author: WRIGHT, Presiding Judge.

text:
    Anne Feltman Blair MURPHREE v. Roland E. MURPHREE.
    Civ. 1653.
    Court of Civil Appeals of Alabama.
    Jan. 31, 1979.

      B. J. McPherson, Oneonta, for appellant.
    Thomas B. Prickett, II, Jack Martin Bains, Oneonta, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from denial of a-petition to modify. We affirm.

The parties were divorced by decree rendered December 13, 1977. The divorce was granted on the ground of adultery by the wife. The parties were given joint custody of their two minor children. The husband was to have the children on weekends, and the wife during the week. The husband was ordered to pay $400 per month in child support to the wife. The decree denied alimony to the wife.

The wife did not appeal but moved to modify on July 25, 1978. She alleged as a material change in circumstances that she had been fired from her job as a teacher for the Oneonta City Board of Education. She requested an increase in child support, an award of alimony, and an attorney’s fee.

Oral hearing was held on September 12, 1978. The wife’s evidence tended to show that her financial position had worsened since the divorce. In addition to losing her salary as a schoolteacher, the wife had purchased a $65,000 home, requiring mortgage payments of $385 per month. She had purchased additional furniture and a. new car. She had made repairs and improvements on the new home. She stated the children’s expenses had increased. Altogether she had spent in six months some $45,000 cash she received at the time of divorce. She testified she was willing to work but unable to find a job within her field.

The husband, a physician, stated his 1977 net income to be $38,927. However, his professional corporation had a decrease in gross income of twelve percent for the year. This might result in a reduction of his sala-' ried income.

After hearing, the trial court denied the wife’s petition. The court noted that although the wife had some change in her financial position, the change had not related to the requirements for child support. The court found the proportionate shares of the children’s expense to be close to the amount of $400 per month which the husband had been ordered to pay.

We first observe that the request for an award of alimony was properly denied. If a judgment of divorce is entered without alimony or reservation of future consideration, the power to grant is lost. Northcutt v. Northcutt, 262 Ala. 98, 77 So.2d 336 (1954).

The wife contends the trial court erred by not granting her an increase in child support. Such a modification must be founded upon changed circumstances as to the needs of the children and the means of the parent. It is a matter for exercise of judicial discretion. The judgment of the trier of fact will be disturbed on appeal only if the evidence shows the trial court to be plainly wrong. Morrow v. Morrow, 351 So.2d 923 (Ala.Civ.App.1977). We find no plain error in the judgment below.

The wife also contends error by denial to her of an attorney’s fee. Her contention must fail. An award of an attorney’s fee in a proceeding to modify child custody provisions of a divorce decree is a matter largely within the discretion of the trial court. Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967).

Our decision here is not to be considered conclusive of the proposition that an award of child support may not be increased when it is shown that the mother and custodian has suffered personal financial reverses. If such reverses are so severe as to seriously impair the welfare of the children and it is shown that the father is capable of increased support, an increase may be awarded, even though it may incidentally benefit the mother. We do not find the circumstances shown in this case to show necessity for such a judgment.

The trial court, having not abused its discretion in denying the wife’s petition, is due to be affirmed.

Appellant’s request for attorney’s fee on appeal is denied.

AFFIRMED.

BRADLEY, and HOLMES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mildred Elaine WEBB v. Larry James WEBB.
    Civ. 1684.
    Court of Civil Appeals of Alabama.
    Jan. 31, 1979.

      Richard M. Jordan, Montgomery, for appellant.
    Sterling G. Culpepper, Jr., Montgomery, for appellee.
   PER CURIAM.

This is a divorce case.

The record reveals the following: The parties were married in May, 1970; separated in April, 1978; and divorced on the ground of incompatibility by order of the Circuit Court of Montgomery County on September 11, 1978.

The trial court’s decree, in addition to divorcing the parties, awarded custody of the parties’ eight year old child to the wife and ordered the husband to pay $210 per month in child support. The court effected a division of the parties’ personal property.

In paragraph seven of the final decree, the court provided that the wife was to have possession of the parties' home, but title to the property was vested in neither party. The wife was to have possession until she remarried, the minor child attained the age of eighteen, or she vacated the premises. On the occurrence of any of these three contingencies, the wife was to pay the husband the sum of $9,500, i. e., approximately 50% of the home’s current equity. The decree in this regard specifically provided:

7. That the residence of the parties at 344 West Rutgers Loop, Montgomery, Alabama, shall become the sole and exclusive possession of the Wife subject to a vested interest of the husband of $9,500.00, which shall be paid to the Husband at such time as the child reaches the age of 18, the wife remarries, or the Wife vacates the home.

Distinguished counsel for the wife contends that the requirement that the wife pay the husband $9,500 is in effect, an impermissible award of alimony to the husband. The wife’s counsel, in a well reasoned brief, maintains that this award is nothing more than an equitable property division in that the trial court recognized that the husband is, in the future, entitled to a reasonable share of the current equity in the home even though it is uncertain when the husband will receive the proceeds. We pretermit discussion of these contentions, because in this instance, as set forth below, we are of the opinion that the final decree is unenforceable in that it lacks certainty and definitiveness.

At the outset we note that an otherwise ambiguous divorce decree may be upheld if its intention is made clear by resort to the pleadings or other matters of record. Brown v. Brown, 276 Ala. 153, 159 So.2d 855 (1964); Coffey v. Cross, 185 Ala. 86, 64 So. 95 (1913). However, it is well settled in this state that where resort to the record does not make clear the otherwise ambiguous language, it is proper for the appellate court to remand the proceedings in order that the trial court reframe the decree to dispel its obscurity. Hardin v. Hardin, 277 Ala. 318, 169 So.2d 762 (1964); Moore v. Moore, 259 Ala. 326, 66 So.2d 447 (1953); Roubicek v. Roubicek, 246 Ala. 442, 21 So.2d 244 (1945); McGugin v. McGugin, Ala.Civ.App., 357 So.2d 347 (1978).

The obscurity of the language of the instant decree is not rendered more definite by resort to the pleadings or other matters in the record. The order imposes certain contingent obligations upon the wife with respect to the property but the decree is conspicuously devoid of any reference as to the party in which title is reposed. In addition, there is an apparent attempt to create a lien in favor of the husband in the amount of his share of the property’s current equity, but here again, the lien is not tied to ownership of the realty. Because of the uncertainties of the parties’ rights with respect to ownership of the property, and attendant contingencies which are by no means paragons of clarity, we remand the case for clarification. While this court could under proper circumstances reform a decree of this nature, Coffey, supra, in view of the above we do not do so in this instance.

In view of the above, it would be inappropriate to discuss other contentions raised by the wife.

The wife has requested that this court award a fee for her attorney’s service on this appeal. In view of the above, keeping in mind that we have not granted to the wife any specific affirmative relief, we decline at this time to award an attorney’s fee.

The case is reversed and remanded for appropriate clarification.

REVERSED AND REMANDED.

All Judges concur.


author: BRADLEY, Judge.

text:
    Norman SANGSTER v. Lori SANGSTER.
    Civ. 1689.
    Court of Civil Appeals of Alabama.
    Jan. 31, 1979.

      Michael A. Sundock, Montgomery, for appellant.
    Jasper B. Roberts, Montgomery, for ap-pellee.
   BRADLEY, Judge.

Appellant-husband appeals from an order by the Circuit Court of Montgomery County which denied his motion to set aside a divorce decree rendered by that court in a suit involving the parties to this appeal. The husband contends that the court’s ruling on his motion was error because he was denied proper representation by having represented himself at the original hearing. We affirm.

Appellant and appellee were married in December 1976 and lived together as husband and wife until May 1978, at which time they separated. No children were born of their marriage. In June 1978 the wife filed a petition for divorce in the circuit court, alleging incompatibility as grounds therefor, and requesting alimony, property division, attorney’s fees and restoration of her maiden name. The husband, acting as his own attorney, filed a responsive pleading entitled “Petition for Divorce — Response to Summons and Complaint.” This pleading conceded that there existed irreconcilable differences and incompatibility between the parties, but indicated that these problems were the result of the wife’s having “become involved with” another party.

At the hearing in this cause the husband was not represented by counsel of record. No court reporter was present at this hearing and the proceedings were not reported. After hearing the evidence ore tenus the trial court issued a final decree of divorce dated September 20, 1978.

The divorce decree awarded to the wife the following: a 1977 Toyota automobile, substantially all the personal property owned by the parties, the sum of $500 as alimony in gross, and the sum of $250 as attorney’s fees. The husband was awarded a soup tureen and an electric can opener and, in addition to the above-mentioned sums, was required to pay the court costs.

Shortly after this decree was rendered the husband apparently employed counsel to represent him. On September 27,1978 a motion to set aside the final decree of divorce was filed on behalf of the husband. The grounds for this motion were that, “Norman Sangster represented himself, and because of said pro se representation, did not understand the proceedings, did not understand their import as relates to the taking of evidence in said cause, and did not have proper and adequate representation.” The trial court denied this motion on October 10, 1978.

The husband argues on appeal that the trial court erred in denying his motion to set aside the decree. He bases this argument essentially on the same grounds upon which he based his post-trial motion, i. e. that he was denied proper representation at the hearing by having represented himself. Insisting that his post-trial motion was in fact a motion for new trial, the husband further contends that the absence of a court reporter or recording device at the hearing constitutes “irregularity of the proceedings,” and as such constitutes cogent grounds for a motion for new trial under Code of Alabama 1975, § 15-17-5.

