text:
    William H. MITCHELL v. Jeanette MITCHELL.
    Civ. 1229.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.

      Tom R. Ogletree, Sylacauga, for appellant.
    Lister H. Proctor, Sylacauga, for appel-lee.
   BRADLEY, Judge.

This appeal is from a final divorce decree. The appellee, Jeanette Mitchell, petitioned the Circuit Court of Talladega County for a divorce from the appellant, William H. “Billy” Mitchell. Mrs. Mitchell’s petition alleged incompatibility of temperament and adultery as the grounds for divorce.

After a hearing ore tenus, the trial court divorced the parties on the grounds of incompatibility of temperament and awarded alimony in gross to Mrs. Mitchell. From the trial court’s decree Mr. Mitchell appeals, contending that the division of the common estate of the parties was arbitrary and excessive.

The record before us reveals that Mr. and Mrs. Mitchell were married approximately twenty-one years before they were divorced in 1976. Their marriage produced no children. At the time of the trial both parties were in their early forties and apparently in good health.

Billy and Jeanette Mitchell met while both were high school students in Birmingham. They were married while Mr. Mitchell was a sophomore at Auburn University. Mrs. Mitchell was employed during the years her husband attended college and contributed approximately $80 per month to his educational expenses. At that time Mrs. Mitchell’s earnings were less than $800.00 a month; however, she remained at her mother’s home (and later at a boarding house) in Sylacauga in order to reduce the young couple’s living expenses. Billy Mitchell commuted frequently between Sy-lacauga and Auburn during this period.

Eventually Mr. Mitchell obtained his B.A. degree in accounting and immediately went to work for the Standard Oil Company. After approximately two years, Mr. Mitchell left Standard Oil and became an employee of the State of Alabama. For the last seventeen years he has worked as an auditor for the State. In his capacity as auditor Billy Mitchell receives a salary of $17,838.00 (plus approximately $1,500 in expenses) per year. Mrs. Mitchell also worked throughout the couple’s marriage except for brief intervals when she was either ill or attending various business and secretarial schools. At the time of the divorce she was employed as a secretary for Kimberly Clark Company and was earning approximately $13,000 per year. Both parties are (or will be) entitled to receive health and retirement benefits from their respective employers.

Due to their collective incomes Mr. and Mrs. Mitchell enjoyed a relatively high standard of living throughout their marriage. The couple’s home was built in 1973 at a cost of $55,000. A swimming pool was subsequently added and the lot (and house thereon) are currently valued at $70,000. The home, which is located in Childersburg, Alabama, is subject to a $16,000 mortgage indebtedness. Other properties held by the parties at the time of the divorce consisted of the following: household furnishings; separate checking accounts containing small sums of money; a 1976 Datsun automobile (which was driven by the wife); a 1976 Dodge motor van (which was driven by the husband); and 100 shares of stock in a Childersburg bank worth approximately $2,000. In addition, Mr. and Mrs. Mitchell had free use of a furnished mobile home which belonged to Billy Mitchell’s father. The mobile home was located on a lake and the couple had made numerous improvements on it during their marriage.

The trial court’s award of alimony in gross provided Mrs. Mitchell with the family home in Childersburg, the household furnishings and the Datsun automobile. The court further decreed that Mrs. Mitchell would be responsible for paying the mortgage indebtedness on the home. She was divested of her right to use the furnished house on the lake.

On the other hand, Mr. Mitchell received the Dodge motor van, the bank stock, and any rights which the parties might have to use the mobile home on the lake. (Mr. Mitchell had moved into the mobile home when he left his wife and was staying there rent-free at the time the divorce was granted). In addition, Mr. Mitchell was relieved of all responsibility for the mortgage indebtedness on the couple’s Childersburg home.

On appeal, appellant-Billy Mitchell contends that the trial court’s award of permanent alimony to appellee-Jeanette Mitchell was excessive. We disagree.

The trial court in granting a divorce has the authority to award to the wife alimony in gross. The amount of the award is a matter within the discretion of the court and it may be determined according to the circumstances of the particular case. Davis v. Davis, 274 Ala. 277, 147 So.2d 828. And in making its determination on the size of the award, the trial court may make inquiries into such relevant factors as: the parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after their divorce; their ages, sex and health; the length of their marriage; the source (or sources) of their common property; and in appropriate situations, the conduct of the parties with reference to the cause of divorce. Sides v. Sides, 284 Ala. 39, 221 So.2d 677; Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715.

In the present case the trial court granted the parties a divorce on the ground of incompatibility of temperament. However, the trial court properly considered a number of the aforementioned factors in determining the amount of permanent alimony to be awarded. Indeed, testimony revealed (and the court considered) the fact that Mr. Mitchell was a “high roller” who spent his money liberally on entertainment and liquor. Conversely, his wife’s spending was modest and in most instances was actually used for the support and maintenance of her husband and herself. Furthermore, Mr. Mitchell refused to stay at home at night despite his wife’s repeated requests that he do so — preferring instead to spend his evenings at the local Elks Club drinking with friends. And even though she disapproved of her husband’s conduct, Mrs. Mitchell nevertheless made several attempts to salvage the couple’s marriage; however, Mr. Mitchell resisted her efforts and eventually moved out of the parties’ home.

In rendering its decree the trial court noted these facts. Such action by the court was not improper. However, the award of alimony in gross which was actually made in this case appears to be the result of the court’s desire to avoid unduly burdening Mr. Mitchell with monthly alimony payments while at the same time providing Mrs. Mitchell with an adequate place to live. The decree of divorce states (in part):

“In considering the award of alimony, the court is of the opinion that the evidence would justify an order of the Court requiring the Defendant to pay the Plaintiff $300 per month alimony. This would total $72,000 in twenty years. (This is about the time these parties could probably retire from their employment.) However, the Court has seriously considered the effect such an order would have on both parties and is hesitant to order ‘installment’ alimony if there is a better solution via alimony in gross.
“The Plaintiff’s [Mrs. Mitchell’s] standard of living will be decreased as a result of the divorce. Her contribution toward her husband’s education furnished him with the qualifications for his job. Her help made it possible for him to have his position which he has enjoyed in the past and he has prospects of additional pay raises each year and good retirement benefits. His standard of living will suffer little by the divorce. ... In considering alimony in gross it appears to be better for the Plaintiff to have the furnishings in the home, the Datsun car, and the Defendant’s undivided interest in the home instead of cash installments each month. This home is the only place the Plaintiff has in which to live. The Defendant appears to have adequate housing rent free as long as he wants.

Thus, it is apparent that the court made a very commendable effort to treat both parties justly in its award of permanent alimony. Moreover, an award of alimony in gross will not be revised or reversed on appeal in the absence of palpable abuse. Caylor v. Caylor, Ala.Civ.App., 344 So.2d 173; Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286. From the record before this court we are not persuaded that the trial court palpably abused its discretion in the amount of permanent alimony it awarded to Mrs. Mitchell. Therefore, we affirm.

MOTION FOR ATTORNEY’S FEE DENIED; AFFIRMED.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Carol WILLETTE v. Lena BANNISTER.
    Civ. 1287.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1977.

      H. Merrill Vardaman for Merrill, Merrill & Vardaman, Anniston, for appellant.
    William E. Hereford, Jr. for Gaines, Hereford, decider, Robbins & Blair, Pell City, for appellee.
   BRADLEY, Judge.

Judgment was entered by the Circuit Court of Talladega County awarding custody of a minor child to its maternal grandmother and the natural mother appeals.

The sole issue presented for review is whether or not a natural parent may forfeit her (his) prima facie right to custody of a child by voluntarily (or otherwise) relinquishing custody of the child to another party.

The record reveals the following facts. Appellant, Carol Willette, was married to Frederick Willette. Their marriage produced two children: David Willette (age six) and Michael Willette (age five).

In April of 1971 appellee, Lena Bannister, received a phone call from her daughter, Carol Willette, who was residing in Kittery, Maine. During their telephone conversation Carol requested that Mrs. Bannister take custody of Michael and David Willette. At trial Carol stated that she made such a request because she was having marital problems and felt that the boys should live with Mrs. Bannister until she (Carol) could work out her difficulties. Mrs. Bannister contradicted her daughter’s testimony, stating that Carol told her: “Mother do you want a baby? I have a boy and I wanted a girl.” At any rate, Mrs. Bannister agreed to her daughter’s request and both boys went to live with their grandmother in Oxford, Alabama.

