author: INZER, Presiding Justice,

text:
    Carlton RUSTIN v. STATE of Mississippi.
    No. 49272.
    Supreme Court of Mississippi.
    Nov. 2, 1976.

      Ben Thomas Cole, II, Holly Springs, Lewis Myers, Jr., Oxford, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   INZER, Presiding Justice,

for the Court:

Appellant Carlton Rustin was indicted, tried and convicted in the Circuit Court of DeSoto County for the crime of armed robbery. He was sentenced to serve a term of twenty-five years in the State Penitentiary. From this conviction and sentence he appeals. We reverse and remand.

After appellant was indicted, his trial was set for Tuesday, June 17,1975. On this day counsel for Rustin asked for a pre-trial conference with the judge and prosecuting attorneys which was granted. Counsel for Rustin informed the court that he had information that the crime for which the defendant had been indicted had actually been committed by one Robert Newsome, who was incarcerated in the Shelby County, Tennessee, jail. Counsel informed the court that he had heard rumors to this effect, and he had actually gone to the Shelby County Jail on several occasions and talked with this individual. The individual had indicated that he not only had information that would help the defendant but that he would be willing to testify to that effect. He also indicated that he was the person who actually committed the robbery for which defendant was charged.

Upon being informed of these facts the court, at the suggestion of the district attorney, delayed the trial for two days. The district attorney, his investigator, two state witnesses who had identified the defendant and counsel for the defendant went to the Shelby County Jail. Robert Newsome was brought to the room where these parties were waiting. At that time Newsome refused to make any statement and the witnesses, who identified the defendant as the robber, said that Newsome was not the man who robbed the service station.

On the following day appellant was tried and convicted. He was identified by Quinton Easterlin as the man who had entered the Billups Service Station at Fairhaven on November 2,1974, at about 6 a. m. and had robbed him of about $1,450. Wallace Nixon identified the appellant as being the man who had earlier the same day robbed him and taken his car. This witness placed the appellant near the service station, but did not see the robbery.

Appellant’s defense was an alibi. He testified in his own behalf and another witness testified in support of his alibi. Appellant denied that he was the man who robbed the service station or Wallace Nixon.

After appellant was convicted, his counsel returned to the Shelby County Jail and informed Newsome that appellant had been convicted; whereupon Newsome said that he was the man who had actually committed the crime and proceeded to describe the incidents relative to the robbery. Counsel for appellant then filed a motion to vacate the judgment and for a new trial setting up these facts. After the motion was filed, the state agreed that counsel for the defendant and the district attorney would take the deposition of Robert Newsome. They went to the Shelby County Jail and took the deposition. It was agreed and stipulated that the deposition would be admissible in evidence in connection with the motion for a new trial. In this deposition Newsome confessed that he had committed the robbery and described the details thereof. On cross examination Newsome stated he was using drugs at the time of the robbery, he had been in mental institutions in three states, and he was being held for trial in Tennessee in connection with an armed robbery charge. Newsome said he was making the statement and would testify for the reason that he knew that Rustin was innocent and he did not want Rustin as an innocent man punished.

A hearing was had upon the motion for a new trial and the court, after reading the deposition, was of the opinion that the evidence given by Newsome in the deposition was not newly discovered evidence and overruled the motion for a new trial. The court was also of the opinion that with the information counsel for defendant had before trial, he should have made a motion for a continuance at that time and did not do so. While it is true that counsel had information prior to trial that Newsome was the man who committed the crime, he had no evidence to this effect until Newsome actually agreed to testify and did testify that he was the man who committed the crime for which the defendant was convicted. He did all he could to procure evidence to this effect prior to trial. Consequently, the deposition of Newsome actually amounted to newly discovered evidence. Insofar as a motion for a continuance is concerned, after the district attorney and counsel for the defendant went to the Shelby County Jail prior to trial and Newsome refused to give any statement, the defendant had no grounds to support a motion for continuance.

After a review of the deposition of Robert Newsome and the facts and circumstances of this case, we are of the opinion that the trial court should have sustained the motion for a new trial.

For the reasons stated, this case is reversed and remanded for another trial.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Emile BROWN v. STATE of Mississippi.
    No. 49413.
    Supreme Court of Mississippi.
    Nov. 2, 1976.

      Bernard Gautier, Charles W. Parlin, Pas-cagoula, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   INZER, Presiding Justice,

for the Court:

Emile Brown was indicted in the Circuit Court of Jackson County for the murder of R. H. Hoye, Jr. He was convicted of manslaughter and sentenced to serve a term of fifteen years in the State Penitentiary. From this conviction and sentence he appeals to this Court, and we affirm.

The proof on behalf of the state is sufficient to show that on the night of March 27, 1975, appellant shot and killed R. H. Hoye in Lillie’s Place in Pascagoula. Appellant and Hoye were shooting pool when an argument ensued. After a scuffle between the two, they went outside and continued their argument. The evidence is not clear as to just what took place outside but after twenty or thirty minutes Hoye returned and was standing at the bar drinking beer when appellant returned, kicked open the screen door and started firing the .22 pistol at Hoye. Two of the shots hit Hoye. The fatal one penetrated the right ventricle of the heart. At the time the fatal shot was fired Hoye was not armed, and was not making any effort to harm the appellant.

According to appellant’s version of the affray, he shot Hoye in self-defense. He said they were shooting pool and Hoye hit him on the head with a cue stick. A tussle ensued and Hoye got appellant down and started beating him. When appellant got up, Hoye pulled a knife and started cutting at him. He said Hoye cut his shirt “clean off” and cut him on the shoulders. He said he got away from Hoye, went home and discovered that he had lost his door key and $170 in the scuffle. He went back to Lillie’s Place to see if he could recover his key and his money. When he returned, he said the screen door was pushed open and he entered Lillie’s Place. At that time Hoye was standing at the bar with his shirt open and his knife down at his side. Appellant said Hoye charged toward him with the knife in his hand and he panicked and started shooting. He did not know how many times he shot, and denied that he shot Hoye after he fell.

The only error assigned for the reversal of this case is that the trial court erred in refusing to allow testimony relative to the reputation of the deceased for peace and violence. The only thing in the record to support this proposition is the testimony brought out in the cross examination of Detective G. J. Brooks. Counsel for appellant asked the witness if he knew the deceased and the witness stated that he had known him for several years. Counsel then asked if he was familiar with his reputation for peace and violence in the community in which he lived. Thereupon, the state objected to the question and it was sustained. Appellant contends that since there was a dispute as to who was the aggressor, it was reversible error for the trial court to refuse to admit testimony relative to the reputation of the deceased for peace and violence. Appellant correctly points out that this Court held in Freeman v. State, 204 So.2d 842 (Miss.1967), that evidence as to the general reputation of the decedent for peace and violence is admissible as an exception to the general rule when one of the issues to be decided by the jury is who was the aggressor. Howeyer, appellant did not properly preserve the alleged error. The rule is well established in this state in numerous cases that the action of the trial court is not subject to review when the objection to evidence is sustained, unless counsel either states into the record what is expected to be proved, or in the absence of the jury have the witness answer the questions. The purpose of this rule is to enable the trial court to judge the competency of the proffered evidence and this Court can review it on appeal. Here, appellant did not attempt to show this witness’ testimony relative to the reputation of the decedent for peace and violence in the community where he lived. Consequently, he cannot put the trial court in error in sustaining the objection to the question asked.

For the reasons stated, this case must be and is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: SHORES, Justice. MADDOX, Justice

text:
    Eddie K. GOODWIN et al. v. BENEFICIAL FINANCE COMPANY of Alabama, a corp.
    SC 1663.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    Rehearing Denied Nov. 5, 1976.
    Jerry O. Lorant, Reid B. Barnes, Jr., Birmingham, for appellants.
    L. Murray Alley, William A. Robinson, Birmingham, for appellee.
   SHORES, Justice.

This is an appeal by the plaintiffs from a judgment granting a motion for summary judgment in favor of the defendant.

The plaintiffs entered into-loan transactions with the defendant, which issued to the plaintiffs disclosure statements. Plaintiffs contend that such statements fail to comply with the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z, 12 C.F.R. § 226.1 et seq., in that it:

1) Failed to disclose the “cash proceeds of the loan,”

2) Failed to disclose the credit terms in meaningful sequence, and

3) Failed to disclose the credit terms in the proper conspicuous style and size.

We have carefully examined Beneficial’s disclosure statement and disagree with the trial court that it complies with the requirements of law.

Under the provisions of 15 U.S.C. § 1639(a):

“Any creditor making a consumer loan or otherwise extending consumer credit in a transaction which is neither a consumer credit sale nor under an open and consumer credit plan shall disclose each of the following items, to the extent applicable:
“(1) The amount of credit of which the obligor will have the actual use, or which is or will be paid to him or for his account or to another person on his behalf.
“(2) All charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge.
“(3) The total amount to be financed (the sum of the amounts referred to in paragraph (1) plus the amounts referred to in paragraph (2)).” (Emphasis Supplied)

We agree with the opinion of the United States Court of Appeals in Pollock v. General Finance Corp., 535 F.2d 295, 298 (5th Cir. 1976), that:

“These three subsections of § 1639(a) clearly require the disclosure of three different items. A creditor must disclose (1) the amount of cash given to the debtor or given on the debtor’s behalf, (2) the charges, individually itemized, and (3) the total of the above two amounts. . .”