We find no reversible error in the trial court’s actions. The law in this state is clear that any person may manage or conduct his own case in any court in this state. Code of Alabama 1975, § 34-3-19; May v. Williams, 17 Ala. 23 (1849). In the instant case Mr. Sangster chose to proceed in the trial court without the aid of legal counsel. He cannot now be heard to complain that he was denied adequate representation. Any such denial resulted directly from his own volitional conduct. See Sanders v. Sanders, Ala.Civ.App., 342 So.2d 380 (1977).

Nor are we convinced that the absence of a court reporter at the hearing constituted an “irregularity of the proceedings” sufficient to necessitate reversal in this cause. We said in Old Southern Life Insurance Co. v. Spinato, 57 Ala.App. 416, 329 So.2d 106 (1976):

A party is, upon request, entitled to have recorded all testimony taken in open court, Title 13, § 262, Code of Alabama 1940 [currently Code of Alabama 1975, § 12-17-275]. An objection at the outset of a hearing to proceeding without a reporter constitutes the necessary request.
From the record in the present case, to which this appellate court must look, there is no indication that defendant did in fact object to the lack of a court reporter, or whether there was a ruling on such an objection. We can only speculate on the existence and purport of this and any other alleged prejudicial ruling not appearing in the record. Such speculation will not support review. [Citation omitted.]

In Spinato, supra, we also noted that Rules 10(d), (e) and (f) of the Alabama Rules of Appellate Procedure provide an alternative to an appellant when no report of the evidence or proceedings at a hearing or trial was made or when a transcript is unavailable. See also, Adams v. Adams, Ala.Civ.App., 335 So.2d 174 (1976). The appellant in the instant case chose not to prepare the “statement of the evidence or proceedings” as allowed by Rule 10(d), ARAP.

The granting or denial of a motion for a new trial rests largely in the discretion of the trial court; the exercise of that discretion carries with it a presumption of correctness and should not be disturbed at the appellate level unless some legal right was abused and the record plainly and palpably shows the trial court was in error. Robertson Banking Co. v. Ebersole, Ala., 331 So.2d 278 (1976).

In the absence of a transcript of the proceedings or a Rule 10(d) statement of oral testimony, we cannot say that the trial court plainly abused its discretion in denying Mr. Sangster’s post-trial motion. This case is affirmed.

AFFIRMED.

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


author: LEIGH .M. CLARK, Retired Circuit Judge.

text:
    George TIMMONS v. STATE.
    8 Div. 143.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Gary L. Rigney, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   LEIGH .M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of rape and a sentence of imprisonment for forty years.

The main controverted issue was as to the identity of the person who, according to the testimony of the seventy-two-year-old alleged victim, raped her. The evidence was undisputed that the rapist got in her bed, in her house that she alone occupied, after she had gone to sleep on the night of April 15,1978, and forced himself upon her. She was positive that he was of the same race as defendant, and some of her descriptions of him corresponded with defendant, but she was not able to identify him positively.

There was abundant expert fingerprint evidence, consisting of fingerprints lifted from the door and door knob where an entry into the house had apparently been made, that matched in many details fingerprints of defendant.

Defendant, thirty-five years of age, testified that he was asleep at his aunt’s house at the time of the alleged crime according to the victim; that when he woke up the following morning a little before daylight he was told that the police had been looking for him, and he had his uncle take him to the police headquarters. There is no dispute that he did turn himself in at police headquarters that morning. He had been knowing the victim four or five years. His wife and two of his sisters-in-law had worked for the victim. He had been to the victim’s house three or four times with his wife and two little boys. His testimony as to the fingerprints was as follows:

“Q Can you tell us how those prints would have gotten there?
“A Yes, sir, I have been there. I went over there one evening after I got off from work. I was going to go by and get my uncle’s lawn mower and make some extra money, and I went by to see was she at home, and I was going to mow the grass, but she wasn’t there. If she was there, she didn’t answer the door, and I went to the front and came back.
“Q Is it possible you touched the door know, or leaned against the door.
“A Yes, I rung the doorbell, and knocked, and nobody answered. I never did go back no more.
“Q What about on the occasion you went in the kitchen, did you touch the door knob?
“A Yes, I have touched the door knob. “Q On that occasion you were in the kitchen?
“A Yes, sir, I have touched the door knob a few times.”

Defendant was supported to some extent by witnesses called in his behalf as to an alibi, and as to his being at the victim’s house on occasions that could explain the presence of his fingerprints on the door knob and door that was broken into as being caused at a time prior to the night of the crime.

All in all, the evidence presented a jury question as to defendant’s guilt, as to which a unanimous verdict of an unbiased and intelligent jury is more likely to be correct than is the judgment of any other person or persons. The next likely individual to be correct would be the trial judge, who overruled defendant’s motion for a new trial. The evidence supports the verdict of the jury and the action of the trial court.

Appellant states in his brief:'

“The State, over defense objection, was then permitted to question Defendant relative to prior accusations of rape (Tr. pp. 134-135) and produced a witness, Corinne Scott, who testified with regard to the facts of an offense for which the Defendant was previously convicted. (Tr. pp. 138-139) and of subsequent criminal acts of the Defendant (Tr. pp. 139-140).”

The cited pages of the transcript are as to cross-examination of defendant. At the conclusion of the direct examination, when questioned by his attorney as to what the alleged victim of the rape had testified, the testimony of defendant as a witness was as follows:

“A Yes. I raise my right hand to God, I never did nothing like that.
“Q You didn’t do that?
“A No, sir.
“Q Have you ever done that?
“A I never have treated a lady like that, never in my life.
“Q To any female; is that what your testimony is?
“A No, sir, that’s what I said.
“Q Have you ever forced a lady, against her will, to have sex with you?
“A No. Sir.
“MR. SCHWENN: That’s all.”

Contextually the testimony of defendant on cross-examination relative to prior accusations of rape, is shown as follows:

“Q You raised your hand a minute ago to God and said you never have attempted to do that kind of thing to a woman. Have you ever attempted to molest, or rape, or abuse a woman, ever in your life?
“A No, I haven’t. I have been accused of these things several times.
“Q You have been accused of these things?
“A Right.
“Q How many times have you been accused of it, George?
“A I have been accused of one last year.
“Q Every time you’ve been accused of it has been about an older woman, hasn’t it? You have been accused of it three or four times, haven’t you?
“A Yes, sir.”

Aside from any possible question whether evidence relative to other crimes similar to the one involved here would come within any exception to the general exclusionary rule as to other crimes, we are of the opinion that defendant opened the door for evidence as to other similar crimes, by his testimony on direct examination that he had never committed any such crime. Vincent v. State, 231 Ala. 657, 165 So. 844 (1936); Owens v. State, 21 Ala.App. 321, 108 So. 654 (1926).

As to the testimony on cross-examination of defendant as to his ever being accused of crimes similar to the crime charged against him, it is to be noted from the above extract from his cross-examination that he volunteered, without being asked by the State, his testimony that he had been accused before of such a crime. In cross-examining the defendant there was no conflict with the principle:

“. . . The state cannot make its own setting for the justification of illegal evidence, so as to permit the contradiction of what is brought out, though on cross-examination of witnesses for defendant.” Dickinson v. State, 228 Ala. 28, 29, 152 So. 29, 30 (1934). See also, Walker v. State, Ala.Cr.App., 358 So.2d 800, 806 (1978).

An answer to the contention that the admission of testimony of the State’s witness Corinne Scott constitutes reversible error is to be found in the pages of the transcript cited by appellant, (Tr. pp. 138-140). The only objection in any of the testimony of the witness as found on the cited pages is as follows:

“Q Well, where was he when the police got there?
“A Who?
“Q Mr. Timmons over there.
“A They say he was coming out of the house.
“MR. SCHWENN: We object to this whole line of questioning and move for a mistrial.
“THE COURT: I sustain your objection, but it comes too late. I will overrule your motion for a mistrial.” (Emphasis added).

We have considered all of appellant’s contentions for a reversal. In addition, we have searched the record for error prejudicial to defendant and have found none. The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, 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 below is hereby

AFFIRMED.

All the Judges concur.


text:
    Elijah NICHOLSON, alias Monkey Man v. STATE.
    1 Div. 1.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    No briefs for appellant.
    William J. Baxley, Atty. Gen. and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Mobile County returned an indictment against the appellant, Elijah Nicholson, charging him with burglary second degree. Appellant entered a plea of not guilty. A jury found the appellant guilty of burglary in the second degree. The trial court duly sentenced the appellant to eight years imprisonment in the penitentiary, and the appellant appeals to this Court.

The appellant was at all proceedings in the trial court represented by court appointed counsel, and is so represented in this Court. This appeal was submitted to this Court on brief of appellee and on letter of no merits of appellant.

At the conclusion of State’s evidence, the appellant made a motion to exclude State’s evidence on the grounds that the indictment stated it was the store building of St. Stephens Drugs, Incorporated, a corporation that was broken and entered, and the proof is that the drug store is a corporation that does not own the store building.

