author: EMBRY, Justice.

text:
    VANN EXPRESS, INC. v. BEE LINE EXPRESS, INC., et al.
    SC 2056.
    Supreme Court of Alabama.
    July 8, 1977.

      Ronald L. Stichweh, Carlton, Boles, Clark & Stichweh, Birmingham, Bill Bradley, Henslee & Bradley, Gadsden, for appellant.
    John B. Tally, Jr., Birmingham, for Bag-gett Transportation Co., appellee.
    Gerald D. Colvin, Jr., Birmingham, for Bee Line Express, Inc., Cummings Trucking Co. and Hiller Truck Lines, Inc., appellees.
    William J. Baxley, Atty. Gen. and Jerry L. Weidler, Asst. Atty. Gen., for Public Service Commission, as amicus curiae.
   EMBRY, Justice.

This is an appeal from a judgment of the Circuit Court of Montgomery County reversing an order of the Alabama Public Service Commission which issued additional authority to Vann Express, Inc. for the transportation of general commodities with a maximum weight limitation of 60 pounds per package, offering “one-day” service over regular routes and off-route points.

We reverse.

Vann Express applied to the APSC, under the Motor Carrier Act of Alabama (Tit. 48, §§ 301(1), et seq., Code of Ala.), for additional authority to transport general commodities with a maximum weight limitation of 60 pounds per package, offering “one-day” service, by the following routes:

“(1) Between Birmingham, Alabama, and Athens, Alabama, on U. S. Highway 31 and Interstate 65 and all intermediate points on U. S. Highway 35 and Interstate 65;
“(2) Between Cullman, Alabama, and Florence, Alabama, on Alabama Highway 157 and all intermediate points on Alabama Highway 157;
“(3) Between Florence, Alabama, and Decatur, Alabama, on U. S. Highway 72 and alternate Highway 72 and all intermediate points on U. S. Highway 72 and alternate U. S. Highway 72;
“(4) Between Decatur, Alabama, and Bridgeport Alabama, on U. S. Highway 72 and alternate U. S. Highway 72 and all intermediate points on U. S. Highway 72 and alternate U. S. Highway 72;
“(5) Between Stevenson, Alabama, and Hammondville, Alabama, on Alabama Highway 117 and all intermediate points on Alabama Highway 117;
“(6) Between Cullman, Alabama, and At-talla, Alabama, on U. S. Highway 278 and all intermediate points on U. S. Highway 278;
“(7) Between Birmingham, Alabama, and Albertville, Alabama, on Alabama Highway 75 and all intermediate points on Alabama - Highway 75;
“(8) Between Cleveland, Alabama, and Sylacauga, Alabama, on U. S. Highway 231 and all intermediate points on U. S. Highway 231;
“(9) Between Sylacauga, Alabama, and Talladega, Alabama, on alternate U. S. Highway 231 and all intermediate points on alternate U. S. Highway 231;
“(10) Between Decatur, Alabama, and the intersection of U. S. Highway 231 on Alabama Highway 67 and all intermediate points on Alabama Highway 67;
“(11) Between Guntersville, Alabama, and Cullman, Alabama, on Alabama Highway 69 and U. S. Highway 278 and all intermediate points on Alabama Highway 69 and U. S. Highway 278.”

Under its existing authority Vann Express further proposed to offer service to the following off-route points:

“(1) Ragland, Alabama;
“(2) Moody, Alabama;
“(3) Odenville, Alabama.”

After notice, protests against Vann Express’ applications were filed by ten certificated common carriers of freight by motor vehicle.

The APSC held a hearing on Vann Express’ application but because a majority of the commission was not present throughout the entire hearing, an examiner’s report and recommended order was filed.

The examiner concluded that the evidence reflected Vann Express to be fit, willing, and able to conduct the additional operations recommended in his order. However, he stated that Vann Express had not shown the existing service “is not reasonably adequate” and was of the opinion that Vann Express had failed to meet the burden of proof that the present or future public convenience and necessity required the granting of all the authority sought by its application.

In his report the examiner recommended that Vann Express be granted authority as follows:

“General commodities over the following territory or routes with a maximum weight limitation of 60 lbs. per package, offering ‘one-day’ service:
“(1) Between Huntsville and Bridgeport, Alabama, via Highway 72 serving all intermediate points.
“(2) Between Hammondville and Stevenson, Alabama, via Highway 117 serving all intermediate points.
“(3) Between Arab and Guntersville, Alabama, via Highway 69 serving all intermediate points.
“(4) Between Birmingham and Albert-ville, Alabama via Highway 75 serving all intermediate points.
“(5) Between Attalla and Snead, Alabama, via Highway 74 serving all intermediate points.
“With service to Moody, Odenville, Rag-land and Ashville as off-route points under existing authority.”

He concluded his report by recommending that in all other respects the application should be denied.

In an order dated November 21,1975, the APSC by unanimous decision adopted the examiner’s findings, agreeing with regard to the grant of authority recommended by him, and further finding the evidence of record supported the grant of certain additional authority to that recommended.

The APSC ordered Vann’s certifícate amended to authorize the transportation of general commodities with maximum weight limitation of 60 pounds per package, offering “one-day” service over regular routes, as follows:

“(1) Between Birmingham, Alabama, and Athens, Alabama, on U. S. Highway 31 and Interstate 65 and all intermediate points on U. S. Highway 31 and Interstate 65;
“(2) Between Decatur, Alabama, and Bridgeport, Alabama, on U. S. Highway 72 and alternate U. S. Highway 72 and all intermediate points on U. S. Highway 72 and alternate U. S. Highway 62 (sic);
“(3) Between Stevenson, Alabama, and Hammondville, Alabama, on Alabama Highway 117 and all intermediate points on Alabama Highway 117;
“(4) Between Cullman, Alabama, and At-talla, Alabama, on U. S. Highway 278 and all intermediate points on U. S. Highway 268 (sic);
“(5) Between Birmingham, Alabama, and Albertville, Alabama, on Alabama Highway 75 and all intermediate points on Alabama Highway 75;
“(6) Between Decatur, Alabama, and the intersection of U. S. Highway 231 on Alabama 67 and all intermediate points on Alabama Highway 67;
“(7) Between Guntersville, Alabama, and Cullman, Alabama, on Alabama Highway 69 and U. S. Highway 278 and all intermediate points on Alabama Highway 69 and U. S. Highway 278.
“With service to Moody, Odenville, Rag-land, and Ashville as off-route points.”

Several of the protestants (Bee Line Express, Inc., Cummings Trucking Company, Hiller Truck Lines, Inc., Baggett Transportation Company, Inc., and Greyhound Lines —East) appealed the Commission’s order to the Circuit Court of Montgomery County. That court determined the matter should be remanded to the Commission for issuance of an order denying the authority sought by Vann. The circuit court found:

“The Commission in this case has overruled the findings of the examiner by granting authority which the report of the examiner found not to be required by the public convenience and necessity without stating any basis in the record or otherwise for reaching this conclusion. * * *";

and further:

“* * * that the recommendation of the examiner to grant authority to points in Northeast Alabama was inconsistent with the facts as revealed by the record and the examiner’s report of the record and that this authority which the examiner recommended be granted, should also be denied.”

Vann Express appeals to this court from the judgment of the circuit court.

Under Tit. 48, § 82, an APSC order may be set aside by the circuit court or by this court only if “* * * 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 on a finding of facts contrary to the substantial weight of the evidence. * * *”

We review the judgment of the circuit court without any presumption of its correctness, since that court was in no better position to review the order of the Commission than are we. Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409 (1949); Alabama Public Service Commission v. Consolidated Transport Co., 286 Ala. 323, 239 So.2d 753 (1970); Alabama Public Service Commission v. Chem-Haulers, Inc., 293 Ala. 677, 309 So.2d 453 (1975).

We are governed by the same rules in our review as was the circuit court. We review the order of the Commission as though the appeal from the Commission’s order had been taken directly to this court. Chem-Haulers, Inc., supra; Consolidated Transport Co., supra.

The circuit court in reaching its decision to remand the case to the Commission for the entry of an order denying the application of Vann Express, considered Chem-Haulers, Inc., supra, and Alabama Public Service Commission v. Perkins, 275 Ala. 1, 151 So.2d 627 (1963) controlling. We disagree.

These cases are readily distinguishable from this case. In both Chem-Haulers and Perkins, the Commission rejected the findings and conclusions of the examiner who heard the testimony ore tenus. In this case, the Commission specifically stated that “* * * we hereby adopt the findings as set out in the Examiner’s Report and same are incorporated as if fully set out herein. * * Thus, the requirements of Chem-Haulers and Perkins are clearly inapplicable to the examiner-Commission relationship in this case. Therefore, the sole question here before us is whether the APSC’s order is supported by competent, substantial evidence of record.

