they’re able to do at this point.
“THE COURT: Go ahead.
“Q. Does the statement differ from what he said here on the stand?
“MR. BARNETT: I object to that .
“THE COURT: Overruled.
“MR. BARNETT: Object on improper predicate, Judge.
“THE COURT: Overruled.
“Q. Did it?
“A. Yes, it did.
“Q. Can you tell the jury how it differed from what he said here on the stand.
“MR. BARNETT: I object to that. The statement speaks for itself.
THE COURT: Overruled. Go ahead.
“MR. BARNETT: Excuse me. I want to also object on having the officer explain what the statement says. The statement speaks for itself.
“THE COURT: You can ask him questions. That’s all you’ve — all you’ve asked him so far, Mr. Hale. I can’t tell you what to do, but you can ask questions.
“Q. Now, did he — is that Samuel Campbell’s signature right there?
“A. Yes, it is.
“Q. And when you took the statement from him did you read the statement to him?
“A. Yes, I did.
“Q. Can he read?
“A. Yes.
“Q. Did he read over the statement?
“A. Yes.
“Q. And did he acknowledge to you that it was true and correct at the time he gave it to you?
“A. At the time he did.
“Q. Okay, did he ever tell you that he wished to add anything to that statement?
“MR. BARNETT: Judge, I’m going to object to it .
“A. At that time .
“MR. BARNETT: Excuse me. I’m going to object; improper predicate.
“THE COURT: I think you all went into this on direct. Overruled.
“A. At the time I asked him the question: ‘Is there anything you want to add or take away from this statement?’ ‘No, that’s all.’ That’s his answer.
“Q. Tell us on that statement right there that he gave to you that he signed and said was correct, on the first statement on December 22, pertaining to that second shooting, what was different from what he said on the stand.
“MR. BARNETT: I object because the statement speaks for itself.
“MR. HALE: Judge, I’ll offer the statement, that portion of the statement into evidence, then, if that’s what Mr. Barnett wants.
“MR. BARNETT: I’ll object to offering any portion of it. If he wants to try to offer all of it, then I think it — anything that’s inculpatory or exculpatory should be both offered. I don’t think you can offer part of a statement.
“MR. HALE: Judge, the purpose is purely for impeachment and . . .
“MR. BARNETT: Judge, he’s gone into all of this on cross-examination of my client. I object to .
“MR. HALE: But I haven’t shown that he’s made it, Judge.
“THE COURT: Overruled.
“MR. BARNETT: I would object to it, Judge, and make this statement. This is not in the nature of rebuttal and would also object on .
“THE COURT: Overruled.
“MR. BARNETT: Not rebutting anything that hasn’t already been testified to.
“THE COURT: Overruled.
“Q. What did he say regarding that second shooting where he shot Willie Bonner?
“MR. BARNETT: Object to that, Judge, on improper predicate.
“THE COURT: Overruled.
“MR. BARNETT: Excuse me, Judge, could I just have a continuing objection to all of this on the grounds of improper predicate?
“THE COURT: Sure. Go ahead.”

Thereafter counsel for the State continued to question Officer Nobles as to this statement on December 22, 1974, and after asking several questions, interrogated him about the statement he made three days after the first statement, including questions shown by the following:

“Q. And did you hear what he said up on the stand concerning the second shooting here at the trial?
“A. Yes.
“Q. Now, did that second statement differ from what he said up on the stand? “A. Yes, it is.
“Q. And does it differ from what he said in the first statement?
“A. Right.
“Q. Tell us concerning that second shooting what he said on the 25th.
“A. ‘By the time I was coming out of my door he was coming out of his door and I shot him and then I ran into the field and my leg gave out on me and the Police surrounded the field and I saw them and said, “I’m coming out.” ’
“Q. Okay, now, during that second statement did he tell you anywhere in that statement about a second shot being fired? By the victim, the dead man? Anywhere during that statement?
“A. No, he didn’t.
“Q. Did he ever tell you anything about what he said about the sister being in there in the statement?
“A. No, he didn’t.
“Q. Did he tell you anything about the sister telling him that, ‘Here he comes now’?
“A. No, he didn’t.
“Q. Did he tell you anything about him then going into the bedroom after the sister told him that and getting his gun? “A. No, he didn’t.
“Q. In that statement did he tell you that the victim had a gun, in that statement, in the second shooting incident? “A. No, he didn’t.”

Appellant says that the State should have shown the voluntariness of the statements before being allowed to impeach defendant as a witness by such statements. Appellee argues that the predicate of voluntariness is not involved, that the statements were used solely for the purpose of impeaching defendant’s credibility as a witness and that it was unnecessary to show that the statements were voluntarily given. Appellee is correct in citing Blackwell v. State, 264 Ala. 553, 88 So.2d 347 (1956); Alberson v. State, 254 Ala. 87, 47 So.2d 182 (1950); Brown v. State, 243 Ala. 529, 10 So.2d 855 (1940), all to that effect. However, the cited cases must be considered in the light of subsequent pronouncements in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Appellant seems to concede that the prosecution is not required to establish the Miranda predicate before attempting to impeach defendant as a witness by showing prior self-contradictory statements, but does not concede that the prosecution should not be first required to show that the self-contradictory statements were voluntarily made.