State’s witness, Mr. Clifford Smith, testified in substance the following: That St. Stephens Drugs, Incorporated, a corporation, was a legally formed corporation; that he is the president of the company; that there were several other businesses in the building but they were all partitioned off; that none of the other businesses in the building had access to the room that was broken into; that Mr. Lewis Smith owned the building and that St. Stephens Drugs, Incorporated, a corporation, had no interest in the building besides just renting that part it occupied; that the drug store was the only occupant of the part of the store building broken into; that all entrances into the drug store and storage room were securely locked; that the door of the store room was broken into.

State further presented other evidence that fully sustains the jury’s verdict finding the appellant guilty of burglary in the second degree.

We hold that the motion of appellant to exclude State’s evidence on the grounds that St. Stephens Drugs, Incorporated, a corporation, was not the owner of the building broken into is not well taken. Burglary is an offense against possession or occupancy of a building, and the test for determining ownership of premises for purpose of indictment is not title to the property broken and entered, but is occupancy or possession at the time the offense was committed, unless the occupant is a mere servant. Key v. Dozier, 252 Ala. 631, 42 So.2d 254; Hamilton v. State, 283 Ala. 540, 219 So.2d 369, cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121; Ivey v. State, 45 Ala.App. 101, 226 So.2d 95; Quinn v. State, 39 Ala.App. 107, 95 So.2d 273; Fuller v. State, 28 Ala.App. 28, 177 So. 353.

We have searched the entire record for errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Jere CHATOM v. STATE.
    1 Div. 983.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.

      Jere Chatom, pro se.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

This is an appeal by the appellant, Jere Chatom, from a judgment of the Circuit Court of Mobile County dismissing a petition for a writ of error coram nobis seeking to set aside a judgment of conviction of the appellant for murder in the first degree and a sentence of life imprisonment without granting an evidentiary hearing on the petition and without appointing an attorney to represent the appellant in the circuit court on the petition.

The petition consumes thirty-eight pages of the transcript and consists of statements of propositions of law, some of the evidence introduced on the original trial, actions of the trial judge in admission of testimony, refusing requested written charges, denying a continuance and change of venue, all of which are matters that have been disposed of by this Court or should have been presented to this Court on appellant’s appeal from the original judgment of conviction. No facts are stated in the petition to justify the writ of error coram nobis.

We take judicial knowledge of the records of this Court and the Supreme Court of Alabama. We have reviewed the cases of Chatom v. State, Ala.Cr.App., 348 So.2d 828; Chatom v. State, Ala., 348 So.2d 838 and Chatom v. State, Ala.Cr.App., 348 So.2d 843, wherein it appears that the court appointed the Honorable Reynolds Alonzo and Honorable Joseph 0. Kulakowski who ably represented the appellant at his trial in the trial court, and upon the appellant’s conviction furnished him a free transcript consisting of 750 pages and appointed the Honorable Joseph 0. Kulakowski and Honorable Thomas J. Stein to represent the appellant on his appeal from the original judgment of conviction to this Court.

We have searched the record before us on this appeal, and there is no statement in the petition that the appellant is innocent of the crime he was convicted of or that he had a valid defense, or of any fact from which the court could draw an inference that he was innocent of or had a valid defense to the crime he was charged for.

We hold that the trial court did not err when it dismissed the appellant’s petition for a writ of error coram nobis without granting an evidentiary hearing and without appointing an attorney to represent the defendant. The failure of appellant’s petition to contain an allegation that the petitioner was innocent of the crime charged or that he had a valid defense to the crime charged is fatal. Ex parte Taylor, 249 Ala. 667, 32 So.2d 659; Shadle v. State, 284 Ala. 138, 222 So.2d 722; Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917; Ex parte Phillips, 276 Ala. 282, 161 So.2d 485.

We have searched the entire record for errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Troy G. KELLEY v. STATE.
    3 Div. 915.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Frank L. Thiemonge, III and Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted of second degree murder for the killing of his wife by “running a motor vehicle into, on or against” her. Sentence was fixed at ten years’ imprisonment.

I

Initially the appellant contends that the trial court erroneously added the words “the jury finds” to the written verdict of the jury. The record shows that this was done with the express consent of defense counsel. Therefore any objection was specifically and knowingly waived. Furthermore, the jury endorsed the indictment twice. The finding and verdict as endorsed on the front of the indictment is correct and proper in all respects. For these reasons the argument of the appellant is without merit and lacks any factual foundation.

II

Alabama State Trooper G. E. Gravly testified that he assisted the investigating officer at the scene of the homicide and that “we made all the measurements ourselves.” Although he was holding the “beginning of the tape” and “Trooper Kelley was reading the tape off”, Gravly was allowed to testify, over the objection of defense counsel, that Trooper Kelley stated when they were making the measurement that it was two hundred and twenty-two feet from the spot the vehicle left the road to the point where the body was found. Trooper Gravly also stated that he had taken measurements “several times” in the past and that in his experience investigating accidents “it was measured correctly and measured properly.”

Trooper Kelley had previously testified without objection that it was one hundred and three feet and two inches from the point the appellant’s vehicle left the road until the point of impact; that the skid marks were eighteen feet long; and that the appellant told him he was traveling approximately thirty miles an hour when he struck his wife. This was consistent with Kelley’s investigation. All the evidence, except the statements given by the appellant, indicated that the deceased was approximately a foot and one-half to two feet off the white line on the side of the road when struck. The appellant’s vehicle did not begin to skid until after the automobile had made contact with the deceased.

What Trooper Kelley told Trooper Gravly at the scene of the homicide about the distance involved was hearsay even though Gravly assisted in making the actual measurement. C. Gamble, McElroy’s Alabama Evidence, § 242.01(1) (3rd ed. 1977). However the distance between the initial point where the vehicle left the road and the point where the deceased’s body landed after impact was not material to any question before the jury. This fact was not disputed and the weight of evidence indicated that the appellant was traveling thirty miles an hour.

During the trial no issue was made as to how far the deceased was thrown upon impact. There was no actual dispute as to the speed of the automobile. In conclusion, though the admission of Gravly’s statement was error we fail to see how it could possibly have injured the appellant. While the distance could have been material — in showing the speed of the automobile — this matter was not in dispute. The record on appeal must not. only show error, but that such error probably injuriously affected some substantial right of the appellant. Mosley v. State, 241 Ala. 132, 1 So.2d 593 (1941); Rule 45, Alabama Rules of Appellate Procedure.

Ill

Finally, the appellant maintains that his conviction is due to be reversed because nowhere in the transcript does it show what specific “rights” the appellant was informed of before he confessed.

The appellant made five statements at the scene of the homicide and two at the State Trooper Office in Montgomery. In all but one of the statements he admitted hitting his wife with his automobile but maintained that it was an accident and unintentional. It does not appear that the appellant was informed of any of his constitutional rights at the scene of the homicide.

1. The appellant admitted to Hershell Mason, a passing motorist who stopped to render aid, that he had hit his wife who had been walking down the side of the road. The appellant asked Mason to help him get his wife in the car but did not mention the hospital or being run off the road by a blue pickup truck. There was no objection to the admission of this testimony.

2. When State Trooper W. L. Kelley asked the appellant “what happened” the appellant stated that his wife had been driving and had been slung out of the car when they hit a tree after being run off the road by a blue pickup truck. Defense counsel objected to this testimony by stating “objection”.

3. After Trooper Kelley had talked to a few of the people on the scene he returned to the appellant and asked him if he had been driving. The appellant then told him that he had been driving the automobile. The appellant “said that a pickup truck had run him off the road and he had hit his wife; that she had been walking”. The appellant stated that his wife had taken him to Jackson Lake where he fished all night and she had returned that morning to pick him up. This testimony was elicited by defense counsel on cross examination of Trooper Kelley.

4. The appellant told Officer Cody Wood of the Montgomery Police Department, who was trying to find out what happened, that “he and his wife had been down to Lake Jackson fishing that night” and “that she had gotten mad with him and had left walking”. The appellant then picked her up in his automobile on Highway 143. They argued further and his wife had gotten mad again and had gotten out of the car and started walking. The appellant then proceeded up the highway and ran over her with his automobile. Officer Wood did not ask any more questions and the defendant did not mention the blue pickup truck. Before talking to the appellant, the only thing Officer Wood learned from Trooper Kelley was “the identify of the lady and of the subject (appellant) sitting in his car.”

5.The appellant told State Trooper Curtis Luther that he had been fishing all night and his wife had come to pick him up. When the appellant wanted to fish another thirty minutes his wife said that she would be walking home and for the appellant to stop and pick her up. A blue pickup truck “hugging” the center line forced the appellant “over a little bit too close” and he hit his wife. The appellant stated that he was traveling approximately thirty miles per hour and though he got right to the edge of the pavement he never did get on the dirt shoulder of the road.

When Luther arrived on the scene, Trooper Kelley told him that there was “something funny about the accident” but did not tell him what had happened. Trooper Luther testified on cross examination by defense counsel that at the time he questioned the appellant he “didn’t know he was a suspect”. Luther did not read the appellant “any rights” before questioning him “(b)ecause at that time as far as I knew it was just a traffic accident.” Trooper Luther started making notes of his questions and the appellant’s answers when the appellant made a statement which conflicted with a previous one. No one instructed Trooper Luther to question the appellant. After questioning the appellant, Trooper Luther “carried” him to the Hooper Street Apartments in Montgomery.

When the prosecutor asked Trooper Luther to recite what the appellant told him defense counsel stated his objection without assigning any ground. Before Luther read his notes to the jury defense counsel requested to be allowed to “see it before he reads it”. No further objection was made and when the notes were offered in evidence defense counsel stated “no objection.”