A determination of this question depends upon whether the certification requirements of Tit. 48, § 301(9), were met. That section provides:

“ISSUANCE OP CERTIFICATE. — A. Subject to the provisions of section 301(12) of this title, and to the provisions of paragraph B of this section, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found, after public hearing of the application, that the applicant is fit, willing, and able to properly perform the service proposed and to conform with the provisions of this article and requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent to be authorized by the certificate is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied; provided, however, that no such certificate shall be issued to any common carrier of passengers by motor vehicle for operations over other than a regular route or routes, and between fixed termini, except as such carriers may be authorized to engage in special or charter operations. B. Before granting a certificate to a common carrier by motor vehicle the commission shall, among other things, consider the following: (1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs. (2) Financial ability of the applicant to furnish adequate, continuous and uninterrupted service the year around. (3) The advantages to the public of the proposed service. C. No certificate issued under this section shall confer any proprietary or property rights in the use of the public highways.”

Evidence in the record supports the grant by the APSC of additional authority to Vann Express. That evidence showed the proposed service is, or will be, required by present or future public convenience and necessity. This court has noted previously that the requirement of a showing of public “necessity” means not that the service must be absolutely indispensable, but instead means merely that the service must be reasonably necessary for the public good. Southern Haulers, Inc. v. Alabama Public Service Commission, 331 So.2d 660 (Ala.S.Ct.1976). Several witnesses who appeared before the examiner testified to their need for this “same day” or “express” type service proposed by Vann. None of the protestants offer such service.

We also find the record includes sufficient evidence to support the Commission’s order with respect to all three additional factors to be considered under § 301(9) of Tit. 48, Code. Furthermore, the examiner found Vann Express to be “fit, willing, and able to conduct the additional operations.” On the question of the adequacy of existing service, the evidence clearly shows this “one-day” service was not offered by other common carriers. Finally, from the testimony of witnesses and other evidence in the record, there is no doubt the Commission was authorized to find a need for, and desire to use such “express” type service by the customers in the awarded areas.

At this point, the relationship between the Commission and the examiner should be clarified in reference to examiner’s findings and conclusions. As was stated in Southern Haulers, Inc., supra, “* * the ore tenus rule mandates that a presumption of correctness be accorded a hearing examiner’s findings of fact when he alone has heard the evidence, the ore tenus rule does not also mandate a presumption of correctness in favor of the examiner’s conclusions of law. * * * ”

In considering whether the Commission erred in applying the law to facts we must consider the evidence in the light most favorable to upholding the order of the Commission and without weighing the conflicting evidence. Consolidated Transport Co., supra.

Having found that the APSC’s order is reasonably supported by the facts of record and those set out in the examiner’s report, the judgment of the circuit court is reversed and the cause remanded for the issuance of judgment not inconsistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    RON SHAFER CHEVROLET, a partnership composed of Ron Shafer and Bob Shafer v. Jacqueline Marie HIRES.
    Civ. 1090.
    Court of Civil Appeals of Alabama.
    July 13, 1977.

      Fred Ray Lybrand for Lybrand, Sides, Hamner, Oglesby & Boozer, Anniston, for appellant.
    Arthur F. Fite, III, for Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Calhoun County. A jury returned a verdict in favor of the plaintiff in the amount of $1,200, a judgment was entered thereon. From this judgment the defendant appeals.

The plaintiff sued the defendant-car dealer for misrepresentation and deceit in the sale of an automobile by the defendant to the plaintiff. There were several counts to the plaintiff’s complaint. Each, however, was based upon the premise that the defendant had represented to the plaintiff that the automobile sold to plaintiff had not been “wrecked” when in fact the automobile had prior to its sale to the plaintiff been involved in a “wreck.”

The defendant, through distinguished and experienced counsel, contends that the evidence presented to the jury cannot support an award of punitive damages or in the alternative that the evidence is not supportive of any verdict and judgment against the defendant.

We agree with the contention as it relates to punitive damages. For punitive damages to be awarded in this type of ¿ase, the fraud committed must be gross, -malicious, oppressive, and with an intent to deceive. Otherwise, the damages to be recovered are such as will compensate for actual damages. See Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970).

However, it is clear to this court after a careful reading of the entire transcript of the evidence that there was no award of punitive damages. In fact, the learned trial judge did not charge the jury on punitive damages, but clearly limited the jury to an amount of actual damages. We, therefore, find no error in this regard that requires reversal.

We do not deem it necessary to this opinion to set out the testimony which supports a jury’s finding that the plaintiff was entitled to an award of compensatory damages for the alleged misrepresentation. Suffice it to say that the plaintiff’s own testimony as a whole supports the jury’s conclusion that the car had been wrecked. Additionally, there is the testimony of another witness (an individual in the automobile business) that from an inspection of the automobile he concluded that the automobile had in fact been wrecked. There is evidence presented by the defendant that the vehicle had not been wrecked.

It is clear, therefore, that the evidence regarding the condition of the automobile is in conflict; this conflict was for the jury to resolve. Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975).

Additionally, we note that the amount of the jury’s award is supported by the evidence. The plaintiff testified that the difference in value between the car as represented to her and as she later found out to be the automobile’s true condition was $1,495. The jury’s award was $1,200. See Hall Motor Co. v. Furman, supra.

The plaintiff-appellee has filed with this court, pursuant to Rule 38, ARAP, a motion for an award of damages and costs for the reason that the appeal is frivolous and was made for the purpose of delay. This motion is denied.

The judgment is due to be and is affirmed.

AFFIRMED.

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


text:
    Dianne KEELE v. Darin KEELE.
    Civ. 1106.
    Court of Civil Appeals of Alabama.
    July 13, 1977.

      Cecil Wayne Morris, Huntsville, for appellant.
    Paul L. Millirons, Stephens, Millirons & Harrison, Huntsville, for appellee.
   HOLMES, Judge.

This is a divorce case. The Circuit Court of Madison County awarded custody of the parties’ 18 month old child to the father. Additionally, the trial court granted certain visitation rights to the mother. Prom this decree the mother appeals.

The issues on appeal are (1) did the trial court err in awarding custody of the child to the father (2) did the trial court err in only allowing the mother to visit the child in the presence of the father and (3) did the trial court err to reversal in finding in its decree that a child the mother was pregnant with at the time of the divorce was not the child of the appellee-father.

We find the trial court did not err in awarding custody to the father and in finding that the unborn child was not fathered by the appellee. We do find the learned trial judge erred in its award of visitation.

Much of the evidence regarding the mother’s conduct toward the child is in conflict. There is evidence that she cared for the child in a suitable manner. There is also testimony that she did not care for the child in a proper manner. However, viewing the trial court’s decree with the attendant presumption of correctness, we find that there is evidence from which the trial court could have found that the mother did little to care for the child’s daily needs, that these needs were performed by the father or by his parents or others, and that the mother left the father and lived in a dwelling with her boy friend. Residing in this same dwelling was the appellant-mother’s father (the child’s maternal grandfather) and his girl friend (the maternal grandfather being separated at the time from the maternal grandmother). The evidence further showed that the mother while married had sexual relations with a man other than her husband, that the mother was at the time of the divorce pregnant by a man not her husband, that the mother worked all night.

Additionally, the trial court could have found that the husband is a hard worker and with the help of his parents is able to adequately care for the child.

The following language found in Linderman v. Linderman, 49 Ala.App. 662, 664-65, 275 So.2d 342, 343-44 (1973), is appropriate and controlling in this instance:

“Cases dealing with custody of children are among the hardest to deal with- and courts are seldom satisfied in all respects with the results reached; however, the overwhelming consideration in cases of this nature is the welfare of the children. . the trial court heard the evidence, observed the witnesses, and based its decision of these factors in arriving at its determination that the welfare of the children would best be served by [the father] having primary custody of the children. There is a strong presumption favoring the trial court’s findings in cases of this class. . . . We are further mindful [that] . . . there is no law in this state which gives either parent priority as to the right of custody. It is usually that a child or children, particularly a girl of tender years, is considered to need the peculiar care of the mother, but such consideration is subject to the predominant rule of the best interest and welfare of the child or children. .
“As the Supreme Court of Alabama has stated, ‘ . . . it is not necessarily a question as to what view the reviewing court might have of the evidence, but that if, under any reasonable aspect, the decree below is fairly supported by credible evidence, it is our duty to affirm.’ See Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558; Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809.”

That a parent may forfeit the prima facie right to custody of a child by his or her conduct is clear. Jackson v. Farmer, 247 Ala. 298, 24 So.2d 130 (1945); Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).

In view of the evidence, as summarized above, we cannot say the trial court erred to reversal in awarding custody to the father.

In the trial court’s decree we find the following:

“4. The Court finds that Darin Christopher Keele is the only child born of this marriage and the only child which plaintiff Darin Keele has a duty to support. To be more specific, the child presently being carried by the defendant, Dianne Keele was not fathered by the plaintiff Darin Keele.”