In September of 1971 Frederick and Carol Willette came to Alabama to reclaim their children. Mrs. Bannister agreed to return the boys to their parents’ custody and the two children were taken by their parents to the Willettes’ new place of residence in New Hampshire.

Approximately six months later, however, further marital difficulties between Frederick and Carol Willette caused the latter to ask her mother to take the boys back to Alabama. Acting on her daughter’s request, Mrs. Bannister traveled to New Hampshire where she took custody of Michael and David and brought them back to Alabama.

Within six months after Michael and David had returned to Oxford with their grandmother, Carol Willette arrived at the Bannister home and demanded that Mrs. Bannister give her custody of the children. Mrs. Bannister refused to allow the children to go back to New Hampshire with their mother. Carol subsequently returned to New Hampshire without Michael and David. However, in September of 1972 Frederick Willette appeared at the Bannister home and after threatening Mrs. Bannister, took the boys back to New Hampshire with him.

Then in February of 1973, their marital problems being unresolved, Carol and Frederick Willette were divorced in Kittery, Maine. The divorce decree awarded custody of the two children to Frederick Wil-lette. Nonetheless, approximately thirty days after the divorce was granted, Frederick Willette contacted Mrs. Bannister and asked her to take custody of Michael and David. Once again Mrs. Bannister went to New Hampshire, took custody of the boys and brought them back to Alabama.

Carol Willette testified at trial that when she learned that her children had been taken back to Alabama by their grandmother, she (Carol) obtained a decree in Maine transferring legal custody of the boys from Frederick Willette to herself. However, both Michael and David remained in the physical custody of Mrs. Bannister until the spring of 1974, at which time Mrs. Bannister initiated a legal action seeking temporary custody of the boys. On March 8,1974 the Circuit Court of Talladega County entered an order awarding temporary custody of both boys to Mrs. Lena Bannister.

Custody of the children remained with Mrs. Bannister until October of 1975 when Carol Willette arrived in Alabama and asked Mrs. Bannister to give Michael and David back to her. Mrs. Bannister subsequently relinquished custody of David who returned to New Hampshire with his mother. However, Mrs. Bannister refused to return Michael to the custody of his mother, Carol Willette. As a result of Mrs. Bannister’s refusal, Carol Willette filed a petition for a writ of habeas corpus in Talladega Circuit Court. After a full hearing on the matter and the presentation of evidence on behalf of both parties, the trial court rejected Carol Willette’s petition for habeas corpus and awarded permanent custody of Michael Willette to his grandmother, Mrs. Lena Bannister. Carol Willette appeals from the trial court’s decree.

Appellant, Carol Willette, submits that the natural mother of a child has a prima facie right to the custody of her children. And despite the fact that a parent may forfeit this prima facie right by the relinquishment of custody to another party and the continued acquiescence thereto, appellant asserts that she has never acquiesced to the change in custody which occurred in this case. Indeed, appellant contends that she has made every effort to regain custody of the child. Therefore, appellant argues that she should have been awarded custody of her son and that the trial court erred in awarding the custody of the child to appel-lee.

Although a natural parent has a prima facie right to custody of his or her child, this prima facie right may be forfeited. Horton v. Gilmer, 266 Ala. 124, 94 So.2d 393. And the mere fact that the natural parent is fit, though certainly a factor for consideration, does not automatically entitle the natural parent to custody of the child, Strickland v. Osborn, Ala.Civ.App., 333 So.2d 582, since the best interests and welfare of the child are of paramount importance. White v. Appleton, 53 Ala.App. 702, 304 So.2d 206; Esco v. Esco, 51 Ala.App. 656, 288 So.2d 444. Indeed, this court concluded in Strickland v. Osborn, supra, that a prior decree (such as the decree of October 8,1974 awarding temporary custody of the children to appellee) rebuts any presumption which favors the natural parent, and places on the natural parent the burden of proving that a change in custody is necessary to promote the child’s best interests. We believe it is clear from the evidence given in the instant case that appellant failed to meet this burden.

Moreover, in determining the question of whether a parent who has voluntarily relinquished custody of a minor child should be entitled to regain custody, each case must be determined from the particular facts involved. Horton v. Gilmer, supra. Although the facts in the instant case do not demonstrate that the natural mother is unfit, they do indicate that appellant on several occasions voluntarily relinquished custody of her child to another party and for substantial periods of time acquiesced to that party’s custody of her child. Furthermore, the record before this court discloses that even after the child was returned to his parents in September of 1972, appellant, upon her divorce from Frederick Willette in February of 1973, initially agreed that the child be placed in the custody of his father; and despite the fact that appellant testified that she objected to her husband’s action of placing the child in the hands of Mrs. Bannister, the evidence presented at trial was in conflict as to whether she took immediate steps to actually regain custody of the child. Evidence further revealed that appellant made no effort to contribute financially to the child’s support. In fact, appellant failed to write or contact the child for lengthy periods. Nor did she visit the child — stating at one point in the trial that she might not recognize her youngest son if she saw him.

In addition, appellant is separated from her second husband (who is the brother of Frederick Willette, appellant’s first husband). Carol Willette also stated at trial that she was currently employed as a dog trainer at a New Hampshire dogtrot but that she had on occasion received financial assistance in the form of food stamps and rent subsidies from the state of New Hampshire.

On the other hand, the court found that Michael Willette has lived with his grandmother (appellee) for most of his life, having been placed in her custody on several occasions by both appellant and the child’s father. Furthermore, the court felt that the evidence provided at trial demonstrated that the child was being properly cared for by appellee (and her husband) and that the boy was happy and well-adjusted in his present environment.

Where a parent has transferred to another party the custody of a minor child either voluntarily or as a result of a prior judicial decree and the party to whom the child is transferred has acted in the manifest interest and welfare of the child, the parent will not be permitted to reclaim custody of the child unless that parent can show that a change in custody will materially promote the child’s welfare and best interests. Horton v. Gilmer, supra; Strickland v. Osborn, supra. From the record before us we are not persuaded that a change in custody would be in the boy’s best interests.

In the present case the trial court had the parties before it and heard and saw the witnesses. In view of the evidence before that court we cannot say that it erred in its conclusion that the best interests of the child would be favorably served by leaving him in the custody of appellee. Nor can we say that the decree rendered by the trial court was plainly and palpably wrong. Therefore, we conclude that the trial court’s decree should be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama v. SPRINKLE NET SHOP, INC.
    Civ. 1214.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1977.

      William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, and Asst. Atty. Gen., Philip C. Davis, John J. Breckenridge, Asst. Counsels, Dept, of Revenue, and Asst. Attys. Gen., for the State of Ala., appellant.
    J. Manson Murray and J. W. Goodloe, Jr., of Vickers, Riis, Murray & Curran, Mobile, for appellee.
   WRIGHT, Presiding Judge.

The State appeals from a judgment of the Circuit Court of Mobile County, setting aside a final assessment of sales tax. We affirm.

The primary issue presented by the appeal is whether the gross proceeds of sales of nets, trawl boards, cables and related equipment to commercial fishing vessels of more than 50 ton burden are exempt from sales tax under Tit. 51, § 786(34)(k) of the Code of Alabama (1940) as last amended by Act No. 1169 in 1973. The statute is as follows:

“Sec. 786(34) Exemptions — There are exempted from the provisions of this article and from the computation of the amount of the tax levied, assessed or payable under this article the following: . (k) The gross proceeds of the sale or sales of materials, equipment, and machinery which enter into and become a component part of ships, vessels or barges of more than fifty tons burden, constructed or built within this state.”

The trial court considered the case upon the pleadings and stipulation of fact. In addition to appellee Sprinkle Net, there were several other firms with assessments against them. Because of common issues, all were consolidated for trial and judgment.