In Harris it was stated:

“It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards." (Emphasis supplied).

We see no escape from the conclusion that Miranda and Harris, considered together, stand for the proposition that, although the requirements added by Miranda as a predicate to the admission in evidence of confessions, or the like, are not necessary when such confession is used solely for the purpose of impeaching defendant as a witness, the admission thereof in evidence, even for the sole purpose of impeachment, is erroneous unless the predicate of trustworthiness or voluntariness is established.

It is settled in Alabama that admissions directly relating to the facts or circumstances of the alleged crime and connecting the defendant therewith are incul-patory admissions in the nature of a confession and are subject to the same rules as direct confessions, which are prima facie involuntary and inadmissible, but that admissions as to purely collateral matters, which are not confessory of guilt in any respect, are not within the scope of the rule, and the predicate as for a confession need not be laid. McGehee v. State, 171 Ala. 19, 55 So. 159; Monk v. State, 258 Ala. 603, 64 So.2d 588; Tillison v. State, 248 Ala. 199, 27 So.2d 43; Read v. State, 195 Ala. 671, 71 So. 96; Reeves v. State, 260 Ala. 66, 68 So.2d 14; Jordan v. State, 26 Ala.App. 122, 156 So. 642. According to the established rule, we have no doubt that if the statements admitted in evidence had been offered in evidence before defendant took the stand as a witness they would have been inadmissible unless and until their trustworthiness or voluntariness had been shown. They come within the classification of inculpatory admissions in the nature of confessions.

Whether the erroneous admission of inculpatory statements in the nature of a confession constitutes prejudicial error depends at times upon the real issue, the contested issue, in the case. The plea was not guilty, but the contested issue in this case was chiefly whether the homicide was justified by reason of the principle of self-defense. It can be seen that prior self-contradictory statements could have been harmless to defendant on a particular feature of some of the essential elements of self-defense if they had been more favorable to defendant than his testimony, such as his in-custody statements where he claimed that the gun with which he shot the victim was the victim’s gun, which he admitted he made but stated they were not true. On the other hand, the prosecution attempted to show, and was allowed to show, that some parts of one or both of the in-custody statements were more favorable to defendant on the issue of self-defense than was his testimony on the trial. An illustration is to be found in his second in-custody statement in which he omitted to tell the officers that at the time he shot the victim, the victim had a gun, as compared to his testimony that at such time the victim had a gun (a pistol) in his hand, which he stuck out the door, and that the gun was pointed toward him. Furthermore, in his testimony, defendant said that at the time the victim “could have shot the gun.” The prosecution was allowed to show by the impeaching witness that, in the second in-custody statement, defendant made no reference to a shot being fired by the victim. The importance of the contrast between what defendant stated while in custody and his testimony is emphasized by the fact that the witness was asked by the prosecution whether it was different from what defendant said on the stand, and the witness replied, “Yes, it is.” It is to be seen that the witness was allowed to testify, over the objection of defendant, that defendant had made an in-custody statement different from his testimony on the stand, which in-custody statement, the second one, was more favorable to defendant than his testimony on the stand on the issue of self-defense. The erroneous admission of the testimony of parts of his second in-custody statement was substantially harmful to defendant. The injury was probably compounded by the opinions expressed by the witness as to a difference between the testimony of defendant and his previous written statements. The accuracy of such opinions could not have been tested by the jury without knowledge, which it never had, of the full contents of the written statements. The judgment should be reversed and the case remanded for a new trial.

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

REVERSED AND REMANDED.

TYSON, HARRIS and BOOKOUT, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

I am of the opinion that Harris v. New York, supra, does not compel the result approved by the majority in this case.

Harris v. New York, deals with prior inconsistent statements made by accused to police and used only for the purpose of impeaching his credibility. The Supreme Court held that even though the statements were inadmissible to establish the State’s case in chief under Miranda, supra, they were available for impeachment purposes.

The Supreme Court observed:

“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, 'it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.” (Emphasis added).

The Court went on to say:

“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”

Miranda, dealt with the use of a confession for the purpose of providing probative facts required to establish the necessary elements of a crime with which defendant was charged. It is grounded upon the proposition in the Fifth Amendment that no man shall be compelled to give incriminating evidence against himself.

Incriminating evidence is that which tends to show that the defendant did certain acts from which a trier of fact could conclude that accused committed the offense charged. The purpose of the rule of •exclusion is to prevent introduction of statements made by a defendant which tend to establish his guilt. Introduction of statements made by a defendant by way of impeachment to test the credibility of his testimony does not serve that purpose.

Assuming the statements were inadmissible as direct evidence of guilt, they could be used for impeachment purposes after appellant took the stand.

As I view the contention, it is simply the lack of a predicate showing the statements were voluntary and uncoerced. No assertion is made that the statements were in fact coerced or involuntarily made, or is there the intimation that such was the case.

