author: HEFLIN, Chief Justice.

text:
    EAGLE MOTOR LINES, INC., et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    SC 1712.
    Supreme Court of Alabama.
    Jan. 7, 1977.

      Robert S. Richard and William K. Martin, Montgomery, for appellants.
    John P. Carlton and Ronald L. Stichweh, Birmingham, for appellees.
   HEFLIN, Chief Justice.

Pursuant to the provisions of section 301(15) of Title 48 of the Alabama Code of 1940 (Recompiled 1958), Victory Freight Lines, Inc. and Vulcan Freight Lines, Inc. filed a joint application with the Alabama Public Service Commission to transfer a portion of Victory’s authority under Motor Carrier’s Certificate of Public Convenience and Necessity No. 718 to Vulcan.

A search of the record in this case does not disclose the exact contents of Certificate No. 718 immediately preceding the application for transfer, although the record does contain a copy of Certificate No. 718 as issued on April 19, 1945, when Victory first acquired the portion of the certificate which it now wishes to transfer. At that time, Certificate No. 718 contained the following pertinent provisions:

“IT IS ORDERED BY THE COMMISSION : That Certificate of Public Convenience and Necessity No. 718, now standing in the name of * * * Victory Freight Line * * * is hereby amended to include, in addition to the authority therein contained, the right to operate as a common carrier by motor vehicle in the transportation of general commodities over a regular route:
(1) Between Birmingham, Alabama and Tuscaloosa, Alabama * * *.
(2) Between all points and places in Alabama over irregular routes of (a) machinery, materials, supplies and equipment, incidental to, or used in, the construction, development, operation, and maintenance of facilities for the discovery, development and production of natural gas and petroleum, (b) Machinery, material, supplies and equipment used in the construction, operation and maintenance of petroleum refineries, (c) Heavy machinery, heavy and cumbersome commodities, which, because of size and weight, require the use of special equipment, and parts thereof, (d) Machinery, materials, supplies and equipment, used in the construction, operation and maintenance of natural gas, water and petroleum pipe lines, including but not restricted to, the stringing of pipe along rights of way. (e) Contractors equipment and supplies, heavy machinery parts, accessories and supplies, including heavy materials, and machinery.” [Emphasis added.]

Victory and Vulcan requested that the Public Service Commission transfer to Vulcan the following authority from Certificate No. 718:

“Heavy machinery, heavy and cumbersome commodities, which because of size and weight require the use of special equipment, and parts thereof: Between all points and ‘places in Alabama over irregular routes.’ ”

A hearing was held before an Alabama Public Service Commission Attorney-Examiner to consider the requested transfer, and the following carriers entered appearances in protest: Eagle Motor Lines, Inc.; Dea-ton, Inc.; Ross Neely Express, Inc.; Alabama Freight, Inc.; and Gadsden Truck Line, Inc. After the hearing, the Attorney-Examiner issued a report and proposed order, recommending that the proposed transfer be granted subject to the acceptance by Victory of a restriction concerning “appropriate” portions of Certificate No. 718 which Victory was to retain. In effect this restriction prevented Victory from carrying listed commodities which because of size and weight required the use of special equipment. The Attorney-Examiner indicated that the purpose for recommending this restriction was to prevent an inordinate amount of overlap between the authority transferred to Vulcan and the authority retained by Victory.

The Alabama Public Service Commission by order, dated July 8, 1975, adopted the Attorney-Examiner’s report and recommended order and granted the requested transfer of that portion of Victory’s certificate quoted above. This authority was issued to Vulcan as Motor Carrier Certificate No. 2915.

The Commission on January 16, 1976, reissued the balance of Certificate No. 718 to Victory. In its order, the Commission noted that Certificate No. 718 had been reissued to Victory in numbered paragraphs and it utilized that format in this latest reissuement and incorporated a “special equipment” restriction in six of the paragraphs. The certificate as reissued to Victory provided in pertinent part:

“IT IS, THEREFORE, ORDERED BY THE COMMISSION, That Motor Carrier Certificate of Public Convenience and Necessity No. 718 is hereby re-issued on the records the Commission to Victory Freight Lines, Inc., authorizing operations as a common carrier by motor vehicle, in the transportation of:
1. COMMODITIES GENERALLY:
Between Birmingham and Tuscaloosa over U.S. Highway 11, with restriction that no intermediate points be served.
2. NEW FURNITURE:
Between Birmingham and Tuscaloosa, Sylacauga, Montgomery, and Alexander City, in truckloads, only, minimum 2000 pounds.
3. BUILDING MATERIALS, LUMBER, PAINTS, GLASS, ROOFING AND TAR, MACHINERY, CULVERT PIPE, BOILERS AND STACKS, BOILER PARTS, PETROLEUM PRODUCTS, EMPTY DRUMS, AND AUTO PARTS (except such commodities which, because of size and weight, require the use of special equipment):
Between Birmingham, on the one hand, and points and places located within a radius of 130 miles of Birmingham, on the other hand; truckloads only, minimum 5000 pounds.
4. CAST IRON PIPE, IRON AND STEEL ARTICLES, as described in ATA Tariff No. 1-G, MF-APSC No. 35, and CONTRACTOR’S EQUIPMENT (except such commodities which, because of size and weight, require the use of special equipment):
Between Birmingham, on the one hand, and between points and places located within a radius of 150 miles of Birmingham, on the other hand; truckloads only, minimum 10,000 pounds.
5. GROCERIES, PRODUCE, BURIAL VAULTS AND CASKETS, HARDWARE, AND PLUMBING GOODS: Between Tuscaloosa and Birmingham via U.S. Highway 11.
6. PAPER ARTICLES, PRINTED AND PLAIN:
Between Birmingham and Tuscaloosa, on the one hand, and within a radius of 100 miles of Tuscaloosa and Birmingham, on the other hand; truckloads only, minimum 5000 pounds.
7. MACHINERY, MATERIALS, SUPPLIES AND EQUIPMENT Incidental to, or used in, the construction, development and production of natural gas and petroleum (except such commodities as require the use of special equipment):
Between all points and places in Alabama over irregular routes.
8. MACHINERY, MATERIAL, SUPPLIES AND EQUIPMENT Used in the construction, operation and maintenance of petroleum refineries (except such commodities as require the use of special equipment):
Between all points and places in Alabama over irregular routes.
9. MACHINERY, MATERIALS, SUPPLIES AND EQUIPMENT Used in the construction, operation and maintenance of natural gas, water, and petroleum pipelines, including, but not restricted to, the stringing of pipe along rights-of-way (except such commodities as require the use of special equipment):
Between all points and places in Alabama over irregular routes.
10. CONTRACTORS’ EQUIPMENT AND SUPPLIES, HEAVY MACHINERY PARTS, ACCESSORIES AND SUPPLIES, INCLUDING HEAVY MATERIALS AND MACHINERY (except such commodities as require the use of special equipment):
Between all points and places in Alabama over irregular routes.
11. TELEPHONE, TELEGRAPH AND POWER LINE CONSTRUCTION MATERIALS:
Between points and places in Alabama, truckloads only.
12. HOUSEHOLD GOODS:
Between points and places in Alabama, truckloads only.
13. LUMBER, PLYWOOD, LAMINATED FLOORING, AND RAILROAD TIES:
From the plantsite of Birmingham Forest Products, Inc., near Cordova, Alabama, to all points in Alabama over irregular routes.”

Eagle Motor Lines, Ross Neely Express, Deaton, Inc., and Arrow Truck Lines appealed the Commission’s order of July 8, 1975, which had granted the transfer of authority, to the Montgomery County Circuit Court. On January 27,1976, the circuit court affirmed the Commission’s order and it is from this final judgment that the appeal to this court is taken.

In reviewing an order of the Commission, it should be remembered that there is a presumption of correctness accorded their order and this court will not substitute its own judgment on the findings of fact for that of the Commission’s, except under extraordinary circumstances. Southern Haulers, Inc. v. Alabama Public Service Commission, Ala., 331 So.2d 660 (1976) citing Alabama Power Co. v. Alabama Public Service Commission, 278 Ala. 597, 179 So.2d 725 (1965). In cases such as this where the evidence was heard ore tenus by a hearing examiner, as provided for in Title 48, §§ 66, 301(7) Alabama Code 1940 (Recompiled 1958), rather than by the Commissioners themselves, the same presumption of correctness is given the examiner’s findings of fact. Southern Haulers, Inc. v. Alabama Public Service Commission, Ala., 331 So.2d 660 (1976), citing Alabama Public Service Commission v. Perkins, 275 Ala. 1, 151 So.2d 627 (1962).

The factual development which follows is taken from the Attorney-Examiner’s findings of fact. In 1970 the present owners of Victory Freight Line, Inc., purchased the company when it was in dire financial straits. At the time of the hearing, Victory had approximately $5,000 in available cash and a long-term debt of approximately $210,000, of which $130,000 was then due and payable in full. In an effort to raise operating capital and to discharge the company’s indebtedness, Victory entered into a contract with Vulcan Freight Line, Inc., whereby for the consideration of $250,000 Victory would transfer that portion of its carrier’s certificate covering both intra- and interstate operation which is commonly referred to as “heavy hauling” authority. This contract was made contingent upon the approval of the transfer by both the Alabama Public Service Commission and the Interstate Commerce Commission. The contract contained several conditional provisions relative to the two agencies’ approval and one of particular note was that if APSC approval was obtained prior to ICC approval, Vulcan could then commence operations under the intrastate authority involved. The contract also provided that if the ICC subsequently disapproved the transfer, then Vulcan would transfer this authority back to Victory.