It was stipulated that the materials sold and assessed for sales tax were nets and related equipment. They were sold to commercial fishing vessels of over 50 ton burden, constructed or built within the state. The equipment sold comprises part of the total fish or shrimp-catching paraphernalia necessary to the commercial function of the vessel. Such equipment breaks or wears out and replacements are purchased' and installed. The nets and their appurtenant parts are attached to the vessel, but they may be removed without affecting the seaworthiness of the vessel. The vessel is specially constructed for the purpose of commercial fishing and is unable to serve such purpose without the equipment. Do the nets and related fishing gear enter into and become a component part of the vessel? That is the question.

The State limits its consideration of determining what is a component part to a general vessel — that is a hull that floats and is capable of moving and navigating but is not adapted to any special use. Though there seems to be an absence of definition in the cases, the phrase “which enters into and becomes an ingredient or component part of” appears in several other exemption statutes. Each of such statutes related to manufacturer, compounder or processor exemptions. We have carefully studied the cases which have considered whether certain materials “entered into and became component parts of” the manufacturing process or of the product manufactured. We have found none which shed much light on vessels and fish nets. Therefore, we present our own view of the legislative intent. Finding that intent is the ultimate goal of statutory construction. Smith v. State Dept. of Pensions and Sec., 340 So.2d 34 (Ala.Civ.App.1976).

We recognize that an exemption statute uncertain in language is to be construed against the taxpayer. State v. Hunt Oil Co., 49 Ala.App. 445, 273 So.2d 207 (1972), cert. denied, 290 Ala. 371, 273 So.2d 214 (1973). However, that principle does not require a strained interpretation in favor of the taxing authority. Considering the term “component part” in relation to a vessel, it is totally illogical to disregard the special purpose for which the respective vessel was designed and constructed. In applying the statute, there cannot be only one vessel with unvarying component parts. Every vessel or type of vessel has many different component parts according to the use intended for it. A vessel constructed for towing has many components different from those necessary to a shrimp boat. Recognizing that the purpose for which it was constructed or the use to which it is adapted must be considered, we hold that the fishing nets and related attached equipment and material enter into and become component parts of a fishing vessel when attached thereto or installed thereon. Under the application of § 786(34)(k) by the State in this case, the gross proceeds of the sale of the nets and related equipment are exempt from sales tax.

We are unable to discern the reason for the trial court limiting the exemption to a net for immediate installation and one reserve on board. Technically, we suppose the exemption would not be available until installation, but obviously a net would not be purchased except for installation at an appropriate time. Therefore, we consider that as many such nets as a fisherman might wish to purchase would be equally exempt, though it is not appropriate for us to so hold on this appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . There is no question presented on this appeal as to whether the statute is a builder’s exemption and applies only to materials and equipment used in original construction. The Revenue Department of the State apparently considers that the exemption applies to all sales of equipment and materials which enter into and become component parts of the vessel, whether upon original construction if built within the state or as repairs or replacement throughout the lifetime of the vessel. For the purposes of this appeal we consider the statute on the same premise.

      . Tit. 51, §§ 786(2)(h), 786(2)(i), 786(2)0, 787(d), 787(e), 789(n).

      . State v. United States Steel Corp., 281 Ala. 553, 206 So.2d 358 (1968); Holloway v. State, 262 Ala. 437, 79 So.2d 40 (1955); Poer v. Curry, 243 Ala. 76, 8 So.2d 418 (1942); State v. Southern Kraft Corp., 243 Ala. 223, 8 So.2d 886 (1942).


text:
    Mary J. YOUNG v. Larry M. YOUNG.
    Civ. 1234.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1977.
    Horace N. Lynn, Montgomery, for appellant.
    Elno A. Smith, Jr., Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from an order modifying child support provisions of a divorce decree.

The original 1974 decree granted to appellant (the wife) custody of the two children, then ages seven and four with child support of $100 per month. In March 1977 the mother requested an increase to $300 per month. After oral hearing the court ordered the support be increased to $130 per month with the father maintaining a hospital policy for the children. The wife appealed. We affirm.

Testimony and tax returns of the father indicate an increase in gross income from $7,802, in 1974 (the year of' the divorce) to $9,256 in 1976. He is remarried and his present wife is employed. The father or his parents have custody of the children every weekend, and purchase some clothing for them.

The wife has also remarried. She has been employed for 8Vz years. Her income has risen from $8,821 in 1974 to $11,559 in 1976. She claims the children as dependents and receives credit for tax purposes for the cost of child care which was $1,875 in 1976.

The wife submits that the yearly income of the husband has increased some $2,400 since the support was set at $100 per month and that the court erred in not granting an increase greater than to $130 (a 30% increase).

The modification of a prior decree for support, based upon changed circumstances of the parties, is largely a matter within the judicial discretion of the trial court. The exercise of such discretion is to be disturbed on appeal only if from a review of the evidence this court finds in the decree such an abuse of discretion as to be plainly and palpably wrong. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975). That a husband’s income has increased materially is a weighty factor in sustaining a trial judge in increasing an award. Mockridge v. Mockridge, 278 Ala. 79, 175 So.2d 772 (1965). Here, the judge, having heard and reviewed the evidence, granted a 30% increase in child support. Each case must depend upon its own facts and no mathematical formula can determine what is an appropriate award of child support. Phillips v. Phillips, 53 Ala.App. 191, 298 So.2d 613 (1974).

The wife contends the trial court gave improper consideration to the fact that she earns more than the husband.

It is impossible for this court to determine the extent of the court’s consideration of that fact. It was not improper to consider that fact.in relation to the change in circumstances and to the present needs of the children. Sources of assistance available for the total support of the children are certainly relevant facts, though they do not change the basic rule that the primary duty of support is upon the father. Womble v. Womble, supra.

Upon consideration of all factors and the evidence, we are unable to find the judgment of the trial court palpably wrong.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Harold Ray ROGERS v. Ernest E. MITCHELL and Geraldine Mitchell.
    Civ. 1243.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1977.

      Walker Norris and T. A. Leonard, Jr., Birmingham, for appellant.
    James M. Holmes, Birmingham, for ap-pellees.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment in a detinue action.

This action was brought by appellee against appellant for possession of certain personal property. It was consolidated with other actions involving a real estate lease between the parties. No proof of alternate value of the property was made and neither the jury verdict nor the judgment for the plaintiff made an alternate value assessment. Appellant’s motion for J.N.O.V. was overruled.

The issue is whether a judgment for the plaintiff in a detinue action may stand if the judgment fails to assess alternate value and the property is in the possession of the defendant.

Tit. 7, § 921 of the Code of Alabama (1940) (Recomp.1958) requires the jury to assess the value of the property when they find for the plaintiff, and when they find for the defendant and the property is in the possession of the plaintiff. Judgment must be for the property, or its alternate value, with damages for detention to the time of trial. Although it is generally reversible error for a judgment to fail to assess alternate value, it may stand if there is no prejudice. Sauls v. Hand, 242 Ala. 643, 7 So.2d 762 (1942). An absence of prejudice has been found where the property is in the possession of the successful party (Beavers v. Harris, 265 Ala. 548, 93 So.2d 161 (1956)), in the possession of' the court (Sauls v. Hand, supra; Dobson v. Neighbors, 228 Ala. 407, 153 So. 861 (1934)), and where there was no judgment for the property involved (International Harvester Co. v. Pittman, 226 Ala. 355, 147 So. 144 (1933); Miller v. Jones Adm’r, 29 Ala. 174 (1856)).

The case of Scott v. Howard, 215 Ala. 590, 112 So. 194 (1927) and its progeny such as First National Bank of Opelika v. LaFayette Farm Machinery Co., 269 Ala. 231, 112 So.2d 478 (1959), and Robert P. Stapp Mach. Co. v. Russell, 277 Ala. 84, 167 So.2d 167 (1964) control our decision in this case. Failure of the verdict and judgment in detinue to assess alternate value of the property sued for is prejudicial to the defendant in possession and requires reversal.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Roy PARTEN v. Carolyn Bennett PARTEN, Eleanor Hoggle and Stanley Hoggle.
    Civ. 1260.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1977.

      William T. Faile, Selma, for appellant.
    Charles H. Sims, III, Selma, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from denial of a change of custody of a child. We reverse.

By judgment of August 1976, custody of a child, now three years old, was granted to the maternal grandmother as opposed to the natural father. The father was given weekly visitation privileges and was directed to pay weekly support.