The act passed by the Congress clearly requires that lenders disclose to the borrowers the amount of credit of which the obligor will have the actual use. The regulation promulgated by the Board of Governors of the Federal Reserve System, known as Regulation Z is less clear. However, we agree with the Fifth Circuit that that regulation must be read in light of the statute, which clearly requires separate disclosure of the amount borrowed. Regulation Z, § 226.8(d), provides:

“. . . the following items, as applicable, shall be disclosed:
“(1) The amount of credit which will be paid to the customer or for his account or to another person on his behalf, including all charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge, using the term ‘amount financed.’ ”

To be consistent with the act of Congress, this regulation should be read to require the following disclosures:

(1) The amount of credit which will be paid to the customer or for his account
(2) All charges, individually itemized, which are included in the amount of credit extended, but not a part of the finance charge; and
(3) The total of these amounts, which shall be designated “the amount financed.”

In the instant case, the lender has disclosed only part of the first item and the last two items. The disclosure statement itemizes all charges made, i. e., $48.24 for disability insurance, $32.16 life insurance, and $7.55 filing fees. The amount financed is shown to be $1308.62. At no place on the form is the debtor informed of what the actual amount of the “credit of which the obligor will have the actual use” is (paid to another on his behalf, item 1). This amount can be calculated by adding the net balance of the prior loan, $394.40, plus the itemized charges listed above, and subtracting that total from the amount financed, $1308.62. These calculations reveal that the debtor has a credit of $826.27 of which “he will have the actual use.”

In the Pollock case, the statement informed the debtor that the total amount financed was $171.36, but did not disclose that the amount of the loan was $155.28. Even though one of the amounts listed on the statement was $155.28, without a description of what the amount was, the Fifth Circuit said:

“. . . Although the debtor could have determined the amount of the loan by the simple arithmetic procedure of subtracting the total insurance charges from the total amount financed, we determine that the statute does not require a consumer to perform this function, and that the creditor’s failure to disclose the required item violated § 1639(a)(1).” (535 F.2d at 299)

The same result is compelled in this case; and we therefore reverse the judgment of the trial court.

Additionally, the United States Court of Appeals, in Allen v. Beneficial Finance Co. of Gary, Inc., 531 F.2d 797 (7th Cir. 1976), had before it the exact disclosure form involved in this case. The statement in that ease did, however, unlike the present one, disclose the amount of the cash or check delivered to the borrowers. Nevertheless, that court held that the disclosure statement failed to meet the standards of the Truth in Lending Act, because the figures were not set out in a meaningful sequence, required by Regulation Z, 12 C.F.R. § 226.1, et seq.

The amount paid out to the borrowers in that case was shown in the box on the right side of the form, last entry. In the instant case, it is not set out at any place on the form. The court, in Allen, said, speaking to the “meaningful sequence” requirement:

“. . . For instance, in the amount financed column, one would expect to find the sum paid out to the borrowers at the top, and, in the case of refinancing a loan, the amount of the prior loan also near the top. These are the principal elements of the amount borrowed and the borrower would expect to find these terms in a prominent position. . . . ” (531 F.2d at 802)

The court, in Allen, thought the form failed to meet the disclosure requirements because the items, although included, were not presented in a meaningful sequence. At the very least, the items must be shown somewhere on the form, and the amount loaned is nowhere shown on the form before us.

We are mindful that Allen has been appealed; but even if the Supreme Court of the United States disagrees with the Seventh Circuit that the “meaningful sequence” requirement has been met, it would leave open the question of whether the amount actually loaned must be shown at some place on the form.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

HEFLIN, C. J„ and BLOODWORTH and MADDOX, JJ., dissent.

MADDOX, Justice

(dissenting).

I have carefully compared Beneficial’s disclosure statements involving both plaintiffs, Eddie Goodwin and Hattie Cunningham (Appendix A), with the sample form recommended by the Federal Reserve Board (See “What You Ought To Know About Federal Reserve Regulation Z” at 26), appended as Appendix B, and I believe that Beneficial’s form is substantially similar to the one that is recommended by the Federal Reserve.

In comparing Beneficial’s disclosure statement with the sample form, I find on the sample form, the information is arranged horizontally on the page in two separate columns. On Beneficial’s form, the information is basically arranged in two vertical columns. The only major difference is that on Beneficial’s form, the item “ANNUAL PERCENTAGE RATE” is placed at the end of the second column. I do not think that placement of this item at the end of the column is prohibited. All of the information required to be disclosed as shown by the sample form is contained on Beneficial’s form. I also note that the sample form specifically points out that “it is not the only format which will permit a creditor to comply with disclosure requirements of Regulation Z.”

The majority, in effect, holds that Regulation Z, promulgated by the branch of the federal government charged with administering the Truth in Lending Act, is inconsistent with the Act. First, I do not believe that it is, and second, I believe that the majority fails to recognize that weight should be given to the regulations, because of the Act’s penalty provisions. The Supreme Court of the United States, in Mourning v. Family Publications Service, 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973):

“Relying on American Broadcasting, respondent contends that the Truth in Lending Act must be construed narrowly since it contains penal provisions, and that a narrow interpretation requires that the Board’s rule be nullified. We cannot agree, however, that every section of an act establishing a broad regulatory scheme must be construed as a ‘penal’ provision, as that term is used in American Broadcasting, merely because two sections of the Act provide for civil and criminal penalties. Penal statutes are construed narrowly to insure that no individual is convicted unless ‘a fair warning [has first been] given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.’ McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931). Where, as here, the language of the challenged rule is explicit, that risk is not present. See Kraus & Bros., Inc. v. United States, 327 U.S. 614, 621-622, 66 S.Ct. 705, 707-708, 90 L.Ed. 894 (1946).” 411 U.S. at 375, 93 S.Ct. at 1663, 36 L.Ed.2d at 333.

Admittedly, the Supreme Court of the United States has held that the Truth in Lending Act is not construed as narrowly as a criminal statute providing a graver penalty, such as a prison term, but the Court, in Mourning, set out the standard to be applied:

“ . . . We have noted above that the objective sought in delegating rule-making authority to an agency is to relieve Congress of the impossible burden of drafting a code explicitly covering every conceivable future problem. Congress cannot then be required to tailor civil penalty provisions so as to deal precisely with each step which the agency thereafter finds necessary. In light of the emphasis Congress placed on agency rulemaking and on private and administrative enforcement of the Act, we cannot conclude that Congress intended those who failed to comply with regulations to be subject to no penalty or to criminal penalties alone. . . ” [Emphasis added.] 411 U.S. at 376, 93 S.Ct. at 1664, 36 L.Ed.2d at 333-334.

When the majority requires Beneficial to prepare a disclosure form containing more information than the rulemaking agency requires, I believe it falls into grievous error, even though in doing so it follows two Federal Circuit Court of Appeals opinions [Pollock v. General Finance Corp., 535 F.2d 295 (5th Cir. 1976) and Allen v. Beneficial Finance Company of Gary, Inc., 531 F.2d 797 (7th Cir. 1976)]. I think Pollock and Allen were incorrectly decided.

In Pollock, the court did hold, as the majority holds, that the principal amount borrowed should be disclosed. It is interesting, however, that the court noted as follows:

“We observe that the Office of Saver and Consumer Affairs of the Federal Reserve System has issued an opinion letter to General Finance stating that it did ‘not consider the basic amount of loan proceeds to be a “charge” within the meaning of § 226.8(d)(1) and thus [did] not believe that this amount must be individually described under that section.’ ” 535 F.2d 298 fn. 3.

It is obvious that the Pollock court refused to follow the interpretation of the law made by the administrative body charged with its enforcement. Furthermore, the court admitted that Judge O’Kelley, in Mullinax v. Aetna Finance Co., CA 19124 (N.D.Ga. July 25, 1975) (“cash proceeds” need not be included) had correctly interpreted Regulation Z. The court said:

“We tend to agree that Judge O’Kelley’s interpretation of Regulation Z, § 226.8(d)(1) is more consonant with the literal language of the regulation than is the interpretation made by the district judge in this case. Nevertheless, we affirm the district court’s finding of a disclosure violation because the regulation must be read in light of the statute which requires separate disclosure of the amount borrowed. Under 15 U.S.C. § 1639(a) a creditor is required to ‘disclose each of the following items, to the extent applicable.’
“(1) The amount of credit of which the obligor will have the actual use, or which is or will be paid to him or for his account or to another person on his behalf.
“(2) All charges, individually itemized, which are included in the amount of credit extended but which are not part of the finance charge.
“(3) The total amount to be financed (the sum of the amounts referred to in paragraph (1) plus the amounts referred to in paragraph (2)).
“These three subsections of § 1639(a) clearly require the disclosure of three different items. A creditor must disclose (1) the amount of cash given to the debtor or given on the debtor’s behalf, (2) the charges, individually itemized, and (3) the total of the above two amounts.” [Emphasis added.]

I believe the Fifth Circuit erred in finding that Congress required that “cash proceeds” must be disclosed. In fact, the Pollock opinion I have quoted from shows that the Fifth Circuit failed to recognize that “amount of credit” is not the same as “amount of cash.” Pollock is wrong. It is a judicial interpretation at odds with Regulation Z and the interpretations made by the administrative agency charged with enforcement of the Truth in Lending Act.