While we make no comment as to the effect or propriety of the above finding, we do not find that such requires a reversal. Suffice it to say that there is ample evidence contained in the record that supports the conclusion that the unborn child being carried by Dianne Keele is not the child of Darin Keele.

The final contention of the mother is that the trial court erred when it found that the mother’s visitations with the child must be in the presence of the father. Specifically, the trial judge decreed as follows:

“. . . subject, however, to the right of visitation by the defendant, Dianne Keele, which visitation shall be enjoyed only in the presence of the plaintiff, Darin Keele, and shall have no right to remove the child from his home or his presence.”

We would note that the mother does not reside in the same town where the father resides.

The trial court has wide discretionary powers in the settlement of visitation rights. Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891 (1969). However, such discretion can be abused.

Here, where there is no evidence that the child was physically abused by the mother, where the mother resides some distance from the husband, where the maternal and paternal grandparents (the maternal grandparents are now residing together) can assist in visitations prescribed, and where the parents’ attitude toward one another would obviously not be amenable, we find the trial court erred to reversal in requiring the mother to exercise visitations only in the presence of the father.

We remand the case to the trial court for a determination of visitation rights with a suggestion that requiring a bond be posted by the mother is available to the judge if he so chooses. Additionally, the use of the grandparents might be considered by the trial court. In any event, the trial court is in a better position to make a proper determination of appropriate visitation rights than is this court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: BOWEN, Judge.

text:
    Oscar HARRIS v. STATE.
    3 Div. 690.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    As Corrected On Denial of Rehearing May 3, 1977.

      Delores R. Boyd for Mandell & Boyd, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted by a grand jury of Montgomery County, Alabama, for the first degree murder of Harold Wayne Washington by shooting him with a pistol. After a trial at which the appellant was represented by retained counsel, a jury found the appellant guilty of murder in the second degree and fixed his punishment at forty-five years in the penitentiary. The trial judge entered judgment and sentence accordingly. The appellant is represented by retained counsel both at his trial and on this appeal.

As grounds for reversing the conviction had in the trial court, the appellant asserts (1) that he was denied the right to confront witnesses against him by the prosecutor’s use of a purported statement made by the appellant’s ten-year old son to the police, and (2) that the evidence was legally insufficient to sustain the conviction.

The shooting occurred on May 26, 1976, on the front porch of the appellant’s house located in the Mobile Heights section of the City of Montgomery.

While the appellant has raised the question of the sufficiency of the evidence, there is no need to recite, in minute detail, the testimony presented by each witness.

On the evening of the shooting, Mrs. Valerie Sawyer and Aaron Washington, the brother of the soon to be deceased Harold Wayne Washington, were sitting in Aaron’s car listening to music. They were parked in front of the appellant’s house. The deceased was next door talking to Mr. T. C. Thomas and his son.

Mrs. Sawyer, who was separated, was “going with” Joel Welch who was the appellant’s half-brother. On one or two occasions prior to this night, Mrs. Sawyer had contacted the appellant about getting a message to Joel that she wanted to see him. Joel was married but he and his wife were “getting along bad”. On this particular night, Mrs. Sawyer asked Aaron Washington to go get the appellant. Mrs. Sawyer wanted to see the appellant and not Joel. However, Aaron did not go.

Aaron’s brother, the deceased, walked over to Aaron’s car and Aaron asked him to go get the appellant for Mrs. Sawyer.

The appellant, his wife, his aunt, and his children were preparing for supper when the appellant heard a “loud”, an “abrupt” knocking on his front door. When he opened the door, the deceased told him that “there is a girl wants to see you out here”. The appellant told the deceased that he didn’t want “nothing to do with all that, . I have got my wife and family here and I ain’t got time for none of that. .” The appellant then told the deceased to get off his porch but Harold Wayne did not leave.

The appellant testified that the deceased then said, “Nigger, shoot me,” and he “kept going into his pants” where the appellant saw a black handle which he thought was a pistol. The appellant further testified that Harold Wayne kept “bubbling up and everything” and his eyes were “rolling and wandering”. The appellant “didn’t understand where he was coming from” and the deceased kept repeating, “Nigger, shoot me”, and would not leave.

The appellant went to the closet and got his .22 caliber pistol. When the deceased again put “his hand into his pants”, the appellant “shot out like that and shut the door” behind him allegedly to keep the deceased from shooting into the house and hitting his wife or one of his children. The appellant testified that he did not intend to shoot the deceased, but fired just to scare him away and to keep him from shooting into the house. The deceased cried out that he had been shot, ran into the street, fell and died.

After firing one shot, the appellant testified that he called the police. “A lot of people” gathered outside and when the appellant heard them talking about “getting the gun”, he turned the lights off in the house. Next, according to the appellant, Aaron Washington pulled up near his house and fired a shot which came through the kitchen window and lodged in the kitchen wall. The appellant responded by firing once out the living room window.

When the police arrived on the scene, they found a large crowd gathered three or four houses down from the scene of the shooting. The deceased was lying in the street. On order, the appellant emerged from his house. He was immediately handcuffed and placed in a patrol car. Before the patrol car left for the police station, the appellant was advised of his constitutional rights which were read to him from a standard Miranda rights form.

On the way to the station, no one interviewed or interrogated the appellant. En route the appellant voluntarily stated that the deceased “had threatened him and he had wanted to shoot to warn him to get him away from the door and that he had not intended to shoot the man; that if he had shot somebody, he did not intend to shoot him”. The appellant, according to Montgomery City Police Officer Prank H. Ecker-man, further volunteered the information that he was interested in getting rid of some of the drug addicts in the neighborhood. The appellant denied making this last statement and stated that he did tell Officer Eckerman that something was wrong with the eyes of the deceased.

Captain I. B. Moore, a detective for the Montgomery Police Department, found a .22 caliber pistol in the living room of the appellant’s house. Captain Moore turned the pistol, along with four live rounds and two spent hulls, over to Detective Cody Wood. Detective Wood also examined the inside of the appellant’s house and observed “a hole in the wall, in the kitchen that appeared to be made by a bullet”.

At the police station later that evening, Detective Wood interrogated the appellant after advising him of his constitutional rights. At that time the appellant freely and voluntarily gave a signed statement which was properly admitted into evidence by the trial judge.

The substance of that statement was that the appellant was sitting in the living room of his home when Wayne Washington knocked on the front door and told the appellant that Valerie Sawyer wanted to see him. The appellant told Washington to “go on with that. Get off my porch . ., my wife is here and my children and I don’t want nothing like that.” Washington then said, “Nigger, shoot me”, and reached into his pants or under his shirt. The appellant then stated that he:

“. . . stepped back and got my pistol from the closet and went back to the door. He reached again in his pants and said again, go on, Nigger and shoot me. I shot out the door once and quickly closed the wood door. I just wanted to scare him. I didn’t even .mean to hit him.”

The appellant then stated that he turned out all the lights and looked out the front window. He saw Aaron Washington with a gun and shot one more time “in the ceiling or somewhere”, “to scare them and let them know not to shoot in the house . . .”. The appellant, in his statement said that he shot the deceased because he “thought he had a pistol when he said Nigger, shoot me, and reached in his pants”. The appellant did not want to kill him and just “wanted to scare him or wound him”. Further the appellant stated that his half-brother, Joel, had told him that Mrs. Sawyer liked him and wanted to go with him. The appellant felt like the Washington brothers were trying to tear up his home.

A state toxicologist, Dr. Richard Roper, performed a post-mortem examination upon the deceased. It was his opinion that death resulted from hemorrhage and shock associated with a single gunshot wound from a .22 caliber long rifle bullet which lodged in the upper portion of the deceased’s chest. Dr. Roper did not undertake to determine what type of weapon (pistol or rifle) had fired the fatal bullet recovered from the deceased’s body but stated that it could have been a .22 caliber pistol.