In June 1977, the father again filed a petition for change of custody, alleging that there had been a material change in circumstances since the last judgment adversely affecting the welfare of the child. The change of circumstance alleged was that the grandmother had filed suit for divorce from her husband charging that he had struck her and endangered her life and health.

The petition for modification was heard orally by the court in July 1977. Change of custody was thereafter denied.

The father charges the court erred in three instances. The first error is stated to have occurred when the court refused to permit questions to be asked as to difficulties occurring between the grandmother and her husband prior to the judgment giving her custody in 1976. It appears to be the contention of appellant that in order to show a change in circumstances in the custodial home since the decree of 1976, it was necessary to go into conditions there prior to that time. The trial court observed that it was already cognizant of events and conditions in the home prior to August 1976, and such matters were not now admissible. There was no attempt to offer a showing of what was expected to be elicited.

This court and the Supreme Court have stated in more than one instance that any facts not previously disclosed to the court which would be relevant to consideration of the best interest of the child are admissible in a hearing on custody even though they may have occurred prior to the last decree. Lee v. Lee, 337 So.2d 372 (Ala.Civ.App.1976); Britt v. Britt, 281 Ala. 217, 201 So.2d 54 (1967); Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797 (1965). However, the court in this case stated it was aware of the matters sought to be elicited and appellant did not refute such statement in the record. Frankly, we do not see that the relationship between the grandmother and her husband prior to the last decree would be relevant to the issue of future custody. The difficulties which had occurred between them since 1976 and which precipitated the present petition for custody were fully explored in the testimony. We therefore conclude if there was error it was without injury. Rule 45, ARAP.

The second issue is whether the court erred in declaring a report prepared by a social worker a privileged communication and in refusing to permit her to be examined as to her findings and recommendations. This action by the court was error and requires reversal of its judgment.

The learned trial judge, when informed of the intention of calling the social worker for questioning concerning her investigation of the homes of the parties and her written report presented to the court, made the following statement:

“She’s claiming her privilege against testifying. The Court will not require her to testify. Her position as a social worker is a confidential relationship to this Court. Her investigations are not matters of public concern and frankly, Mr. Faile, I can’t prevent you from calling Mrs. Curtis to the stand and putting her on the stand as a witness, but I can prevent her from answering any of your questions if they deal with an investigation she might have made into either the Hoggle home or the Parten home.
“I think those are privileged communications that she has already related to this Court. They are in the breast of the Court and they are not matters to which these parties are entitled to be privy.” (R. 44, 45).

These statements by the court, we are sure, were made with all good intentions, but they are contrary to the law. There can be nothing considered as evidence by the court in reaching its ultimate decision that is kept secret from the parties and counsel. We do not know from what source the court made its determination that such should be done. Such action violates all principles of due process and if extended, could result in star chamber action. It violates the right of cross-examination. Tit. 7, § 443.

The record here indicates that the report by the social worker related to what she found in and about the homes of thé parties on frequent visits. It must be assumed that she reported her conclusions and recommendations. The court, according to its statement in the record, did not permit the parties nor counsel to read the report. It denied counsel the right to examine her as to her sources of information, interest, bias or basis of her conclusions and recommendations.

Such action cannot be permitted in our courts. The courts of this state are open, and nothing may be received or considered by the court in secret or confidence from the parties and their counsel. Every witness must be. subject to fair and complete examination and cross-examination under oath upon any material and relevant evidence. Lawson v. Jennings, 52 Ala.App. 582, 296 So.2d 176 (1974); Williams v. Pope, 281 Ala. 416, 203 So.2d 271 (1967); Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961). As the court indicated in Williams v. Pope, supra, there may be some testimony withheld from a public hearing for various reasons, but none may be withheld from the parties nor counsel unless waived, nor kept from the record except by agreement of all parties.

In view of the necessity for reversal and remandment for the error herein shown, it is unnecessary to consider the sufficiency of the evidence to support the judgment. We therefore pretermit such consideration.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author:
HARRIS, Judge.
      BOOKOUT, Judge

text:
    William Macy CHRISTIAN v. STATE.
    6 Div. 97.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.
    Ralph C. Burroughs, Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree involving the death of his mother. He was convicted of murder in the second degree and the jury fixed his punishment at 99 years in the penitentiary. He was represented by the Public Defender of Tuscaloosa County. He pleaded not guilty and not guilty by reason of insanity. After sentence was imposed, appellant gave notice of appeal. Being indigent he was furnished a free transcript and is represented on this appeal by the Public Defender’s Office.

This is a sad and tragic case. On August 28, 1972, appellant beat his mother to death with a Coca Cola bottle or some type of bottle or blunt instruments. Around midnight on that date Mrs. Rena Owen, who lived next door to the house of appellant’s mother, heard someone scream and she got up and looked at the carport next door and saw appellant beating his mother with some type instrument' in front of the car parked under the carport. She heard the mother say, “Billy, get away from me.” Appellant had dragged his mother from the entrance door of the house to the front of the car in the carport where the beating took place. She heard the breaking of glass and looked out and saw what appellant was doing and she called the Police Department and then awakened her mother who also observed appellant beating his mother. The police seemed to be slow in responding and the mother called them again.

After appellant beat his mother in front of the ear parked in the carport, Mrs. Owen and her mother saw appellant pour some substance on his mother and light a match which created a blaze on the body of appellant’s mother. After the blaze was lit, ap-. pellant moved back and sat on the steps leading into the house.

The police arrived in a few minutes and so did the Fire Department. The Fire Department put out the blaze on the body of the deceased. The deceased was taken to a funeral home where an autopsy was performed. The autopsy report is as follows:

“A. In this particular case, we did a complete autopsy. We examined the head, brains and contents of the skull. We examined the chest and abdomen. When I first saw the body, it was partially embalmed with my permission. The body was burned over the head and frontal portion. There were some injuries to the head and there was burning that extended down the front of the body. To be more specific, there was a four inch rough torn laceration on the right side of the head and underneath that was an obvious break in the skull. The right side of the ear, the right ear was somewhat torn into this laceration as well. There were some four lacerations which varied from an inch to an inch and a half in the forehead. One was a “V” shaped laceration, that is two lacerations coming together to make a “V” and the other one was star shaped. These are peculiarities in the scalp the way it breaks from a blow to the scalp. The hair was burned off both temples. The eyes were black and swollen because of the smoke and let me interject this, the black eyes are the natural result of a skull fracture and do not necessarily represent a blow to the eyes themselves. There was a four to five inch “L” shaped laceration at the top and back of the head. There was a three inch “L” shaped laceration in the back of the head. There were burns over the body. There were first, second and third degree burns generally over the front of the body, both arms, hands, shoulders, chest, abdomen, flanks, thighs and legs. There was what appeared to be red paint. Some of the skin was burned and blistered and there was a residue, a gummy residue particularly on the left wrist, right wrist and right thigh. We examined some of this material under a low power microscope and found traces or pieces of red paint. We opened the scalp and the skull and looked inside the head. We found a fracture of the skull in the right temple. There was a massive concussion extending from the area of the right side of the head, right temple, all the way to the back of the head and dipped into the base of the skull. A portion of the brain was torn away and particularly in the front on the right portion, right frontal region. There was a generalized subarachnoid hemorrhage was seen over the covering of the brain. I examined the rest of the body and found evidence of carbon monoxide showing that the subject was surviving at the time of the burning. I don’t see anything else in the report that would be of value in the discussion or in your questioning.”

He expressed his opinion as to the cause of death as follows:

“A. In my opinion, Mrs. Christian died as a result of a brain concussion as well as destruction of the vital areas of the brain as a direct result of blunt force injuries, that is being struck in the head with some sort of blunt object but she was alive during the fire but probably in a terminal state. She did breathe but was probable already in a moribund or dying condition when the fire took place.”

The autopsy surgeon testified that the blood sample taken from the body of the deceased was negative for any trace of alcohol. He further testified that the deceased was in a moribund condition at the time her body was set afire, but that she was still alive. The autopsy was performed at about 1:15 p. m. on the day of the murder.

The investigating officers found broken glass and a lot of blood in and around the carport where the body was found. There is no doubt from the testimony in this record that the deceased was killed by appellant. Thus, the corpus delicti was proven beyond a shadow of a doubt and this fact is not disputed by appellant.