In reaching the conclusion that Pollock and Allen are wrong, I have been guided by the statement of the judiciary’s role in such cases which is contained in Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971, 976, 977 (5th Cir. 1974):

“[The Court] deal[s] primarily with four sources of law and interpretation: The Truth in Lending Act itself; Regulation Z, which was promulgated by the [Federal Reserve] Board pursuant to the broad powers granted it under section 105 of the Act; the Federal Reserve Board Interpretations of Regulation Z . .; and the Federal Reserve Board staff opinions, which explain the provisions of the three foregoing authorities, usually in answer to a query regarding a particular factual situation. The three latter authorities, though not binding on the Court, are entitled to great weight, for they constitute part of the body of ‘informed experience and judgment of the agency to whom Congress delegated appropriate authority.’ ... We are not free to substitute our ‘own discretion for that of administrative officers who have kept within the bounds of their administrative powers.’ . . Furthermore, the construction which the Federal Reserve Board gives its own Regulation Z in its Interpretations and staff opinions is especially entitled to great deference ‘because of the important interpretive and enforcement powers granted this agency by Congress’ in this highly technical field. [Citations omitted].” [Emphasis added.]

I have also examined a letter by Jerauld C. Kluckman, Assistant Director, Federal Reserve Board, wherein he stated that there is no requirement to list “cash proceeds” on the form. See FRB Letter No. 982, December 24,1975, Reprinted in 4 CCH CONSUMER CREDIT GUIDE ¶ 31,321.

In Evans v. Household Finance Corp., Civ.No. 72-46-D (S.D.Iowa Mar. 29, 1973), CONSUMER CREDIT GUIDE ¶ 99,007 at 88,780, followed by the Circuit Court here, the Federal District Judge noted that the sample disclosure form- made no requirement that “cash proceeds” be disclosed. The trial court here followed Evans and specifically found that “it is not the function of this court to determine whether a creditor’s disclosure statement is the best imaginable; the creditor is not to be held to any such artificial, subjective standard as that.” I agree, especially in view of the fact that a penalty can be imposed, and the lender has followed substantially a form suggested by the Federal Reserve Board.

It is fundamentally unfair for Congress to grant to the Federal Reserve Board the power to promulgate a regulation, such as Regulation Z, containing a sample form, and have a lending agency be penalized, even though it substantially complies with the sample form.

HEFLIN, C. J., and BLOODWORTH, J., concur.

      Appendices “A” and “B” are incapable of legible reproduction.


author: HOLMES, Judge.

text:
    Roberta F. SHEPARD v. James C. SHEPARD, Jr.
    Civ. 757.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1976.
    Riggs & Memory, Montgomery, for appellant.
    Thomas T. Gallion, III, Montgomery, for appellee.
   HOLMES, Judge.

This is an appeal from the trial court’s decree modifying child support payments and eliminating a previously awarded sum of alimony in gross.

The appellant, hereinafter referred to as wife, appeals. The wife contends the trial court erred in reducing the amount of child support as there was not a sufficient change of circumstances to justify a modification. Additionally, the wife contends error in the trial court’s action which, in effect, eliminated a previously awarded sum of alimony in gross.

We affirm in part and reverse in part.

The parties were divorced in 1974. Incorporated into the decree of divorce was an agreement which in pertinent part provided as follows:

“(A) The Husband shall pay to the Wife for the support, care, maintenance and education of the minor children of the marriage, the sum of $400.00 per month, said sum to be paid to the Wife through the Domestic Relations Division of the Circuit Court.
“(B) The parties herein agree that because the proceeds of any sale of their home will be applied towards the business indebtedness of the Husband and because the Husband has several debts at the present time and is in poor financial condition, the Husband and Wife agree that the Husband shall execute a note in the face amount of $12,000.00; said amount to be considered as alimony in gross, to the Wife, with payments made as follows. A payment of $1,000.00 due and payable on December 31, 1975; a payment of $1,000.00 due and payable on December 31, 1976, and a like payment due and payable on the same date of each and every year thereafter until the date of December 31, 1980, at which time the entire balance of the in gross alimony payments shall be due and payable in full. The note shall by [sic] payable by Montgomery Hearing Aid Dispensary, Inc., and Alabama Corporation, and James C. Shepard, Jr., an individual, and signed and executed by both.”

Thereafter, the husband, appellee herein, filed a petition to modify and after a hearing ore tenus, the learned and distinguished trial judge in pertinent part found as follows:

“5.) The Agreement entered into by the parties on the 4th day of October, 1974, shall be modified in Section 4(A) of said Agreement to read as follows:
“ ‘The Husband shall pay to the Wife for the support, care, maintenance and education of the minor children of the marriage, the sum of $250.00 per month, said sum to be paid to the Wife through the Domestic Relations Division of the Circuit Court. Said payments to begin on January 1, 1976, and shall continue each and every month thereafter at the same rate until the Respondent is in a financial position to afford an increase in said payments.’
“6.) The Agreement entered into by the parties on the 4th day of October, 1974, shall be modified in Section 4(B) of said agreement to totally eliminate this entire section of Agreement concerning a $12,000.00 note payable from Montgomery Hearing Aid Dispensary, Inc., and James C. Shepard, Jr., to Roberta F. Shepard.”

Viewing the trial court’s decree with the presumption of correctness attendant in this type of case, Blankenship v. Blankenship, 266 Ala. 182, 94 So.2d 743, we find no abuse of discretion in reduction of child support.

While the evidence as shown by the record is hardly a paragon of clarity, there is evidence that the husband’s business, which is his source of income, has deteriorated since the original divorce decree. While the trial court’s action may not necessarily coincide with what this court would have done in the first instance, it is not our prerogative to substitute our own judgment for that of the trial judge. See Higgins v. Higgins, Ala.Civ.App., 336 So. 2d 194. Also, we note that in child support cases the judgment is never so final as to preclude a subsequent modification should circumstances warrant such action. Williams v. Williams, 54 Ala.App. 703, 312 So.2d 396.

We do find that the trial court erred in eliminating the alimony in gross. It is well settled in this state that alimony in gross, absent an express reservation of control in the decree, cannot subsequently be modified by the court. Hager v. Hager, 293 Ala. 47, 299 So.2d 743, on remand, 53 Ala. App. 740, 299 So.2d 751. Examination of the original decree reveals no such retention of control.

We do not agree with able counsel for appellee’s contention that the award of the $12,000 was not an award of alimony in gross. In fact each characteristic of the award strengthens the conclusion that it can be nothing other than alimony in gross. The amount and time of the payments are fixed with certainty. Hager, supra; Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317; Hardwick v. Hardwick, 55 Ala. App. 156, 314 So.2d 76; Blalock v. Blalock, 51 Ala.App. 686, 288 So.2d 747; Welch v. Welch, 49 Ala.App. 647, 275 So.2d 162. Moreover, the record reveals that the payments represented a division of the husband’s and wife’s interest in a home purchased during the tenure of their marriage. The courts of Alabama have recognized on numerous instances that “alimony in gross” often represents a settlement of property rights. Hager and Hardwick, supra. Additionally, the parties themselves termed the payments “alimony in gross,” thereby complying with one other criterion the courts have utilized in determining the true nature of payments awarded pursuant to a divorce decree. Montgomery, supra; Hora v. Hora, 46 Ala.App. 513, 244 So.2d 601. Here, each relevant factor, including the nomenclature affixed- to the payments by the parties themselves, leads us to conclude that the payments constitute alimony in gross. We therefore find the trial court erred in eliminating the award of alimony in gross.

Lastly, experienced counsel for appellant argues that the trial court’s decree “had the effect” of cancelling any arrearage of child support. Quite frankly, we have carefully perused the decree and find no such order by the trial court.

All issues having been duly considered by . this court, the case is affirmed in part and reversed and remanded in part.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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


author: WRIGHT, Presiding Judge.

text:
    Wesley H. PIRTLE et al. v. Morris HARRIS, d/b/a Morris Harris Realty Co.
    Civ. 817.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1976.

      C. Knox McLaney, III, Montgomery, for appellants.
    Frank W. Riggs, Montgomery, for appel-lee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of declaration of rights under a real estate sales contract and an award of $8,463.85 to plaintiff as a real estate sales commission. We affirm.

Plaintiff Harris brought an action for declaratory judgment and affirmative relief for damages against defendants Pirtle and Hickson. After oral hearing the court entered judgment against Pirtle and awarded damages to Harris. Pirtle appeals.

The evidence tends to show the following: Harris was a licensed real estate broker in Montgomery County. Pirtle was the owner of 394 acres of farm land. Hickson, a resident of Georgia was a prospective purchaser of farm land. Pirtle authorized Harris to secure a purchaser for some or all of his land. In the event of sale the commission of Harris was to be 7% of the sale price. Several contracts for sale of varying acreage by Pirtle were prepared by Harris and presented to Pirtle. Pirtle would not accept them for various reasons not related to price. The prospective purchaser at all times was Hickson. Hickson at all times negotiated on a per-acre price of $625. The number of acres was not particularly material to Hickson.

A contract was prepared by Harris on October 22,1974, and signed by Hickson, for the sale of 200 acres on the east side of the Pirtle property for $125,000. Pirtle did not sign that contract because he did not know where the line would be after sale. In response, Pirtle told Harris that he would sell all the land he owned lying east of a certain fence.

Harris carried the proposal to Hickson, who requested to see a plat so that he could know what he was buying. Pirtle drew the fence line on a copy of a plat attached to his abstract and Harris carried it to Hickson. There was a notation written thereon. The notation was “224 7% 625.00 net.” Harris stated that Pirtle made the notation. Pirtle denied it. Pirtle told Harris that he didn’t know how many acres there were in the tract, but if the fence line followed the section line there would be 223 or 224 acres. However, he said the fence line did not follow the section line and he had given a road right-of-way off the tract. He did not know how much less than 224 acres there was in the tract.