I

During the prosecutor’s cross examination of the appellant, the following exchange was had:

“Q. Let me ask you this. Do you have a son by the name of Tracy Harris?
“A. Sure do.
“Q. How old is he?
“A. Tracy is about ten.
“Q. Do you know whether or not Tracy gave the police a statement down at the Police Department?
“MR. ALLEN: Now, we object to that.
“Q. Was Tracy taken to Police Headquarters?
“A. I guess he was.
“Q. Do you know whether or not he gave a statement down there?
“A. I don’t know, sir.
“Q. Okay. Before you shot Harold was Harold getting ready to leave your door?
“A. No, sir, he wasn’t.
“Q. So if your son, Tracy said that he was, he would be lying?
“A. Tracy would be lying.
“Q. Where was Tracy when the shot was fired?
“A. Eating dinner, sir.
“Q. And if Tracy said he was in the living room he would be telling something that is not true?
“A. To my knowledge he would.
“Q. Well, was he in the living room or not?
“A. I just told you I was on the couch when the knock came on the door.
“Q. Do you know where Tracy was?
“A. He had to be in the kitchen eating.
“Q. If Tracy said he was in the living room with you, it would not be true?
“A. No, it wouldn’t.
“Q. Okay. And if Tracy said that when Wayne came up to the door and was talking to you and you told him if you don’t leave I am going to get my gun and start blowing, that would not be true?
“A. That would be a lie, sir. I have taken this oath and I am swearing the truth.
“Q. Is that true or not, would Tracy be telling something untrue?
“A. Tracy would be lying.
“Q. Your son?
“A. My son.
“Q. And if Tracy said when Wayne went to run away that is when you shot him, that would not be true?
“A. My son didn’t say that.
“Q. I am asking you, Mr. Harris, if he said it would it be untrue?
“A. It would be untrue.
“Q. Okay. And if Tracy said you fired two shots, that would be true, wouldn’t it?
“A. That would be true. I shot one out the door and one over Aaron’s head. If I hadn’t shot out there he would have shot in my house and might have hit my family and everything. I tried to shoot up over his head to scare him off.
“Q. And if Tracy said that you shot Wayne because he was just bothering you while you were relaxing, that would be untrue?
“A. Tracy didn’t say that.
“Q. I am asking you if he said that would it be untrue?
“A. He didn’t say that. It would be untrue.
“Q. It would be untrue?
“A. It would be untrue.”

At another juncture in the questioning, the prosecutor cross examined the appellant in regard to statements allegedly made by the appellant’s older son on what the appellant had purportedly told his wife regarding bond and getting out of jail. No objection of any form was made to this second series of questions.

The appellant contends that the prosecutor’s highly improper attempts to impeach the defendant’s credibility by interrogating him regarding material details of a statement purportedly given by his ten-year old son to police investigating the homicide unconstitutionally denied the appellant his right to confront the witness against him.

There is no doubt and we have so held that questions of this type are hearsay and are prejudicial. Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975). Holt v. State, Ala.Cr.App., 347 So.2d 536; writ of certiorari to the Alabama Supreme Court granted February 9, 1977, Ala.Cr.App., 343 So.2d 582. The question in this case then becomes whether there was a proper presentation and reservation in the lower court of error and the grounds of review.

Title 15, § 389, Code of Alabama 1940, requires that this court must “consider all questions apparent on the record or reserved by bill of exception (now transcript of the evidence) and must render such judgment as the law demands". This statute does not mean that in a case of this kind a review will be made of questions which were not properly raised in the trial court. Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975) and cases cited at 55 Ala.App. 17, 312 So.2d 583; 7 Alabama Digest, Criminal Law, &wkey;1028. Review on appeal is limited to a consideration of questions properly raised in the trial court. Knox v. State, 38 Ala.App. 482, 87 So.2d 671 (1956); Handley v. State, 214 Ala. 172, 106 So. 692 (1926). Matters not objected to in the trial court cannot be considered for the first time on appeal since review on appeal is limited to those matters on which rulings are invoked at nisi prius. Daniels v. State, 53 Ala.App. 666, 303 So.2d 166 (1974); Shiver v. State, 49 Ala.App. 615, 274 So.2d 644 (1973); Cooper v. State, Ala.App., 331 So.2d 752, cert. denied, Ala., 331 So.2d 759 (1976). Even constitutional rights have to be raised seasonably in the trial court in order to be considered on appeal. Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959); Steele v. State, 289 Ala. 186, 266 So.2d 746 (1972).

The only objection made by defense counsel during the complained-of portions of the prosecutor’s cross examination of the appellant was to the question, “Do you know whether or not Tracy gave the police a statement down at the Police Department?” Although defense counsel objected, this question was proper and the objection was due to be overruled. However, no ruling by the trial court was made on this objection. No further objections appear in the record. Likewise, there was neither a motion to strike nor a request for a mistrial. Therefore this court is precluded from reviewing this matter. The plain error doctrine applies only to death cases. Stinson v. State, 56 Ala.App. 312, 321 So.2d 277 (1975). The jurisdiction of the Court of Appeals is appellate only, and its review is limited to matters upon which action or ruling at nisi prius was invoked. Fuller v. State, 38 Ala.App. 493, 90 So.2d 244, cert. denied, 265 Ala. 695, 90 So.2d 245 (1956). Even those matters which result in “ineradicable harm” must at least be called to the attention of this court by a motion for a new trial. Alday v. State, 42 Ala.App. 21, 151 So.2d 220, cert. denied, 274 Ala. 718, 151 So.2d 225 (1962). Here an oral motion for a new trial and for the verdict to be set aside merely asserted that “the verdict is contrary to the law and evidence in this case.” The trial court will not be put in error for the admission of the complained-of testimony, despite its objectionable character, where no objection was interposed.

II

The appellant’s second contention is that the evidence was not sufficient to support a conviction for second-degree murder. Specifically, the appellant contends that the state failed to fulfill its burden of proof regarding malice and did not undermine or contradict the self defense proved by the appellant.

The appellant’s use of the pistol was sufficient evidence to warrant the jury’s finding that he acted with malice. Holcey v. State, 52 Ala.App. 664, 296 So.2d 750, cert. denied, 292 Ala. 723, 296 So.2d 753 (1974). In finding the existence of malice, the jury may consider any matter coming to their attention, Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975), including the fact that the appellant went to his closet and retrieved his pistol before he shot the deceased and the appellant’s own testimony that he did not intend to wound or hit the deceased but only shot to warn him. The fact.that the appellant denied he' intentionally shot the deceased presented a question for the jury. Harris v. State, 48 Ala.App. 723, 267 So.2d 512 (1972); Jones v. State, 13 Ala.App. 10, 68 So. 690 (1915). Here the question of malice was properly for the jury.

Additionally, the appellant urges that the state did not contradict the appellant’s showing of self defense.

The appellant was the only witness for the defense. He alone testified that he acted in self defense. This was a question for the jury. Moore v. State, 54 Ala.App. 22, 304 So.2d 263, cert. denied, 293 Ala. 768, 304 So.2d 268 (1974); Wall v. State, 49 Ala.App. 285, 270 So.2d 831 (1972). After the state adduces sufficient evidence to make out a prima facie case of homicide, for the defendant to be entitled to an acquittal on a plea of self defense, he must offer evidence which, when considered with all the other evidence, will produce in the minds of the jury a reasonable doubt as to his guilt. Key v. State, 47 Ala.App. 692, 260 So.2d 422 (1972); Lester v. State, 270 Ala. 631, 121 So.2d 110 (1960). Whether or not the appellant was justified in killing the deceased was, under the evidence, for the jury to determine. The evidence was sufficient to support the conviction.

We have carefully reviewed the entire record in this case and find no reversible error. The judgment of the trial court is therefore due to be and is hereby

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Oscar HARRIS, Jr.
    SC 2576.
    Supreme Court of Alabama.
    July 29, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


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

text:
    Thomas MURPHY v. STATE.
    6 Div. 324.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.
    L. Fred Pickard, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for robbery, convicted therefor, and punishment of ten years imprisonment was meted out by the jury.

The indictment is in statutory form. The offense was committed in December, 1975, but neither the offense nor the indictment was covered by Act No. 213, Vol. 1, Acts, 1975 p. 701, a death penalty act, approved by the governor on September 9, 1975, and made effective one hundred and eighty (180) days thereafter.

The death penalty for robbery under the laws of Alabama at that time, December, 1975, had no force and effect. Dean v. State, 54 Ala.App. 270, 307 So.2d 77; Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346; Hubbard v. State, 290 Ala. 118, 274 So.2d 298; McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756. As to robbery, see: Jones v. State, 50 Ala.App. 62, 276 So.2d 647; Burt v. State, 54 Ala.App. 1, 304 So.2d 243; Ex parte Bynum, 294 Ala. 78, 312 So.2d 52, was a bail or bond case, and is without application.

During the progress of the trial on a plea of not guilty, one of the jurors became ill and, was by the court, excused from further service. Outside the presence of the jury, the trial court obtained consent of the defendant in person, his attorney, and the district attorney or his assistant engaged in the trial, to finish trying the case before the remaining eleven jurors. This continuation of the trial before the eleven jurors, after consent, supra, was authorized by T.30, § 99(1), subd. 2, Recompiled Code, 1958. This Section is applicable to Jefferson County where the case was being tried. Also, such continuation was approved under similar circumstances by the Supreme Court of Alabama, in the case of Kirk v. State, 247 Ala. 43, 22 So.2d 431. See also: Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed.2d 854, which holds that the constitutional right of one on trial to a jury of twelve persons may be waived or by a less number than twelve under certain conditions.

The next contention is that the waiver by defendant must be freely, voluntarily and intelligently made. It appears in the record as follows:

“THE COURT: Is it a [sic] agreeable between the attorneys and Mr. Blocker that we proceed in this case with eleven jurors? One of the jurors is ill. Is it agreeable with the Defendant? Will you explain it to him?
“MR. PARSONS: He says he will.
“THE COURT: You are saying it is all right with you to continue their deliberations with eleven jurors?”