The officers arrested appellant and carried him to jail. Around 3:15 the officers got appellant out of his cell and took pictures of him and they also fingerprinted him. The photographs of appellant and the murder scene were introduced into evidence without objections.

The officer who fingerprinted appellant weighed over 200 pounds. Just before the officer fingerprinted appellant, he appeared to be calm, but after a few moments he grabbed the officer by the shoulders and lifted him off the floor exclaiming, “It is in my eyes. It is in the stars. I can see it in the stars. I can see it in the future.” Appellant released the officer upon being requested to do so.

Mrs. Joyce Williams testified that appellant was her brother and that he was first admitted to Bryce Hospital in 1969. She further testified that he was a frequent resident of Bryce prior to the time of the commission of the offense. She also testified that he had a long history of mental illness and that on numerous occasions she had observed him talking back to characters on the television show “Bewitched.” In addition she said that he occasionally described the appearance of dead relatives whom he had never met. She also testified that he often had delusions that he was a famous lawyer.

Mrs. Williams testified that appellant was in good condition and could live among “normal people as long as he took his medicine.” She also stated that her mother, the deceased, had told her that she feared, “Billy would kill her if she tried to put him back in Bryce’s.”

Appellant’s hospital records at Bryce’s were introduced into evidence.

Dr. Jerold S. Lower, after being duly qualified as an expert psychiatric witness, testified that he was Chief Psychologist and Clinical Coordinator on the Forensic Program of Bryce Hospital. He stated that he had been treating appellant on a daily basis for the past V-h years at the hospital. He said that appellant was suffering from schizophrenia, chronic, undifferentiated type. He also testified that appellant was often paranoic and psychotic. He stated that appellant felt that he was possessed by the devil and that he said he saw animals “coming down.” Finally, this witness testified that in his opinion appellant did not know the difference between right and wrong at the time he killed his mother and was therefore insane.

Dr. James Thompson, after being qualified as an expert psychiatric witness, testified that he was a psychiatrist at Bryce Hospital for the past 13 years. He stated that he first examined appellant nine days after the homicide. He stated that during his examination of appellant he learned that appellant thought that his mother was an ape or a demon. That appellant was frightened of his mother and that is the reason he killed her. According to Dr. Thompson appellant was also suffering from delusions that his mother was not dead but was visiting relatives in Huntsville. He further stated that appellant’s condition was diagnosed as schizophrenia paranoid type. He said that in his opinion appellant was psychotic at the time of the homicide and that due to his diseased mind he did not know the difference between right and wrong and could not control his behavior.

Dr. James Morris qualified as an expert psychiatric witness and stated he was a psychiatrist at Bryce Hospital. He testified that he examined appellant within 10 to 14 days after the commission of the homicide. He stated that appellant exhibited behavior which he described as “flat affect” meaning that he was totally withdrawn, emotionless, etc., during interviewing. He said that appellant suffered from an inability to integrate his thinking regarding a single topic of conversation. This witness also stated that appellant was suffering from an acute schizophrenic disorder and often had delusions that his mother was still alive. Dr. Morris further testified that in his opinion appellant was psychotic at the time of the homicide and that he was out of contact with reality and was not responsible for his behavior.

Appellant’s brother, Bobby L. Christian, testified that appellant had a history of mental illness and was often hospitalized for treatment. According to this witness appellant felt that people were out to get him. They were people of odd colors, red and blue, who listened in on him through microphones. He claimed these people formed a subversive world and that if people didn’t watch out, the birds would attack. He stated that appellant thought every radio and television had hidden microphones and cameras that watched him constantly. This witness also said that appellant was often hyperactive and couldn’t sleep at all for two or three days at a time. According to this witness appellant would first tell him that he was possessed of the devil and then assert that he was Jesus and that his mother was Mary. He further testified that his brother conducted conversations with the television set.

This witness also testified that appellant owned and drove his own car and at one time he was employed by the State Highway Department. That he had been married and had children but was now divorced.

David Christian, another brother of appellant, also testified that appellant had a prior history of mental illness which often required hospitalization. He stated that appellant told him that out-of-state gangsters were out to get him and that he had stabbed one of them. He said his brother had strange ideas on the way God works. That appellant also told him about the microphones everywhere and that these people were spying on him and that these people were red and blue. He related that appellant talked to the television set and stared at non-existent people in empty buildings. He further stated that appellant said he had seen a bunch of weird winged flying monsters attacking him. He thought his mother was one of these monsters. He said appellant made the statement that he saw little gods “falling” everywhere, and that even the jail bars were made up of little gods. Appellant also made the statement that he had a little ball in his head that was made up of these gods and they willed him to kill his mother. This witness said that appellant told him he would often see projections of his mother’s face on the jail wall. Appellant told his brother that his problem had started out with drugs and he had gotten involved with drugs.

The record in this case reflects that there were several court orders pursuant to the provisions of Title 15, Section 425, Code of Alabama 1940, committing appellant to Bryce Hospital for observation and examination. The Superintendent and two members of his staff made reports to the Court from time to time to the effect that appellant was incompetent at the time of his admission to Bryce Hospital, and that he was incompetent at the time of the commission of the crime for which he stands charged, and recommended that he be detained longer in the institution as a patient for treatment and continued medication.

There were later reports from the hospital staff that, “after a period of examination, study, and observation, it is the opinion of the hospital staff that the said William Macy Christian is presently sane and competent.”

These reports would be followed by a Court order for the Sheriff of Tuscaloosa County to take appellant into custody and remand him to jail to await the further orders of the Court.

Another petition would be filed to recommit appellant to Bryce Hospital.

On April 25, 1974, appellant was examined at the Mental Health Center by Dr. J. S. Tarwater, for Superintendent of Bryce Hospital. Dr. Tarwater wrote a letter to the Public Defender of Tuscaloosa County in which he stated that appellant was pale, unshaved and not too communicative and that he had a past history of many admissions to Bryce Hospital and there was a history of intemperate use of alcohol as well as mental illness; that he appeared depressed about his mother’s death and stated, “How will I get along without her. I don’t see how I can and I have a long time to live.” He told Dr. Tarwater, “The medicine is helping me.” Dr. Tarwater stated appellant had a history of delusions and hallucinations at times. He quoted appellant as saying, “I thought my mother was an ape and I was seeing and hearing things.” The diagnosis was, “Schizophrenia, chronic-undifferentiated type.” The doctor recommended that he be sent back to Bryce Hospital for evaluation of mental illness.

Finally on May 5, 1975, the Board of the Lunacy Commission made the following report, in part:

“It is the unanimous professional opinion of the Board that Mr. Christian is not presently suffering from a mental disorder of sufficient severity to preclude his taking part in his trial and effectively assisting his counselor in his own defense.”

On September 15, 1975, the Sheriff of Tuscaloosa County was ordered to take custody of appellant and remand him to jail pending further orders of the Court.

Appellant was put to trial on the indictment in October of 1975 upon his plea of not guilty and not guilty by reason of insanity.

Before the trial and out of the presence and hearing of the jury the Court took up the matter of the jury being sequestered with appellant explaining to him that with his consent the jury would be allowed to separate during the trial.

From the record:

“MR. CHRISTIAN: Well, that will be all right.
“MR. BURROUGHS: Be all right to let them go home?
“MR. CHRISTIAN: Yes, sir.
“MR. BURROUGHS: With proper warning from your Honor to warn them in this case not to speak to anyone or to discuss the case with anyone even the other jurors until they have heard all the evidence in the case.
“THE COURT: Mr. Christian, you are saying to me you agree to let them go home, is that right?
“MR. CHRISTIAN: Yes, sir.”

Appellant claims that the trial court erred in overruling his motion for a new trial based upon the ground that the prosecutor committed prejudicial misconduct in his closing argument to the jury wherein he made the following statements:

1. They are saying (Bryce Hospital) that he was insane then but is probably competent to walk the streets of Tuscaloosa today.

2. But let me remind you that when he was released in 1971 he was ruled competent to live among normal people, and the next year he murdered his mother.