This precise issue was before the Kansas Court in 1973, in the case of State v. Osbey, 213 Kan. 564, 517 P.2d 141. There the court reasoned:

. . (T)hat an accused who offers himself as a witness in his own behalf may be impeached by proof of inconsistent statements contained in a confession not properly qualified for admission on the prosecution’s ease in chief for want of a hearing determining that it was voluntarily made.”

In 1974, our own court spoke to this issue in Bates v. State, 52 Ala.App. 257, 291 So.2d 351. There this court held:

“. . . (T)hat a defendant who becomes a witness for himself, submits himself to cross-examination as any other witness; and that he may be cross-examined on statements in conflict with his testimony without a showing that such statements were voluntary and were, therefore, inadmissible as a confession.”

In view of the foregoing, I do not believe that Harris v. New York, encompasses the extension given to it in this majority opinion.

I respectfully dissent.


author: BEATTY, Justice.

text:
    In re Samuel CAMPBELL v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1895.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 4, 1977.

      William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State of Ala.
    David L. Barnett, Mobile, for respondent.
   BEATTY, Justice.

We provisionally granted the State’s petition for a writ of certiorari to consider that aspect of the opinion of the Court of Criminal Appeals dealing with the requirement of voluntariness of an inculpatory statement used to impeach. That opinion prohibits the introduction into evidence of such a statement made by an accused during an in-custody interrogation “unless the predicate of trustworthiness or voluntariness is established.”

Our review of the decisions of the highest court in the land convinces us that the Court of Criminal Appeals is correct, and that the record of the trial in which such a statement is used must affirmatively show that it was made voluntarily, that is, without coercion or other inducement.

The broad exclusion of in-custody statements of an accused made without the Miranda warnings (Miranda v. Arizona, 384 U.S. 436, at 476, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) was narrowed in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), characterizing as dicta the expressions of the Miranda court which would have precluded the use of such statements for impeachment purposes. We are in accord with this position since the Miranda confessions appear to have been introduced as part of the prosecution’s cases in chief only. After noting that the petitioner made no claim that the statements were involuntary or coerced, Harris continued at page 224, 91 S.Ct. at page 645:

. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. (Emphasis added.)

That Harris did not authorize impeachment by such a statement without a foundation of voluntariness is established by a later United States Supreme Court decision, Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). In Hass, the Miranda warning was fully given after which the accused expressed a desire to telephone his lawyer and was told he could do so later. Following his testimony at his trial, certain inculpatory statements made by the accused were introduced by a police officer who questioned the accused after his request to consult his lawyer. These statements contradicted portions of the accused’s testimony and were admitted only for the bearing they would have on the accused’s credibility. The United States Supreme Court, expressly applying the rule and restriction of Harris, sanctioned the use of such statements as impeachment evidence adding at page 1221 of 95 S.Ct.:

We are, after all, always engaged in a search for truth in a criminal case so long as the search is surrounded with the safeguards provided by our Constitution. There is no evidence or suggestion that Hass' statements to Officer Osterholme . , . were involuntary or coerced. . . . (Emphasis added.)

It is a fair inference from this language that evidence of coercion would have precluded the use of such statements. We agree with that court that to make such statements totally inadmissible would “pervert the constitutional right into a right to falsify free from the embarrassment of impeachment evidence from the defendant’s own mouth.” Ibid. We also conclude from the mandate of that court that such statements are admissible for an impeachment purpose only upon a predicate establishing that they are free from coercive or involuntary influences. The circumstances accompanying the making of the inculpatory statement will determine the extent to which this foundation must be established, e.g., a “threshold” confession may, indeed, require evidence of a different voluntary setting than an in-custody statement. Cf. Tillison v. State, 248 Ala. 199, 27 So.2d 43 (1946).

Miranda, Harris and Hass appear to have concerned statements which would have been admissible as part of the prosecution’s case in chief, that is, not only direct confessions of guilt but inculpatory admissions in the nature of confessions which tend to connect the accused directly with the crime charged. It is also to such statements that the opinion of the Court of Criminal Appeals was directed and to which we have addressed ourselves in this opinion.

To the extent that they are inconsistent with these views, the cases of Brown v. State, 243 Ala. 529, 10 So.2d 855, and Bates v. State, 52 Ala.App. 257, 291 So.2d 351, must be considered overruled on the authority of the United States Supreme Court.

AFFIRMED.

All the Justices concur.


author: DeCARLO, Judge.

text:
    Lorenzo BODY v. STATE.
    6 Div. 29.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearing Denied Nov. 16, 1976.

      Robert C. Boyce, III, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Assault with intent to murder; fifteen years.

This is an indigent appeal from a conviction charging the appellant with assault with intent to murder Charles Holland.

The charges grew out of a shooting, which occurred at the Chicken Shack, a local night spot in Bessemer, Alabama. At the time of the shooting, the Chicken Shack was owned and operated by Enoch Oliver and his wife, Brenda.