At the time of the filing of the application for transfer, Vulcan was not a carrier, had conducted no operations and, in fact, had been in existence for only 12 days.

The protestants’ right of appeal to this court from the circuit court’s decree is provided for in Title 48, §§ 90, 301(27) Alabama Code 1940 (Recompiled 1958).

In reviewing the decree of the circuit court, this court accords no presumption of correctness to it because the circuit court was in no better position to review the order than this court, and the review here is treated as though the appeal had come directly to this court. See, e. g., Alabama Public Service Commission v. Consolidated Transportation Co., 286 Ala. 323, 239 So.2d 753 (1970); Alabama Public Service Commission v. Redwing Carriers, Inc., 279 Ala. 659, 189 So.2d 342 (1966); Alabama Public Service Commission v. Decatur Transfer & Storage, Inc., 257 Ala. 346, 58 So.2d 887 (1952).

Section 82 of Title 48, Alabama Code 1940 (Recompiled 1958) serves as the guidepost by which the circuit court as well as this court reviews orders of the Alabama Public Service Commission and it provides in pertinent part:

“The commission’s order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court except as to fraud or misconduct * * * but the
court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that: the commission erred to the prejudice of appellant’s substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence * * [Emphasis added.]

See, e. g., Alabama Public Service Commission v. Chem-Haulers, Inc., 293 Ala. 677, 309 So.2d 453 (1975); Alabama Public Service Commission v. Consolidated Transportation Co., 286 Ala. 323, 239 So.2d 753 (1970); Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 56 So.2d 401 (1951).

Thus, under section 82, Title 48, the review here will be two-pronged: (1) Was the Commission’s order based upon a finding of facts contrary to the substantial weight of the evidence? (2) Did the Commission err to the prejudice of appellant’s substantial rights in the application of the law to the facts? An affirmative answer to either of these inquiries will result in a finding for the appellant-protestants.

This court in North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 183 (1943), adopted the following rules, taken principally from 42 Am.Jur. 281 et seq., to be used in construing the scope and nature of review as regards the “substantial weight of the evidence” inquiry.

The finding of the Commission will not be overturned if it is supported by legal evidence of substantial weight and probative force, even though evidence was admitted during the hearing before the Commission which would not be admissible under general rules of evidence in a jury trial. If the Commission’s finding is based solely on hearsay or other improper evidence the Commission’s decision will not be upheld for there must be some evidence presented to the Commission which is competent and legal under general rules of evidence. Substantial evidence means legal evidence. North Alabama Motor Express v. Rookis, 244 Ala. 137, 140, 12 So.2d 183 (1943), cited in Alabama Public Service Commission v. Higginbotham, 256 Ala. 621, 624, 56 So.2d 401, 404 (1951).

The Attorney-Examiner made the following findings of fact in the case sub judice:

1. Vulcan has sufficient financial backing, ready access to the necessary equipment, and the management acumen to qualify in all respects as a motor carrier under the requirements set forth in the Motor Carrier Act, Title 48, §§ 301(1) et seq., Alabama Code 1940 (Recompiled 1958).

2. Victory has actively conducted operations under that portion of Certificate No. 718 which it seeks to transfer to Vulcan.

3. During the five years of operation under its new management, the financial status of Victory has improved but due to the shortage of operating capital the condition of the company is still precarious. Disapproval of the proposed transfer could result in the cessation of operations by Victory-

4. The protestants failed to present concrete evidence that they would suffer any detrimental effect to their individual operations by virtue of approval of the proposed transfer of authority.

5. “The authority which Victory would retain in the event of transfer does not duplicate the authority Vulcan seeks to acquire. There is, however, a certain overlap between the two segments.” Examiner’s Report and Recommended Order, p. 10.

The protestants do not take issue with the first and second findings of the Examiner but do contend that the remaining three findings of fact are not supported by substantial evidence. After a careful review of the transcript of the proceedings before the Examiner, this court cannot say that his findings of fact are not supported by legal evidence of substantial weight and probative force. Therefore the focus of this opinion will be upon whether the substantial rights of the protestants have been prejudiced by a misapplication of the law to these findings of fact.

The statutory law which controls the transfer of Motor Carrier Certificates is Title 48, § 301(15), Alabama Code 1940 (Recompiled 1958), quoted supra. This section requires that before a transfer of authority is granted the Commission must find (1) that the proposed transferee is in all respects qualified to conduct the service or operation contemplated by the certificate and (2) that the proposed transfer is consistent with the public interest.

As pointed out above, the Examiner expressly found that Vulcan was qualified to conduct the operations encompassed by the portion of Certificate No. 718 sought to be transferred and this finding has not been disputed by the protestants.

Thus this appeal rests upon the application of the phrase “consistent with the public interest” to the facts before this court. As stated in Alabama Public Service Commission v. Chem-Haulers, Inc., 293 Ala. 677, 309 So.2d 453 (1975), “ ‘[consistent with the public interest,’ though not a finding of fact, constitutes an application of the law to the facts. Alabama Public Service Commission v. Consolidated Transport Co., supra, [286 Ala. 323, 239 So.2d 753 (1970)]; Alabama Electric Cooperative, Inc. v. Alabama Power Co., 274 Ala. 332, 148 So.2d 613 (1963).” 293 Ala. 677, 683, 309 So.2d 453, 457.

The protestants submit several grounds to argue that it is not consistent with the public interest to fragment a single paragraph of authority in a motor carrier’s certificate. One being that fragmentation takes away from the public that which the public through testimony, during the initial hearing for issuance of the certificate, proved there was a need for. Further they submit that the original operating rights were granted to Victory in order to enable it to afford a complete and adequate transportation service to shippers and that the result after fragmentation is that there are two carriers neither of which can provide the full range of services which the Commission originally found was needed in the area affected by the certificate. The protestants also contend that the applicants, Vulcan and Victory, had the burden of producing witnesses to testify in support of this transfer, in order to prove that said transfer was consistent with the public interest. Finally, the protestants submit that if this action is affirmed the wholesale splitting of thousands of separate paragraphs of authorities by the certified motor carriers in this state will result which would be to the detriment of the public interest.

To support these contentions protestants rely upon their counsel’s own personal experience in representing clients before the Commission and several decisions of the Interstate Commerce Commission. Protestants concede that they are not able to cite an Alabama case to support their position but contend that the applicants are likewise unable to cite Alabama authority for their stand in opposition.

Victory and Vulcan respond to these assertions by stating that there is no statute or case law which states that a subpara-graph of authority cannot be transferred. They argue that the real issue in a case of this nature is whether the splitting of a subparagraph of authority results in a duplication of operating rights after the resulting two authorities are created.

This court finds that the controlling consideration here, that of whether the public, interest is served, is not to be judged by the form of the proposed transfer, not whether an entire paragraph of authority is transferred as opposed to a subparagraph, but rather the resulting effect of such transfer. In the instant case Certificate No. 718 was originally issued with two paragraphs of authority with the second paragraph containing five subparagraphs of authority. In 1965 this certificate was reissued to Victory and from what this court can determine there were then 14 separate paragraphs of authority with no subpara-graphs.

The following Interstate Commerce Commission cases which are among those cited by the protestants, deal with requests for splits of authority and consider the argument regarding “complete service.” Contractor’s Hauling Service, Inc., 104 M.C.C. 343 (1967); Dale E. Alexander, 56 M.C.C. 151 (1949); H. E. Beard & J. T. Laney, 55 M.C.C. 465 (1949). In each case the ICC found that such transfer would result in a duplication of operating rights, which under the peculiar facts of each case would be inconsistent with the public interest. This court here will also seek to make a determination on this basis.

The protestants’ argument that Vulcan and Victory had the burden of producing witnesses other than their own employees to testify in behalf of the transfer is not supported by statute or case law. Substantial testimony and numerous exhibits were presented at the hearing and it cannot be said that the record here is inadequate in its coverage.

The protestants’ final argument on this issue, wherein there is a prediction of a stampede of authority splitting in this state if the order of the Commission is affirmed, is also without legal merit for each case must be determined on its own merits.

The protestants also argue that the Commission’s order granting the transfer was void because it constituted a grant of “temporary authority,” which the Commission was not empowered by law to issue. This contention is based upon what the protestants allege was a tacit agreement between the Commission, Victory, and Vulcan that if after the APSC approved the requested transfer the ICC denied transfer of the interstate authority, the APSC would then retransfer the intrastate authority from Vulcan to Victory. The protestants point to the contract between Victory and Vulcan which provided that the agreement would not be consummated until approval from both the Alabama Public Service Commission and the Interstate Commerce Commission were received, as being the controlling document from a practical point of view. This contention overlooks the fact that the terms of the contract between Victory and Vulcan can in no way bind the Alabama Public Service Commission to a later course of action.

Protestants have filed a motion pursuant to Rule 27, ARAP to strike those references made by the Appellees in brief to two decisions rendered by the ICC approving the transfer of the interstate authority which corresponds to the intrastate authority before this court. They contend that because these ICC decisions were not rendered at the time the application was argued before the Alabama Public Service Commission such reference amounts to new and additional evidence not contained in the certified record before this court.

This motion is denied due to the fact that these decisions of the ICC are not to be regarded as “evidence” but are to be regarded as all other ICC decisions which constitute persuasive authority when there is no Alabama authority in point. See Alabama Public Service Commission v. A—OK Motor Lines, Inc., 287 Ala. 182, 249 So.2d 838 (1970).