At the Trooper Office the appellant made two statements.

6. On the afternoon of the day of the homicide, Sunday, May 29, 1977, Trooper Kelley took the appellant’s statement at the State Trooper Office. Though the record shows that Kelley read the appellant his Miranda rights prior to taking the statement, there is no indication of which specific rights were given. Kelley stated that the appellant was not on the “hot seat,” that three troopers were present during the interview and that he did not argue with the appellant but just asked him for his statement. The appellant “freely came of his own free will to the office to make a statement”.

Basically the appellant told Kelly on this occasion that his wife had come to pick him up from fishing and that, not wanting to wait on him, she had started walking back from Jackson Lake. The appellant had been run off the road by a blue pickup truck and had hit his wife unintentionally in an attempt to avoid the truck. His wife was walking on the pavement, “barely on the edge of 'the pavement”. The appellant denied having an argument with his wife before leaving the boat landing. He stated that he “hit” his brakes just about the same time or before he hit his wife. He denied wanting to kill her.

7. On May 31, 1977, the appellant gave Kelley a second statement at the Trooper Office. The appellant wrote the statement in longhand “at the Trooper Office out in the parking lot on the hood” of Trooper Kelley’s car. The appellant stated that he began to slow down and move off the road to pick up his wife and also to give the truck room to pass when the next thing he knew his car had hit his wife from behind. He stopped immediately to help her. The appellant stated that he did not realize that his car ran off the pavement.

The statement given by the appellant to Mr. Mason was properly admitted without objection. The requirement that a suspect be advised of his rights is not applicable to noncustodial questioning by private citizens. United States v. Maddox, 492 F.2d 104 (5th Cir. 1974); Ellis v. State, 338 So.2d 428 (Ala.Cr.App.1976); Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408 (1972).

The statements given to the three law enforcement officers at the scene of the homicide were properly admitted into evidence because it does not appear that the appellant was in custody and the questioning was investigative rather than accusative. Barfield v. Alabama, 552 F.2d 1114 (5th Cir. 1977); United States v. Marzett, 526 F.2d 277 (5th Cir. 1976); United States v. Lacy, 446 F.2d 511 (1971); Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968). Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not prevent traditional investigatory functions such as general on-the-scene questioning. Harrison v. State, 358 So.2d 759 (Ala.Cr.App.), reversed on other grounds, 358 So.2d 763 (Ala.1977). See also McBride v. State, 355 So.2d 750 (Ala.Cr.App.1978); Favors v. State, 355 So.2d 103 (Ala.Cr.App.), cert. denied, 355 So.2d 107 (Ala.1977).

“Miranda, supra, does not prevent traditional investigatory functions such as general on-the-scene questioning, but it does become operative where restraint of an individual by law enforcement personnel is ‘significant’. United States v. Montos, 421 F.2d 215 (5th Cir. 1970), cert. denied 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. The dividing line between general investigation and custodial interrogation is not drawn with precise demarcation, but is determined on a case-by-case factual analysis. Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972). Criteria used to determine the necessity of Miranda safeguards include: probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation. Montos, supra. Especially important is whether the focus of the investigation had finally been centered on the accused. Brown, supra; DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406 (1975) cert. denied 295 Ala. 399, 323 So.2d 411.” Harrison, 358 So.2d at 761.
* * * * *
“Our decision in Miranda set forth rules of police procedure applicable to ‘custodial interrogation’. ‘By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ 384 U.S., at 444, 86 S.Ct., at 1612.”
* * * * * *
“Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody’. It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 713-714, 50 L.Ed.2d 714 (1977) (emphasis added).

See also Sims v. State, 51 Ala.App. 183, 191, 283 So.2d 635 (1973).

Evaluating the present case in light of the above principles we find that the appellant was not in custody when he made the statements to the investigating officers in the course of the officers’ general investigation of an automobile accident involving a homicide. 31 A.L.R.3d 565 (1970).

The questioning at the scene of the homicide was not “inherently intimidating”, 31 A.L.R.3d at 577, and was not aimed at gathering' evidence for a criminal prosecution. The officers, acting independently, were only conducting a general investigation at the scene of an apparent accident involving a homicide in which the appellant was the only witness. While the officers may have had a bare suspicion that an unlawful homicide had been committed, it does not appear that the appellant was placed under arrest after the questioning or deprived of his freedom in any significant way. Under these circumstances the Miranda warnings were not required.

We need not determine whether the two statements given by the appellant at the Troopers’ Office were made in an atmosphere of “custodial interrogation” and in that “sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited”. Mathiason, 97 S.Ct. at 714. The substance of these two statements was already properly before the jury in the five statements the appellant had made at the scene of the homicide. Thus even if their admission was error because of the failure of the prosecutor to lay the proper predicate the error was harmless. Where there is one confession by a defendant properly admitted into evidence and there was strong corroborative evidence of the guilt .of the defendant, the admission of another confession, even though it should have been excluded upon objection, is harmless error. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Klemmer v. State, 51 Ala.App. 383, 286 So.2d 58, cert. denied, 291 Ala. 786, 286 So.2d 62 (1973); Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973); Myers v. State, 40 Ala.App. 617, 119 So.2d 602 (1960); Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 228, 117 So.2d 360 (1960).

We have searched the record and found no error prejudicial to the appellant. The judgment of the trial court is .affirmed.

AFFIRMED.

All Judges concur.

      . The only evidence that would tend to contradict this was Trooper Kelley’s statement that he “wouldn’t say it would be at all” consistent with thirty miles an hour to be able to stop an automobile in eighteen feet of skid marks. Kelley further stated that he could not determine how far it would take an automobile traveling thirty miles an hour to stop.

      . Trooper Luther testified:
      “And at the time that he stated that she had walked all the way from Lake Jackson it conflicted with a statement he made about her getting out of the car. And at that time I started recording (making notes) the questions and his answers to them.”

      . If these two statements were given in an atmosphere of custodial interrogation they should not have been admitted because the Assistant District Attorney did not show (1) the precise and specific warnings given the accused, Swicegood v. State, 50 Ala.App. 105, 277 So.2d 380 (1973); also Davis v. State, 331 So.2d 807 (Ala.Cr.App.1976); Lloyd v. State, 45 Ala.App. 178, 227 So.2d 809 (1969), and (2) that the confession was voluntary and not improperly adduced. Lewis v. State, 57 Ala.App. 545, 329 So.2d 596, affirmed, 295 Ala. 350, 329 So.2d 599 (1976).


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Clover Lee MOORE v. STATE.
    6 Div. 465.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Jimmy Dale Williams, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was tried, convicted, and sentenced to ten years imprisonment on an indictment charging as follows:

“The grand jury of said county charge that, before the finding of this indictment, Clover Lee Moore, whose name is to the grand jury otherwise unknown, feloniously took Six Dollars of the lawful Currency of the United States of America, a more particular description and denomination of which is otherwise unknown to the grand jury, one ladies’ watch of the value of Seventeen Dollars, and one diamond ring, the value of Two Hundred Fifty Dollars, the personal property of Polly Jane Rogers, from her person and against her will, by violence to her person or by putting her in such fear as unwillingly to part with the same.”

Defendant interposed a plea of former jeopardy, to which the State demurred. At the hearing on the demurrer to the plea the parties entered into some stipulations as to what happened as to the former case that constituted the basis for the plea of former jeopardy, and evidence was presented by defendant with the apparent understanding of all concerned that the court would appropriately take into consideration such stipulations and evidence in arriving at a ruling on the demurrer to the plea. After argument by the parties and submission of the matter to the court, the court sustained the State’s demurrer to the plea of former jeopardy, and the trial then commenced, and was concluded on the issue raised by defendant’s plea of not guilty.

The record before us shows that in the case relied upon as a basis for the plea of former jeopardy there was an indictment against defendant-appellant as follows:

“The grand jury of said county charge that, before the finding of this indictment, Clover Lee Moore, whose name is otherwise unknown to the grand jury, feloniously took Six Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is unknown; one ladies watch of the value of Seventeen Dollars and one diamond ring of the value of Two Hundred Fifty Dollars, the personal property of Polly Jane Rogers, from her person or by putting her in such fear as unwillingly to part with the same.”

The record also shows that there was a trial on the last quoted indictment to the conclusion of the evidence for the State and that upon the State’s resting, a motion was presented by defendant to exclude the evidence. In the record before us there is a copy of the “Trial Docket” sheet in the former case in which the following order appears:

“In this case, it appeared from the evidence that there was a variance between the allegations of the indictment and the proof in this: that one of the essential elements necessary to establish the offense of robbery, ‘by violence to her person’ was omitted and the defendant not consenting to allow the indictment to be amended, the prosecution is hereby dismissed before the jury retired and another indictment is hereby ordered to be preferred. Bond fixed in the amount of Ten Thousand Dollars. (Sgd.) Jasper, Judge.”

It is undisputed that the two cases are as to the same defendant and as to the same alleged incident.

During the hearing on the demurrer to the indictment, the trial judge, the same judge that presided on the trial of the former case, said:

“All right. The essential elements of the offense of robbery is the use of force or violence or by use of means whereby the person is put in fear. The taking from the person or from the presence of another money or other personal property and taking it with the intent to rob or steal. The variance as per the State’s witnesses in case No. 35846 showed violence to the person of the alleged victim, Polly Jane Rogers, and the court applying Title 15, § 254, there is a variance between the allegations in the indictment and the proof as offered by the State, at any time before the jury retires the Court and the defendant not consenting to an amendment, the Court must dismiss the prosecution and hold the defendant for a new indictment, which was done.”