3. Ladies and gentlemen, I live in this town and you know what our problems are.

4. If you return a verdict of not guilty by reason of insanity against this man, this means this man is scot-free — free to walk the streets of Tuscaloosa again. (But the prosecutor went on to say, “The main issue in this case is whether this man should be held accountable for what he does.”)

The record does not reflect that appellant made a single objection to a single statement made by the prosecutor during his closing argument and counsel for appellant admitted this during the hearing on the motion for a new trial. He stated that he thought it best not to make an objection under the circumstances.

The trial court was most thorough in his oral charge to the jury. He covered every phase of the law applicable to the facts in this case. He charged the jury on all four degrees of homicide as well as the law of insanity. We take the following excerpt from the oral charge on the question of a verdict of not guilty by reason of insanity:

“Now, on the other hand, ladies and gentlemen, if you analyze the evidence in this case that has been presented to you and you are reasonably satisfied that at the time of the commission of the act charged that this defendant was legally insane as I have defined it to you, it would be your duty to find him not guilty by reason of insanity and then the matter would further actually be up to the Court.” (Emphasis supplied.)

By this excerpt the Court was telling the jury that appellant would not be free to walk the streets of Tuscaloosa again. Any reasonable juror would, in our judgment, infer from the judge’s charge that under the Court’s jurisdiction and power appellant would be recommitted to Bryce Hospital for further proper treatment in accordance with the verdict of the jury. By no stretch of the imagination could the jury take the Court’s charge to mean that appellant would be set free if the jury found him not guilty by reason of insanity.

It is a rule of long standing that objections must be timely interposed and an adverse ruling had from the trial judge before a legal question is preserved for appellate review. Conner v. State, 52 Ala.App. 82, 289 So.2d 650; Jackson v. State, 260 Ala. 641, 71 So.2d 825; Irons v. State, 42 Ala.App. 349, 165 So.2d 125; Embrey v. State, 283 Ala. 110, 214 So.2d 567; Smith v. State, 46 Ala.App. 99, 238 So.2d 898.

We do not consider the remarks of the prosecutor to be so prejudicial and grossly improper that they could not have been eradicated by the trial court upon prompt objections and instructions from the trial court to the jury to disregard such arguments. Alabama Digest, Criminal Law, <s=>730(1)

When appellant’s counsel made the statement on the hearing of the motion for a new trial that he made the determination not to object to the argument of the prosecutor this was an obvious attempt to entrap the Court in committing reversible error, but as we have said the statements made by the prosecutor were not so prejudicial and grossly improper that they were calculated to prejudice the jury even in the absence of an objection.

We have carefully searched the record for errors which injuriously affected the substantial rights of appellant, whether urged upon us or not, and have found none. This was a brutal murder of a woman who gave life to appellant and his deed and actions evidenced a cold stone heart. While he might have been temporarily out of his mind at the;. time he killed her, it was up to the jury to weigh and consider the credibility of the evidence and to determine if he was legally insane at the time of the homicide. The jury resolved that issue against appellant and he must pay for his crime.

The jury may reject all expert testimony though it is without conflict. George v. State, 240 Ala. 632, 200 So. 602; McAllister v. State, 17 Ala. 434, 52 Am.Dec. 180; Parrish v. State, 139 Ala. 16, 36 So. 1012.

The motion for a new trial was properly overruled. Clark v. State, 54 Ala.App. 217, 307 So.2d 28; Nichols v. State, 267 Ala. 217, 100 So.2d 750; Espey v. State, 270 Ala. 669, 120 So.2d 904.

The judgment of conviction is affirmed.

AFFIRMED.

HARRIS, TYSON and DeCARLO, JJ., concur.

BOOKOUT, J., dissents with opinion in which CATES, P. J., joins.

BOOKOUT, Judge

(dissenting):

Under our system of justice, juries are the triers of facts. Great weight is given to the verdict of a jury and appellate courts are reluctant to disturb their verdicts. We have many “boiler plate” propositions of law to this effect throughout our opinions, and the rule is based upon sound logic. Yet, upon proper application, an appellant may bring before an appellate court for review the sufficiency of the evidence.

Juries, though given broad latitude, are not given free and unbridled rein to completely ignore the evidence and arbitrarily arrive at a verdict contrary to every fact in the case. Only in the case of an acquittal can their verdict go completely unchallenged.

Neither the trial courts nor the appellate courts should allow arbitrary and baseless verdicts to stand solely because the crime charged is heinous or the community is aroused. Madmen sometimes commit heinous crimes, but the law of this state and the common law have always been that a madman is not responsible for his acts. The evidence here is overwhelming and un-contradicted that the appellant was insane at the time he killed his mother.

Insanity is an affirmative defense which must be established to the reasonable satisfaction of the jury. The leading case in this area is Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied 260 Ala. 699, 71 So.2d 107 (1954). Pickett recognizes the broad statement made by the majority in the present case, i. e. that a jury may reject expert testimony even though it is without conflict. The court in Pickett went on to say that expert testimony must be weighed by the jury like other evidence and may not be arbitrarily ignored.

The evidence in Pickett regarding the defendant’s insanity was, as in the present case, overwhelming and uncontradicted. In ordering a new trial, the court in Pickett, citing Boyle v. State, 229 Ala. 212, 154 So. 575 (1934), held as follows:

“ ‘Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.’ ”

There were two factors which Pickett alluded to in reaching the above decision. First, there was no evidence that the defendant was sane. As the defendant’s testimony consisted of entirely incoherent mumblings, the jury did not even have an opportunity to form an estimate of his mental condition. The presumption that every man is sane was also rebutted in the present case. There was no evidence presented which tended to show that the appellant was sane. In fact the appellant did not even testify.

The second factor which the court in Pickett mentioned was the trustworthiness of the evidence concerning that defendant’s insanity. The court in Pickett, citing Howard v. State, 172 Ala. 402, 55 So. 255 (1911) reasoned as follows:

“Tt is not a case where the testimony was limited to the friends of the family or relatives of the defendant, who sought to shield the family from disgrace; but it is a case where a large number of witnesses, without any apparent interest or bias, all agree that the defendant before, at the time of, and after the commission of the alleged offense was, and continued to be, insane, and that he was mentally irresponsible. Under such circumstances, can it be said, * * * that there is any evidence in support of defendant’s sanity?’ ”

Certainly there is no reason to suspect that the three psychiatrists, who testified in the present case, had any bias or an interest in the appellant’s cause. While it is true that relatives of the appellant also testified to his insanity, it is obvious that any bias or interest on their part was negated because they were also relatives of the deceased. There was no basis upon which the jury could reject the overwhelming and uncon-tradicted proof of the appellant’s insanity.

The majority cites George, McAllister and Parrish for the proposition that the jury may reject all expert testimony though it is without conflict. It should be pointed out that all three cases were reversed on other grounds thus relegating the proposition to gratuitous dicta. The opinion in McAllister does not reveal the basis for that defendant’s contention of insanity nor does it set out on what basis the jury reached its conclusion of sanity. George and Parrish, however, reveal that the juries had before them sufficient evidence from which they could infer that those defendants were sane.

The jury may reject all expert testimony though it is without conflict. The jury may do so if the testimony is weak, subject to bias or interest, unclear, or if there is another basis upon which to believe a defendant sane. Expert testimony does not pre-termit the issue of insanity and such testimony may be rejected but it may not be ignored for no reason at all. The highly prejudicial remarks made by the State’s attorney in his closing argument are obviously not grounds upon which a jury may reject the overwhelming and uncontradict-ed evidence pointing to the appellant’s insanity.

I therefore respectfully dissent.

CATES, P. J., joins in this dissent.


author: TORBERT, Chief Justice.

text:
    In re William Macy CHRISTIAN v. STATE of Alabama. Ex parte William Macy Christian.
    SC 2139.
    Supreme Court of Alabama.
    Sept. 30, 1977.

      James P. Smith of Ford, Caldwell, Ford & Payne, Huntsville, Ralph C. Burroughs, Public Defender of Tuscaloosa County, Tuscaloosa, for petitioner.
    William J. Baxley, Atty. Gen., and Jock M. Smith, Asst. Atty. Gen., for the State.
   TORBERT, Chief Justice.