Therefore, this court takes notice of the fact that the Interstate Commerce Commission in its Order No. MC-FC-75752 (Service date October 2,1975), approved the transfer by Victory, to Vulcan of the interstate authority that roughly corresponds to the intrastate authority transfer before this court. This ICC order became final on January 7, 1976. In their order, the ICC imposed a “special equipment” restriction on Victory’s retained authority, similar to that imposed by the Alabama Public Service Commission. However, the ICC order was more comprehensive in its application of this restriction.

The final question for determination here, is whether this transfer has resulted in a duplication of operating rights to such an extent that it is in derogation of the public interest. The Public Service Commission Examiner addressed this question in his Report and Recommended Order, in the following manner:

“The Examiner does not believe, however, that the transaction should be approved unconditionally. If those portions of the Victory certificates which overlap the authority being transferred to Vulcan were restricted against transportation of such commodities ‘which, because of size and weight, require the use of special equipment,’ Victory would be very substantially impeded from providing any transportation service which Vulcan could provide. It is recognized that there is a so-called ‘grey’ area which has existed for many years in interpretation of size and weight vis-a-vis non-size and weight authority which permits a certain overlap. It is contended that, if a commodity, because of its inherent nature, requires the use of a crane or similar mechanical device for loading, but can be transported by a conventional freight trailer such as a flatbed, then a carrier holding size and weight authority can handle it, as can a carrier holding authority restricted against size and weight commodities, if, in the latter case, all loading and unloading services are provided by the shipper and consignee, respectively. Notwithstanding this grey area, such a restriction would preclude Victory from offering service with lowboy trailers and other specified units. Eagle was the only protestant offering definitive evidence of participation by it in traffic which it contends both Vulcan and Victory could handle upon consummation of the proposed transaction. From the evidence, the Examiner finds and concludes that imposition of a restriction such as the one suggested above would preclude Victory from handling traffic for most of the customers whose freight Eagle fears would be subject to diversion to both vendor and vendee. Accordingly, acceptance by Victory of such a restriction upon those portions of its retained authority where the same would be applicable should be made a condition to approval of the transaction.
“Subject to imposition of such restriction, and acceptance of the same by Victory, the Examiner finds that the proposed transfer is consistent with the public interest.”

As stated earlier in this opinion, the Commission adopted the Examiner’s Report and Recommended Order and granted the requested transfer on July 8, 1975. In this order the Commission recited that a further order would be forthcoming issuing the balance of Certificate No. 718 (Victory’s authority) which would incorporate the restrictions and modifications. By later order (dated January 16, 1976), which has been previously quoted in this opinion, the Commission reissued the authority retained by Victory in the form of 13 numbered paragraphs. This court notes that the “special equipment” restriction was placed only on paragraphs 3, 4, 7, 8, 9, and 10, with the remaining seven paragraphs containing no similar restriction.

This court has recognized in the past and reiterates here that the Public Service Commission is a body of experts. Alabama. Power Co. v. Alabama Public Service Commission, 278 Ala. 597, 179 So.2d 725 (1965). The Commission’s finding that there is an inherent “grey area” involved in size and weight authorities and non-size and weight authorities is borne out by the research done in the preparation of this opinion. However, it is the opinion of this court that the purpose of the recommendation of the Examiner to the Public Service Commission and the order of the Alabama Public Service Commission adopting the Examiner’s report were to place the special equipment restriction on the “appropriate paragraphs” of Victory’s retained authority. It does not appear that the order of January 16, 1976 was totally consistent with the recommendation of the Examiner and the order of the APSC dated July 8, 1975. For example, paragraphs 1 and 11 of Victory’s retained authority, which authorize the transportation of commodities generally between Birmingham and Tuscaloosa, and the transportation of telephone, telegraph and power line construction materials between all places in the state, respectively, contain no special equipment restriction. As they now read, these two paragraphs are subject to an interpretation that could create an impermissible amount of overlap between Victory and Vulcan’s operating authority. It also appears that some of the other five paragraphs (2, 5, 6, 12, and 13), which do not contain a special equipment restriction, create a possibility for objectionable overlap. However, as pointed out above, this court recognizes the APSC as a body of experts and will allow the Commission to apply its expertise to a resolution of which are the appropriate paragraphs which should be restricted.

This case is therefore due to be remanded to the Alabama Public Service Commission in order that it may review all of the authority retained by Victory and place a special equipment restriction on the appropriate paragraphs so that the intent of the Examiner as expressed in his Report and Recommended Order and the intent of the order of the Commission dated July 8, 1975 are effectuated.

REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    RICHARD KELLEY CHEVROLET INC., a corp. v. Jimmy Ray WILLIAMS.
    Civ. 982.
    Court of Civil Appeals of Alabama.
    March 16, 1977.

      Richard F. Ogle, Birmingham, for appellant.
    Jack E. Propst, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Defendant corporation appeals from verdict and judgment for conversion and from denial of judgment n. o. v. or alternatively for new trial. We affirm.

Plaintiff claimed damage for conversion of a 1965 Corvair automobile. Defendant counterclaimed for sums due for repairs and storage.

The evidence of plaintiff tended to show that on October 10, 1972, he called the repair department of defendant and related difficulties he was having with his automobile. Defendant’s employee related that the difficulties sounded as if they had to do with the clutch, pressure plate and throwout bearing. Cost of repairs to these items would be about $190.00. Plaintiff directed defendant to send a wrecker and get the automobile for these repairs. Defendant immediately picked it up and carried it to its repair shop. Later the same day, the same employee called plaintiff and told him that he had found that some gears on the transaxle were stripped. To repair that item should cost another $27 but the total repair cost should not exceed $227. Plaintiff authorized repairs at that price.

Some two weeks later plaintiff was informed by phone that repairs were completed. On October 27 he went to defendant’s business to get his car. He had borrowed $227 and was prepared to pay the agreed price. Plaintiff was told he could test drive the car, but subsequently was told it was out of gas. He was instructed to return in two hours and it would be ready. When he returned his car was locked up in defendant’s lot. He was informed by defendant’s employee that other repairs had been necessary and had. been made. The bill was $454.74 and must be paid before he could get his car. Plaintiff subsequently made several efforts to pay $227 and get his car. This occurred over a period of several months. Defendant refused delivery unless paid in the amount of $454.74.

On January 18, 1974, defendant sent plaintiff a letter stating that unless the bill was paid in 10 days the car would be sold and the proceeds applied to the bill. An itemized copy of the repair bill was enclosed.

The testimony of defendant varied from that of plaintiff as to the agreement for repairs. Defendant’s employees stated that there was no agreement for an amount certain, but that plaintiff was told, after the car was taken down, that certain repairs were necessary at an unknown cost. Plaintiff authorized the repairs, and then refused to pay the cost.

It is undisputed that defendant placed the car in its stock and on May 30, 1974, sold the car at wholesale to a used car dealer for $300. That amount was credited to defendant’s account leaving a balance of $154.54.

After hearing testimony as to the value of the car from plaintiff and defendant and the amount it had been priced on the sales lot of the purchaser, the jury returned a verdict in favor of plaintiff and against defendant for $5,000.

The first issue presented by defendant on appeal is whether it was due a directed verdict for failure of plaintiff to prove right of possession at the time of the alleged conversion — May 30, 1974, the date of the sale by defendant.

In brief, defendant asserts that it had a mechanic’s lien on the auto for the repairs it had made. Therefore, there was no right of possession in plaintiff. This assertion cannot legally be supported.

On May 30, 1974, the vehicle had been in the possession of defendant since October 10, 1972 — nearly 18 months. The repairs were completed on October 27,1972. On that date the debt became due. Sec. 6 of Title 33, Code of Alabama (1940) (Re-comp.1958) provides that unless process for enforcement of a mechanic’s lien is commenced within six months after the demand becomes due, the lien is lost. Defendant had no statutory mechanic’s lien on plaintiff’s automobile on May 30, 1974, having lost such lien for failure of enforcement. Mazel v. Bain, 272 Ala. 640, 133 So.2d 44 (1961).

Maintaining possession of the vehicle, defendant did have a common-law lien for the contract price for repairs, or if there was no contract, for their reasonable value. The statutory mechanic’s lien does not supplant the common law lien but supplements it. Howell v. Dodd, 229 Ala. 393, 157 So. 211 (1934). As long as the repaired machine remains in the possession of the mechanic and the sum due is unpaid, the common law lien endures. During such possession the relationship of the mechanic is that of a bailee for hire. He is subject to the standard of care required of such bailee by statute and common law. Howell v. Dodd, supra; Ridgely Operating Co. v. White, 227 Ala. 459, 150 So. 693 (1933). Any use or disposition of the property not legally authorized or contemplated by the bailment is a conversion. Goad v. Harris, 207 Ala. 357, 92 So. 546 (1922); Title 9, Chap. 2., Code of Alabama (1940) (Recomp. 1958).

It is undisputed that defendant had no legal right to waste or dispose of plaintiff’s property on May 30, 1974. When the automobile was sold, there was a conversion.

Defendant’s further contention that plaintiff failed to prove a demand and refusal to surrender the automobile is untenable. The conversion claimed by plaintiff is not the detention but the wrongful disposal by sale. Proof of demand and refusal of possession is not a requirement for establishing conversion in such a case. There is no dispute but that plaintiff had legal title to the automobile and therefore the right to possession but for defendant’s lien. The sale extinguished the lien and demand for possession then was useless and unnecessary to a recovery for conversion. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972).