Oliver testified that he knew Lorenzo Body and Charles Holland and that they were both in the Chicken Shack on September 6, 1974, about 6:00 P.M. Holland’s brothers, Roosevelt and Lewis Duncan were there and sometime later Oliver observed an argument involving Elmore Rutledge and Lewis Duncan. Earlier on the night in question Oliver saw a gun in Elmore Rutledge’s pocket, and at the time of the argument, saw Body playing pool. Sometime after Oliver broke up an argument between Duncan and Rutledge, he saw Body jerk the gun from Rutledge’s pocket and heard him say: “kill the Duncans and don’t argue with them.” According to Oliver, Body then moved back toward the pool table and Holland went to the front door. Body, at that point, shot Holland in the back and then shot Roosevelt Duncan when he “jumped up.” Body then snapped the gun at Oliver before he backed out the door. Two shots were fired before Body left the Chicken Shack and some other shots were fired after he went outside. Oliver maintained the only gun he saw was the one in Body’s hand, and that the shooting occurred about 11:00 P.M.

Oliver explained there was only one door in use at the Chicken Shack because the back door had been nailed shut. Further, he said that all the lights were on with the exception of one.

Charles Holland, the victim of the alleged assault, stated he went to the Chicken Shack after work about 5:00 or 5:30 P.M. Immediately after he arrived at the Chicken Shack, his uncle came to the door. Holland’s uncle was intoxicated at the time and on stumbling, a gun fell from his pocket. Holland took possession of the gun and then left the Chicken Shack. According to Holland, the gun was a .38 caliber pistol which was loaded with three or four shells.

Holland testified that about 8:30 P.M. he returned and gave the gun to Elmore Rutledge. He then went toward the front of the building and sat at one of the tables. According to Holland, he consumed three or four beers while at the Chicken Shack. After he had been sitting at a front table a short time he started toward the door and was shot in the back. Holland maintained he said nothing to Body on that evening and that he did not have a pistol.

During cross-examination, Holland explained he got up from the table and took about one step before he was shot. He did not know who shot him.

Elmore Rutledge testified that after he arrived at the Chicken Shack about 8:45 P.M., Charles Holland gave him a gun which he placed in his pocket with the handle protruding. Shortly afterwards, Rutledge had what he termed, a conversation with Lewis Duncan. He maintained it was not an argument, but admitted Oliver, the owner of the Chicken Shack, spoke to them. According to Rutledge, Body then came over, jerked the gun from his pocket and shot Charles Holland. Rutledge did not recall hearing Body say anything at the time but explained that after the second shot, he ran out the door.

During cross-examination, Rutledge stated Holland was not sitting down at the time of the shooting because he had just returned from the dance floor. Rutledge admitted drinking beer that night and recalled that Holland had given him a pistol. Rutledge said that after he had gone outside and got into his car, he saw Body fire the pistol into the ground two times.

G. N. Franklin testified that he was employed by the Bessemer Police Department as a detective and on September 7, 1974, about 1:00 A.M., he was notified of the shooting at the Chicken Shack. Franklin went straight to the hospital where he learned one of the Duncans who had been shot, was dead. After leaving the hospital he talked with Enoch and Brenda Oliver and received written statements from them. Later in the day, about 3:00 P.M., he took two more statements, one from Joyce Davis and another from Elmore Rutledge. Approximately 9:00 P.M., he received a phone call from Lorenzo Body, who told Franklin that he wanted to surrender. On Franklin’s arrival at Body’s mother’s house, Body turned over to him the pistol that he had used during the shooting. Franklin said that they then left the house and went to the police headquarters where he informed Body of his rights. After Body said he understood the rights that were explained to him, he gave a statement that was later reduced to writing and signed by him.

During the trial, a hearing was held out of the presence of the jury to determine the voluntariness of the statement. At the completion of this hearing, counsel for appellant objected to the statement on the grounds that it was inflammatory because it dealt with the instance involving the shooting of Roosevelt Duncan. Counsel argued that it was not relevant to the case charging Body with the shooting of Charles Holland. Over appellant’s objections, the statement was read to the jury, and was later admitted into evidence.

In the statement Body said:

. . I was at the Chicken Shack [on September 6, 1974] ... I went there around 8 o’clock and drank some beer, and shot some pool. Around 11:30 to 12 o’clock my cousin ‘Crip’ [Elmore Rutledge] got into an argument with Roosevelt Duncan about his girl friend. Lewis Duncan then took up the argument, and pulled his gun out, and started waiving it around. Crip got his gun out too. They both cooled off, and put their guns away. A few minutes later I saw Crip pointing his finger in Roosevelt’s face, and I saw Lewis get up, so I ran over and pulled the gun out of Crips [sic] pocket, and began backing up. All 3 of the Duncans began coming toward me, so I began shooting. I shot Roosevelt [Duncan] first, and then Charles [Holland]. I snapped the gun at Lewis, and then I went out the door.” [Bracketed material added].

At the completion of Officer Franklin’s testimony the State rested and the counsel for the defendant made a motion to exclude the State’s evidence. He argued that the State failed to make a prima facie case of assault with intent to murder and there was no evidence connecting Body with the shooting of Holland.