Harris then drew a contract for sale of 224 acres “more or less” at a price of $140,-000. The contract further provided that an exact description was to be provided by deed after a survey at the expense of the seller. Pirtle stated that Harris suggested the use of the phrase “more or less” since the exact acreage in the tract was unknown. However Pirtle knew that there were considerably less than 224 acres.

Pirtle and Hickson each signed the contract dated October 26, 1974. Hickson paid $10,000 to Harris in earnest money.

Shortly after Thanksgiving Day, Harris, Pirtle and Hickson met on the property. Pirtle showed Hickson the property to be sold and where the lines would run.

The survey was completed on December 16, 1974, and disclosed there were 193.46 acres in the tract lying east of the designated fence.

On January 22, 1975, Hickson, through his attorney, inquired of Harris as to the status of the transaction. On January 27, 1975, Harris sent Pirtle a copy of Hickson’s letter and asked for advice from Pirtle as to whether the survey had been completed. Subsequently Hickson came to Montgomery and met with Pirtle. He told him in effect that since it appeared there were not 224 acres in the tract there was a “new ball game.” They then decided to go to the property to determine if something could be worked out considering the reduced acreage. Harris saw them and followed them to the property. Pirtle asked Harris to leave and he refused to go. Pirtle then left. Hickson asked for his earnest money to be returned. Harris refused. Hickson stated he did not want to get the land through a lawsuit.

On January 29, 1975, Pirtle’s attorney notified Harris that Pirtle and Hickson agreed to rescind the contract and demanded that Harris return the earnest money or suffer suit.

After hearing the testimony the court entered its decree finding that Pirtle had agreed to sell his land east of the fence for $625 per acre; that Harris had procured a buyer, ready and willing to purchase on the agreed terms; that Pirtle refused to consummate the sale; that the contract to sell was rescinded by Pirtle and Hickson; that Harris was due to recover his 7% commission from Pirtle based upon 193.46 acres at $625 per acre, or $8,463.85.

Appellant Pirtle contends on appeal that the court misapplied the law to the facts. We have difficulty following the reason for this contention. Pirtle contends that the contract between him and Hickson was rescinded because of a mutual mistake as to the quantity of land. There never was a meeting of the minds of the parties. Therefore, Harris was not entitled to a commission because there was no constructive consummation of the sale.

It appears that the correctness of Pirtle’s contention was a question of fact to be determined by the trial court after oral hearing. There is no dispute that it is the law that if a broker brings the minds of the buyer and seller to an agreement on the terms of sale and the buyer is able, ready and willing to buy, there is a constructive consummation of the sale and the broker’s fee has been earned. The final completion of the sale between buyer and seller thereafter is not required. Taylor v. Riley, 272 Ala. 690, 133 So.2d 869. Whether the minds of buyer and seller were brought together is to be determined by the contract executed between them. If the terms of the contract are expressed in clear and unambiguous terms, there is no need to look further. However, if there is uncertainty and ambiguity in the contract, it is the duty of the court to construe it so as to express the intent of the parties. Southern Cafeteria Operating Company, Inc. v. Eley, 52 Ala.App. 656, 296 So.2d 743. In determining the intent of the parties, the court is free to look at surrounding circumstances, the situation of the parties, subject matter, the conditions under which the parties contracted, and the object to be accomplished. Flagg-Utica Corporation v. City of Florence, 275 Ala. 475, 156 So.2d 338.

A contract including terms such as “East 224 acres more or less . . exact description to be furnished by deed-seller to furnish- survey of east 224 acres more or less,” which is subsequently rescinded by the seller when the survey shows 30 acres less than 224, may be determined to be lacking in certainty of -expression of intent when considered in light of surrounding circumstances. In the instant case, there was no objection by Pirtle to the presentation of testimony of circumstances surrounding the execution of the contract, either those before or after.

Having heard extensive evidence as to the circumstances of the negotiation and execution of the contract, it became the duty of the trial court to consider the written contract in light of such evidence and find therefrom the intent of the parties. The finding of the trial court after hearing the evidence is viewed upon appeal with a presumption of correctness if supported by credible legal evidence. Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695.

Pirtle insists that there was mutuality of mistake in the sales contract. The evidence is to the contrary. The fact, if it be a fact, that the parties executed a contract with terms which meant one thing to the seller and another to the buyer does not amount to mutuality of mistake. Mutuality of mistake in relation to contracts means a common mistake. The parties meant or intended one thing but the- contract expresses another. This usually occurs in the drafting and execution of an instrument which does not truly express the agreement of the parties. Clipper v. Gordon, 253 Ala. 428, 44 So.2d 576. The evidence produced by plaintiff is not that the parties reached an agreement and the written contract expressed another, but rather that the terms of the executed contract meant one thing in the mind of the seller and another in the mind of the buyer. That is not mutual mistake, but a failure to have a meeting of the minds resulting in an invalid contract.

We consider that the evidence of the circumstances and conditions surrounding the negotiation and execution of the written contract supports the finding of the trial court that it was the intention of Pirtle to sell the land east of his fence line, whether it turned out to be 224 acres, or more-or less, at a price of $625 per acre, and that Hickson intended to buy the tract at $625 whether it was 224 acres, more or less.

The trial court was free to believe the testimony of Harris and Hickson, as opposed to that of Pirtle. Such testimony was strengthened by the circumstances of the previous contracts presented to Pirtle and from that executed by him. Each contract price, when divided by the acreage to be sold, resulted in a figure of $625 per acre. Pirtle found no fault in the contract for the sale of 200 acres for $125,000, or $625 per acre, insofar as the price was concerned. He rejected it only because he did not know where the line would fall in relation to the remainder of his land. It could reasonably be inferred that if he would have sold the land in one instance at $625 per acre, he would agree to sell the same land at $625 after a survey disclosed where it lay or when it was made clear that it lay east of a known fence line. The court was further free to believe the testimony of Harris that Pirtle entered the figures of “224 7% $625 net” upon the plat submitted to Hickson through Harris.

If such evidence was believed, the court could construe the contract according to its determination of the intent of the parties. This action was a suit for a broker’s commission due after bringing a willing buyer to a willing seller. It was not a suit to enforce the contract. The fact that the parties to the contract chose not to fulfill its terms is immaterial to a right of recovery. The trier of fact determined there was an enforceable consummated contract of sale between buyer and seller. The evidence supports such finding. This court does not find the judgment clearly wrong or unjust. Nor do we find that the court erroneously applied the law to its finding of fact.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Harold Edward BATTLES v. Martha Ann BATTLES.
    Civ. 892.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1976.

      Wright, P. J., recused himself.
    Jack Floyd, Gadsden, for appellant.
    James F. Hinton, Gadsden, for appellee.
   BRADLEY, Judge.

The appeal is from a judgment finding appellant in arrears in child support payments in the amount of $1,989.

The parties to this proceeding were divorced in 1966. The appellant was required to pay $45 per week as child support for four minor children, less six weeks during each summer when the children were with appellant. This decree was modified in February 1968 to require payment of $40 per week as child support, less six weeks each summer when the children were with the appellant. The decree was again modified in August 1972, when the child support payments were fixed at $37.50 each week for three minor children, less six weeks each summer when the children were with the appellant. The record shows that during the period encompassed by the decrees mentioned above, other than the six weeks periods, some of the children lived with appellant and had their sole support paid by him.

The trial court in its decree gave credit to appellant for all the times the children were not living with appellee and were not dependent upon her for support, but found that appellant was still behind in his child support payments in the amount of $1,989. Appellant says that this amount is $600 too much and he should be given credit on the arrearage in this amount.

Appellant contends that he was not given credit for a twenty-two week period between November 16, 1974 and April 16, 1975 when the child Deborah did not live with appellee nor receive any support from her; nor was he given credit for a twenty-six week period between October 16, 1974 and April 16, 1975 when the child Barbara did not live with the appellee nor receive any support from her.

A careful reading of the record convinces us that the appellee did not claim that she was entitled to support payments for the periods just mentioned. Furthermore, the record shows that the amount of money awarded to appellee as arrearage is less than the amount claimed by her as being due from appellant.

The trial court’s judgment finding that appellant was in arrears in child support even though credit had been given for those periods when the children were not living with and not dependent on her for support is not contrary to the pronouncement in Headley v. Headley, 277 Ala. 464, 172 So.2d 29 (1964) and is affirmed.

AFFIRMED.

WRIGHT, P. J., recuses himself.

HOLMES, J., concurs.


text:
    COFFEE GENERAL HOSPITAL v. Arthur HENDERSON, Jr.
    Civ. 903.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1976.

      Pittman & Whittaker, Enterprise, for appellant.
    Hollis & Dowling, Enterprise, for appel-lee.
   WRIGHT, Presiding Judge.

Defendant, Coffee General Hospital, appeals from jury verdict and judgment for conversion. The issue on appeal is that the verdict of the jury is excessive and should have been set aside on motion for new trial. We affirm.

Plaintiff was admitted to defendant hospital as a patient after a heart attack. During admission plaintiff’s wife informed the admitting clerk that she had a policy of hospital insurance at her place of employment providing coverage for the hospitalization of plaintiff. She provided the name of the insurer and signed a hospital form assigning benefits under the policy to the hospital. Several days later, plaintiff informed his wife that he also had coverage with another company at his place of employment. The wife secured another form and plaintiff assigned to the hospital the benefits of that policy.