Defendant next contends that the trial court erred in permitting testimony by plaintiff as to the value of his automobile at the time he last saw it prior to May 30, 1974. The date plaintiff last saw the car was indefinite. In one instance it was stated to be in December 1973, some six months prior to its sale. Plaintiff gave his opinion that its value was $3500 or $3600. We interpret the qualifying question as to value to mean the value as of the time of the conversion May 30, 1974. The record indicates that the court first sustained objection to plaintiff stating its value at the time he last saw it. The court was correct. The measure of damage for conversion is the fair market value of the property at the time of the conversion or at any time between that time and trial. Industrial Sav. Bank v. Greenwald, 229 Ala. 529, 158 So. 734 (1935); Coffee General Hospital v. Henderson, 338 So.2d 1022 (Ala.Civ.App.1976).

The record further indicates that the next question related to the value of the car on May 30, 1974, based upon the condition of the car the last time he had seen it and upon knowledge and information plaintiff had as to its condition and uniqueness as of May 30, 1974. The objection of defendant to the question was upon the ground that because plaintiff had not seen the car since December of 1973, his valuation would not be relative to its value on May 30, 1974. Upon that ground the court overruled the objection and plaintiff gave his answer.

We accept the contention that the value of the automobile at a time six months prior to conversion is not the proper measure of damages. However, we do not accept the contention that the plaintiff, having seen his automobile six months before, could not be qualified to state his opinion of its value at the time of conversion six months later. Such testimony would be relevant but subject to attack as to its credibility. We do not find error in the admission of the answer of plaintiff in this case.

Defendant’s remaining contention is that the evidence does not support an award of punitive damages. We cannot agree. We think our recent cases of Parker v. Sutton, 47 Ala.App. 352, 254 So.2d 425, cert. denied 287 Ala. 738, 254 So.2d 431 (1971), and Coffee General Hospital v. Henderson, supra, together with the case of Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975) are dispositive of defendant’s contention. It certainly cannot be said that the jury could not reasonably infer a known and intentional violation of plaintiff’s legal rights by the sale of the automobile without legal action to enforce a lien or determine the debt due. Defendant is a large and successful franchised automobile dealer and had been such for several years in Jefferson County, Alabama. The jury was free to conclude from such evidence that defendant was aware of its rights and their limitations in the collection of its repair accounts and intentionally acted contrary to such rights.

We find no error in the verdict and judgment nor in the ruling of the trial court on the post-trial motions.

We affirm.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Judge.

text:
    Carl Michael SEIBERT v. STATE.
    8 Div. 612.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 28, 1975.

      James T. Baxter, III and Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Eric A. Bowen, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the unlawful possession of ten strips of paper containing LSD, contrary to the Alabama Uniform Controlled Substances Act of 1971. The Jury found the appellant guilty, as charged, and the trial court set sentence at fifteen years imprisonment in the penitentiary.

An appeal of this cause was then filed in this Court, where the transcript of the evidence was striken, because such was not timely filed in the trial court. Seibert v. State, 53 Ala.App. 229, 298 So.2d 649, cert. denied 292 Ala. 748, 298 So.2d 652.

Thereafter, the appellant filed a sworn petition for writ of error coram nobis in the Circuit Court of Madison County, averring in essence that he was prevented from asserting his defense at trial inasmuch as he had been unable to locate certain witnesses who could testify as to “details” to the effect that the appellant was “set-up” at the time of his original arrest for possession of the drug in question. Following a full hearing, with counsel present, and the taking of testimony from the witnesses desired, the trial court then entered the following order, granting eoram nobis:

“ORDER

“This cause coming on to be heard on application of Carl Michael Seibert for a Writ of Coram Nobis filed' August 20, 1974, Motion to Strike Petition on the part of the State of Alabama filed August 21, 1974, said cause having been heard and the Court having considered the pleadings and the testimony in this cause, is of the opinion the Motion to Strike on the part of the State of Alabama the Petition for Writ of Error Cor-am Nobis should not be granted; that the application on the part of Carl Michael Seibert, the defendant, should be granted, the previous judgment of conviction entered against defendant on August 29, 1973, set aside and a new trial by jury granted. It is
“Therefore ORDERED, ADJUDGED AND DECREED that the Motion to Strike the Petition for Writ of Error Cor-am Nobis filed by the State of Alabama in this cause be, and the same is hereby denied; it is
“FURTHER ORDERED, ADJUDGED AND DECREED THE application for Writ of Error Coram Nobis filed by Carl Michael Seibert be, and the same is hereby granted. The judgment of conviction entered against defendant on August 29, 1973, in this cause, be, and the same is hereby set aside; a new trial is hereby granted. The defendant is hereby released, the defendant’s bond is set at Five Thousand ($5,000.00) Dollars.
“DONE AND ORDERED this 3rd day of October, 1974.
“s/s David R. Archer Circuit Judge”

Thereafter, the appellant was arraigned the second time and entered a plea of not guilty, and on the occasion of this arraignment a purported stipulation was entered into whereby the appellant, through his attorney, and the State, sought to submit this proceeding for decision to the trial court on the basis of the original transcript of the evidence and trial originally had in this cause. Based upon this purported stipulation [R. pp. 18-24], the trial court then proceeded to enter a second adjudication of guilt, and set sentence at ten years imprisonment in the State penitentiary [R. p. 22]. The trial court then directed that the complete proceedings, including the transcript of the original trial and of the subsequent coram nobis proceedings, be included in the transcript sent this Court as part of an appeal in this proceeding. It is in this posture that this Court was called upon to review this record.

I-

Prior to the adoption of Rule 50, Revised Rules of Practice, Supreme Court of Alabama, it was necessary to obtain leave to file a petition for writ of error coram nobis in the trial court from the appellate court which had reviewed the cause. See Taylor v. Alabama, 335 U.S. 252, 68 S.Ct. 1415, 92 L.Ed. 1935.

Jurisdiction to hear writs of error coram nobis, if a meritorious cause is stated, lies in the circuit court that rendered the original judgment. Rule 50, supra; Hendricks v. State (Okl.Cr.App.), 297 P.2d 576.

The writ of error coram nobis, or coram vobis, as it is sometimes indiscriminately called, was first recognized in this jurisdiction in Holford v. Alexander, 12 Ala. 280, 46 Am.Dec. 253; Snodgrass v. Snodgrass, 212 Ala. 74, 101 So. 837, and the writ can only be prosecuted by one who was a party of privity of record, or injured by the judgment, and must be directed to the court rendering the judgment. Cases herein cited.

The distinction between coram nobis and coram vobis at common law is explained in Dwyer v. State, 151 Me. 382, 120 A.2d 276, in these words:

“There was a slight distinction between coram nobis and coram vobis at common law. Originating in the sixteenth century, coram nobis was a vehicle for reversing a judgment in King’s Bench, where the record remained, whereas coram vobis was used to correct an error in another court by ordering that court to send the record and process to King’s Bench for examination and judgment. . . . ” [Authorities cited.]

In Huffman v. Alexander, 197 Or. 283, 331, 251 P.2d 87, 253 P.2d 289, 293, we find:

“The ancient writ of error coram nobis was a common-law device designed to bring before a trial court a judgment previously rendered by it for the purpose of review or modification on account of some error of fact and not of law affecting the validity and regularity of the proceedings, and which was not brought into issue at the trial. 24 C.J.S., Criminal Law, § 1606, p. 143.”

The relief granted is a new trial, not a discharge. Jeffries v. State, 40 Ala. 381; State v. Pyle, 173 Kan. 425, 248 P.2d 1086; 18 Am.Jur.2d, Coram Nobis, Section 27.

Thus, in Williams v. Dowd, 7 Cir., 153 F.2d 328, the court, drawing language from another decision, stated:

“ . . Referring to such proceedings—that is, to coram nobis proceedings—the Supreme Court of Indiana, in the case of State ex rel. Emmert v. Gentry, [223 Ind. 535] 62 N.E.2d 860, 861, [161 A.L.R. 532] said: ‘We have repeatedly held that a coram nobis proceeding is in the nature of a motion for a new trial and that it is also in the nature of a civil action. It is the nature of the former because its object is to secure the setting aside of a judgment and a retrial of the matter upon which judgment had been rendered. . . . ’”

Freeman on Judgments correctly states the rule:

“The general rule is that when an order or judgment is vacated the previously existing status is restored and the situation is the same as though the order or judgment had never been made. The matters in controversy are left open for future determination. The action is not thereby discontinued or abated, but is subject to further proceedings in regular course. The party in whose favor a judgment has been entered irregularly may, after it has been vacated, proceed as if it had never been rendered, and in due time and upon proper proceedings obtain a valid judgment. . . . ”

Stated another way, the ordinary legal effect of sustaining a writ of error coram nobis is to void the proceedings ab initio. People v. Klein, 208 Misc. 792, 145 N.Y.S.2d 515, affirmed 2 A.D.2d 777, 154 N.Y.S.2d 503. 24 C.J.S. Criminal Law' § 1606, page 157.

Thus, the granting of the petition for writ of error eoram nobis by a court having jurisdiction, ipso facto, revests it with jurisdiction of the original cause. State v. Killigrew, 202 Ind. 397, 174 N.E. 808, 74 A.L.R. 631. See also State ex rel. Burford v. Sullivan, 86 Okl.Crim. 364, 193 F.2d 594, and authorities therein cited. 24 C.J.S. Criminal Law § 1606(33).

We now turn to the proceedings had upon the purported second adjudication of guilt. There is, as indicated in this record, a purported stipulation [R. pp. 18-24] that the trial court base its judgment upon the original transcript of the trial originally had in this cause, on August 29, 1973, wherein judgment and sentence were entered on September 12, 1973. In making this determination, based upon the original transcript, the trial court fell into error. The rule covering such a situation is stated in Henning v. Kyle, 190 Va. 247, 56 S.E.2d 67 (though there considering a civil case), as follows:

“None of the evidence adduced upon the first trial may be considered in determining whether or not false representations of material facts upon which she relied were made to defendant. The sufficiency of the evidence depends alone upon the testimony given or offered at this trial. It may not be supplemented or aided by that appearing in the record as having been given on the first trial.”