The section of the Code cited by the trial court and its preceding section, now the same in Ala.Code 1975, provide in proper order:

“§ 15-8-90. An indictment may be amended, with the consent of defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described.
“§ 15-8-91. If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time, in which case an entry of record must be made to the effect following:
“[A form for the order of the court substantially the same as the order of the trial court in the case forming the basis for the plea of former jeopardy.]”

We do not have the benefit of the record of the evidence in the case which was dismissed, which the trial judge doubtless had well in his memory, and whose memory was not called in question on the matter of the plea of former jeopardy; but much of the evidence in the instant case sheds light upon the question whether, in the former case, there was evidence to the effect that defendant took from the victim’s person the property described in the indictment in each case “by putting her in such fear as unwillingly to part with the same,” as charged in the first indictment or “by violence to her person” as charged alternatively in the second indictment. The victim’s testimony in the instant case, after she had testified as to a collision at night between her automobile and an automobile in which defendant and one Edward Giles were riding, was in part as follows:

“A Moore said, Your car ain’t hurt and mine ain’t either. I said, Well, do you want to call the police or do you want me to? He said, Don’t call the police. He said, ‘Have you got any money.’
“I said, No, why. He said, because I want it, and at that time I started screaming and Moore hit me and Giles grabbed my feet.
“A He hit me with his fist in my face. He knocked me back over my car. I was at the back of my car. Then Giles got my feet and Moore got me under the arms and threw me in their car.
“A I turned loose of the car keys. Moore picked up the keys. He told Giles to drive and Giles got in on the driver’s side and he cranked the car up and he pushed my feet around and pushed me down on the floor board and he told him to drive.
“A Moore had a screwdriver and he put it in my side.
“Q Did you have a ring?
“A Yes, sir.
“Q What kind of ring was it?
“A It was gold ring with diamond stones in it.
“Q Do you have a judgment as to how much that was worth?
“A Two Hundred and Fifty Dollars.
“Q And what happened to that ring that night?
“A Moore took the ring off my finger with me trying to keep him not to. He just tore it off my finger and cut my finger up.
“Q Now, when did he do that?
“A When he got back in the car.
“Q What happened to your watch?
“A Moore took it off of my arm.
“Q When did he take it off of your arm?
. “A Right after he took the ring off of my finger.
“Q And what kind of watch was it?
“A It was just a gold Timex watch.
“Q Do you know what the value of that watch was?
“A Seventeen Dollars.
“Q And did you have any U. S. Currency on you?
“A Yes, sir.
“Q Did someone take your money?
“A Yes, sir.
“Q Who took your money?
“A Moore.
“Q When did he take your money?
“A When he got back in the car and started putting his hands on me and I told him not to touch me.
“Q Were you crying?
“A Yes, sir. And he started putting his hands in my pocket and I told him, just don’t and I would give it to him and I gave him the money that I had. .
“Q What was said or done next after he took your Six or Seven Dollars?
“A He said, Is that all of the money you have got? and I said, That is all I have with me. If you don’t hurt me I have money at home.”

The indictment in the case now under review followed precisely the Code form of an indictment for robbery. Ala.Code 1975, § 15-8-150(86). The indictment in the former case omitted the language “and against [her] will, by violence to [her] person” contained in the statutory form.

By the prescribed form of indictment for robbery, the Legislature has approved alternative language for charging one of the essential elements of larceny, namely, force, otherwise stated as violence. The force or violence may be either actual or constructive, applied or threatened. The constructive or threatened force is often treated under the name of intimidation. 67 Am. Jur.2d Robbery, §§ 20-22; 77 C.J.S., Robbery, § 10. In the Code form, supra, it is verbalized, “putting [the victim] in such fear as unwillingly to part with [the property].”

When the alternative to be found in the definition of robbery, and recognized in the code form of an indictment therefor, is used, it is not necessary to prove both actual force and fear as a means of wresting the possession of personal property from the person, or in the presence, of another. Baker v. State, Ala.Cr.App., 344 So.2d 547 (1977). When the alternative is not used, however, it necessarily follows that the proof must follow the allegation, whether the allegation charges actual force on the one hand or fear on the other. As it charged fear only, with actual force or vio lence conspicuous by its absence, we can well understand the dilemma of the trial judge when faced by defendant’s motion to exclude the evidence. According to the evidence in the case under review, which the parties indicate is substantially the same as the evidence in the former case, the watch and the ring were unquestionably forced from the victim’s person, without the involvement of any question as to fear; if fear entered into the means of obtaining possession of the money, which defendant, sought by putting male hands upon her body and in her pocket, it would be understandable, but it would be eclipsed as a means of obtaining the money by what he had violently done to her. We think the trial court took the proper course in holding that there was not substantial evidence to support the averment as to fear, that there was a variance between the averment and the proof. Such a situation was foreshadowed by Ala.Code § 15-8-90, and as the defendant would not consent to an amendment to the indictment that would have removed the variance, the trial court correctly proceeded in accordance with Ala. Code 1975, § 15-8-91.

That the dismissal of a prosecution on the grounds of a material variance, in accordance with Ala.Code 1975, § 15-8-91, does not furnish a basis for a plea of former jeopardy is well established, as shown by Pratt v. State, 48 Ala.App. 431, 264 So.2d 571, 575, as follows:

“In Oliver v. State, 234 Ala. 460, 175 So. 305, our Supreme Court spoke directly to this question:
“ ‘The acquittal of a defendant because of variance does not prevent trial on a new indictment conforming to the case made by the evidence. The accused is held to have never been in jeopardy, since the crime charged is not the same in the sense that it is not sustainable by the same proof, as in the former indictment. 16 C.J. p. 243, § 380; Martha v. State, 26 Ala. 72.
“ ‘This principle is recognized in our statute, Code § 4551, providing that, where no conviction can be had because of a variance, the defendant not consenting to an amendment, the prosecution may be dismissed before the jury retires, as to any count in the indictment to which the variance applies, and another indictment ordered.’
“And in Ex parte Shirley, 39 Ala.App. 634, 106 So.2d 671, cert. den. 268 Ala. 696, 106 So.2d 674, we find the rule thus stated:
“ ‘. . . Unquestionably the trial judge is authorized to enter a nol pros and order a new indictment where defendant will not consent to an amendment offered to meet a variance. Code, Title 15, Section 254; Cunningham v. State, 117 Ala. 59, 23 So. 693.’ See also Wright v. State, 40 Ala.App. 683, 122 So.2d 555.”

Applicability of the procedure provided by Ala.Code 1975, § 15-8-91, and its predecessor is not dependent upon action by defendant, except as to the failure of the defendant to agree to an amendment. Nevertheless, affirmative action by defendant in moving for an exclusion of the evidence, with consequent dismissal, on the ground of a variance estops defendant from thereafter complaining that there was former jeopardy. In Mitchell v. State, 16 Ala.App. 635, 80 So. 730, it was held:

“The defendants, by their motion to exclude the evidence on the theory of a variance between the averments and proof and by securing the favorable action of the court thereon, estopped themselves to plead that trial and judgment as former jeopardy. State v. McFarland, 121 Ala. 45, 25 So. 625; Kendall v. State, 65 Ala. 492; Morrisette v. State, 77 Ala. 71; Gunter v. State, 83 Ala. 96, 3 So. 600; 1 Mayf.Dig. 490, § 12.”

The quotation is from what purports to be a dissenting opinion, but which ultimately became the majority opinion of the court.

The record is not absolutely clear here that defendant’s motion to exclude the evidence was based on the claim of variance, but we hardly see any basis for any contention to the contrary. In Mitchell, supra, a contention to the contrary was made on application for rehearing, which was disposed of at 80 So. 733, as follows:

“While this plea does not in terms aver that the motion of the defendants was rested on the ground that there is a variance between the averments and proof, it embodies the judgment of the court in response to the motion, which shows, at least by clear implication, that the motion was predicated on this idea, and the defendants will not be permitted to set up this judgment as establishing their immunity from further prosecution, and at the same time dispute its solemn adjudications. Moreover, in view of the facts stated in the plea, a motion to exclude the evidence on any other ground than of variance between the averments and proof could not have been made with any degree of good faith or seriousness. Aside from these considerations, one has but to apply the general rule that on demurrer the averments of the pleas will be construed most strongly against the pleader, and all doubtful intendments will be resolved against him, to read into the plea the averment that the motion was based upon the ground of a variance between the averments and proof. Scharfenburg v. New Decatur, 155 Ala. 651, 47 So. 95; Argo v. Sylacauga Merc. Co., 12 Ala.App. 442, 68 South 534.”

Although, as indicated above, the parties in submitting on the demurrer to the plea of former jeopardy, included in the submission stipulations of parties and some record evidence, there was such informality that it tended to obscure any question whether there was an issue of fact for determination by a jury. Nevertheless, it is clear that the fact that there was no separate jury trial as to the plea of former jeopardy does not constitute prejudicial error. In Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284 (1953), after observing that ordinarily an issue of former jeopardy should be tried separately and in advance of the issue of not guilty, the court held:

“Thus, in the present case, the very record evidence introduced by the defendant in support of his pleas of former jeopardy show that said pleas could not avail even had the issues been submitted to the jury. The result being the same regardless of the procedural methods employed, the appellant was not prejudiced in his substantial rights by the action of the court in denying the pleas without submitting them to a jury. Spelce v. State, 212 Ala. 559, 103 So. 705; Mikell v. State, supra [242 Ala. 298, 5 So.2d 825]; Sup.Ct. Rule 45, Code 1940, Tit. 7 Appendix.”