Defendant’s employee stated that she informed plaintiff’s wife at the time of admission that it was the policy of the hospital that all insurance policies providing coverage for hospitalization be assigned to the hospital upon admission. If there was an excess of benefits over cost the excess would be paid by the hospital to the patient.

The day of his discharge, plaintiff submitted through his wife a signed blank form for securing payment of benefits under a policy of insurance which he had with Physicians Mutual Insurance Company.

The policy was not the usual hospitalization policy, but provided for payment of a specific sum for each day of hospitalization of the insured. It was stated in the policy that payment was to be made directly to the insured upon submission of proof of hospitalization. The form given to the hospital and signed by plaintiff for the Physicians Mutual policy did not contain an assignment of benefits. Plaintiff’s wife left the uncompleted form with the hospital without any specific instructions, but with the remark that it was good to have such a policy to help pay living expenses while hospitalized.

Defendant forwarded the form to plaintiff’s physician for completion. It sent its statement together with the assignment of benefits signed by plaintiff and his wife to the other two insurance companies. It further sent to Physicians Mutual a statement of plaintiff’s hospital expenses and attached to the statement a Xeroxed copy of the assignment of her policy which plaintiff’s wife had signed upon admission of plaintiff to the hospital.

Some two weeks after discharge, plaintiff received a letter from Physicians Mutual informing him that it had paid benefits in the amount of $857.12 to defendant. Plaintiff, in a few days, called defendant and inquired if the payment had been received. Upon being told that payment had been received, plaintiff stated to defendant that it was not due to have received the benefits of that policy, but, rather, it was his private policy. Defendant’s employee told him that it was the rule of the hospital that payments under all policies were to come to it.

Plaintiff then called Physicians’ home office and was sent a copy of the instrument under which they paid the benefits of the policy to the hospital. He then called defendant again and asked for the money received from Physicians, telling defendant that the money was needed for food for his family. He was informed that defendant would not release any money until the hospital bill was paid in full.

Another call was made and plaintiff was informed by defendant’s employee that they had nothing further to discuss. In about two months from his discharge, plaintiff received from defendant a check for $816. That amount was the excess of payments received by defendant from plaintiff’s three insurance policies after full payment of the bill for hospital services.

The suit of plaintiff was submitted to the jury upon the claim of conversion. The jury returned a verdict in the amount of $6,000. Motion for new trial with general grounds, including the ground that the verdict was excessive, was denied.

There is no issue before us on appeal other than whether the award of the jury was excessive under the evidence.

Plaintiff claimed the conversion by defendant of $857.12. The evidence disclosed that at the time of suit and trial, plaintiff had received $816 of the sum converted. Thus the remainder was $41.12. The measure of compensatory damages for conversion is the value of the property at the time of conversion or at any time prior to trial, together with interest. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Clayton, 488 F.2d 974 (5th Cir.). The return of the property prior to trial goes merely to reduce the damages. Roebuck Auto Sales, Inc. v. Wallace, 293 Ala. 231, 301 So.2d 546. Punitive damages may be awarded in an action for conversion when the conversion is committed in known violation of the law and of owners’ rights, or with circumstances of insult or malice. Parker v. Sutton, 47 Ala.App. 352, 254 So.2d 425, cert. denied, 287 Ala. 738, 254 So.2d 431. If there is evidence of such acts presented, an award of punitive damages is within the discretion of the jury. Carolina Casualty Insurance Co. v. Tisdale, 46 Ala.App. 50, 237 So.2d 855, cert. denied sub nom., Ex parte Tisdale, 286 Ala. 741, 237 So.2d 861.

It is clear that the verdict of the jury in this case represented primarily punitive damages. Our review of the evidence clearly indicates that defendant converted plaintiff’s property wrongfully and in violation of the law. It is clear that plaintiff did not, and never intended to assign the benefits of the Physicians Mutual policy to defendant. Defendant illegally used the signature of plaintiff to an assignment of the benefits of another policy to secure payment to it of the Physicians Mutual benefits.

The evidence further shows that after being informed of the absence of an assignment, and the hardship resulting to plaintiff from the payment to defendant, defendant refused to return the money until its bill had been fully paid. Such evidence was sufficient to permit the conclusion by the jury that insult and contumely were added to violation of the law and plaintiff’s rights. The additional conduct accompanying conversion may be considered by the jury in arriving at an award of punitive damages. Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652.

The award of punitive damages supported by the evidence will not be set aside on appeal unless it is so great, unjust and grossly excessive as to indicate bias and undue prejudice by the jury. Parker v. Sutton, supra, Mercury Freight Lines, Inc. v. Pharo, 264 Ala. 322, 87 So.2d 642. The denial of a motion for new trial adds strength to the presumptive correctness of the verdict of the jury. Blount Brothers Construction Co. v. Rose, 274 Ala. 429, 149 So.2d 821. The trial judge considered the same question as presented here, i. e., is the verdict so excessive in light of the evidence to indicate bias and undue prejudice by the jury? After careful consideration, we cannot find the trial court in error.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOOKOUT, Judge.

text:
    Earley GISSENDANER, alias v. STATE.
    3 Div. 432.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment.

This is the second time the appellant has been tried in connection with the robbery now in question. Appellant’s first trial ended in his conviction, but was reversed by this Court in Gissendaner v. State, 54 Ala. App. 535, 310 So.2d 255 (1975). The second trial also ended in a conviction, and the present appeal was taken.

Stewart Spears, the alleged victim, was the State’s primary witness. He testified that on February 14, 1974, he was about to enter the Sears store near Fairview Avenue. At that time, he was approached by the appellant and an “old man.” The “old man” held the victim’s attention with a request for directions as to where he might have some “fun.” The'older man indicated he had a large sum of money with which to purchase the “fun.” While the older man engaged the victim in conversation, the appellant moved to the victim’s side. At this point, the appellant put something sharp to the victim’s side and demanded the victim’s money. Spears gave the appellant $10.00, and the two men fled.

Appellant presents three arguments which require consideration.

I

Appellant contends that the State failed to prove the essential elements of robbery. He cites Tarver v. State, 53 Ala. App. 661, 303 So.2d 161 (1974) which lists the three essential elements of robbery as follows:

“ . . . (a) felonious intent, (b) force, or putting in fear as a means of effecting the intent, and (c) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. . . . ”

It is the appellant’s contention that element (b) was not proven as the victim was not questioned, nor did he make any statement relative to force or fear. The victim did not see, nor could he identify the weapon.

We hold that force or fear may be inferred from the fact that the appellant placed a sharp instrument to Mr. Spear’s side, demanded, and received his money.

II

Appellant contends that the trial court erred in failing to grant a mistrial when the State, during closing argument, commented on the appellant’s silence at trial. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. During the State’s case in chief, the arresting officer, Sidney Williams, was called to testify. Officer Williams stated that the appellant told him he was in a hospital in Birmingham on the day of the alleged robbery. At the end of the State’s case, the appellant rested without presenting any witnesses. The State, during its closing argument, made several statements concerning the appellant’s failure to corroborate, with hospital records, the alibi given at the time of his arrest. The appellant made a timely objection to such statements.

The State contends that the portion of the closing argument in question was made to rebut the inferences that the defense counsel made while cross-examining Officer Williams. The defense counsel asked Officer Williams if he had gone to Birmingham.

The State may in its closing argument assert that its case is uncontradicted. 14 A.L.R.3d 723. In the present case, the State sought to show the appellant’s alibi given at the time of his arrest was uncorroborated and that, therefore, the State’s case was uncontradicted. While the State may not call attention to a defendant’s failure to testify, it may point out the failure to produce other evidence which might be helpful to a defendant. There must be virtually direct identification of a defendant alone as the individual who has not become a witness before the State’s comment will be interpreted to be an unfair comment upon the defendant’s failure to testify. King v. State, 45 Ala.App. 348, 230 So.2d 538 (1970).

Ill

The appellant filed a motion in arrest of judgment. The appellant contends the motion should have been granted as the District Attorney made a deal with appellant to have the case nol pressed in return for acting as an informant.

The appellant and a police officer, Richard Koerner, testified that the appellant had given information leading to the arrest of ten persons on drug charges. Another police officer, Robert E. Lynch, testified that the appellant furnished him information which helped him make four cases. Two bondsmen, David Livingston and W. K. Livingston, Jr., and another police officer gave testimony which corroborated that of Officer Koerner and Lt. Lynch.

Officer Koerner, Lt. Lynch and W. K. Livingston discussed the possibility of nol pressing the appellant’s case with Mr. Evans, the District Attorney. Mr. Evans told Officer Koerner, “We will just have to see about getting it nol pressed.” Mr. Evans told Lt. Lynch that he would give serious consideration to helping the defendant. Officer Koerner told the appellant that the case would be nol pressed after which the appellant continued to supply information regarding drug pushers.

W. K. Livingston testified that Mr. Evans told him that the appellant’s case would be nol pressed if the appellant could supply information which would lead to the arrest and conviction of a “big time” dope dealer. W. K. Livingston told the appellant of his conversation with Mr. Evans, and the appellant subsequently supplied information leading to the arrest of a “big time” dope dealer.

The State called District Attorney Evans and Officer Williams. Mr. Evans confirmed he had been approached by Officer Koerner and W. K. Livingston concerning this matter. He remembered telling them that no agreement or recommendation would be entered into in this case without clearing it through the arresting officer. Officer Williams recommended against the case being nol pressed. Mr. Evans offered to recommend a term of three years if appellant would plead guilty to grand larceny. Appellant refused the offer.