As indicated in Stephenson v. State, 205 Ind. 141, 179 N.E. 633, 186 N.E. 293.

“The only relief that can be granted is the setting aside of the judgment and the granting of a new trial.” See also Brown v. State, 250 Ala. 444, 35 So.2d 518; Ison v. State, 44 Ala.App. 6, 200 So.2d 506.

It is clear therefore, under the authorities herein cited, that the trial court, by virtue of its order of October 11, 1974, wherein it undertook to adjudicate the guilt of the appellant, committed reversible error. This adjudication precluded the appellant from submitting his evidence of his witnesses as to his allegedly being “set-up” to a second jury. It would avail the appellant little to successfully prosecute his petition for writ of error coram nobis, and then be unable to present the testimony of the witnesses in question to a jury of his peers.

Because of the error shown, the judgment of the trial court is due to be and the same is hereby

Reversed and remanded.

HARRIS, DeCARLO and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.

ON REHEARING

In addition to the views expressed by this Court on original deliverance, to which we adhere, we note the following points.

At the time of the purported stipulation in the trial court in this cause, on October 11, 1974, following the introduction of the transcript of the prior trial, we find the following reply in behalf of the State of Alabama [R.21]:

“MR. GREENE: Now, I, the State of Alabama, in answer to this proceeding and this proposal on his plea of not guilty and the consideration by The Court of the transcript of the prior trial in this case stands mute, in accordance with the papers that were filed in Court this morning.”

In light of the above reply on behalf of the State of Alabama, we cannot consider the purported stipulation as being a valid or binding one since the State of Alabama “stood mute.”

The State further argues that this proceeding be considered as “what is commonly referred to as an out of time appeal.” There is no authority in law for this Court to consider original appeals not “timely perfected” under our present Alabama practice. City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606; Mitchell v. State, 54 Ala.App. 203, 306 So.2d 296, cert. denied 293 Ala. 767, 306 So.2d 298; Ellison v. State, 55 Ala.App. 50, 312 So.2d 632, and authorities therein cited.

Moreover, this Court most recently, speaking through Judge Harris, in Caraway v. State, 53 Ala.App. 237, 298 So.2d 659, stated:

“The writ of error coram nobis is not intended to provide a review by appeal where the complaining party has not sought to appeal and the time for appeal has long since expired. Thomas v. State, 280 Ala. 109, 190 So.2d 542.” Thicklin v. State, 54 Ala.App. 335, 307 So.2d 731.
Opinion extended, application overruled.

All the Judges concur.

      . Title 22, Sections 258 (25-60), Code of Alabama 1940, as amended 1971.


author: JONES, Justice.

text:
    In re Carl Michael SEIBERT v. STATE of Alabama. Ex parte STATE of Alabama.
    SC 1559.
    Supreme Court of Alabama.
    March 5, 1976.

      William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
    Cloud, Berry, Abies, Blanton & Tatum and James T. Baxter, III, Huntsville, for respondent.
   JONES, Justice.

Can a defendant whose petition for Writ of Error Coram Nobis has been granted— setting aside his felony conviction and ordering a new trial — enter into a stipulation with the express approval of the State and the trial Court that his new trial shall consist of submission to the trial Court without a jury on the transcript of the entire proceedings in the first trial and the subsequent testimony taken during the coram nobis hearing? The Court of Criminal Appeals’ opinion, Ala.Cr.App., 343 So.2d 780 (1975), answered this question in the negative. We granted certiorari to review the decision on the ground of “first impression.”

After careful consideration and thorough review of the record, which shows unequivocal express consent on the part of both defendant and the State, with the trial Court’s approval, we hold that the judgment of the Court of Criminal Appeals is erroneous and is due to be reversed.

In so holding, we hasten to say that we do not disagree with the general propositions, or the authorities cited by the Court of Criminal Appeals in support thereof, to the effect that a petitioner whose Writ of Error Coram Nobis has been granted has an absolute right to a new trial; that the trial Court is revested with jurisdiction of the original cause; and that none of the evidence adduced upon the first trial (except as occurred here) may be considered in determining the issue presented at the new trial. These propositions are basic and sound, but they do not preclude the right of a defendant to have his new trial without a jury upon the record of the first proceedings plus the transcript of the coram nobis hearing where. he knowingly and intelligently consents to do so with the express approval and consent of the State and the trial Court. As to waiver of trial by jury, see Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971). Having so agreed, however, the defendant is entitled to the entire record, including for purposes of appeal from an adverse judgment all rulings of the trial Court on which error may be predicated.

It is significant to note that on original submission of this case to the Court of Criminal Appeals the defendant did not raise the “no new trial issue”. Rather, he did raise substantial search and seizure and weight of the evidence questions.

This cause is remanded in order that these questions may be addressed by the Court of Criminal Appeals.

REVERSED AND REMANDED.

All the Justices concur.


text:
    Carl Michael SEIBERT v. STATE.
    8 Div. 612.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 15, 1976.
   AFFIRMED on authority of SC 1559, Ala., 343 So.2d 784. All the Judges concur.

Judgment reversed, Ala.Cr.App., 343 So. 2d 780.


author: BLOODWORTH, Justice.

text:
    In re Carl Michael SEIBERT v. STATE of Alabama. Ex parte Carl Michael Seibert.
    SC 1925.
    Supreme Court of Alabama.
    Nov. 5, 1976.
    Cloud, Berry Abies, Blanton & Tatum, Huntsville, for petitioner.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BLOODWORTH, Justice.

We granted Seibert’s petition for writ of certiorari to review the decision of the Court of Criminal Appeals which affirmed his conviction “on authority of the Supreme Court of Alabama.”

We consider that the Court of Criminal Appeals has miscomprehended our decision. We therefore must again reverse and remand this cause.

A brief history may be in order for an understanding of the present posture of the case.

Seibert was convicted by a jury in Madison County on a drug charge receiving a 15-year sentence. The Honorable David R. Archer presided. Defendant appealed. The Court of Criminal Appeals affirmed. We denied certiorari. Ala., 343 So.2d 784. Seibert then filed for writ of error coram nobis and Judge Archer granted a new trial on the grounds of an illegal search and seizure. Upon rearraignment for a new trial, Seibert agreed and stipulated that a jury trial was waived and that the court would consider the transcript of the prior trial and the transcript on the coram nobis hearing as the basis for a determination of guilt or innocence. (Apparently, the State agreed too.) Judge Archer then proceeded to adjudge Seibert guilty and sentenced him to 10 years’ imprisonment in the penitentiary. Seibert’s motion for new trial was overruled and he appealed. The Court of Criminal Appeals (per Tyson, J.) reversed and remanded, holding that defendant was entitled to a “new trial” and could not stipulate and agree to the judge’s hearing the case on the “original record.” Seibert v. State, Ala.Cr.App., 343 So.2d 780. On petition for writ of certiorari by the State, we granted the writ. In an opinion authored by Justice Jones, all the justices concurring, we reversed the Court of Criminal Appeals holding the judgment of the Court of Criminal Appeals to be erroneous. Ex parte State (In re: Seibert v. State), Ala., 343 So.2d 784. The last sentence of our opinion clearly states that the cause is remanded “in order that these questions [search and seizure and weight of evidence — raised by Seibert but not written to by the court] may be addressed by the Court of Criminal Appeals.” [Our emphasis.]

We continue to adhere to our mandate on former remandment and again reverse and remand this cause to the Court of Criminal Appeals so that court may have the opportunity (which it has not heretofore exercised) to address the important and apparently decisive questions of search and seizure and weight of the evidence.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur.


author: TYSON, Presiding Judge.

text:
    Carl Michael SEIBERT v. STATE.
    8 Div. 612.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.
   After Remandment by the Supreme Court

TYSON, Presiding Judge.

The dilemma with which this Court was initially confronted by the first remand-merit by the Supreme Court of Alabama, 1976, 343 So.2d 784, was that we did not understand that this Court could review the action of the trial court in considering the coram nobis proceeding together with the original trial proceedings after the reversal of our first opinion.

We now understand, under the second mandate of the Supreme Court of Alabama, 1976, 343 So.2d 786, that we are not precluded from reviewing the judgment of the trial court, dated October 11, 1974 (but were “invited to do so”), wherein the court entered judgment and set a new sentence of ten years after first granting the appellant’s petition for writ of error coram nobis.

The issue thus presented is whether or not the trial court has “in effect ruled two different and inconsistent ways” without holding a new hearing or trial in the matter.

We find that the action of the trial judge in this case, after granting the petition for writ of error coram nobis, on to-wit, October 3, 1974, which order set aside the original judgment of conviction against the appellant, and then entering a second adjudication of guilt, following a stipulation in which the original trial proceedings and the coram nobis proceeding were submitted to him as the basis for a “new trial,” was erroneous.

The issue here presented is under our research sui generis. If the trial judge, as here, apparently believed the evidence submitted in support of the petition for writ of error coram nobis, then the appellant was entitled to a complete new trial.

The Supreme Court has determined that this “new trial” may be satisfied by the submission of the “original trial proceedings” and the coram nobis record together with a waiver of trial by jury. 1976, 343 So.2d 784.

However, if the trial judge believed the appellant’s evidence sufficiently to grant him a new trial (under his petition for writ of error coram nobis), then he could not enter a second adjudication of guilt without a further hearing or additional evidence taken and submitted. In short, the trial judge may not rule both ways.