Appellant makes no contention that the evidence on the trial resulting in his conviction was not sufficient to support the verdict, and our review of the record convinces us that it was ample. It should possibly be noted, however, that defendant took the stand in his defense and denied that he had robbed the alleged victim. He testified that there was a collision between an automobile he was driving and the automobile driven by the victim and endeavored to explain his further actions that evening by testimony to the effect that he understood the victim was directing him to a place where he could purchase some controlled substances.

We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, 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 below is hereby

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Ronald Earl JAMES v. STATE.
    6 Div. 664.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.

      J. N. Powell, Jr., Decatur, Asa C. Hart-wig, Cullman, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Ronald Earl James was indicted by the grand jury of Cullman County for the first degree murder of Kenneth Farr. Following a jury trial, he was convicted of murder in the second degree and sentenced to thirty years in the penitentiary.

Defense counsel’s motions to exclude the State’s evidence, for a directed verdict, and for a new trial, were denied by the trial court. Appellant filed a notice of appeal, and the trial judge made a determination of indigency on his behalf and entered an order to provide appointed counsel and a free transcript.

The pertinent facts presented at trial are as follows:

On the night of April 21, 1977, the appellant, Ronald James, his brother, and two female companions, Denise Howard and Judy Allred, met at a friend’s apartment and went to a bootlegger’s, where they purchased a quantity of liquor which they drank while riding in appellant’s automobile.

Later, the group picked up the victim, Kenneth Farr, who purchased more liquor during the course of the evening.

All finally went to the appellant’s home, where they stayed until 4:10 on the morning of April 22, 1977. At that time, they left to take appellant’s brother, Roger James, to his parent’s home. The appellant, Ronald James, was driving.

One of the females, Denise Howard, testified that, after Ronald returned from the house, Farr leaned against Judy Allred, who was sitting in the front of the car next to the driver. Farr asked to see the gun and the appellant stepped out of the car, turned and shot him. Miss Howard stated that the victim’s left hand was on his leg at the time he was shot and that she did not see him take hold of the gun. She testified that, after the shooting, Farr was ordered out of the car by James. The two females also got out of the automobile and James drove off.

According to Miss Howard, the two girls left the victim lying on the ground near the James’ home. They then went into the house and told appellant’s parents what had happened. After remaining in the house for approximately fifteen minutes, Miss Allred left the house and went to the victim’s side. Miss Howard followed a couple of minutes later and found Miss Allred holding the victim’s hand. Farr was able to talk and asked someone to take him to the hospital.

The defendant had returned to the house by this time and, as he backed his car from the driveway, he stopped, and, according to Miss Howard’s testimony:

“[H]e first asked if Kenneth was alright and Kenneth said no, get me to the hospital, he didn’t say nothing after that and Kenneth said — Ronnie said he was leaving and I said where are you going and he said I’ll be back in a minute and then he left.”

Miss Howard recalled that after the shooting, James had told her and Miss Allred to tell the police that he had shot the victim because Farr had pulled a knife on him. She also testified that it was a “good fifteen minutes” before the ambulance arrived, and that the victim did not have a knife or a gun, and did not touch the gun or James at any time. She further stated that she had heard no threats, cursing or evidence of any fight between the victim and the defendant during the evening.

During cross-examination, Miss Howard admitted that she had testified at the preliminary hearing that she could not see over the back seat of the automobile and could not have seen where the victim’s left hand was, but during the trial she remembered that after the shooting the victim’s left hand was on his leg.

Bobby King, the ambulance driver, testified that he took the victim to the hospital and was accompanied in the ambulance by Miss Howard and Miss Allred. According to King, the victim was bleeding from the front of his left shoulder. During cross-examination, King was asked:

“Q. Did you talk to Kenneth Farr on that occasion?
“A. Yes, sir.
“Q. Did he tell you that it was an accident?
“MR. BLAND: We object to that.
“MR. POWELL: It is cross-examination. “MR. HARTWIG: It is part of the Res Gestae.
“MR. BLAND: I object to it.
“THE COURT: Just a minute, now let’s don’t have any discussions in the presence of the Jury, if you want to we will go out of the presence of the Jury. State your objections to the record.
“MR. BLAND: I object to it because there is no time that he said he talked to him, it is not made a part of the Res Gestae and under the Dead Man’s Statute — there was nothing said as to where the conversation took place.
“THE COURT: Come along with me, Mr. King, just a minute, please.
“Read him the question.
“MR. BLAND: One more objection before he reads it, that there is no time, as to what time that it — .
“THE COURT: I am familiar with that.
“MR. BLAND: As to what took place and what time he got there and another grounds for objection is was a matter of time.
“THE COURT: Read the question to Mr. King.
“(Whereupon, the last question was read to the witness.)
“THE COURT: You may answer it, overruled.
“A. The only conversation that took place—
“THE COURT: Don’t tell us the conversation, Mr. Powell’s question to you, do you remember what that was, he asked you if Kenneth Farr made a statement that it was an accident?
“A. He made no such statement.
“QUESTIONED BY MR. POWELL:
“Q. Did he make any statement to you?
“MR. BLAND: We object to that.
“THE COURT: On the same grounds?
“MR. BLAND: Yes, sir.
“THE COURT: Sustained.
“(Whereupon, Mr. King and the Judge left the courtroom.)
“MR. POWELL: Would you show that Mr. King and the Judge left the room, and we reserve an exception?
“THE COURT: You’ll have to lay a fully complete predicate, Mr. Powell.
“MR. POWELL: Judge, could we reserve a right to cross-examine him tomorrow? ”

Later, during further cross-examination of Mr. King, Mr. Powell asked the following:

“ . . . On the morning or on this occasion when you picked up Kenneth Farr and put him in the ambulance during that time and headed back to Cull-man tell the Jury, if you will, did he make any statement about his injury?
“MR. BLAND: We object to this.
“THE COURT: After the alleged shooting?
“MR. POWELL: After the shooting, yes.
“THE COURT: At this point I will sustain the objection.
“MR. POWELL: May we approach the bench?
“THE COURT: Yes, sir. Don’t listen to us, please — maybe we had better go out.
“Let the record show that outside the presence of the jury, in a jury room — .
“MR. HARTWIG: Let the record show that the Defense offered Bobby King to testify to the effect that the decedent made the statement immediately after being shot on the way to the hospital in the ambulance to the effect that I am dying, I am dying, I am dying, I am bleeding to death, I am bleeding to death and subsequent to that time, a matter of seconds, I do not want to press charges, I do not want to press charges thereupon there were objections by the State, the Court ruled that such statements were not admissible as a dying declaration, upon objection by the State — .
“MR. POWELL: We accept [sic] to the court’s ruling.
“(Whereupon, the following proceedings were had in the presence of the Jury.)
“THE COURT: Do you excuse Mr. King, now, from the rule so he can leave the courthouse — thank you very much.”

Dr. Mario Propagni testified as to his background and experience as a medical doctor and stated that he had been practicing at the Cullman Medical Center for about six or seven months prior to the time he saw the victim, Kenneth Farr. He also stated that his partner, Dr. Neumaster, had first treated Farr and that when he (Pro-pagni) saw the victim, Farr’s condition was stable and he had been conscious until he was taken to x-ray.

According to Dr. Propagni’s testimony, he had “tried to obtain an autopsy and could not, that would allow us to examine all of the organs in the body and see if there was any other pathology.” The doctor gave the cause of death as “brain damage, just a— the cause of death is secondary and primary, the primary cause was the gunshot.”

During cross-examination, the doctor explained that the victim was suffering from hypovolemia, which is shock resulting from a decreased volume in the blood space, i. e., that space in the arteries and the veins occupied by the blood. The blood space in the human body can accommodate “about five quarts.” Dr. Propagni said that the victim had “lost three or four liters of blood” and that shock had resulted because the heart was no longer capable of distributing blood to the tissues of the body, in particular to the brain and the liver.

Dr. Propagni described the path of the bullet as downward through the upper lobe of the left lung. He said that:

“[I]t probably hit one of the ribs in that area, hit the heart, hit the lower lobe and proceeded down into the abdomen, that is conjecture, I have no way of proving it, I wasn’t with the bullet when it richochet-ed around and followed its course.”

He said he did not find any damage to the liver but he did locate the bullet in the area where the kidneys were located. He explained that the “current surgical practice is to leave things alone in [that] area unless you envision damage to an organ in that area.”

He also testified that the liver was not part of the area where the kidney was located. In his examination of the diaphragm during surgery, Dr. Propagni found that the bullet had penetrated the diaphragm on the back side, which was an area near the heart and away from the liver.

Dr. Propagni gave the date of death as May 2, 1977, approximately eleven days after the victim was brought into the hospital.

James Buttram, the State toxicologist, who performed the autopsy on the victim on May 2, 1977, stated that he had traced the course of the bullet from the upper lobe of the left lung until it reached the right lobe of the liver, where it was lodged. Based on his autopsy, it was his opinion that the primary cause of the victim’s death was the bullet wound. He explained: “I found no discernible abnormality on this individual’s body to which I would attribute death other than the firearm projectile.”