The appellant contends that where a defendant is required to gather information for the police on other cases, and the District Attorney uses that work product to secure convictions, the District Attorney is bound by the bargain. The appellant cites two cases in support of the above proposition: Blow v. State, 49 Ala.App. 623, 274 So.2d 652 (1973) and Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Blow and Santobello are cases which dealt with guilty pleas. Obviously if the appellant had a “deal” with the District Attorney which had included a provision whereby the appellant would plead guilty to a crime, that agreement would have to be enforced or the guilty plea withdrawn.

We are presented here with a unique situation. This so-called “deal” has nothing whatsoever to do with the guilt or innocence of the appellant. Basic fairness would seem to indicate that if an agreement had been made then the appellant should be afforded some remedy. Appellant urges that if his conviction is affirmed, he will be sent to the penitentiary where the narcotics dealers are located against whom he has previously informed.

A similar question was treated in United States v. Bethea, 483 F.2d 1024 (4th Cir. 1973). There, the defendant and prosecutor had an informal agreement whereby the defendant’s ease would be dismissed if the defendant would submit himself for induction into the armed forces. The prosecutor reneged, and the appellant cited Santobello, supra. The court responded as follows:

“ . . . The concern of Santobello was to protect a defendant who by pleading guilty has surrendered valuable constitutional rights in exchange for the prosecution’s assurances. That concern has no application to the facts of this case. Appellant’s submission for induction surrendered none of the rights protected by Santobello. In the context of this case, Bethea’s conduct was at most only a factor to be considered by the prosecutor in deciding whether or not to prosecute, a decision not reviewable here.”

The testimony put forward at the hearing on appellant’s motion was conflicting, and without going against the great weight of the evidence, the lower court could have determined that no agreement was made.

Rule 47, Alabama Rules of Appellate Procedure, reads in pertinent part as follows:

“No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby . . .

There was no written agreement produced in the present case.

In affirming the conviction, we should not be understood to condone the conduct the appellant complains of. Our function is appellate review, rather than establishing standards of ethical conduct for police officers and bail bondsmen. The trial of appellant was free of prejudicial error. His misunderstanding with the police officers is a matter having no bearing on his guilt or innocence, or on the proceedings at trial and thus such is not reviewable in this Court.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., not sitting.


author: ALMON, Justice.

text:
    In re Earley GISSENDANER v. STATE of Alabama. Ex parte Earley Gissendaner.
    SC 2027.
    Supreme Court of Alabama.
    Nov. 5, 1976.
    Elno A. Smith, Jr., Montgomery, for petitioner.
   ALMON, Justice.

Petition of Earley Gissendaner for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Gissendaner v. State, Ala.Cr.App., 338 So.2d 1025.

WRIT DENIED.

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


author: CATES, Presiding Judge.

text:
    James Ervin Walker POE v. STATE.
    3 Div. 497.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 26, 1976.
    William G. Fowler, Fred Blanton, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   On Rehearing

CATES, Presiding Judge.

On original deliverance for the sake of avoiding unneeded expense to the lawyers of lengthy recitals of fact where no new law is involved in an appeal, we entered a cryptic “Affirmed; No Opinion.” Code 1940, T. 13, § 66. However, we did search the record under T. 15, § 389.

This appeal was from a conviction of assault to murder which carried a sentence of twenty years. The victim was a Montgomery policeman, T. J. McLain. McLain drove up to a filling station at which three men were engaged in a robbery. They had taken some bills and a pistol from the station attendant.

Next, the robbers tried to chisel loose a safe cemented to a floor. Sometime during this attempt McLain drove up in a patrol car. An affray broke out in which McLain was shot by one of Poe’s accomplices. This shooting enabled Poe and the others to escape. Poe claims double jeopardy because he was also convicted of robbery.

In Colston v. State (Ms. August 31, 1976) we applied the same transaction test to Code 1940, T. 15, § 287. Here the robbery, in legal contemplation, was complete by the time McLain drove up. Hence, Poe’s claim of double jeopardy was properly denied in the circuit court.

The application for rehearing is

OVERRULED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Gary Bennett SMITH v. STATE.
    6 Div. 221.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 5, 1976.
    William Conway, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of grand larceny and the Court sentenced him to six years in the penitentiary. Appellant was represented at arraignment and trial by retained counsel who represents him on this appeal. When sentence was imposed, appellant gave notice of appeal. The sentence was suspended pending appeal and the appeal bond was fixed at $2,000.00.

The evidence in this case is in hopeless conflict and was peculiarly within the province of the jury to resolve.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said county charge that before the finding of this indictment, Gary Bennett Smith, alias Gary Smith, whose name is otherwise unknown to the Grand Jury, feloniously took and carried away one Sears 7 horsepower outboard motor, color, green shaft and white top, a further and better description of which is otherwise unknown to the Grand Jury, of the value of $175.00, the personal property of Mitchell Gay, against the peace and dignity of the State of Alabama.”

This was appellant’s second trial on the above-quoted indictment. The first trial resulted in a mistrial when the jury was unable to reach a verdict.

The evidence adduced by the State tended to show that Mitchell Gay, the person from whom the outboard motor was allegedly stolen, lived in Midfield, Jefferson County, Alabama and was employed by J. C. Penney’s. In September, 1975, he was due a vacation and he, his wife and little boy decided to camp out on Smith Lake in Cullman County. They arrived at the Big Bridge Pishing Camp on September 16, 1975, and rented a boat from Mr. Ted William Wagnon who owned and operated this fishing camp. Mr. Gay was in the process of buying the motor described in the indictment and he put it on the rented boat and carried it to a boat pier near the place where he pitched his tent. He pulled the boat and motor upon the boat dock for the night, with the motor just barely sticking off the end of the dock.

The next morning Mr. Gay noticed a boat approaching his boat from about a hundred yards away and moving very slowly. Mr. Gay ran to where his boat and motor were on the dock where he had put them the afternoon before. The approaching boat had three men in it and was a two-tone gold or brownish-gold type of boat. When Mr. Gay got within 50 to 75 feet of his boat he saw appellant take his motor off his boat and pass it back to another man in the middle of the two-tone boat. Mr. Gay said, “Hey, what are you doing?” At this point the men in the two-tone boat realized they were caught red-handed and they started their motor and pulled out into the lake, and they did not say anything.

As the two-tone boat pulled away from the dock and headed out into the lake, Mr. Gay was able to see the boat number on the side next to him and he ran back to his truck and wrote down the number. The number he was able to see was “AL 1269.” He then drove his truck to a Mr. Stricklin’s mobile home and called the Sheriff of Walker County and gave him the boat number and reported that they had stolen his motor. He then returned to his campsite and joined his wife and little boy.

Mr. Gay further testified that his motor was fastened to the rented boat by two screws and he also tied the motor to the boat with a rope. He noticed that the rope had been cut. Gay’s motor was never seen again after he saw appellant put it in the two-tone boat.

Mrs. Gay saw her husband run to his truck and leave the campsite. She looked out on the lake and saw a gold tri-hull bass boat with two seats and a large dark motor on the back of the boat. The boat was not moving and there were three men in it. She heard loud talking and laughter and then a splash as though a large object was being thrown into the water. Nothing obstructed her view as she observed the boat for two or three minutes. She saw the boat leave in the direction of the Big Bridge Fishing Camp. Later in the day she saw the same boat at the courthouse. Neither Mr. or Mrs. Gay saw another boat on the lake that morning. Mrs. Gay described the clothing worn by the three men in the Smith boat. They were wearing the same clothing when she saw them later at the Sheriff’s Office on that same date.

Mr. Wagnon arrived at Gay’s boat dock about ten minutes after the men took Mr. Gay’s motor off his boat, and they went up the lake in search of the boat. They saw a boat coming out of another part of the lake and they went after it. They stopped this boat and Gay stated that this boat had the same number which he had written down and reported to the Sheriff. A cursing conversation started and the men in the boat denied having seen or stolen a motor and they told the men to go. Wagnon started to crank his motor without success and the men in the other boat offered to tow them in and this offer was refused.

In the boat with Wagnon and Gay was a man by the name of Earl Chappell. Wag-non had a shotgun in the boat with him. They got within six or seven feet of the Smith boat and did not see a motor inside the boat nor did they see any fishing tackle in the Smith boat.

Wagnon testified that he owned Big Bridge Fishing Camp on Smith Lake and that Gay rented a boat from him on September 16,1975. He stated that the men in the Smith boat had been in his store on the morning of September 17, 1975, and this was before he got a call from Gay. He said these men did not buy any fishing equipment. He stated that it was raining at this time. Wagnon further testified that he did not see any other boats on the lake that morning. He stated that the boat number on the Smith boat was AL 1269, and the other letters on that side were missing.

James L. Kennedy testified for the defense and stated that the boat that Smith was using belonged to him and that the boat had at all times about $200.00 worth of fishing tackle in it.

Appellant and the other two occupants of the Smith boat all testified and denied seeing or stealing Mr. Gay’s motor. After being stopped on the lake and no motor being found in their boat, they went to the Big Bridge Fishing Camp and put the boat on a trailer and started for home. They were stopped on the highway by a Deputy Sheriff and carried to the courthouse in Cullman where they were arrested and charged with the theft of the Gay outboard motor.

Mr. W. E. Cotton was called as a character witness for appellant and testified that appellant’s general reputation in the community in which he lived was good, and that he would believe him on oath whether he was interested or not.