Because we believe the foregoing to be a proper treatment of the “weight of the evidence theory,” we respectfully pretermit the “search and seizure question” at this time.

For the error noted, the judgment of the trial court is reversed and the cause is remanded for a new trial. Authorities cited on original deliverance.

REVERSED AND REMANDED.

CATES, DeCARLO and BOOKOUT, JJ., concur.

HARRIS, J., concurs in result.


author: BLOODWORTH, Justice. ALMON, Justice

text:
    In re Carl Michael SEIBERT v. STATE of Alabama. Ex parte STATE of Alabama.
    SC 2307.
    Supreme Court of Alabama.
    March 4, 1977.

      William J. Baxley, Atty. Gen. and Eric A. Bowen, Asst. Atty. Gen., for the State.
    No brief for respondent.
   BLOODWORTH, Justice.

In denying this writ, we feel compelled to comment that we interpret the opinion of the Court of Criminal Appeals as reversing the conviction and remanding the cause for a new trial on the “weight of the evidence” issue. A consideration of that issue was mandated by the earlier reversals and re-mandments of this cause by this Court to the Court of Criminal Appeals. See Ex parte State (In re: Seibert v. State), [1976] 343 So.2d 784; Ex parte Seibert (In re: Seibert v. State), [1976] 343 So.2d 786.

In the dissent, Mr. Justice Almon writes:

“The Court of Criminal Appeals has concluded that the ‘trial judge may not rule both ways.’ This is the conclusion with which I disagree. By granting a new trial, the trial judge did not have to believe the testimony of Tonya Stearns. The court merely granted a new trial on the newly discovered evidence so that Seibert would have the benefit of submitting this testimony to the trier of fact, whether it be judge or jury.
“The significant point of this is that the trial judge did not have to believe the witness Tonya Stearns in order to grant a new trial.”

With due respect for these opinions, we feel compelled to state that they are not in accord with our case law and that they misconceive the office of the writ of error coram nobis.

The trial judge must have beiieved the witness Stearns on coram nobis, else he should not have granted the writ. “A writ of error coram nobis issues for the correction of a judgment entered in ignorance of certain matters of fact which, if they had been known to the court rendering the judgment, would not have been entered.” Ex parte Rudolph, 276 Ala. 392, 162 So.2d 486 (1964, per Merrill, J.), cert. den. 377 U.S. 919, 84 S.Ct. 1185, 12 L.Ed.2d 188.

“ . . . [T]he well established principal [is] that to be entitled to the writ [of error coram nobis] the petitioner must aver and prove that he was innocent of the crimes of which he stands convicted. Ex parte Taylor, 249 Ala. 667, 32 So.2d 659; Ex parte Fewell, 261 Ala. 246, 73 So.2d 558; Woodward v. State, 42 Ala.App. 552, 171 So.2d 462; Argo v. State, 43 Ala.App. 564, 195 So.2d 901 [cert. den. 280 Ala. 707, 195 So.2d 909, cert. den. 389 U.S. 865, 88 S.Ct. 129, 19 L.Ed.2d 136]; Rickard v. State, 44 Ala.App. 281, 207 So.2d 422.” [Emphasis supplied.] Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917 (1973, per Cates, P. J.), cert. den. 291 Ala. 800, 277 So.2d 919.

“In eoram nobis, the plaintiff prisoner bears the burden of submitting clear, full and satisfactory proof of matters which had they been timely submitted on trial would have prevented the judgment of conviction.” [Emphasis supplied.] Champion v. State, 45 Ala.App. 188, 227 So.2d 818 (1969, per Cates, J.); in accord: Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969, per Merrill, J.).

“This degree of persuasion, i.e., ‘clear, full and satisfactory’ we take to entail more than that enunciated in the scintilla rule . ‘clear’ is highly exacting as to proof of facts ‘and always means more that reasonably satisfying.’ ” Burden v. State, 52 Ala.App. 348, 292 So.2d 463, (1974, per Cates, P. J.).

“Coram nobis partakes of a civil action of fraud to reform a judgment. This degree of proof is the highest in a civil action.” Burden, supra.

It is therefore clear that under the decisions of both this Court and the Court of Criminal Appeals, coram nobis is not some “probable cause” hearing at which the trial judge determines whether the petitioner/defendant should be accorded a new trial so that the trier of fact will have the benefit of the additional testimony. .

To the contrary, these decisions clearly show that the trial judge must “believe” the testimony and that the burden on petitioner is to submit clear, full and satisfactory proof of his assertions for relief.

WRIT DENIED.

FAULKNER, JONES, SHORES and EM-BRY, JJ., concur.

TORBERT, C. J., and MADDOX, AL-MON and BEATTY, JJ., dissent.

ALMON, Justice

(dissenting).

This case comes to us in a strange posture. See Seibert v. State, Ala.Cr.App., 343 So.2d 780 (1975) where the case was reversed and remanded by the Court of Criminal Appeals; Ala., 343 So.2d 784, 10 A.B.R. 694 (1976) where the case was reversed and remanded to the Court of Criminal Appeals; and Ala., 343 So.2d 786, 11 A.B.R. 225 (1976) where the case was reversed and remanded to the Court of Criminal Appeals.

Seibert was found guilty by a jury of possessing L.S.D. The State’s evidence was that police officers armed -with a search warrant found Seibert and L.S.D. on the front seat of Seibert’s automobile in his driveway. His defense was that he was set up by Steve Beshears, the alleged unidentified informant used by police to secure the search warrant.

Seibert’s attempted appeal from this judgment was dismissed for reasons not here pertinent.

Subsequently, Seibert filed a petition for writ of error coram nobis proffering the testimony of Tonya Stearns. Her testimony was that she was with Beshears when he went to Seibert’s home and as Beshears left she saw Beshears throw an envelope in the front seat of Seibert’s automobile.

After considering this evidence, the trial court granted the writ of error coram nobis and ordered a new trial. It is significant that the court ordered a new trial rather than discharging Seibert.

Later, by agreement and waiver of a jury trial, the case was submitted to the same trial judge on the original record of the jury trial and the record established at the coram nobis hearing. No other evidence was offered. The trial judge found Seibert guilty.

The Court of Criminal Appeals has concluded that the “trial judge may not rule both ways.” This is the conclusion with which I disagree. By granting a new trial, the trial judge did not have to believe the testimony of Tonya Stearns. If he had believed her absolutely he could very well have ordered Seibert discharged. The court merely granted a new trial on the newly discovered evidence so that Seibert would have the benefit of submitting this testimony to the trier of fact, whether it be judge or jury.

The significant point of this is that the trial judge did not have to believe the witness Tonya Stearns in order to grant a new trial. When a jury trial was waived and the case submitted to the court on the record of both proceedings, the court was at liberty, believing or disbelieving whom it wished, to find evidence of guilt.

The majority opinion charges that the dissenters misconceive the law regarding coram nobis. In an effort to support that conclusion a number of older cases are cited.

It should first be noted these cases are where appellate courts have affirmed the trial courts in denying writs of error coram nobis. In the instant case the writ was granted. The law does not set the outer perimeter of the trial court’s discretion in this area.

In Divine v. State, 285 Ala. 488, 234 So.2d 28, this court held that newly discovered evidence which is merely cumulative is not sufficient to grant coram nobis. Implicit in this rule, however, is that if the newly discovered evidence is not cumulative, then clearly the trial court within its discretion could grant relief.

The second point made by the majority is that coram nobis relief is totally conditioned on proof of innocence. Sometimes this is true depending on the particular facts of the case, but not always. See Knight v. State, 42 Ala.App. 672, 178 So.2d 101, where it was held error not to grant coram nobis relief where petitioner did not have counsel at arraignment and where there was no proof of innocence. There are clearly instances where due process of law requires relief in the absence of proof of innocence.

Interestingly enough, the issue of sufficiency of the evidence has never been properly addressed at the appellate level.

There may be, as Seibert contends, error in other aspects of the trial. The questions of search and seizure and the necessity of revealing the identity of the alleged informant under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), were not addressed by the Court of Criminal Appeals and are not before us.

I would remand to the Court of Criminal Appeals so that it may address these issues.

TORBERT, C. J., and MADDOX and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Brenda WINDSOR v. STATE.
    6 Div. 334.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.

      Miles T. Powell, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State, appellee.
   PER CURIAM.

The appellant was indicted on a charge of grand larceny, found guilty as charged by a jury in the circuit court of Cullman County, and sentenced to seven years in the penitentiary. Her motion for a new trial was overruled and she appealed to this Court.

The appellant was represented in the trial court by counsel of her choice and is so represented now. This cause was submitted on briefs.

Appellant insists that the lower court committed prejudicial error in overruling her motion for a mistrial, and her motion for a new trial on grounds that the District Attorney in his closing argument to the jury made a statement not supported by the evidence which statement was: that the appellant was drinking with her husband. The appellant claims that this statement was so prejudicial that it could not be eradicated from the mind of the jury.

In the record before us we find that immediately before the arguments of the attorneys to the jury started the following occurred:

“THE COURT: Okay, Gentlemen, you have heard the evidence in this case. Now, as I told you earlier, now is the time for you to hear the closing arguments of the attorneys. They have a right to make a closing argument or a summation as they have heard it. They have a right to express to you their thoughts and their ideas and express their opinions to you about the evidence. But what the attorneys say, Gentlemen, is not evidence in the case. You heard the evidence here. You are to determine the evidence. You are the sole and exclusive judges of the evidence and the facts. So, bear that in mind as you hear the argument. They certainly wouldn’t misrepresent anything to you, but if there is a conflict you heard the evidence, you are the judges of the evidence in this case.
Mr. Bland, are you ready?”