Thus, it appears that defendant’s counsel explained it to his client who stated in person that he was willing to proceed with the trial before the eleven remaining jurors.

We do not think that a Boykin colloquy (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274) as required on pleas of guilty was necessary or mandated. In a recent case of Singleton v. State (1971) 288 Ala. 519, 262 So.2d 768, the Supreme Court held that with the consent of the State and the court, defendant charged with a non-capital felony may waive a jury trial, enter a plea of not guilty, and be tried by the circuit judge without a jury, and such waiver is not contrary to public policy. We note that the opinion does not mandate a Boykin colloquy. It is sufficient if the defendant knowingly and intelligently understood that he was entitled to a full panel of twelve jurors to try his case if he wished. We hold that the colloquy, supra, indicates that the defendant was sufficiently informed of his rights to a full panel if he wanted that number. He agreed to proceed before the eleven jurors.

We find no error in the record.

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

The judgment is hereby

AFFIRMED.

All the Judges concur.

ON REHEARING

BOWEN W. SIMMONS, Retired Circuit Judge.

We omitted to note that in response to the court’s question, supra:

“You are saying it is all right with you to continue these deliberations with eleven jurors?”

The defendant answered, “Yes, sir.”

Appellant asserts that Ex parte Bynum, 294 Ala. 78, 312 So.2d 52, did not “eliminate the classification, whereby crimes are categorized as capital for purposes other than punishment.” Hence, appellant contends that the classification still obtained when defendant consented to be tried by eleven jurors instead of a constitutional jury of twelve persons. He asserts that his consent to be tried in a capital case was without authority of the law and he could not consent in view of the classification of the offense.

This court in Fisher v. State, 57 Ala.App. 310, 328 So.2d 311, cert. den., 295 Ala. 401, 328 So.2d 311, observed:

“Contrary to the broad language employed by the Supreme Court in Bynum, we are of the opinion that the Court was addressing itself solely to the question of bail. The purpose for a special venire in ‘capital cases’ was to give a defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Act No. 532, supra, and T. 30, § 63, Code of Alabama 1940, were enacted, the only distinction between ‘capital’ and ‘non-capital’ cases was the possible imposition of the death penalty. Since the imposition of the death penalty had been suspended, there is no rational justification for a special venire in a case formerly classified as ‘capital’ where the maximum punishment is now the same as in a ‘non-capital’ case.
“Should the legislature ever enact a death penalty statute which meets all the constitutional tests for validity, then such special venire statutes would again become applicable, in our opinion. We do not believe the Alabama Supreme Court intended that its reasoning in the Bynum decision should be extended to require a special venire in cases where the death penalty cannot be imposed.”

In the instant case, the imposition of the death penalty did not apply and had been suspended. We hold that Bynum, supra, does not apply to appellant’s contention of error.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


text:
    Ex parte Thomas MURPHY.
    SC 2611.
    Supreme Court of Alabama.
    July 29, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Theodore THOMPSON v. STATE.
    6 Div. 349.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      U. W. Clemon, Demetrius C. Newton, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery. The petit jury fixed punishment at fifteen years in the penitentiary and the trial court entered judgment and sentence accordingly. Both of the appellant’s retained trial counsel have been appointed to represent him on this appeal.

The only questions raised on appeal concern the admissibility of a confession received in evidence before the trial court. The appellant contends that the state failed to establish the facts that the confession was voluntary and that the accused fully understood the nature of the rights asserted to have been waived. The appellant also urges that the procedures employed in obtaining the confession violated the defendant’s Sixth Amendment right to the effective assistance of counsel.

The question of the sufficiency of the evidence is not presented to us for review. There was no motion to exclude the state’s evidence, no request for the affirmative charge, no exceptions reserved to the oral charge, and there was no motion for a new trial. Hunter v. State, Ala.Cr.App., 331 So.2d 406 (1976); Hall v. State, 57 Ala.App. 132, 326 So.2d 660 (1976).

Around 11:30 on the morning of Monday, October 7, 1974, the body of Robert Cox, the manager of the Exxon Service Station located on Weible Drive in Fairfield, Alabama, was found in his office at the service station. Examination by a deputy coroner and a subsequent autopsy revealed that Cox had been shot in the head with a small caliber bullet. At trial the deputy coroner testified that the bullet was of a small caliber despite his previous testimony at a preliminary hearing that it was a .38 caliber bullet. A state toxicologist testified that the bullet was a .22 long rifle bullet.

Although a station employee testified that there had been between two and three thousand dollars in the office around 9:30 A.M., when Cox’s body was discovered the money was missing.

On the Sunday following the robbery, John Henry Robinson saw the appellant standing on the corner in front of the house of Michael McConnico. Robinson stopped his automobile and had some conversation with the appellant. In compliance with the appellant’s request, Robinson loaned him twenty dollars so he could get out of town. During the course of the conversation, another passenger in the vehicle asked the appellant why he was leaving town and the appellant replied because of “the incident that happened Monday”. The appellant admitted that “they really bungled it”. The appellant also admitted that “it looked like his buddy had left him”.

Robinson, a one time employee of the Exxon Service Station, also testified that Michael Blanche had told him several times that he might rob the station and that Blanche had made this statement to him about one week before the robbery.

On Saturday, October 19, 1974, Detective W. R. Stricklin and Officer Rubin Wilkinson of the police department of the City of Fairfield, Alabama, drove to Nyack, New York, with a warrant for the arrest of the appellant. Waiving extradition, the appellant was returned to Fairfield and placed in the city jail on Tuesday morning, October 29, 1974. Stricklin testified that the appellant was not questioned on the return trip. That afternoon, Detective Stricklin had the appellant brought to his office for questioning. The appellant informed Stricklin that he had been advised by his lawyers not to say anything. Stricklin then told the appellant that the best thing he could do was to follow his lawyers’ advice. The appellant was returned to his cell without further questioning. Sometime during the day, Detective Stricklin was informed that one of the appellant’s attorneys had called and stated that he represented the appellant and did not wish the appellant to talk with anyone.

Either on the afternoon of the 29th or the next morning, Stricklin notified the appellant’s attorneys by telephone that a line-up would be held on October 30th at 1:00 P.M. Around 9:30 on the morning of the line-up, Stricklin called the defendant’s attorneys and notified them that the line-up had been canceled. Stricklin testified that between the time the line-up was originally scheduled and the time it was canceled, Hermon Long, an employee of J. C. Penney Department Store, identified the appellant from a photographic display as one of the two men he had seen running across the parking lot of Penney’s on the morning of the robbery. Detective Stricklin also went to the appellant’s cell and advised him that the line-up had been canceled. No further conversation was had at that time other than to notify the appellant that he would be transferred to the county jail. Stricklin testified that he did not inform the appellant that a witness had identified him.

Sometime later that morning Officer Wilkinson photographed and fingerprinted the appellant. No conversation was had while Wilkinson “mugged and printed” the appellant. According to Wilkinson’s testimony, after he finished the appellant stated that he wanted to speak to Detective Stricklin. Stricklin was summoned and as he approached, the appellant announced that he wasn’t going to take the murder rap for Michael Blanche and that he wanted to tell “how it was”. Stricklin advised the appellant that “(he) didn’t have to tell (him) anything”, but the appellant expressly stated that he wanted to.

Stricklin took the appellant to the office of Detective Sanders who advised the appellant of his Miranda rights from memory. Before reducing the appellant’s statement to writing, Sanders also read him his rights off the printed cover sheet on which the confession was written. The appellant also read these rights and indicated to Sanders that he understood these rights. Sanders then wrote down what the appellant stated. The appellant read the statement admitting his part in the robbery and signed it. The statement concludes with the following two sentences:

“I have talked to my lawyer and I am giving this statement fully and voluntairly (sic) and to ease my conscious (sic). I have read these three pages of my statement-and they are true and correct to the best of my knowledge.”

In the confession, the appellant admitted that he went with Michael Blanche to rob the Exxon Service Station. According to this statement, the appellant was merely present while Blanche pulled a .25 caliber automatic pistol on the station manager and took the money. As the appellant started to leave the scene, he heard a shot, turned around and saw Blanche “come running out of the office with a gun in his hand and a brown paper bag up under his jacket”. After the robbery and murder, Blanche told the appellant to wait on a corner but the appellant never saw him again. Both Sanders and Stricklin testified that no force or coercion was employed against the appellant. When the confession was given they were the only ones in the room. No offer or promise of reward was made to the appellant. At the time the appellant gave the confession (approximately 1:20 P.M., October 30, 1974) he had been in jail approximately thirty-one hours. During the time since he had been placed in the Fairfield City Jail, the appellant had been visited by his brother and one of his attorneys. At the time when this statement was given, Detective Stricklin knew that one of the appellant’s attorneys had stated that he wanted to be there if the appellant was interviewed or questioned. Officer Sanders did not know the appellant was represented by counsel until the appellant was almost finished with his confession.