At the completion of Buttram’s testimony, the State rested its case, and the defense motion to exclude the State’s evidence was denied.

The defense then called Roger James, Ruth James and Troy James, the brother, mother and father of the appellant. They testified in substance that the five young people who came to the James’ home on the night of the shooting had been drinking heavily. Roger James stated that the gun used in the shooting was his and that he had placed it under the front seat of the car on the night in question, without the knowledge of the appellant. When he was later taken home he had left the gun in the car.

The appellant took the stand in his own behalf and stated that the first time he had seen the pistol that evening was when he was leaving his parents’ home. According to appellant, he first discovered the gun when he “raked [his] foot across it.” He stopped the car and told the other passengers that it was his brother’s gun and that he was going to take it to him.

Appellant testified that he picked the gun up in his left hand, put it in his right hand, and opened the door with his left hand. At that point, the victim asked for the gun and grabbed it. He said that he and Farr pulled on the gun at the same time, and that Farr had said: “Let me have the gun, let me see it.” Appellant identified a watch that he claimed was broken during his struggle with the victim over the gun.

The gun discharged and the victim said he was hit and started getting out of the car on the passenger side. The appellant and Miss Allred started to help Farr into the house when he fell and, due to his weight, they were unable to lift or carry him.

Appellant said he tried to call for an ambulance from the house but received a busy signal. His mother continued trying to call the ambulance while he returned to the victim. He claimed that Farr asked him to leave immediately because he knew that appellant was on parole. The appellant testified that he did not know the gun was loaded and stated that he did not pull the trigger intentionally. He admitted that he was on parole for grand larceny and manslaughter and stated that he had pleaded guilty to second degree burglary in 1970 and carnal knowledge in 1966.

Dr. S. L. Crocker, chief of surgery at the Cullman Medical Center, appeared on behalf of the defendant and testified to the non-fatal nature of Farr’s injury and the negligent medical treatment that ensued. However, the trial judge would not permit defense counsel to show Dr. Crocker’s qualifications and, in a hearing outside the presence of the jury, instructed defense counsel that he should in no way question Dr. Crocker concerning the nature of the treatment administered to the victim by Drs. Propagni and Neumaster. The court also forbade the defense to question the witness concerning the fact that Dr. Neumaster left the victim in the emergency room to perform “elective surgery” on another patient.

I

The appellant contends that the trial court erred in limiting his cross-examination of the attending physician, Dr. Pro-pagni. From the record, it appears that defense counsel attempted to show that the victim received negligent treatment from Dr. Propagni at the hospital. Later in the trial, defense counsel apparently attempted to do so again by calling the chief of the Cullman Medical Center.

During the presentation of the State’s evidence, the trial court restricted appellant’s cross-examination of Dr. Propagni in such areas as the path of the projectile, the physician’s determination of life-supporting fluids, and his consultation with specialists. The physician did state that the bullet had not penetrated the liver, although a later autopsy showed that the projectile was lodged four to five inches within the liver.

In addition, appellant was prevented from examining other physicians concerning Dr. Propagni’s treatment of the victim. Although appellant never specifically stated his purpose in soliciting this evidence, he was apparently attempting to establish that the victim would not have died except for the treatment he received, or failed to receive, at the hands of Drs. Propagni and Neumaster.

We find that appellant’s questions presented to Dr. Propagni were not relevant to the issue of appellant’s guilt; they dealt primarily with whether or not the bullet struck the deceased’s liver. Such has no bearing on the case.

We note, also, that the scope and extent of cross-examination is a matter directed to the sound discretion of the trial court, which will not be disturbed on appeal absent abuse. Diamond v. State, 49 Ala.App. 68, 268 So.2d 850; Jordan v. State, 267 Ala. 361, 102 So.2d 4; Alford v. State, 30 Ala.App. 590, 10 So.2d 370.

The fact that the deceased received negligent or unskilled medical treatment would not have served as a defense to this appellant. Where a wound is in itself dangerous to life, mere erroneous treatment of it would not afford a defense to an unlawful homicide. Hearns v. State, 47 Ala.App. 725, 261 So.2d 64.

In Smith v. State, 54 Ala.App. 237, 307 So.2d 47, this court made a similar finding. There, the defendant was convicted of the first degree murder of a ten-year-old child, who was admitted to the hospital in a semi-comatose state and subsequently died. During a post mortem examination, it was discovered that there was a bruise at the back of the child’s head and sub-dural he-matoma; however, the attending physician had failed to observe any general bruising about the head. The defendant claimed that, because of this oversight, it was possible that the fatal head injury had been sustained after the child’s admission to the hospital.

The court stated in Smith v. State, supra:

“[E]ven if the jury believed from the totality of the evidence that the treatment given the deceased during his stay at Baptist Hospital was negligent and unskilled, such a finding would in no way serve as a defense to the person that inflicted the dangerous, if not mortal, injuries upon the deceased. Warren v. State, 32 Ala.App. 273, 25 So.2d 51.”

The same principles are applicable in the present case, and in our judgment the trial court did not err in keeping irrelevant matters from the jury.

II

The appellant maintains that the trial court erred in not allowing the ambulance attendant, Bobby King, to testify as to certain statements made by the victim on his way to the hospital. The appellant reasons that, since the statements indicated that the deceased wanted no charges brought against appellant, the firing of the pistol was an accident, and that any such statements would come under the dying declaration exception to the hearsay rule, and should have been admitted.

A dying declaration must relate to the circumstances immediately attending the act causing the decedent’s fatal injury before it can be admitted into evidence. McElroy’s Law of Evidence in Alabama, 2nd Ed. § 248.01(3). Therefore, where the declarant has asserted only that he had nothing against the defendant and did not know that the defendant had anything against him, that statement is inadmissible. Reynolds v. State, 68 Ala. 502. See also: Ala.Digest Homicide, § 214(2). In Williams v. State, 130 Ala. 107, 30 So. 484, the Supreme Court held that where the victim stated that:

“[H]e was at fault or to blame for the affair, meaning thereby that he had debauched the defendant’s wife, that defendant had been as good to him as a brother, that he did not want any of his relations to prosecute the defendant for the homicide, etc.”

the statements had no relation to the circumstances of the homicide and were not admissible as dying declarations, as well as the fact that they were irrelevant and immaterial.

The statement made by the victim in the present case was inadmissible because it had no relation to the circumstances of the homicide. Therefore, the trial court committed no error when it refused to admit the statements by the victim.

Ill

Finally, the appellant insists that the trial court erred in removing a witness from the courtroom during cross-examination and moments later returning with him.

The incident in question is included in the foregoing paragraphs quoted from the record. As can be seen from the above account, although defense counsel “excepted” to such actions by the trial court, there was no ruling by the court.

Whether the exception was directed to the sustainment of the State’s objection or the action of the judge in leaving with the witness is not shown. No specific objection to the court’s action was shown, and, without an objection and an adverse ruling thereon, this court has nothing to review. Wade v. State, 49 Ala.App. 601, 274 So.2d 626.

We have carefully examined the record for error and, finding none, affirm the judgment of conviction.

AFFIRMED.

All the Judges concur.


author: SUNDBERG, Justice. ALDERMAN, Justice,

text:
    Jack MULLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 53394.
    Supreme Court of Florida.
    Dec. 7, 1978.
    Rehearing Denied Feb. 22, 1979.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Calvin L. Fox and Ronald A. Dion, Asst. Attys. Gen., Miami, for respondent.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, in Mullins v. State, 353 So.2d 605 (Fla. 3d DCA 1977), which allegedly conflicts with Coladonato v. State, 348 So.2d 326 (Fla.1977), and Vollmer v. State, 337 So.2d 1024 (Fla. 2d DCA 1976). The issue presented is whether a policeman may stop and question a person on a bare suspicion of illegal activity. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

A police officer observed petitioner riding a bicycle slowly through a residential area in the very early morning hours. The officer stopped petitioner and asked him his name and what he was doing in the area. During this conversation the officer became cognizant of a strong odor of marijuana and saw a clear, plastic bag containing a brown substance protruding from petitioner’s shirt pocket. Petitioner was thereupon arrested and the contraband seized.

An information was filed charging petitioner with possession of cannabis. Petitioner filed a motion to suppress which was subsequently denied. On appeal the District Court of Appeal, Third District, affirmed, holding the search reasonable under the circumstances. Petitioner contends the stop and subsequent confiscation of the contraband was illegal under the authority of Coladonato v. State, supra.

We agree that our opinion in Coladonato v. State, supra, is dispositive of the issue before us. In that case a policeman stopped a van merely because “it was an unusual vehicle to be in the area at that time of night.” In holding the detention invalid, this Court adopted the language of then District Court Judge Alderman in his dissent in Coladonato v. State, 335 So.2d 317 (Fla. 4th DCA 1976):

While it is well established that a police officer may stop a vehicle to question its occupants on less than probable cause, e. g., Gustafson v. State, 243 So.2d 615 (Fla. App. 4th 1971), rev. on other grounds 258 So.2d 1 (Fla.1972), aff. 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), it is equally well recognized that he may not do so arbitrarily or on a bare suspicion that the occupants are violating the law. Kersey v. State, 58 So.2d 155 (Fla.1952); Gustafson v. State, supra; State v. Ebert, 251 So.2d 38 (Fla.App. 2nd 1971); Wilson v. Porter, supra; see, Fla. Stat. § 901.151(2) (1975).