The motion was overruled and the defense called Walter Davis as its first witness. He identified State’s exhibit number one, which was the .38 caliber nickel-plated revolver that Officer Franklin took from Body. Davis stated he was not related to Holland but was acquainted with him. He recalled it was at his house while he and Holland were standing at the door that Holland snatched the gun from his belt. Davis denied giving Holland permission to take the gun and said he was not intoxicated at the time.

On cross-examination, he stated that he lived about a block from the Chicken Shack and admitted drinking heavily on the day of the incident.

Lorenzo Body took the stand in his own behalf and testified that on September 6, 1974, he was in the Chicken Shack and was playing pool when he observed an argument between Rutledge and Lewis Duncan. According to Body they were standing near the ice cream box and “waving a gun,” when Oliver, the owner of the Chicken Shack, went over, the argument stopped, but later the same night he saw Rutledge and Roosevelt Duncan arguing. Body said he then walked over to the table and told Rutledge not to argue and Roosevelt Duncan started arguing with him. He stated that when Roosevelt Duncan began to get up, he pulled the pistol from Rutledge’s pocket and started to back away. Body maintained that at that point Holland and Lewis Duncan came towards him and recalled that earlier that night he saw them with pistols.

During cross-examination, Body stated Holland was facing him at the time of the shooting and that he did not see anything in Holland’s hands. Body explained Holland had one of his hands behind his back and the other was extended toward him. He admitted snapping the pistol at Lewis Duncan after he shot Roosevelt Duncan and Holland.

Further, Body said he did not consider himself intoxicated at the time and denied making any statements concerning shooting or killing the Duncans.

Robert Lee Armstrong, Jr., the last witness called by the defense, testified that on Friday, September 6, 1974, he was in the Chicken Shack at the time of the shooting. He saw Rutledge with a pistol and Lewis Duncan with a .25 automatic. Further, he did not hear Holland say anything to Body that evening. On cross-examination, Armstrong stated Holland was going out the door when Body shot him while his back was to Body.

I

The appellant contends the trial court erred when it allowed the alleged victim to exhibit a scar on his back to the jury. Counsel argues that in the absence of medical testimony or some additional evidence, the testimony was prejudicial and his motion to exclude should have been granted.

The appellant recognizes that it has long been the law in Alabama, that in a prosecution for assault with intent to murder, evidence of the victim’s wounds and their severity is admissible. See: Patterson v. State, 34 Ala.App. 359, 39 So.2d 709; and Haney v. State, 20 Ala.App. 236, 101 So. 533.

We note that during the presentation of the testimony in issue that the appellant at no time made an objection. He now relies on his motion to exclude to preserve that point for error. In our judgment, the alleged error could only have been preserved by a timely objection.

In view of the foregoing, this court does not believe error was committed by permitting this testimony even if there had been a timely objection.

II

During cross-examination of Detective Franklin, counsel for appellant made the following inquiry concerning appellant’s demeanor while being questioned by the police:

“Q Did he try to be evasive about what happened?
“A No, sir.
“MR. COOK: I object to that.
“THE COURT: Sustained.
“MR. BOYCE: I think it’s a collective fact mood or state of mind like happiness or sadness, a witness has got to be able to draw certain conclusions about a person’s conduct, and I think the question of what he’s capable of objective fact on a part of a witness.
“THE COURT: Sustained.
“MR. BOYCE: Except.”

As can be seen from the above quoted portion of the record the witness had already given a negative response before the State objected. Counsel for appellant maintains that the sustaining of the objection by the court had the same effect upon the jury as an instruction to disregard the witness’ answer. He insists that the trial court’s failure to overrule the State’s objection is a ground for reversal. Counsel argues that this was a shorthand rendition of fact, or a collection of facts which the witness had an opportunity to observe so as to form an opinion or conclusion.

In our opinion the question sought to elicit from the witness an uncommunicated intent of another, and for that reason the objection was properly sustained: Wallace v. State, 290 Ala. 201, 275 So.2d 634.

Ill

It is appellant’s contention that the trial court committed error when during its oral charge it referred to a written statement as a confession and did not define its elements.

We have examined the record and find in that portion of the oral charge, that has been questioned, the court stated:

“Introduced in this trial has been a confession, or a purported confession. . And it is up to the Court to determine the voluntariness of the confession before that confession can be introduced into evidence. And it has been introduced. Now, it’s up to you to weigh that confession along with the other evidence in the case. In order for it to have any weight or substance to it, you have to give it to it.
“In order for a confession to be taken and considered by you it must be voluntarily given, and the jury can take into account in weighing the alleged confession; that is, in determining the truthfulness of it, what weight they will give it and whether or not it was voluntarily given by the defendant.”

We have examined the judge’s instructions in the light of his entire oral charge and have found this was not an attempt on the court’s part to inject its judgment for that of the jury. It is clear that this was a term of reference rather than a designation and was not injurious to this appellant.

IV

After a careful consideration of all the evidence, it is our opinion that the proof was sufficient to warrant the jury’s finding the appellant guilty of assault with intent to murder. Thompson v. State, 37 Ala.App. 446, 70 So.2d 282.