There was no motion to exclude the State’s evidence and no exceptions were reserved to the Court’s oral charge to the jury. As a matter of fact at the conclusion of the oral charge appellant’s counsel announced, “no exceptions.”

Appellant did file a motion for a new trial in which he raised the issue as to the sufficiency of the State’s evidence. He also claimed that the Court erred in refusing a number of written charges.

No testimony was taken on the motion for a new trial but briefs on the law were submitted. The motion for a new trial was overruled and denied and that is the only insistence of error on this appeal.

Appellant characterizes the testimony of the State’s key witness as being “suspect.” As a matter of fact he states that the testimony of all the State witnesses was “suspect.” This argument would be more appropriately addressed to the fact finding body. The jury, not this Court, passes on the credibility of witnesses and the weight and probative value of their testimony. Braswell v. State, 51 Ala.App. 179, 283 So.2d 630.

This Court has held on numerous occasions that the numerical number of witnesses in a criminal trial is not the basis for determining the issue as to guilt because a fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Waters v. State, 55 Ala.App. 646, 318 So.2d 342; Godbee v. State, 56 Ala.App. 174, 320 So.2d 107.

Conflicting evidence always presents a question for the jury as to the guilt of the accused, and a verdict rendered thereon will not be disturbed on appeal. Waters v. State, 55 Ala.App. 646, 318 So.2d 342; Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Morris v. State, 47 Ala.App. 132, 251 So.2d 629.

In reviewing the refusal of a motion for a new trial this Court will indulge every presumption in favor of the correctness of the ruling of the trial judge and a decision thereon rests largely within the discretion of the trial court. Clark v. State, 54 Ala. App. 217, 307 So.2d 28; Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624.

We have carefully considered all of the refused charges in the light of the thorough and comprehensive oral charge of the Court. Many of the refused charges were affirmative in nature and, therefore, properly refused. Some of the refused charges were incorrect statements of the applicable law, or argumentative in nature. The refused charges stating correct principles of law were adequately and substantially covered in the oral charge. Title 7, Section 273, Code of Alabama 1940.

The Court orally charged the jury on the burden of proof; the presumption of innocence as a fact to be considered as evidence in the case; that each juror must be satisfied from the evidence that the defendant is guilty as charged beyond a reasonable doubt; and the verdict rendered must be the verdict of each and every member of the jury and must be a unanimous verdict. The Court further charged the jury on the effect of good character evidence and the right of the defendant to testify and that his testimony must not be disregarded. He charged the jury on the credibility of the witnesses and the elements of grand larceny. The Court fully charged the jury on all phases of the law applicable to the charge laid in the indictment and that the indictment was not evidence against the defendant and must not be considered as evidence against him. So complete was the oral charge on all phases of the law that appellant took no exceptions thereto.

We have carefully examined the entire record for errors which injuriously affected the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is due to be affirmed.

AFFIRMED.

All the judges concur.


text:
    In re Gary Bennett SMITH v. STATE of Alabama. Ex Parte Gary Bennett Smith.
    SC 2086.
    Supreme Court of Alabama.
    Nov. 5, 1976.
    William Conway, Birmingham, for petitioner.
    No appearance for the State.
   ALMON, Justice.

Petition of Gary Bennett Smith for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Smith v. State, 338 So. 2d 1030.

WRIT DENIED.

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


author: GARDNER P. GOODWYN, Jr., Circuit Judge.

text:
    Calvin EVANS v. STATE.
    3 Div. 426.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Oct. 26, 1976.

      John L. Carroll, Montgomery, and George W. Harris, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State.
   GARDNER P. GOODWYN, Jr., Circuit Judge.

The appellant, defendant below, was charged in a grand jury indictment with committing murder in the first degree, while serving a life sentence in the penitentiary, by stabbing to death Lonnie J. Coe with a knife. Upon a plea of not guilty he was convicted in a jury trial in the Circuit Court on November 7, 1975, of murder in the second degree and sentenced to imprisonment in the penitentiary for 120 years; from which judgment this appeal is prosecuted.

The prosecution was under Section 319, Title 14, Code of Alabama 1940, Recompiled 1958, which reads as follows: “Any convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death.”

Several preliminary motions of the appellant were overruled by the Court. The first was a motion to quash the indictment on the ground that no admissible evidence was presented to the grand jury. Evidence presented to the trial court on the hearing of this motion was to the effect that witnesses were examined by the grand jury, and legal evidence was presented to the grand jury with regard to this indictment. This evidence was sufficient to sustain the indictment as against the motion to quash.

When it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged. Sparrenberger v. State, 53 Ala. 481; Washington v. State, 63 Ala. 189; Loyd v. State, 279 Ala. 447, 186 So.2d 731.

Another preliminary motion of the appellant to quash the indictment was based on the ground that Section 319, supra, is violative of both the Eighth and Fourteenth Amendments to the Federal Constitution. This motion was overruled by the trial court. It is to be noted that this section calls for a mandatory death sentence for any convict who is convicted of first degree murder while serving a life sentence. But the appellant in the case at bar was not convicted of first degree murder in the trial which is the subject of this appeal, and consequently the death penalty was not imposed. Under these circumstances we are not called upon to review the trial court’s judgment in overruling this motion to quash. The appellant can show no injury or prejudice from the denial of his motion to quash.

Appellate courts do not pass upon constitutional questions unless the rights of litigants are directly involved and the question of constitutionality is directly presented for review. Bray v. State, 140 Ala. 172, 37 So. 250; James v. State, 21 Ala.App. 295, 107 So. 727.

The fact that the indictment and the evidence of the State disclose a prior conviction of a capital felony of the accused does not invalidate an indictment under Section 319, supra, Williams v. State, 239 Ala. 296, 195 So. 213. A ground of a motion to quash the indictment making this point was not well taken by the appellant.

The trial court did not err in denying the appellant’s preliminary motion to compel the State to produce for inspection the “prison jacket,” or file, of the deceased Coe. Appellant’s counsel argued to the trial court that, self-defense being one of the defenses to the charge, the file on Coe might reveal evidence of the reputation or character of the deceased, bearing upon the issue of who was the aggressor in the struggle. Appellant’s counsel conceded that he had interviewed witnesses in the prison as to the reputation of the deceased Coe for turbulence and violence. The argument was that the file would either verify this evidence or reveal other witnesses to it.

Reputation or character of the deceased cannot be proved by particular acts or traits of the person. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637; Metcalf v. State, 40 Ala.App. 25, 108 So.2d 435.

The “prison jacket,” or file, of the deceased was not relevant to the issue of reputation of the deceased or to any conceivable issue in the case.

Moreover, the mere fact that the file might be useful to the accused in supplying leads for gathering further evidence is no reason to compel its production. Rogers v. State, 58 Ala.App. 163, 332 So.2d 739, cert. den., Ala., 332 So.2d 746.

Before commencement of the trial the counsel for appellant objected to the fact that appellant “was brought into the rear of the courtroom through the door to the right side of the courtroom, and the handcuffs were removed from the defendant at that time and that it was possible since the door was open that this removal of the handcuffs was in full view of the venire.” No evidence was submitted that the appellant was seen in handcuffs by any of the venire either before or during the trial, or that any prejudicial action occurred in the presence of the jury. In this state of the record the trial court cannot be placed in error for overruling this objection.

Furthermore, it is not ground for a mistrial that an accused felon appears in the presence of the jury in handcuffs when such appearance is only a part of going to and from the courtroom. This is not the same as keeping an accused in shackles and handcuffs while being tried. Rhodes v. State, 34 Ala.App. 481, 41 So.2d 623.

Prior to the opening statement to the jury the appellant objected to the use in the trial by the State of its two witnesses, both of whom were prison inmates, on the ground that these witnesses had not been subpoenaed in accordance with Section 61, Title 45, Code of Alabama 1940, Recompiled 1958.

Argument to the trial court was that the appellant had used this section to subpoena his witnesses from the penitentiary, thereby revealing to the State their identity prior to trial; and that the failure of the State to subpoena its witnesses under this section denied the appellant “the right of effectiveness of counsel in accordance with the Sixth Amendment.” It was conceded by counsel for appellant to the trial court that the two State witnesses had been subpoenaed under this section by the State for a prior setting of the case in June, 1975; and that counsel for appellant had talked to other inmates at Fountain Prison concerning these two witnesses, and had interviewed the two witnesses themselves on the day of trial. Counsel for appellant did not contend to the trial court that he had been denied an opportunity to interview the two witnesses in prison or that he was ignorant of their identity. Nor was there any contention that the appellant had been denied an opportunity to exercise compulsory process for witnesses in his own behalf.

The purpose of Section 61, supra, is to provide both the State and accused with compulsory process for the attendance of convicts as witnesses in criminal prosecutions. The use of Section 61 is not mandatory in all events; but a failure to follow its provisions will deprive the defaulting party of the right to compel attendance of the witness. Magee v. State, 43 Ala.App. 218, 187 So.2d 274. The constitutional right to compulsory process for witnesses in a criminal case does not compel pre-trial discovery of the identity of the State’s witnesses. Dolvin v. State, 51 Ala. App. 540, 287 So.2d 250; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666.

The appellant was afforded during the trial an opportunity for thorough cross-examination of the State’s witnesses, which was exercised. For these several reasons we find no error in overruling appellant’s objection to the use by the State of the two convicts as witnesses.