The testimony of the appellant was in direct contradiction to that adduced by the state. The appellant testified that during the return trip from New York to Alabama, the police officers sought to question him concerning the case. He stated that he was questioned on nine or ten separate occasions in his jail cell upon the first day of his return from New York; that Wilkinson and Stricklin constantly questioned him; that he asked to call his attorney more than six or seven times and was denied permission; that he was fingerprinted five or six times; that he was not advised of his rights and that even if he was he didn’t understand them; that Officer Stricklin questioned him five or six times Wednesday morning. The appellant testified that he just “confessed” what they told him to say and what he thought they wanted to hear and that he “would have told them anything to leave (him) alone”.

Three witnesses testified that the appellant and Michael McConnico were painting a house during the time of the commission of the robbery.

The appellant contends that the admission of the confession into evidence constitutes reversible error because (1) the confession is based on the continued interrogation of the defendant after he declined to waive his constitutional rights, (2) because his privately retained attorney had advised the defendant to remain silent and had requested to be present at any interrogation but was not notified or given an opportunity to be present during the interrogation, (3) because the police officers promised the defendant that if he would give them a statement against Michael Blanche, they would set him free in return for his turning state’s evidence, (4) that the police officers misrepresented to the defendant that an employee of Penney’s had identified him from a photograph, and (5) finally because the state did not meet its heavy Miranda burden to show that the defendant fully understood the nature of the constitutional protection he was waiving.

I

Conflicting evidence was presented on three of the assigned grounds ((1), (3) and (4)) set out above. However, the testimony affords a broad basis for the ruling of the trial court that the confession was voluntary. We find no error in the ruling of the trial court on these grounds.

We have previously recognized the fact that:

“. . . it is not unusual for the volun-tariness inquiry to present conflicting evidence. Edgil v. State, 36 Ala.App. 379, 56 So.2d 677. When such a conflict occurs and the trial judge finds that the confession was voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Emerson v. State, supra [281 Ala. 29, 198 So.2d 613]; Harris v. State, 280 Ala. 468, 195 So.2d 521; Edgil v. State, supra. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that "the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 228, 117 So.2d 360.” McNair v. State, 50 Ala.App. 465, 470, 280 So.2d 171, 176 (1973).

II

The appellant vigorously argues that once a criminal defendant has retained an attorney (or had an attorney appointed for him by the court) any statement obtained by interview from that defendant may not be offered in evidence for any purpose unless the accused’s attorney was notified of the interview which produced the statement and was given a reasonable opportunity to be present. United States v. Thomas, 474 F.2d 110 (10th Cir. 1973); Clifton v. United States, 341 F.2d 649 (5th Cir. 1965); United States v. Smith, 379 F.2d 628 (7th Cir. 1967); Williams v. Brewer, 509 F.2d 227 (8th Cir. 1974); United States v. Slaughter, 366 F.2d 833 (4th Cir. 1966). This court has previously held that where the interrogating officer knows that the accused is represented by counsel but nevertheless interviews the accused at a time when counsel is not present, willingly and by subterfuge by-passing the presence of defendant’s counsel, the accused is denied his constitutional rights of counsel. Such denial is not cured by a contention that the inculpatory statement was voluntary. Freeman v. State, Ala.Cr.App., 342 So.2d 435 (1977). This is to be distinguished from the situation where the accused has retained counsel but voluntarily waives the presence of that counsel during questioning. Tiner v. State, 279 Ala. 126, 182 So.2d 859 (1966); Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966); Ables v. State, 53 Ala.App. 296, 299 So.2d 341, cert. denied, 292 Ala. 707, 299 So.2d 343 (1974).

The controlling proposition of law in this case, which in no way conflicts with that authority cited by the appellant, is that the accused may voluntarily, knowingly and intelligently waive his right to have counsel present at an interrogation after counsel has been retained or appointed, the burden being on the prosecution to show that the waiver was knowingly and intelligently made. Williams v. Brewer, 509 F.2d 227 (8th Cir. 1974); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Brewer v. Williams, - U.S. -, 97 S.Ct. 1232, 51 L.Ed.2d 424, decided March 23, 1977.

Contrary to the argument presented by the appellant, the fact that a defendant has an attorney does not mean, as a per se rule, that law enforcement officials cannot procure a statement of any kind from the defendant without prior notice to, if not the consent of, the attorney. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) does not compel the contrary conclusion to this rule. United States v. Springer, 460 F.2d 1344, 1350 (7th Cir. 1972). The right to counsel is a constitutional right and may be waived. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Neither does Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) require us to reach the conclusion maintained by the appellant. United States v. Smith, 379 F.2d 628, 633 (7th Cir. 1967), cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486; Springer, supra, at 1353. Thus the Supreme Court has affirmed convictions resulting from confessions obtained without the presence of counsel. United States v. Fellabaum, 408 F.2d 220 (7th Cir. 1969), cert. denied, 396 U.S. 858, 90 S.Ct. 125, 24 L.Ed.2d 109, and United States v. Crisp, 435 F.2d 354 (7th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971), cited in Springer, supra, at 1350.

There being no per se or technical violation by not having the retained or appointed counsel of an accused present during an interrogation prior to indictment, we must resolve the question of the possibility of any constitutional violation by looking to the facts of each particular case. Reviewing the pertinent facts in this instance we find that there was sufficient evidence for the trial court to conclude the following was true: That the appellant was advised of his Miranda rights at the time of his arrest; that the appellant was not questioned about the crime on the return trip from New York; that once at the Fairfield City Jail the appellant’s attorney was allowed to visit him; that after the appellant informed Detective Stricklin that he had been advised by his attorney to remain silent, all questioning ceased; that the appellant voluntarily, intelligently and knowingly initiated and requested the interrogation which led to his signed confession; that this session only lasted about fifteen or twenty minutes; that the appellant was, at this time and before he confessed, given his Miranda rights two different times; that each time the appellant was informed of his right to have an attorney present during the time he was being questioned; that the appellant read these rights and stated that he understood them; and that the appellant freely and voluntarily and knowingly stated to the two officers who interrogated him his participation and knowledge of the crime under investigation.

There can be no doubt that the appellant was aware of the facts that he could have an attorney present during questioning and that he was making this statement in the absence and against the advice of his counsel. The confession itself consists of three pages. At the beginning of the first page is a printed introductory paragraph which advised the appellant, among other things, that he has the right to have his attorney present during the time that he is being questioned. Officer Sanders testified that he orally told the appellant of this particular right, and the appellant read it himself. At the close of the confession which was handwritten by Officer Sanders but dictated and signed by the appellant, appears the following:

“I have talked to my lawyer and I am giving this statement freely and voluntary (sic) and to ease my conscious (sic).”

Taking into consideration the totality of the circumstances surrounding the giving of the confession, we are of the opinion that these circumstances as a whole affirmatively disclose the voluntariness and volunteeredness of the confession. McBride v. State, 51 Ala.App. 642, 288 So.2d 180 (1974); Dotson v. State, 288 Ala. 727, 265 So.2d 162, on remand, 48 Ala.App. 381, 265 So.2d 164, cert. denied, 288 Ala. 742, 265 So.2d 175, cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1971). Such a review also convinces us the appellant knowingly and intelligently waived his rights to counsel and his right to have counsel present during any questioning or interrogation.

As we indicated in the beginning of this opinion, the evidence in this case on the circumstances surrounding the giving of the confession was conflicting and contradictory. Yet on reviewing that evidence, we cannot say that the decision of the trial court on the voluntariness of the confession is contrary to the great weight of the evidence, manifestly or palpably wrong. Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Edwards v. State, 56 Ala.App. 405, 321 So.2d 744 (1975); 7 Alabama Digest, Criminal Law, 1158(4).

Having reviewed the complete record as required by law it is the opinion of this court that the judgment of the trial court is due to be and is hereby

AFFIRMED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Theodore THOMPSON.
    SC 2627.
    Supreme Court of Alabama.
    July 29, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    Edward TYUS v. STATE.
    6 Div. 431.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      John W. Cooper, Cooper & Huey, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

On April 9, 1976, the appellant was arrested and charged with operating an overweight truck in violation of Title 36, § 89, Code of Alabama 1940, as amended by Act No. 922, 1975 Legislative Session, passed September 18, 1975. The appellant entered a plea of not guilty and the case was tried and evidence heard in the County Court of Jefferson County on August 5, 1976. The appellant was found guilty and fined one hundred dollars.

Notice of appeal was given to the Circuit Court of Jefferson County. The case was submitted to the circuit court on November 8, 1976. No testimony was taken and the facts were stipulated by both parties. On viewing the case de novo, the circuit court found the appellant guilty on November 10, 1976. The appellant filed a “motion to alter or amend a judgment or in the alternative, for a new trial”. On November 28, 1976, the opinion and findings of the court were amended.