No error appears in the record.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Lorenzo BODY.
    SC 2254.
    Supreme Court of Alabama.
    Feb. 4, 1977.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ„ concur.


author: BOWEN W. SIMMONS, Retired Circuit Judge. BOOKOUT, Judge,

text:
    Albert N. EVANS v. STATE.
    3 Div. 537.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
    Rehearing Denied Jan. 4, 1977.
    Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant was convicted of embezzlement, a felony, and sentenced by the court to four years imprisonment.

He was, without dispute, employed at the time as plant comptroller of C & M Chassis Products, Inc., a corporation. He had limited authority to write checks on the company’s bank account to withdraw funds therefrom in payment of company obligations.

The indictment alleges, inter alia, that defendant “did embezzle or fraudulently convert to his own use * * * bank notes, money, checks, bills, or exchange of or about the amount of $3,820.00 and that value, which * * * had come into his possession by virtue of his office, agency or employment.”

It also appears from the evidence, without dispute, that defendant signed a check, payable to himself, in the sum of $3,820.00, drawn on the bank account of his employer, and used the proceeds for his own personal convenience not related to any company obligation or operation.

Defendant filed a plea of former jeopardy. The substance of this plea was that defendant on a prior occasion, namely, March 8, 1976, was tried and convicted in the circuit court of Montgomery County, on a charge of embezzlement which was the same offense embraced in the instant indictment and was the identical offense and based upon the same matters and transactions as presently charged.

When defendant rested on his plea the court directed the jury to find for the State. Responding thereto, the jury returned a verdict for the State.

It appears from the evidence adduced by the defendant at the trial of his special plea of former jeopardy (no evidence was adduced by the State) that defendant was put on trial on or about March 8, 1976, in Case “No. 14-76”; that the witness (the Deputy District Attorney) had marked five checks as State exhibits, other than one for $5,720.00, and that he talked about these checks to the jury; that defendant was the same person “in all of these cases.” Further, they were all written and cashed by the same person, A. N. Evans.

The record of this evidence on the plea fails to show the nature of the prosecution, what the issues were, and what disposition was made of the case that was tried — whether a conviction, an acquittal, or a mistrial. This particular evidence does not prove the plea. We will not go beyond the evidence on this plea in search of evidence that would support the plea.

This Court does not take judicial knowledge of records in the circuit court. Each court takes judicial knowledge of its own records. Statham v. Statham, 282 Ala. 322, 211 So.2d 456(6). Statements of counsel to the court are not evidence. Blackshear v. State, 33 Ala.App. 576, 36 So.2d 244, cert. denied, 251 Ala. 11, 36 So.2d 250.

We are unwilling to hold, in the light of the record, that the trial court erred in directing the jury to return a verdict for the State.

The evidence on the trial of the indictment, supra, shows that defendant issued at intervals checks payable to himself in large sums, cashed them, and used the money for options on stocks that went down in value, payment of expenses in connection with drunken driving in Ohio with which he was charged, and some for other personal matters; that such had no connection with the plant operation. He contended that he was “borrowing” the money and that he was authorized to make these loans to himself. The checks were removed from the company check-book and no stubs made of such use. This embezzlement follows the usual pattern of “borrowing” with losses that were not repaid. The evidence was ample to support the verdict of the jury. Further delineation is not necessary.

The judgment is affirmed.

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

AFFIRMED.

All the Judges concur.

BOOKOUT, J., concurring specially.

BOOKOUT, Judge,

concurring specially:

I concur, however, it bothers me that the same jury that hears the plea of former jeopardy then determines guilt or innocence on the merits of the case. In such a procedure, the jury will usually be permitted to hear evidence of other offenses claimed to be covered in the indictment being tried. Due Process would seem to require separate juries to pass on the issues. However, in the absence of objection, the trial court committed no error in proceeding and our affirmance is thus required.


author: ALMON, Justice.

text:
    Ex parte Albert N. EVANS.
    SC 2310.
    Supreme Court of Alabama.
    Feb. 4, 1977.
   ALMON, Justice.

WRIT DENIED.

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


text:
    Willie C. DAVIS v. STATE.
    3 Div. 603.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.
    Von G. Memory, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for the robbery of one William J. Holland. Appellant was convicted as charged, and his punishment fixed at thirty years imprisonment. The trial judge entered judgment in accordance with the jury’s verdict. The appellant, who is indigent, is represented here by appointed and competent counsel.

The State’s evidence established that around 10:45 p. m., on January 17, 1975, the appellant entered the Pak-A-Sak store located on High Street in Montgomery County. Present at that time were William J. Holland, the sales clerk, and Jean Thaxton, a regular customer of the store, and both were positioned near the check-out counter when the appellant entered. The appellant walked up to the counter and pulled a gun from a sack which he was carrying, and instructed Mr. Holland and Miss Thaxton, “Don’t move.” The appellant demanded that Mr. Holland give him all the money in the cash register, which amounted to “a little over seventy dollars.”