In October 1972 William Christian was indicted for murder in the first degree for the death of his mother. During the three years between the time of indictment and the trial of the case, Christian was twice found incompetent to stand trial and each time was committed to Bryce Hospital for treatment. At trial, Christian entered a plea of not guilty and not guilty by reason of insanity. The jury returned a verdict of guilty of murder in the second degree and set punishment at 99 years in the penitentiary. Christian filed motion for new trial, but on hearing, it was denied. The conviction was affirmed by the Court of Criminal Appeals.

The undisputed evidence was that: Christian attacked his mother with a soft drink bottle and repeatedly beat her over the head with it; after she collapsed he poured gasoline over her body and set it ablaze; Christian then sat down near the burning body and remained there until the police arrived and took him into custody. Mrs. Christian died from these injuries.

The appellant raises two issues which he contends call for this court to reverse and remand this case for a new trial. First he argues that the verdict of the jury is against the great preponderance of the evidence that Christian was insane at the time of the homicide. Secondly, he contends that the remarks of the prosecution during closing argument were so prejudicial that they constituted reversible error. We are persuaded by appellant’s arguments on both these issues and therefore reverse.

We begin by stating the general rule in Alabama that, as persons on trial for commission of crimes are presumed sane, the defense of insanity is an affirmative defense which must be clearly proved to the jury’s reasonable satisfaction and the burden of proof in this regard rests on the defendant. Ala.Code tit. 15, § 422 (1958); Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Smith v. State, 257 Ala. 47, 57 So.2d 513 (1952); Parrish v. State, 139 Ala. 16, 36 So. 1012 (1903). Thus, where a plea of not guilty .by reason of insanity is filed, the burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence. Grissom v. State, 33 Ala.App. 23, 30 So.2d 19 (1947); Lee v. State, 246 Ala. 343, 20 So.2d 471 (1944); Lide v. State, 133 Ala. 43, 31 So. 953 (1901). In this respect, the burden never shifts to the State nor rests on the State. Grammer v. State, 239 Ala. 633, 196 So. 268 (1940).

In applying these propositions of statutory and case law, it has been stated that the question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence. Carr v. State, 43 Ala.App. 642, 198 So.2d 791 (1967); Hawkins v. State, 267 Ala. 518, 103 So.2d 158 (1958). In making its determination, the jury may reject all expert testimony though it is without conflict. Hockenberry v. State, 246 Ala. 369, 20 So.2d 533 (1945); George v. State, 240 Ala. 632, 200 So. 602 (1941); Parrish v. State, 139 Ala. 16, 36 So. 1012 (1903). However, opinion testimony, even of experts in insanity cases, must be weighed by the jury and may not be arbitrarily ignored. Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954); Boyle v. State, 229 Ala. 212, 154 So. 575 (1934).

We are cognizant on this appeal of these general rules with respect to pleas of insanity and also of the great weight to be given verdicts of juries. However, an exception must be allowed in cases where the proof of insanity is overwhelming and uncontradicted. This court stated the following in Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934):

“Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.”

To sustain the burden of the issue of insanity raised by his plea, the appellant introduced testimony of three psychiatrists, each of whom testified that Christian was insane at the time he committed the homicide. The record also shows Christian had a history of mental disorders and had been admitted to Bryce Hospital on several occasions prior to the homicide. Members of Christian’s immediate family testified to the following unusual behavior of their brother prior to the homicide: talking to a television set; imagining that every radio and television set contained a microphone to spy on him; imagining that red and blue subversives were out to get him through the use of their control over all the birds; believing that he was Jesus and possessed by the devil; believing that he saw winged monsters; and pretending he was talking to deceased relatives.

One of the police officers, who fingerprinted Christian after his arrest, testified that later the same night Christian made other unusual statements such as, “It is in the stars,” “I can see it in the stars,” “I can see it in the future,” “It is in my eyes.”

The State presented no expert testimony concerning Christian’s sanity, but points to the testimony of Miss Joyce Williams, Christian’s sister, on this issue. Her testimony in part was that in 1972 a Bryce Hospital case worker told her and her mother that Christian was in good condition and that if he would take the medication prescribed for him he could live among normal people. Miss Williams also stated that her mother told her on one occasion that Christian had said he would kill her if she tried to put him back in Bryce Hospital. No objection was made to the introduction of this testimony.

After a consideration of the foregoing testimony presented at trial, we are convinced that the overwhelming evidence presented by appellant has amply overcome the presumption of sanity as to this accused. This being so, it necessarily follows that the jury verdict in this case is contrary to the preponderance of the evidence and that this cause must be reversed.

The second point urged as error by appellant concerns remarks made by the prosecution during closing argument. By utilizing Rule 10(d), ARAP, Christian’s attorney made the following statements, which are attributed to the district attorney in his closing argument, part of this record:

“1. They are (Bryce Hospital) saying that he was insane then but is probably competent to walk the streets of Tuscaloosa today.
“2. But let me remind you that when he was released in 1971 he was ruled competent to live among normal people, and the next year he murdered his moth-ér.
“3. Ladies and gentlemen, I live in this town (Tuscaloosa) and you know what our problems are.
“4. If you return a verdict of not guilty by reason of insanity against this man, this means this man is scott free— free to walk the streets of Tuscaloosa again.”

On many occasions this court has held that statements similar to those made in this case are improper. Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973); Dunn v. State, 277 Ala. 39, 166 So.2d 878 (1964); Boyle v. State, 229 Ala. 212, 154 So. 575 (1934); Anderson v. State, 209 Ala. 36, 95 So. 171 (1922).

Whether the improper argument calls for reversal is judged on the prejudicial effect of the entire argument and this Court will consider the issues, the parties, and the general circumstances of each case to arrive at a conclusion. In this case the cumulative effect of the quoted portions of the prosecution’s closing argument were so highly prejudicial that their utterance constituted reversible error.

The state makes two arguments concerning this issue. First it contends that since no timely objection was entered at the time these statements were made, the question of their prejudicial effect has not been preserved for appellate review. Secondly, the state argues that even assuming these statements had a prejudicial effect any error was cured by the following jury instruction:

“Now, on the other hand, ladies and gentlemen, if you analyze the evidence in this case that has been presented to you and you are reasonably satisfied that at the time of the commission of the act charged that this defendant was legally insane as I have defined it to you, it would be your duty to find him not guilty by reason of insanity and then the matter would further actually be up to the Court.” (Emphasis supplied).

The ineradicable error rule in this jurisdiction provides an exception to the general rule that improper argument of counsel is not a ground for a new trial or even the subject for review upon appeal unless there has been a timely objection by counsel or a motion to exclude, a ruling thereon by the Court, or a refusal of the Court to make a ruling. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953); Anderson v. State, 209 Ala. 36, 95 So. 171 (1922).

This Court in Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958), stated the ineradicable error rule in the following manner:

“An exception to this general rule, requiring appropriate objection or motion invoking corrective instruction or action by the trial court, is where the remark or argument of counsel (or court) is so grossly improper and highly prejudicial to the opposing party as that neither retraction nor rebuke by the trial court would have destroyed its sinister influence. Anderson v. State, 209 Ala. 36, 95 So. 171.”

Id., at 221, 100 So.2d at 753.

Counsel for Christian raised the issue of the prejudicial remarks of the prosecution in his motion for new trial and because the remarks were so highly prejudicial as to constitute ineradicable error his motion for new trial preserved the issue for our review. Pearson v. Birmingham Transit Company, 264 Ala. 350, 87 So.2d 857 (1956); McLemore v. International Union, Etc., 264 Ala. 538, 88 So.2d 170 (1956); National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So.2d 492 (1951).

We hold that the closing argument of the prosecution constituted ineradicable error which was not cured by the instruction given the jury.

Accordingly, this case is reversed and remanded.

REVERSED AND' REMANDED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    William Macy CHRISTIAN v. STATE.
    6 Div. 97.
    Court of Criminal Appeals of Alabama, 351 So.2d 616.
    Oct. 25, 1977.
   PER CURIAM.

REVERSED and REMANDED on authority of Supreme Court, 1977, 351 So.2d 623. No Opinion.

All the Judges concur, except BOWEN, J., not sitting.


text:
    Jack MESSELT v. STATE.
    8 Div. 883.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Albert C. Bowen, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a judgment denying appellant’s petition for writ of error coram nobis.