Notice of appeal was given to the Alabama Supreme Court which properly directed the filing of the appeal in this court under Rule 3(c), Alabama Rules of Appellate Procedure.

Upon the initial review of the record by this court, there was some question as to the exact facts to which stipulation was had in the court below. Therefore under the provisions of Rule 10(f) ARAP, the Court of Criminal Appeals directed that a supplemental record be certified and transmitted to this court containing any written stipulation of facts which was had between the parties or, if no such written factual stipulation existed, for the trial court to make a determination of which facts were stipulated by the parties including, but not limited to, the fact of whether the defendant was operating a truck-tractor with a loaded dump trailer as opposed to a trailer-tractor rig at the time of his arrest in this cause.

In compliance with this request, the circuit court found that:

“The parties agreed to the facts as stated in the Judgment Entry of this Court’s proceedings as reflected in the original November 8, 1976 Decree. That the parties have bound themselves to the vehicle description as a matter of fact and law as a thirty-four foot, five axle tractor-trailer and said vehicle description is the finding upon which the Appellant-defendant was found guilty and duly sentenced. That the record is complete as to the parties stipulations in this cause.” (Emphasis ours)

The judgment entry of November 8, as referred to above, recites that:

“This case came on to be heard on stipulation and oral and written argument. The Defendant, Edward E. Tyus, is charged with having an overweight truck. His truck weighed 80,000 pounds. The State contends that, according to the Alabama statute, the maximum weight of a 34 foot, five axle truck is 77,000 (70,000 lbs. plus an allowable 10% tolerance is 77,000 lbs.) and anything over that amount is a violation of the law. The Defendant argues that the maximum, allowable rate is 80,608 pounds.”

Thus the stipulated facts as to the description of the truck, as determined by the trial court, are that Edward E. Tyus operated a thirty-four foot, five axle tractor-trailer truck weighing 80,000 pounds. In reaching this determination, the trial judge noted the fact that prior to the submission of the cause, the appellant’s attorney “mentioned” the alleged fact that a “loaded dump trailer” was involved in a letter from that attorney to the court. Actually mention of this assertion was made in two letters by the appellant’s attorney prior to the original judgment entry.

After the supplemental record was filed in the Court of Criminal Appeals, the attorney for the appellant filed a sworn affidavit with this court in which he asserts that the stipulation involved a five axle, thirty-four foot tractor with dump trailer having a gross weight of 80,000 pounds. He concludes with the statement that, “As God is my witness, this case was heard on a stipulation before Judge Nice that the vehicle involved was a dump trailer”.

Rule 10(f), ARAP provides for the correction or modification of the record on appeal. This subdivision replaces the provisions of former Supreme Court Rule 18 governing certiorari to perfect a record on appeal.

It provides, in pertinent part, as follows: “If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth.” (Emphasis ours)

Additionally, Rule 10(d), ARAP, if properly and timely invoked, would have allowed the appellant to prepare a statement of the evidence and submit it to the trial court for settlement and approval.

The appellant has the duty of checking his record before submitting his appeal, Hopkins v. State, 51 Ala.App. 510, 286 So.2d 920 (1973); it is his burden to file a correct record. Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959). An ex parte affidavit of the type submitted here cannot be considered as part of the record upon which the reviewing court must base its decision. Lewis v. State, 42 Ala.App. 166, 157 So.2d 38 (1963); Butler v. State, 285 Ala. 387, 232 So.2d 631, cert. dismissed, 406 U.S. 939, 92 S.Ct. 1807, 32 L.Ed.2d 140 (1970); Williams v. State, 52 Ala.App. 207, 290 So.2d 668, cert. denied, 292 Ala. 758, 290 So.2d 672 (1973); White v. State, 41 Ala. App. 112, 126 So.2d 495, cert. denied, 271 Ala. 702, 126 So.2d 496 (1961). An appellate court is bound by the record and such record may not be impeached by affidavits, or otherwise, by matters outside the record. Colburn v. State, 40 Ala.App. 248,112 So.2d 800, cert, denied, 269 Ala. 694,112 So.2d 804 (1959). Thus we are bound by the stipulations of fact as found and determined by the trial judge. While the fatality of this decision to the arguments of the defendant on appeal will become manifest in the course of this opinion, we have been given no alternative.

With the disposition of the factual issue, the sole question before this court is whether a thirty-four foot, five axle tractor-trailer truck with a gross weight of 80,000 pounds may lawfully operate on an interstate highway in Alabama. The pertinent statute is Title 36, Section 89, Code of Alabama 1940, as amended by Act No. 922 of the 1975 legislative session. All references to Section 89 in this opinion will be to that section as amended by Act No. 922 unless otherwise designated.

Under subsection (d)(3) of § 89, the total maximum weight for a five axle, thirty-four foot tractor-trailer rig is 70,000 pounds. For purposes of enforcement, subsection (d)(4) of § 89 provides that all scaled weights shall be deemed to have a margin of error of ten percent (10%) of the true gross weight. This means that, in the situation at bar, the measuring scales could have indicated a total of 77,000 pounds (70,-000 plus 10% (7,000) = 77,000) before the appellant would have incurred criminal liability for an overweight truck. However the appellant’s truck, by stipulation, weighed 80,000 pounds. This was a clear and definite violation of § 89(d)(3).

In defense and as justification for this violation the appellant alleges that § 89 provides two exceptions to the above weight limitation. Those alleged exceptions are:

(1) That his truck, a tractor with a loaded dump trailer, was within the special class of vehicles exempt from the axle distance — weight requirements of § 89(d)(3) by virtue of § 89(d)(5);

and

(2) that his truck comes within the “grandfather clause” of § 89(d)(3) which, under the appellant’s interpretation, would allow him to operate at a maximum of 80,608 pounds.

This court finds neither of these arguments persuasive or controlling for the reasons set out below. In finding these two inapplicable and the appellant in violation of the overweight truck law, the trial court held and decreed that:

(1) That Section 1(d)(5) of Act No. 922, creating an exemption for dump trucks and other specially constructed trucks, is unconstitutional and void because it attempts to establish an arbitrary and unreasonable classification of vehicles;
(2) That the grandfather clause of Act No. 922 is null and void because it refers to the old § 89 which was repealed by Act No. 922;
(3) That the grandfather clause of Act No. 922 is unconstitutional and in violation of equal protection of the law.

I

By virtue of § 89(d)(5), dump trucks and trailers, among other types of trucks “designated and constructed for special type work or use”, are excepted from the axle spacing requirements of § 89(d)(3). Under § 89(d)(5) the maximum gross weight for a thirty-four foot, five axle dump trailer truck is 80,000 pounds. Compare this to the 70,000 pound maximum gross weight limitation established by § 89(d)(3) for a tractor trailer unit with the same length and number of axles.

Thus had it been stipulated that the appellant’s truck was a tractor with a dump trailer instead of a tractor-trailer, the appellant would come under the protection and within the coverage of § 89(d)(5) and would have been operating within the law. Such is the fatality of the trial court’s findings of fact to the appellant’s argument as previously set forth.

Although the trial court, after finding the appellant to be not within the coverage of § 89(d)(5), went on to declare this section unconstitutional, such a conclusion was not necessary to support the decision reached by the trial court. As such, the trial court’s determination of unconstitutionality is mere obiter dictum without the force and effect of binding legal precedent. As the issue of the constitutionality of § 89(d)(5) was not properly before the trial court for determination, it would not be appropriate for this court to venture an opinion on that issue.

II

The appellant further argues that he was authorized to operate a tractor trailer unit having a gross weight in excess of the weight derived from the Computed Gross Weight Table set forth in § 89(d)(3) (i. e., 70,000 pounds) but not to exceed 80,608 pounds, by virtue of the “grandfather clause” of that same subsection which provides that:

“Nothing in this section shall be construed to deny the operation of any vehicle or combination of vehicles that could be lawfully operated upon the highways (and) roads of this state on January 4, 1975.”

The issue raised by the grandfather clause is what was the lawful gross weight of any vehicle which could be operated on the roads of this state on January 4, 1975. This compels us to construe the grandfather clause and the intention of the legislature in that regard. The appellant contends that the lawful weight amounted to a prescribed weight of 73,280 pounds plus a ten percent tolerance for a lawful gross weight of 80,608 pounds. Under the reasoning of the appellant, the legislature in enacting the grandfather clause had specific reference to the consent judgment entered on October 25, 1973, in the suit of The State of Alabama, Ex Rel William J. Baxley, Attorney General v. Ray Bass, individually and as highway director of State of Alabama, Case Number 35877, in the Circuit Court of Montgomery County. In that case the Attorney General sought a writ of mandamus to compel the State Highway Director to enforce Title 36, § 89, Code of Alabama 1940 (1973 Cumulative Pocket Part), regulating the size and weight of vehicles and loads in Alabama. Act 922 amended this statute.