After the appellant had left the Pak-A-Sak store, Mr. Holland called the police who apprehended the appellant about an hour later. At a police line-up conducted shortly after the appellant’s arrest and during the appellant’s trial, both Mr. Holland and Miss Thaxton positively identified the appellant as the perpetrator of the crime.

I

Upon completion of the State’s case, the appellant, apparently to the surprise of the Assistant District Attorney, presented no defense. The Assistant District Attorney, realizing that he had failed to introduce into evidence the weapon allegedly used, and the money allegedly taken during the robbery, requested the trial court to re-open the State’s case so that he could do so. The appellant objected to the State’s motion, and argument on this matter was heard from both sides by the trial court outside the presence and hearing of the jury.

Within its discretion, Scott v. State, 246 Ala. 545, 21 So.2d 703; Turner Lee Rodgers v. State, Ala.Cr.App., 332 So.2d 739, cert. denied Ala., 332 So.2d 746, the trial court ruled that the State could attempt to introduce a .22 caliber pistol allegedly used by the appellant during the robbery, but prohibited any attempt to introduce the money allegedly taken since it “could not be identified under the representations made to the court.” See Dennison v. State, 259 Ala. 424, 66 So.2d 552; Lackey v. State, 54 Ala.App. 693, 312 So.2d 96; Dawson v. State, 43 Ala.App. 254,188 So.2d 283, cert. denied 279 Ala. 686, 188 So.2d 285; 22A C.J.S. Criminal Law § 709.

However, during the appellant’s closing argument the following occurred (R. pp. 64-65):

“MR. MEMORY: The State has rambled and scrambled and done everything in their power — let me give you a little example of this. Remember the young man, Bill, who testified about the money in possession of the police? Have you seen that money here today?
“Asst. D. A.: Now, if you want to argue that, I will sure give you the money, if you would like to see it.
“(District Attorney throws a brown paper sack and contents along the top of counsel table).
“MR. MEMORY: Your Honor, I would object and move for a mistrial on the action of the State and that prejudicial information that that would unquestionably create.
“THE COURT: Denied.
“Asst. D. A.: Your Honor, I attempted to take this up outside the presence of the jury and now he wants to argue the absence of the money.
“MR. MEMORY: And would cite counsel for misconduct in this case.
“THE COURT: Motion denied. You may proceed.
“(Whereupon, argument to the jury was concluded by Defense Counsel. During closing summation by State Counsel the following occurred):
“Asst. D. A.: Now, ladies and gentlemen, I will admit to you that probably the weakest part of this robbery case you have seen is the State’s Representative. And I admit to you now, he wanted to talk about the money. It is my fault it is not in there in the jury room with you, and the other evidence. But, ladies and gentlemen, it is not absolutely essential. I wish I had done it. I am sorry I have not.
“MR. MEMORY: Your Honor, I am going to object to this. If you are going to sustain his objection, I can’t imagine you considering a double standard here. And I would move to exclude his statements about this evidence that is obviously not in and not been proved.
“Asst. D. A.: Your Honor, the overruling of the motion did not erase the question from the mind of the jury.
“MR. MEMORY: Your Honor, I would cite him for misconduct on that statement before the jury.
“Asst. D. A.: The Judge will cite me if there is any misconduct.
“THE COURT: Let us have the closing arguments confined to the evidence and reasonable interpretations that may be drawn from it.”

A district attorney, as an officer of the court, has a “duty to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, and it is as much his duty to refrain from improper methods calculated to bring about a wrongful conviction as it is to use every legitimate means to bring about a just one.” 63 Am.Jur.2d, Prosecuting Attorneys, Section 27 (1972).

In Simon v. State, 181 Ala. 90, 61 So. 801, our Supreme Court, through Mr. Justice DeGraffenried, observed:

“. . . The law — human and divine— is, however, the salt that has saved humanity from barbarism; and courts and officers of courts in their efforts to enforce the law, even in extreme cases, should, if possible, so guard their utterances [and actions] that they may be sure that they themselves do not impinge the law which they are seeking to enforce.”

A defendant’s absolute and fundamental right to a fair trial is in no degree diminished by the strength or compelling nature of the evidence against him. The Assistant District Attorney’s emotional outburst by throwing the money bag and money before the jury was totally in violation of the rules of evidence and in face of the ruling of the trial court on this very matter. Such conduct is a matter that should not and will not be condoned by the appellate courts of this State. The prejudice generated by the Assistant District Attorney’s actions was of an ineradicable nature, and necessitates a reversal of this case. Watts v. Espy, 211 Ala. 502, 101 So. 106; Stain v. State, 273 Ala. 262, 138 So.2d 703; Renfroe v. State, 49 Ala.App. 713, 275 So.2d 692; James v. State, Ala.App., 337 So.2d 1332.

For the error noted, the judgment is reversed and the cause remanded.

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

REVERSED AND REMANDED.

TYSON, P. J., and CATES, HARRIS and DeCARLO, JJ., concur.

BOOKOUT, J., concurs in result.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2317.
    Supreme Court of Alabama.
    Feb. 4, 1977.
   JONES, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Don G. RALEY v. CITY OF ANDALUSIA.
    4 Div. 482
    Court of Criminal Appeals of Alabama.
    Dec. 14, 1976.