During the closing argument of the District Attorney the following occurred:

“MR. POWELL: We object to that, ■there is no evidence in here that the Defendant—
MR. BLAND: Mrs. Witcher testified she did.
THE COURT: Let’s don’t get into any argument about the evidence.
MR. POWELL: Our objection to the statement that if she drinks or if they drink like the witnesses, plural, say they do. We object to that and say that there is no evidence in the case of any witnesses—
MR. BLAND: The Defendant herself testified that they went to the bootlegger this day, one of the days, that she testified about. Mrs. Witcher testified that she had never seen her drink much, I believe that was her words. If that is wrong, the jury heard what was right.
MR. POWELL: She didn’t say she drank when she said she went to the bootlegger’s, said she went with her husband to a bootlegger. There was no testimony there that she had' done any drinking. We think it is highly prejudicial and move for a mistrial.
THE COURT: The jury heard that.
MR. BLAND: I would request you to instruct the jury anything you see fit on his objection, because if I misstated the evidence, the jury heard it and I want you to tell the jury anything you want to about what I said.
THE COURT: Well, Gentlemen, as I told you earlier, the attorneys have a right to make a closing argument. They have a right to express their opinion about what the evidence was and maybe some implication of the evidence, but what they say is not evidence. You heard the evidence in the case and you be the judges of what the evidence was and I charge you as I did before that the Attorneys’ statements are not evidence in the case. You recall the testimony as it relates to this particular aspect of the evidence, what was said, you recall that and you base your actions on what you heard, not what has been said by the Attorneys, by Mr. Bland or by the other attorney in this case.
Is that all right, Mr. Powell?
MR. POWELL: We move for a mistrial.
THE COURT: Denied.”

In Holt v. State, 26 Ala.App. 223, 157 So. 449, this Court held that there is no ironclad rule by which the prejudicial character of the improper remarks and arguments of counsel can be ascertained in all cases, much depends on the issues, parties, and the general circumstances of the particular case. We have reviewed the entire record and in view of the trial court’s instructions to the jury hold that it did not commit reversible error in overruling appellant’s motion for a mistrial, and her motion for a new trial. Ayers v. State, 48 Ala.App. 743, 267 So.2d 533; Cooper v. State, 42 Ala.App. 170, 157 So.2d 125; Holt v. State, supra, 26 Ala.App. 223, 157 So. 449.

There being no other rulings of the trial court complained of in appellant’s brief, we have examined carefully the entire record, and find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, 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, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Brenda WINDSOR.
    SC 2365.
    Supreme Court of Alabama.
    April 1, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: SIMMONS, Retired Circuit Judge.

text:
    Sylvester PUGH v. STATE.
    1 Div. 727.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      Thomas M. Haas and Chris N. Galanos, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State, appellee.
   SIMMONS, Retired Circuit Judge.

Appellant-defendant, on appeal from the General Sessions Court of Mobile County, was found guilty by a jury of driving a motor vehicle on a public highway while under the influence of intoxicating beverages. The court sentenced him to imprisonment in the Mobile County Jail for a period of sixty days.

Briefly, it appears that defendant was traveling in an automobile on a public highway when he was observed and clocked by a highway patrolman traveling at an excessive speed. The officer gave chase that culminated on a dirt exit off the public road where defendant stopped and refused to be arrested. Other officers soon reached the scene and with their aid, an arrest was made.

The evidence fully supports the solicitor’s information that the defendant was driving the automobile while intoxicated. Defendant’s contention that he consumed the alcoholic beverages after he stopped and was not driving as charged created an issue of fact for the jury.

However, the judgment must be reversed and the cause remanded for two errors.

I

The original judgment recited that the defendant entered a plea of not guilty to the information. The judgment was amended on motion of defendant, and this recitation was omitted. So as the record stands, there was no arraignment and no plea of defendant to the information. This omission was error to reverse. In that state of the record, the motion to exclude should have been granted. Arraignment on the instant charge was necessary in view of the mandate of the trial de novo. Thomas v. State, 255 Ala. 632, 53 So.2d 340(9); Ludlum v. State, 52 Ala.App. 631, 296 So.2d 254; Bray v. State, 16 Ala.App. 433, 78 So. 463; Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90, cert. denied 258 Ala. 579, 64 So.2d 102.

Although the above cited cases involve felonies, we see no reason why the pronouncements relative to arraignments should not apply to the instant case which was tried de novo. In support of such necessity for an arraignment in the misdemeanor here involved, see Rorex v. State, 44 Ala.App. 112, 203 So.2d 294(1).

II

Appellant asserts that the State failed to lay a proper predicate for the introduction in evidence of the P. E. I. test. Such introduction over defendant’s objection was error. Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247(2); Patton v. City of Decatur, Ala., 337 So.2d 321; Weaver v. City of Birmingham, Ala. Cr.App., 340 So.2d 99. In Weaver, we were dealing with a State prosecution for driving while intoxicated.

In Patton, which was a city prosecution, the Supreme Court, in reversing and remanding to this Court, observed:

“Our decision, moreover, is not to be construed as a rejection of results of the photoelectric Intoximeter when introduced as evidence against persons charged with driving while under the influence of intoxicating liquor. Although intoxication levels obtained from the P.E.I. and similar blood alcohol content measuring devices have been fraught with evidentiary challenges as to their probative value in criminal proceedings; see State v. Bessette, 130 Vt. 438, 296 A.2d 179 (1972); we have been willing to accept these results and statutory presumptions which attach therefrom where the record is devoid of matters which substantially draw into doubt their accuracy. Rivers v. Black, 259 Ala. 528, 68 So.2d 2 (1953); Bonner v. State, 52 Ala. App. 346, 292 So.2d 460 (1974). Furthermore, the legislature has declared that the results of P.E.I. tests ‘shall be admissible as evidence.’ Tit. 36, § 155(a), supra. Accordingly, in passing on a conviction which was based in part on the results of a P.E.I. test, the only concern of this court is to ascertain whether the will of the legislature has been obeyed. We hold that an affirmative response to that inquiry cannot follow where there are no written standards governing the manner in which P.E.I. tests are to be performed by state law enforcement agencies.
“It would be a simple matter to profer a duly certified and authenticated copy of methods or regulations duly adopted or approved by the State Board of Health. When such copy is admitted in evidence, then the proponent could ask the witness predicatory questions.” [Footnote omitted.]

We note that the instant case was tried on May 20, 1976; that Patton was released by the Supreme Court on June 18, 1976; and Weaver released by this Court on-December 7, 1976.

The judgment in the instant case is reversed and the cause is remanded for such disposition as may be lawfully appropriate. REVERSED AND REMANDED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2412.
    Supreme Court of Alabama.
    April 1, 1977.
   ALMON, Justice.

WRIT DENIED.

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


text:
    Ozea WRIGHT v. STATE.
    3 Div. 621.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

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

The grand jury charged the appellant with unlawfully buying, receiving, concealing, or aiding in concealing one 1974 Ford truck, the personal property of Carl Jones. The jury found the appellant “guilty as charged in the indictment,” and the trial court set sentence at five years imprison1 ment.

Deputy Sheriff Kenneth Ray Hill received information from State Investigator Mike Sullivan and F.B.I. Agent Gary Martin that the appellant “might have” in his possession a stolen pickup truck. Acting on this information, Deputy Hill drove out to appellant’s place of business, Wright’s Fruit Stand, located on U. S. Highway 31, and there noticed a 1974 Ford pick-up truck parked in the parking lot. Deputy Hill cheeked out the tag number on this particular truck with the National Crime Information Center (NCIC) which informed him that the automobile tag had been issued to appellant but that the vehicle identification number (VIN) appellant had registered for this 1974 truck was of a 1969 Ford series. Deputy Hill then called two state investigators who joined him in his investigation.

Acting without a warrant, the three officers examined the automobile by checking to see if the VIN on the motor matched the VIN mounted on the inside edge of the truck door. Upon discovering that the two VIN’s did not match, they relayed the VIN on the motor to NCIC which in turn informed them that this truck had been reported stolen by a Carl W. Jones of Fair-field, Alabama. As a result of this finding, the appellant was later arrested.

Several hours after the appellant’s arrest, a bill of sale, dated May 5, 1975, and notarized by a Myrtle H. Ward, was produced by appellant’s wife which indicated that appellant had traded a 1971 Dodge pick-up plus $2500.00 in cash for the 1974 pick-up in question. However, the bill of sale was an apparent forgery as evidenced by the fact that the 1971 Dodge truck supposedly traded had been repossessed by the Bank of Prattville in April, 1975, and had been under their control since that time. Also, Willard Frank Spicer, a convicted auto thief, testified that he had stolen a Notary Public Seal from a Myrtle H. Ward and had utilized it many times to “notarize” bills of sale he passed in his automobile theft ring. Spicer stated that he had given a number of “notarized” bills of sale in blank form to his cousin, Rickey Taylor, who was also in the business of stealing automobiles prior to his being convicted for the same.

Rickey Taylor testified that he had given appellant the forged bill of sale after appellant had inquired about “paper work” for a 1974 Ford pick-up, and Taylor further identified some handwriting on the forged bill of sale as his own. Taylor, who had known appellant since he (appellant) was a child, stated that at the time he delivered the forged document to appellant, appellant inquired if he might be interested in purchasing the 1974 Ford pick-up in question.

I

Appellant contends that the trial court erred in its refusal to suppress testimony concerning the VIN found on the truck door and motor inasmuch as such information was obtained as a result of a “search” which was violative of his Fourth Amendment rights.