Under the old Title 36, § 89(d)(3), Code of Alabama 1940 (1973 Cumulative Pocket Part), a thirty-four foot tractor trailer truck, regardless of the number of axles, could lawfully operate at a gross weight of 64,500 pounds plus, for purposes of enforcement, a ten percent tolerance of 6,450 pounds, for a maximum gross scaled weight of 70,950 pounds.

However, under the “memorandum of understanding” entered into by the Attorney General and the Highway Director of this state and adopted by the Circuit Court of Montgomery County on October 25,1973, the maximum weight for all trucks regardless of length or the number of axles was set at 73,280 pounds plus, for purposes of enforcement, a ten percent tolerance of 7,328 pounds, for a total scaled gross weight of 80,608 pounds. Under the old § 89(d)(3) only trucks forty-three feet and over could have such a total gross weight. The reasoning behind this substantial increase in poundage per vehicle regardless of length was stated in the memorandum of understanding.

“3. Title 36, Section 89, Code of Alabama, includes a list of distances in feet between the first and last axles of vehicles or combinations of vehicles, commonly referred to as the “Bridge Formula”. Based upon a through study of the bridge formula and its background, the Attorney General has concluded that said formula, enacted in an earlier time for the protection of bridges, was never intended to operate as a limitation affecting the use of highways generally. This conclusion is supported by the application of similar bridge formulas in neighboring states, none of which applies such formulas as a general limitation upon the use of highways. In accordance with this conclusion, the parties agree that the bridge formula as hereinabove mentioned should be enforced for the protection of bridges rather than as a limitation upon the use of highways generally.”

In the original judgment entry of November 8, the trial court declared the memorandum of understanding void and without validity. However, in its amended decree the lower court specifically declined to ascertain the correctness of that memorandum. Instead, the court held that the grandfather clause did not exempt the appellant from the operation of Act No. 922 because:

(1) The grandfather clause “is null and void for that said clause refers to the law in existence at the time Act 922 became effective and said clause was repealed by operation of law under the provisions of Section 2 of Act 922, 1975 Regular Session of the Legislature”;

and

(2) because the grandfather clause is unconstitutional in that it denies equal protection of the law and “clearly establishes within one quasi criminal statute two standards of conduct and criminal liability predicated on an improper classification of vehicle operators”.

The purpose of the grandfather clause was to permit the operation of any vehicle that could lawfully be operated on January 4, 1975, to continue to operate.on the highways after that date.

The trial court noted in its opinion that both:

“(c)ounsel for the defendant and the state have provided and stipulated to the ‘Memorandum of Understanding’ as being that which the legislature refers to in the grandfather clause.”

However, this is not a competent subject for stipulation and the litigants may not stipulate to the intent of a lawmaking body. State v. Thomason, 142 Tenn. 527, 221 S.W. 491. It is not competent for the parties “to determine by stipulation, questions as to the existence or proper construction or application of a statute”. 73 Am.Jur.2d 540, Statutes § 5, n. 36. Parties cannot stipulate as to the purposes of legislation. E. Fougera & Co. v. New York, 224 N.Y. 269, 120 N.E. 642, 1 A.L.R. 1467. Therefore a stipulation of legislative intention is not binding on this court.

It is the opinion of this court that it is not necessary to declare the grandfather clause unconstitutional in order to uphold the conviction of the appellant. This same result may be achieved by interpreting and construing the clause in light of its legislative intent.

The reference in the grandfather clause to the “lawful” operation of vehicles on the January 4, 1975 date can only be construed as referring to the law in existence at that time. Section 89 was the only law then in existence which regulated the gross weight limit of vehicles in Alabama. Section 89 was not amended or modified by any legislative act prior to its amendment by Act No. 922. The appellant’s argument that the Memorandum of ■ Understanding established the lawful weight limit is without merit. The Memorandum concerned itself only with the enforcement of § 89. As the trial court properly found in its original judgment entry,

“The Attorney General and the Highway Director cannot preempt the power of the Legislature and establish or promulgate the legal weight for trucks. The fact that a circuit court approved the agreement lends to it no sanctity or validity.”

A court may not amend, amplify, modify or revise a statute. It must give the statute its plain meaning and not attempt to usurp the legislative function of lawmaking. 18 Alabama Digest, Statutes, 181(1); 4A Alabama Digest, Constitutional Law, ®=>70 et seq. The interpretation given the grandfather clause by the appellant would require that we recognize the validity of a circuit court consent decree that, given such interpretation, was beyond the power and province of that court. This we will not do.

Under Section 89, the maximum gross weight for a thirty-four foot, five axle tractor-trailer truck, including the ten percent tolerance was 70,950 pounds. This was the maximum limit under which the appellant could have operated on January 4, 1975. This is in spite of the fact that under the agreement of the Attorney General and the Highway Director no arrest would be made except for vehicles weighing in excess of 80,608 pounds. Therefore, assuming that the appellant qualified under the grandfather clause, his 80,000 pounds were still in violation of the 70,950 pound limit.

While the trial court declared the grandfather clause unconstitutional on the grounds that its effect resulted in a denial of equal protection, we find (1) that this conclusion was not necessary to the outcome of this case and (2) that the court’s construction of the grandfather clause as being unconstitutional is improper.

The identical question was raised in Tri-State Transfer Co. v. Morrison, 63 S.D. 271, 257 N.W. 646 (1934). The South Dakota law provided that:

“Weight of Vehicles and Loads, (a) It shall be unlawful to drive or operate any vehicle, as defined in this Chapter, or combination of such vehicles upon the public highways of the State the gross weight of which, including the load, is more than twenty thousand pounds; provided, that tractor-semi-trailer combinations licensed to operate in the State pri- or to April 1st, 1933, may be operated with a gross weight which shall not exceed thirty thousand pounds.” (Emphasis ours)

The petitioner there contended that the law violated both the state and federal constitutional provisions against the unequal protection of the lawsi The petitioner contended the classification was unreasonable and arbitrary in that it permitted vehicles of a certain size and capacity that were licensed prior to April 1, 1973, to continue to operate on the highways after that date, while only vehicles of less capacity and weight could be licensed after that date. In answering his contention, the Supreme Court of South Dakota stated:

“The Legislature has the right to prescribe the size and strength of the highways and - to prescribe the size and weights of vehicles that may be operated upon such highways. The Legislature was of the opinion that under the law as it existed prior to that time vehicles were permitted to be operated that were of such great weight that they were a menace to the highways and that it was necessary to reduce such weight. The Legislature may have felt that to permit the heavier vehicles that were licensed prior to April 1, 1933, to continue to operate during the life of such equipment, would not be a grave detriment or menace to the highways, and that no great additional number of such vehicles would probably be purchased or licensed between March 8th, when the law was approved, and April 1st, after which date no more such vehicles could be licensed. By placing this proviso in the law plaintiff and others operating heavy vehicles on the highways would not lose the value of such equipment and therefore were not injured in any way by the enactment of the law.” . .

Under this reasoning, we hold that the grandfather clause of Act No. 922 is not unconstitutional as a denial of equal protection under the law.

Furthermore if this court were to adopt the weight limits established by the Memorandum of Understanding as that to which the legislature had reference in drafting the grandfather clause, the clause itself would fail due to lack of notice of its terms. It is a general principle of statutory law that a statute must be definite to be valid. 18 Alabama Digest, Statutes, <®=>47. When it leaves the legislature, a statute must be complete in all its terms and it must be definite and certain enough to enable every person, by reading it, to know what his rights and obligations are and know the statute will operate when put into execution. Weissinger v. Boswell, 330 F.Supp. 615 (D.C.Ala.1971). A person viewing Section 89 would simply not arrive at the standard offered in the Memorandum. Therefore, if the Memorandum is the correct standard and if its limitations should have been the correct enforceable limit on January 4, 1975, the terms of the statute itself and the grandfather clause would be too vague and ambiguous to apprise a person of what his rights and obligations thereunder were. In construing the grandfather clause, a thorough search of the law books would nowhere reveal even the existence of the Memorandum. Therefore, in order to construe the grandfather clause with some degree of definiteness, we must find that the clause refers to old Section 89 arid not the Memorandum of Understanding. We will not interpret the grandfather clause in an unconstitutional manner in order to bring the appellant within its saving terms.

It is the judgment of this court that the determinations of unconstitutionality made by the trial court were not proper or necessary to support the finding of guilt rendered below. As such, those determinations were harmless to the appellant and did not violate any of his substantial rights. We have reviewed the entire record as required by law and are of the opinion that this case is due to be and is hereby

AFFIRMED.

All Judges concur.


author: SHORES, Justice.

text:
    Ex parte Edward TYUS.
    SC 2621.
    Supreme Court of Alabama.
    July 29, 1977.
   SHORES, Justice.

WRIT DENIED.

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