      Jerry E. Stokes, Andalusia, for appellant.
    Earl V. Johnson, Andalusia, for City of Andalusia.
   TYSON, Presiding Judge.

The City of Andalusia’s complaint charged the appellant with the unlawful possession of “Marijuana, a controlled substance as enumerated in Chapter 9E of Title 22, Code of Alabama 1940, recompiled 1958, as last amended,” contrary to and in violation of the ordinances of the said city.

Following a jury trial, the appellant was found guilty of possession for personal use, and a fine of $100.00 assessed. In addition, the trial court imposed six months’ imprisonment in the City Jail.

Officers George Gantt and Roy Sylvester testified that they were employed as enforcement agents of the State of Alabama ABC Board, and had been assigned to work in Covington County. Each testified that at about 6:30 on the evening of November 6,1975, they began to follow a 1966 Chevrolet Chevelle traveling south toward the Johnson Park baseball field in the City of Andalusia. As the officers pulled close behind the vehicle, they noticed that the tag was wired to the vehicle, and upon suspicion directed the vehicle to pull over to the curb. Each officer testified that they were checking to see if this was a stolen car. Each officer stated that the appellant was seated on the rear seat alone, “a little more toward the driver’s side in the middle of the seat.”

Also, accompanying Officers Gantt and Sylvester was Troy Woodall, their ABC Board supervisor. They stated that Officer Woodall went to the driver’s side and asked for the driver’s identification, that Officer Gantt walked to the passenger’s side, and as he did so, he saw a clear plastic bag, called a sandwich bag, lying on the pavement about “four to six inches from the car, right down beside it.” Officer Gantt stated that it had been raining, but had stopped, and that the plastic bag was dry when he picked it up. The three officers then directed the occupants of the vehicle to get out, and they searched the vehicle after detecting a strong odor of Marihuana. Supervisor Woodall found four or five Marihuana roaches or butts in the front ash tray. None were found in the rear of the vehicle, nor was any Marihuana found on the back seat where the appellant had been seated.

Each of the officers stated that the front windows of the two-door coupe were down when they approached the car, but they saw no movement of anyone’s hands as they approached the vehicle. Each officer stated that they were familiar with the smell of Marihuana, and they detected this odor about the vehicle. The officers also stated that they took the packet of Marihuana to Richard Dale Carter of the State Department of Toxicology for examination.

Mr. Richard Dale Carter stated that he examined the packet that he received from the officers and made a microscopic examination of the vegetable matter and then ran a chemical test known as the “Duqunois-Le-vine test.” He stated the results of these tests were positive for the substance to be Marihuana, that he found the active ingredient tetrahydrocannabinols present.

At the conclusion of the City’s evidence, the appellant made both a motion to exclude and a motion for directed verdict, which were overruled.

Don G. Raley testified that he was visiting his parents in Andalusia on Dunson Street, that he had been working in Atlanta on a construction job for about a year before his visit home. He stated that the Parks brothers, Charles and John David, had come by and picked him up late that afternoon and asked him to ride with them over to the baseball park at Johnson Field. He stated that the Parks brothers told him they had bought the automobile in Montgomery, that it had a Montgomery County tag, but that he had not been in the vehicle prior to that evening. He stated that he did not have any Marihuana or any other prohibited substance, that he did not use it, but that he did detect a strange odor in the vehicle as they were riding over to the ball park. He stated that the two brothers asked him to go to Florala with them, and that he told them, “No,” that he wanted to go see Dean Lawson, a friend who lived across the street from the ball park, and since he, himself, had no automobile, they offered to give him a ride there. He stated the officers pulled the vehicle over, and that he got out of the vehicle on the driver’s side. He stated that no Marihuana was smoked in his presence that evening, that he had none, and that he did not smoke it.

I

The sole issue presented for our review is whether or not there was here established sufficient evidence on the part of the City to sustain the conviction.

We have carefully examined the testimony as set forth in the record and find that the City of Andalusia totally failed to establish any dominion or control of the prohibited substance which could be attributed to the appellant, himself. Clearly there was no actual manucaption, so the City’s entire case is based upon “constructive possession.” Here, the appellant did not own the vehicle in question and was a mere passenger. There is a total failure of proof that the appellant knew of the presence of the prohibited substance in the vehicle.

Under Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Parks v. State, 46 Ala.App. 722, 248 So.2d 761; DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406, cert. denied Ala., 323 So.2d 411, this case is due to be reversed and remanded.

In Radke v. State, 52 Ala.App. 397, 293 So.2d 312, affirmed 292 Ala. 290, 293 So.2d 314, this Court set out three attributes of possession: (1) actual or potential physical control, (2) intention to exercise dominion, and (3) external manifestations of intent and control. See Garsed v. State, 51 Ala. App. 622, 288 So.2d 161; 28 C.J.S. Supp. Drugs and Narcotics, §§ 157-159.

Under the authorities cited, this case is

REVERSED AND REMANDED.

All the Judges concur.