335 So.2d at 317.

Petitioner’s actions here were clearly insufficient to give rise to anything more than a bare suspicion of illegal activity. Bailey v. State, 319 So.2d 22 (Fla.1975); Vollmer v. State, supra. Thus the mandate of Colado-nato requires that the evidence seized as a result of the illegal stop be suppressed.

Accordingly, the petition for writ of cer-tiorari is granted, the decision of the District Court of Appeal, Third District, is quashed, and this cause is remanded to the District Court of Appeal, Third District, with directions to remand to the trial court for proceedings not inconsistent with the views expressed herein.

It is so ordered.

ADKINS, Acting C. J., and BOYD and HATCHETT, JJ., concur.

ALDERMAN, J., concurs specially with an opinion with which BOYD, J., concurs.

ALDERMAN, Justice,

concurring specialty-

I concur with the majority holding that the evidence seized under the particular circumstances of this case should be suppressed because it was obtained as a result of an illegal stopping of the defendant. I recognize, however, that instances will arise where there will be legitimate contact between a police officer and a citizen, not based upon “founded suspicion” or “probable cause,” which may result in the subsequent arrest of the citizen for a crime detected by the police officer as a result of the legitimate contact. For example, a police officer in the performance of his duty may stop to assist a motorist who has a flat tire or may stop a woman bicyclist at night to warn her of the presence of a rapist in the area. If during these legitimate encounters with the motorist or the woman, the police officer observes stolen stereo equipment in the motorist’s automobile or smells the odor of marijuana emanating from the woman and sees a plastic bag containing what appears to be marijuana protruding from her pocket, he may lawfully seize the evidence.

There are innumerable instances of this nature which could arise. The difference between these examples and the present case is that the police officer in this case was not attempting to assist the defendant in any way but had stopped him on a bare suspicion that he was violating the law.

BOYD, J., concurs.


text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. CLEARWATER FEDERAL SAVINGS & LOAN ASSOCIATION, Appellee.
    No. 52863.
    Supreme Court of Florida.
    Jan. 18, 1979.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellant.
    David E. Platte of Richards, Nodine, Gil-key, Fite, Meyer & Thompson, Clearwater, for appellee.
   PER CURIAM.

Fla.App., 350 So.2d 1134. Affirmed. See S. R. G. Corp. v. Department of Revenue, 365 So.2d 687 (Fla.1978).

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.


author: BOYD, Justice.

text:
    CITY OF GAINESVILLE, Florida, etc., Appellant, v. STATE of Florida, Taxpayers, et al., Appellees.
    No. 54281.
    Supreme Court of Florida.
    Jan. 18, 1979.
    J. T. Frankenberger, City Atty., Gaines-ville, and Law Offices of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellant.
    Eugene T. Whitworth, State’s Atty., and Jonathan F. Wershow and Nancy Y. Self-ridge, Gainesville, for appellees.
   BOYD, Justice.

The City of Gainesville brought an action, under chapter 75, Florida Statutes (1977), for the validation of bonds being issued to refund prior bonds and to raise revenue for the expansion of its utility system. The state attorney for the Eighth Judicial Circuit and R. G. Selfridge, a ratepayer of the system, filed answers. The Circuit Court of the Eighth Judicial Circuit rendered a judgment validating the bonds and approving the bond ordinance and indenture of trust pertaining to the bond issue. The state and intervenor appeal from this judgment. The court also imposed certain conditions upon the city in its judgment of validation, and the city appeals from these. We have jurisdiction of the appeals. Art. V, § 3(b)(2), Fla.Const.; § 75.08, Fla.Stat. (1977).

In section 20 of its final judgment, the court concluded that the city is without authority to impose its ten percent surcharge on the electricity bills of customers located outside the city’s corporate limits. The court concluded further that the bond ordinance and indenture of trust authorize a transfer of revenues from the utility system to the city’s general fund that would result in rates that are not just and equitable. In addition to declaring the surcharge illegal, the court imposed “limitations” on the city’s authority to implement the bond issue. That portion of the indenture of trust reserving to the city the power to devote “excess revenues” to any lawful purpose, the court decreed,

must be construed to be limited to amounts received which, when examined by the criteria set by the cases and Florida Statutes 180.13, represent a modest return or reasonable profit to the City on the utility service. The City should look to those cases and Florida Public Service Commission guidelines applicable to rate-setting for investor-owned utilities and the return on investment allowed therein.
. Revenues received from subscribers who are served outside the corporate limits of the City must be segregated and that portion thereof sought to be transferred to the general fund of the City may not exceed the pro rata amount transferred by subscribers within the corporate limits plus any valid surcharge on subscribers outside the corporate limits.

The city contends that the matters addressed in section 20 of the judgment are collateral to these bond validation proceedings, have nothing to do with the validity of the bonds, and have no proper place in the judgment. In section 4.2 of the indenture of trust (the agreement between the city and persons who will purchase its bonds), the city makes a series of covenants pertaining to the disposition of revenues; these covenants establish priorities as to the disposition of utility system revenues received from ratepayers. The revenues are to be used, first, to meet operating expenses; next, to pay principal and interest on the bonded indebtedness; next, to make payments into various other accounts kept for the benefit of bondholders. Remaining revenues are covenanted to be paid into an account kept for improvements, repairs, and future expansion. Finally, in paragraph 8 of section 4.2 of the trust indenture, the city reserves to itself the right to devote any remaining revenues (remaining after meeting the obligations of paragraphs 1-7) to “any lawful purpose.”

The state and intervenor contend that the provisions of paragraphs 7 and 8 work together so that the “excess revenues” referred to in paragraph 8 will at least be equal to the revenue devoted by paragraph 7 to repairs, improvements, and expansion. There is a direct connection, they argue, between what the city promises its bondholders and the existence of “excess revenues” subject to being transferred to the general fund. Thus, they conclude, the issue of the legality of revenue transfer practices is not collateral to these proceedings. They argue further that since the bond ordinance pledges the “gross revenues” of the utility system as security for the payment of the bond obligations, the surcharge, found by the trial court to be unauthorized, must be challenged in this proceeding since it is part of the system’s “gross revenues.” Referring to section 75.09, Florida Statutes (1977), they assert that the questions of the legality of the surcharge, the segregation of revenues, and revenue transfer practices must be addressed in these proceedings or be forever foreclosed. Thus, they maintain, it was proper for the trial court to consider them. They cite Lipford v. Harris, 212 So.2d 766, 768 (Fla.1968), where this Court said that a judgment of validation “puts at rest all questions which were raised in the validation as well as all questions which could have been raised.”

The city vehemently asserts that questions relating to the legality and propriety of the surcharge and the transfer of excess revenues — the subject matter of the trial court’s “limitations” — have no connection with the covenants made by the city for the benefit of bondholders. Any legal issues relating to such collateral matters, the city urges, can and must be litigated only in separate proceedings. The city argues that the validation of the bonds would not foreclose consideration of these collateral issues because the city has not covenanted to impose the surcharge or treat excess revenues in any particular way. The city has covenanted to set rates at levels that will produce revenues sufficient to meet the bond obligations. If any charge or class of charges imposed by the city were declared by a court of competent jurisdiction to be illegal, the city would simply have to change its methods of raising the covenanted revenue, as, for example, by an across-the-board rate increase. We agree with the city’s position and with its reasoning.

In State v. City of Miami, 103 So.2d 185, 188 (Fla.1958), this Court said:

It was never intended that proceedings instituted under the authority of this chapter to validate governmental securities would be used for the purpose of deciding collateral issues or other issues not going directly to the power to issue the securities and the validity of the proceedings with relation thereto.

Furthermore, we do not believe that the principle announced in the Lipford case applies to “put at rest” collateral questions that were somehow brought into the proceedings but need not and should not have been brought in. The plaintiff there, challenging a bond validation after the appeal time had run, was contesting the manner in which the proceeds of the bonds were to be expended. The contestants here are challenging ratemaking and the use of revenues from the operation of the utility. The collateral issues treated in section 20 of the judgment can be raised by proper parties in proper separate proceedings, and we offer no opinion as to the merits thereof.

The judgment appealed is affirmed in part and reversed in part, and the case is remanded. Section 20 should be deleted on remand. The judgment of validation is otherwise affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

      . No. 78-662-CA (Fla. 8th Cir. Ct. May 7, 1978); Record on appeal at 26.

      . Record on appeal at 98.

      . 75.09 Effect of final judgment. — If the judgment validates such bonds, certificates or other obligations, which may include the validation of the county, municipality, taxing district, political district, subdivision, agency, instrumen- • tality or other public body itself and any taxes, assessments or revenues affected, and no appeal is taken within the time prescribed, or if taken and the judgment is affirmed, such judgment is forever conclusive as to all matters adjudicated against plaintiff and all parties affected thereby, including all property owners, taxpayers and citizens of the plaintiff, and all others having or claiming any right, title or interest in property to be affected by the issuance of said bonds, certificates or other obligations, or to be affected in any way thereby, and the validity of said bonds, certificates or other obligations or of any taxes, assessments or revenues pledged for the payment thereof, or of the proceedings authorizing the issuance thereof, including any remedies provided for their collection, shall never be called in question in any court by any person or party.