In 1975 appellant was convicted in each of three separate cases of a violation of the Alabama Uniform Controlled Substances Act. Code 1940, 1971 Cumulative Pocket Part, Tit. 22, § 258. He was sentenced to a total of twenty-seven years imprisonment in the three cases.

His retained counsel promptly gave notice of an appeal in each case. Over a course of several months, extensions were granted for the completion of the transcript of the proceedings in each case, which extended until February 21, 1976. On February 26, 1976, the Madison County Circuit Clerk filed a certificate with this Court that the time for filing the court reporter’s transcript in each of the three cases had expired and that the transcript had not been filed. On March 4, 1976, this Court issued an order dismissing the appeal in each case.

On April 29, 1976, post-conviction relief was sought by a petition then filed in the trial court, which there culminated in the judgment of the trial court of June 2, 1976, from which this appeal was taken by notice within two days after the judgment. The record reached this Court on July 7 accompanied by a certificate of the Clerk of the trial court dated July 6, 1976. A brief was filed by appellant on July 23, by appellee on August 20, and the case was orally argued and submitted on October 8, 1976.

The allegations and supporting affidavits of the petition, as well as the testimony on the hearing, contained charges of grave misconduct on the part of the retained counsel of defendant in the three cases mentioned in connection with his obligation to prosecute the appeals to this Court. The retained counsel for defendant in those cases, that is, the counsel acting for him on the trial and on appeal in each of the cases, is not the counsel who filed the petition for writ of error coram nobis, represented petitioner on the hearing and now represents him on appeal.

According to the undisputed evidence on the hearing, petitioner’s former counsel abandoned the appeal and each of the criminal cases against him without notice to defendant of such abandonment. The evidence further shows that prior to dismissal of the appeals in the cases, the court reporter, at the request of defendant’s then counsel, had prepared transcripts of the proceedings in the cases, but had not delivered them by reason of the failure of said counsel to pay for the same in accordance with his obligation. The evidence is also to the effect that between the second and third trials of defendant, defendant’s then counsel proposed to defendant that defendant obtain a purchaser for two tons of marijuana to be sold by a friend of the attorney and that by doing so he would compensate defendant’s attorney for his services and the cost of the appeals. According to defendant, defendant made no commitment in this respect until he had discussed the matter with one of defendant’s friends who had let him have money to pay for his appeal bonds and had conferred with the Federal Drug Agency in Birmingham; he was encouraged by representatives of the Federal Drug Agency in Birmingham to work with them in an effort to apprehend defendant’s attorney and the unnamed friend or friends of defendant’s attorney in illegal conduct in connection with the sale of marijuana; thereafter, in liason with representatives of the Federal Drug Agency, he notified his attorney that he was acting as a go-between for the sale of the marijuana; there were operations along this line for some time, but they finally failed, apparently by reason of the proposed seller’s wariness. According to the testimony of defendant, his then attorney assured him time and again that his appeal in each case was being prosecuted, that “he had the transcripts” and this assurance continued even beyond the date of the dismissal of the appeals.

The evidence at the hearing also shows without dispute that defendant was impecunious from the time of his first conviction and that he met the standard of indigency requisite for a free transcript of the proceedings in each case. No formal action was taken by his former attorney to obtain a free transcript, but such attorney did discuss the matter of defendant’s indigency with the trial judge and indicated the possibility of his filing a motion to declare defendant an indigent. The petition for writ of error was captioned in the alternative as a Petition for Leave to Appeal in Forma Pauperis and contained positive averments of petitioner’s indigency at all times pertinent to his appeals.

Neither defendant’s former attorney nor anyone purporting to be privy to him testified on the hearing, and whatever his version may be of the shocking and almost incredible accusation against him, we have at this time no alternative to accepting, as substantially true at least, the record of the undisputed testimony.

We now lay aside, for the purpose of this case only, any and all questions raised or that can be raised, relative to the sufficiency of the petition and supporting evidence to entitle petitioner to relief at the hands of the trial court, for the reason that there is now presented to us sufficient information for this Court to grant relief, to which we feel the undisputed evidence shows he is entitled. Whatever basic injury has ever been inflicted upon petitioner is to be found in the transcripts of the appeals heretofore dismissed by this Court. The dismissals by reason of the lack of transcripts in this Court were the result of no fault of appellant. The court reporter had prepared them, and under the circumstances was entitled to compensation therefor before she released them to appellant’s attorney. On the showing now made, appellant has been done a rank injustice by his former attorney, either in his not compensating the court reporter for the transcripts he had ordered or in not applying for free transcripts on behalf of defendant in each case on the basis of his indigency. His former attorney is entitled to a hearing before condemnation or conviction of the charge made against him by petitioner — appellant in connection with their imbroglio, but the undisputed evidence before us requires us to look upon appellant as the victim of an almost unprecedented outrage, from the consequences of which we should grant relief when within our power to do so.

There is not here involved the matter of any out-of-time appeal. The appeal of each criminal case was within time; the appeal from the order in this particular case was well within the time. If we now had the transcripts in the cases in which appellant was convicted, we could proceed in accordance with Ellison v. State, 55 Ala.App. 50, 312 So.2d 632, 637, and thereby, without further action by the trial court, dispose of this case and the three appeals on the merits thereof, after adequate opportunity is given both sides to submit briefs and arguments as to such appeals. In the absence of the transcripts, we deem it appropriate to remand this case with directions to the trial court, subject to the condition immediately hereinafter stated, to order: (1) that defendant was indigent at the time of his appeal of each of the mentioned cases, (2) that the court reporter be compensated at the rate provided by law for the preparation of each transcript and three copies thereof and that she duly certify and file the same with the clerk of the trial court, and (3) that the clerk shall proceed to complete the record on appeal in each case so as to include the court reporter’s transcript of the proceedings and certify and transmit to this Court such completed record in each case and otherwise comply with the requirements of law, including particularly Code of Alabama 1940, Recompiled 1958 (Cumulative Pocket Part 1973), Title 15, Sections 380(14)-380(25) and Rule 11, Rules of Appellate Procedure, as applicable to unquestionably valid and outstanding appeals, and that payment to the clerk be authorized to cover the clerk’s fees incident to each appeal.

The condition hereinbefore anticipated is, that in the event the trial court deems it appropriate to proceed to an investigation of appellant’s finances pursuant to Tit. 15, § 380(18) and (19), it may do so, and if there is a finding that defendant is able to pay all or a part of the court reporter’s fees, or the clerk’s fees, such finding and the transcript of the hearing shall be transmitted to this Court in the form of a Return to Remand, for further consideration in this case. In providing this condition, we seek to avoid any appearance of infringing upon the province of the trial court in determining whether a particular defendant is indigent, but in the absence of any evidence or finding different from that which is now before us, there is no alternative to an acceptance of the undisputed evidence as to his indi-gency.

Upon completion of the record in each case as directed and transmittal thereof to this Court, the parties will be governed by ARAP in each of the mentioned criminal eases, particularly as to the filing of briefs and submission of the cause. Meanwhile, the order of this Court dismissing the appeal in each of the mentioned cases is set aside and the appeal reinstated; an order is to be entered accordingly on the docket of each case.

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

REMANDED WITH DIRECTIONS.

All the Judges concur.

      . [F]ollowed in White v. State, 55 Ala.App. 58, 312 So.2d 639; see also Baldwin v. State, Ala. Cr.App., 342 So.2d 939, 1976, and Ala.Cr.App., 342 So.2d 940, 1977.


text:
    Jack MESSELT v. STATE.
    8 Div. 883.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Compliance having been made with the directions on remand of this case, and the appeal in each of the three basic cases discussed in the opinion in this case having been submitted on briefs of parties, any and all issues raised on this particular appeal have become moot, or are resolvable, by our determination of the appeals in the basic cases.

A continuation of the appeal in this case serves no useful purpose, and the appeal herein is hereby dismissed.

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

The judgment below is hereby

DISMISSED.

All the Judges concur.

      . Messelt v. State, 8 Div. 687, 8 Div. 712, 8 Div. 754, Ala.Cr.App., 351 So.2d 630, 636, 640 (1977).