The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” [Emphasis added.]

It is evident from the wording of the amendment that a search warrant may only be issued upon an affidavit which sets forth enough facts to establish “probable cause.” The amendment also mandates that a warrantless search must not be “unreasonable.” However, before a warrant-less search can be conducted, as was in the instant case, there still must exist facts and circumstances which constitute “probable cause,” since “surely [the requirements] cannot be less stringent” than when a warrant is obtained. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Kamisar, LaFave, Israel, Modern Criminal Procedure, Fourth Edition, Section 3, Note 1, Page 228. See also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

“In dealing with probable cause . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543. “The substance of all the definitions [of probable cause] is a reasonable ground for belief of guilt.” McCarthy v. DeArmit, 99 Pa. 63, quoted with approval in Carroll, supra, 267 U.S. at 161, 45 S.Ct. at 288, 69 L.Ed. 543.

The information that Deputy Hill received from the F.B.I. and the State Investigator’s Office that appellant “might have” a stolen truck was nothing more than a “bare suspicion” and would not, in itself, support a finding of probable cause to conduct the search. Brinegar v. United States, supra. However, when that information is coupled with the irregularity noted by NCIC and the State Investigator’s Office, i. e., the fact that appellant had recorded a 1969 VIN for a 1974 truck on his tag registration, “probable cause” does arise. As noted above, “in dealing with probable cause ... we deal with probabilities. . ” Brinegar, supra, and it was certainly reasonable for the officers to conclude that the circumstances evidenced a substantial probability that a crime had been committed. The inspection or “search” of the VIN on the motor and on the post of the unlocked truck door was conducted with probable cause. Cases cited herein.

II

Appellant, in addition, contends that even if probable cause existed, searches conducted without a warrant are per se unreasonable under the Fourth Amendment, except in “a few specially established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Our Supreme Court, per Bloodworth, J., noted these established exceptions to the warrant requirement in Daniels v. State, 290 Ala. 316, 276 So.2d 441:

“Notwithstanding the United States Supreme Court’s assertion that its cases on the subject of .the extent of a search which may be made without a warrant following a lawful arrest ‘cannot be satisfactory reconciled,’ it now seems to be fairly well established that there are at least six exceptions under which warrant-less searches have been held valid, viz:
“(1) In ‘plain view,’ see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and;
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”

Although appellant recognizes in brief the so-called “automobile exception” to the constitutional requirement of a warrant, it is his contention that the officers who conducted the search here were not confronted with “exigent circumstances” since “ . Appellant [was] a native of the county, was in business there at the time of arrest, and the truck was parked unoccupied [Appellant’s Brief, Page 34].”

However, it is “the inherent mobility of automobiles [which] creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.” South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 3095, 49 L.Ed.2d 1000 (1976).

Moreover, even though appellant was not personally alerted to police intentions, the potential for the truck’s removal from “official grasp” was nevertheless substantial simply as a matter of chance inasmuch as the truck in question was just one of many used in appellant’s interstate trucking and produce business. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325. It was the existence of these “exigent circumstances” which excused the officers’ failure to procure a warrant before making the VIN inspection. Carroll v. United States, supra.

Ill

Appellant also contends that the trial court committed reversible error in sustaining the State’s objection to the following question asked by him during the direct examination of his defense witness, Thomas Wiley Lott;

“Q. What, if anything, did the Sheriff’s Deputy promise you to be a witness in this case?” [R. 235]

Although appellant made no offer of proof at trial to show his reason for asking the question or what he anticipated Lott’s answer would be, it is evident from the question itself that appellant was attempting to impeach the prior testimony of Deputy Hill by showing Hill’s bias toward him.

However, before independent evidence of conduct or statements may be offered to indicate bias on the part of an adverse witness, the particular conduct or statement proposed to be proven must first be called to the attention of the witness whose testimony is under attack. Since no predicate of any kind had been laid by appellant during the cross-examination of Deputy Hill, the trial court’s ruling on the objection was correct. Brown v. State, 50 Ala.App. 702, 282 So.2d 322. See Wells v. State, 292 Ala. 256, 292 So.2d 471; Arnold v. State, Ala.Cr.App., 339 So.2d 616; C. McCormick, Evidence, Second Edition, Section 40.

IV

The appellant asserts as error the trial court’s sustaining of the State’s objection to a question he propounded during his cross-examination of State Investigator Sullivan, viz.:

“Q. Now, will you tell the jury if make [sic] — if you make a practice of going onto private property, and investigating, or opening doors to trucks, and automobiles, to look at the numbers?
“MR. GLEN CURLEE: We object, Your Honor.
“THE COURT: I’ll sustain the objection to that question.” [R. 162]

The question was improper and irrelevant since the propriety of the search conducted by the officers in the instant case had been previously ruled on as a matter of law by the trial judge. The trial court was correct in sustaining the objection thereto.

V

Finally, the appellant contends that the trial court erred in allowing into evidence, through State Investigator Sullivan, hearsay testimony concerning the origin of the 1969 VIN plate (which had been found mounted on the 1974 pick-up truck in question), and the fact that a Jackie Walker had once been employed by appellant. The record recites the testimony objected to as follows:

“Q. All right. I’ll show you State’s Exhibit Number Two, and ask you if you’ve ever seen that before, please, sir? (Indicating)
“A. Yes, sir, I have.
“Q. State to the Ladies and Gentlemen of the Jury where you saw it, and under what circumstances?
“A. This plate was shown to me by Deputy Kenneth Hill, and it had come off a 1974 Ford. (Indicating)
“Q. Now, did you make an investigation to determine where it originally came from?
“A. Yes, sir, I did.
“Q. State to the Ladies and Gentlemen of the Jury what you did in connection with that.
“A. _
“MR. J. PAUL LOWERY: We object, Your Honor, on the grounds that it calls for hearsay testimony.
“THE COURT: I’ll overrule your objection.
“THE WITNESS: I checked_
“THE COURT: You understood the question, now? He said what did you do_
“THE WITNESS: I made_
“THE COURT: In connection with that?
“THE WITNESS: I made an investigation to determine where this particular I. D. Number was manufactured, and where it was shipped to. In doing this we found it was shipped to a nine-teen_
“MR. J. PAUL LOWERY: We object to what he found, and what he located, Your Honor. The best evidence would be the evidence from the source itself.
“MR. GLEN CURLEE (CONTINUING):
“Q. Did you find--let me ask you this, where this plate came from? (Indicating)
“A. Yes, sir, I did.
“Q. Where’d it come from?
“MR. J. PAUL LOWERY: We object. “THE COURT: I’ll overrule your objection to that.
“MR. J. PAUL LOWERY: If he knows.
“THE COURT: Uh huh.
“THE WITNESS: It came off a 1969 Ford Truck that was registered to Jackie Walker, in Chilton County.
“MR. J. PAUL LOWERY: All right, sir. Now, Judge, we move to exclude that answer. He has not established, as to the fact, that he knows that of his own volition, and knowledge. He doesn’t say how he_
“THE COURT: He’s already said how he found it out.
“MR. GLEN CURLEE: How he found it out.
“MR. GLEN CURLEE (CONTINUING):
“Q. Now, by whom was Jackie Walker employed, if you know?
“A. During the month of February, March, and April he was employed by Ozea Wright.
“Q. Now, did you ascertain.-well, let me ask you this. Did you take a picture of the truck, which originally bore this license number?
“A. Yes, sir, I do.
“Q. Do you have that photograph with you?
“A. Yes, sir, I do.
“Q. Would you get it out, please?
“A. Yes, sir.” [Emphasis added]

Assuming the stated fact that “It [the 1969 VIN plate] came off a 1969 Ford Truck that was registered to Jackie Walker, in Chilton County” constituted hearsay testimony and was improperly admitted, such was error without injury since this fact was subsequently established, not only by the testimony of Jackie Walker, but also through the admission of certified copies of the official records of the State Department of Revenue. Rule 45, ARAP [R. 140-160, 169-171].

As to Investigator Sullivan’s statement that Jackie Walker was employed by appellant “[d]uring the months of February, March, and April . . .,” appellant failed to make a timely objection to this statement, thus waiving any ground of complaint against its admission on appeal. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353.

We have carefully reviewed this record, as required by Title 15, Section 389, Code of Alabama 1940, and find same to be free from error. The judgment of the trial court is due to be and is hereby

AFFIRMED.

All the Judges concur.

      . Although appellant strenuously argues otherwise, Deputy Hill’s initial action of entering the parking lot of appellant’s business (where “the public comes and goes” [R. 20]) and viewing the tag located on the exterior of the truck in question was not a “search” within the meaning of the Fourth Amendment. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

      . Compare: United States v. Johnson, 413 F.2d 1396 (5th Cir. 1969), aff’d en banc, 431 F.2d 441 (5th Cir. 1970); United States v. Polk, 433 F.2d 644 (5th Cir. 1970); and United States v. Wood, 500 F.2d 681 (5th Cir. 1974), wherein the United States Fifth Circuit Court of Appeals held that “inspections of motor vehicles performed by police officers, who were entitled to be on property where the vehicles were located, which in no way damaged the vehicles and were limited to determining the correct identification numbers thereof were not searches within the meaning of the Fourth Amendment United States v. Johnson, supra, 431 F.2d at 441 [Emphasis added].


author: BLOOD WORTH, Justice.

text:
    Ex parte Ozea WRIGHT.
    SC 2408.
    Supreme Court of Alabama.
    April 1, 1977.
   BLOOD WORTH, Justice.

WRIT DENIED.

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