One witness for the State testified that he awoke early in the morning to the screams of Coe, who occupied the adjoining bunk bed in the cell block. He saw Coe coming out of the end of his bed, which was the bottom bunk, with the appellant standing and swinging at him with a knife in his hand. He further testified that Coe then ran to the back of the cell while the appellant just stood there. Coe had a hole in his stomach from which blood spurted and another on the neck or face. No weapon was seen in the possession of Coe. The bed of the appellant was five or six beds toward the front of the cell from the bed of Coe.

The other State witness testified that he occupied the bunk bed above the bed of Coe, and when he opened his eyes he saw the appellant beside the bed. Coe was hollering “Why are you doing this to me?” The appellant was crouched over Coe who was trying to get out of the bed through the end and was trying to put stuff between him and appellant. The appellant hit Coe one more time in the face after he got out of the bed. The appellant never said anything. Blood was everywhere, spurting from Coe’s stomach. Coe ran to the back of the cell and fell. The appellant turned and walked out of the cell block. He saw a knife about twelve inches long in the appellant’s hand, but no weapon on Coe. Coe was dressed in a pair of boxer shorts. The appellant was wearing blue jeans, brogans, a pull over shirt, and a windbreaker.

The appellant called several inmates as witnesses in his defense. The first testified that Coe was the aggressor and held the knife. The second testified that he saw the two struggling in the aisle, trying to get the knife away from one another. He thought he saw more than one knife but he could not find a knife where he thought Coe had thrown it. The appellant had a good reputation and Coe a bad one.

The third witness for the defense testified that he saw Coe lunge at the appellant with a knife as the latter approached the bed; and that he did not see either of the witnesses for the State in the cell block when the incident occurred. The fourth witness said he and the appellant ate breakfast together and returned to the dormitory or cell block, and that appellant went up the aisle toward the bed of Coe, saying he was going to talk to Coe and would be right back in a minute. The appellant at that time was unarmed. The next thing the witness remembered was seeing them fighting and that Coe appeared to have a knife.

The defense then put on three witnesses who testified they were outside the cell block and did not see the incident but that the witnesses for the State were not in the cell block at the time of the incident.

Two of the witnesses for the defense admitted knowing the existence of a prison code which prohibits the giving of evidence against a fellow prisoner. The appellant did not take the stand as a witness.

This disputed evidence in the case, together with the reasonable inferences therefrom, was a question for the jury. Ray v. State, 248 Ala. 425, 27 So.2d 872; Little v. State, 34 Ala.App. 114, 39 So.2d 587, cert. den., 252 Ala. 81, 39 So.2d 593.

There was sufficient evidence of guilt, if believed by the jury beyond a reasonable doubt, to sustain the verdict of guilt of murder in the second degree. Ray v. State, supra.

Proof of motive is not indispensable to a conviction of crime. Guilt may be shown without evidence pointing to any particular motive entertained by the accused. Wingard v. State, 247 Ala. 488, 25 So.2d 170.

The Court did not err, therefore, in denying the appellant’s motion to exclude the State’s evidence or in denying the motion for a directed verdict in behalf of the accused.

There was no error in sustaining objection of the State to the question put to a defense witness as to what occurred when the officers came to the cell block after the killing to take the appellant into custody. The State had submitted no testimony of attempted flight by the appellant, resistance to the officers, or incriminating acts or statements by the appellant subsequent to the killing. The subsequent taking into custody was not a part of the res gestae and was not admissible on behalf of the defendant. Coats v. State, 253 Ala. 290, 45 So.2d 35; James v. State, 12 Ala.App. 16, 67 So. 773.

The acts, declarations and demean- or of an accused, before or after the offense, whether part of the res gestae or not, are admissible against him, but unless part of the res gestae, are not admissible by him. Espey v. State, 270 Ala. 669, 120 So.2d 904; Smarr v. State, 260 Ala. 30, 68 So.2d 6.

On this point, however, the appellant further argues that even if this question to the witness called for irrelevant evidence, it should have been admitted because the conduct of the officers in taking the appellant into custody had been made an issue in the case by the appellant during his cross-examination of a State witness, without objection by the State. On cross-examination of a State witness the appellant had elicited testimony, without objection, that the witness had not seen the officers strike the appellant when he was called from the cell block after the killing. This additional argument of the appellant is not well taken.

A party who introduces irrelevant evidence, although without objection, does not gain thereby the right to introduce additional irrelevant evidence. Lewis v. Martin, 210 Ala. 401, 98 So. 635. However, the opposing party may refute the irrelevant evidence with irrelevant evidence of his own. Flinn v. Barber, 59 Ala. 446; St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683; Cunningham v. Lowery, 45 Ala. App. 700, 236 So.2d 709, cert. den., 286 Ala. 734, 236 So.2d 718.

Objection of the appellant was overruled to the following closing argument of the prosecutor, “Mr. Harris talked to you and said that, well, the Parole Board has a right to parole at the expiration of ten years on a life sentence, he said. However, under this charge, as the Court will charge you, you have the right to add some years to that period. Well, I don’t know whether he meant that as an additional plea of guilty to a lesser offense or not. But it struck me that possibly he did.”

The prior argument to the jury by the defense counsel, to which this questioned argument was directed, was as follows: “Now as I said earlier, a life termer in Alabama is eligible for parole after ten years. Giving him some more time is not a meaningless thing. It means something to him as it would mean something to anybody, just sentencing him to time like that. I don’t believe they carried proof to give him any more time.”

This prior argument of the defense counsel could be construed as a suggestion to the jury of a means to impose punishment on the accused less severe than the death penalty, namely, an additional penitentiary sentence.

It could be interpreted as a statement to the jury that the conviction of a lesser included offense, carrying a penitentiary sentence, would be meaningful punishment against a life termer, and that the jury should, therefore, consider this lesser sentence for the defendant.

There is no legal standard by which prejudicial qualities of improper remarks of the district attorney can be gauged. Each case must be determined on its own merits. Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, cert. den., 291 Ala. 804, 277 So.2d 916, and 291 Ala. 804, 277 So.2d 917.

Wide latitude, however, is given to the district attorney in making reply to an argument previously made by defense counsel. Bachelor v. State, 216 Ala. 356, 113 So. 67; Moody v. State, 40 Ala.App. 373, 113 So.2d 787. We hold that the argument of the prosecutor was within permissible limits of a reply to the defense counsel, and that the trial court did not err in overruling objection thereto.

There was no error in overruling appellant’s objection to the prosecutor describing to the jury during oral argument the location of the knife wounds on Coe and the extent of their bleeding. These matters had been covered by testimony in the case; and the prosecutor was merely describing and summarizing this evidence to the jury, which is within the confines of legitimate argument. Winslett v. State, 21 Ala.App. 487, 109 So. 523; Jackson v. State, 41 Ala. App. 325, 133 So.2d 207, affirmed, 272 Ala. 566, 133 So.2d 210; Braden v. State, 49 Ala.App. 97, 268 So.2d 877.

Contentions on appeal concerning objectionable argument of the prosecutor, to which no ruling of the trial court was sought, will not be considered. Russell v. State, 202 Ala. 21, 79 So. 359; White v. State, 40 Ala.App. 378, 114 So.2d 325; Massey v. State, 49 Ala.App. 345, 272 So.2d 271, cert. den., 289 Ala. 747, 272 So.2d 278. The prosecutor’s argument concerning a prior conviction is governed by this rule.

The case was submitted to the jury during the morning and the jury commenced its deliberations. Shortly before lunch time they reported in open court that they were unable to reach a verdict. Whereupon the judge sent them to lunch and told them to return and continue deliberations after they had eaten. After lunch and after further deliberations the jury reported that they were not making any progress in reaching a verdict. The judge then gave them a supplemental charge concerning their duty as jurors to deliberate. He asked them to deliberate further for thirty or forty-five minutes; and in the course of his charge he reminded them that they had spent the greater part of two days in the trial of the cause. Among other things he stated “I know every juror is entitled to his opinion. But, Ladies and Gentlemen, I know you don’t wish to put this County to the expense of another trial if it can be avoided.” At another point he stated “ * * * and I think, frankly, it is important because both the trouble and expense of a new trial should be avoided if it can be done fairly under the evidence.”

The supplemental charge was lengthy, and at the conclusion thereof the jury returned to the jury room for further deliberation. Outside the presence and hearing of the jury and after it had returned to the jury room, the defense counsel made the following objection: “Your Honor, at this time we would like to note a formal objection to those portions of your charge with reference to the cost of a new trial. We think it is a violation of the defendant’s due process.” The Court overruled the objection and noted an exception for the defendant.

It is error for the trial court to coerce or threaten a jury in the reaching of a verdict. Orr v. State, 40 Ala.App. 45, 111 So.2d 627, affirmed on cert., 269 Ala. 176, 111 So.2d 639. But the entire charge must be examined so that the suspected language is tested in the whole context of its setting in order to determine whether the jury has been coerced or threatened. Whittle v. State, 205 Ala. 639, 89 So. 43.

In the case of Orr v. State, supra, the judgment of the trial court was reversed because of a coercive charge in which, among other things, the expense of a new trial was mentioned. But this erroneous charge contained five different objectionable statements; no one of which standing alone, it was noted by the appellate court, might have been sufficient for reversal. When taken altogether they created a coercive charge.

In the later case of Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181, the supplemental charge was held not to be coercive although it contained a statement that the jury should consider the expense and time already involved in the trial and the time and expense for another trial.

We have carefully examined the entire supplemental charge in the case at bar and we do not find it to be coercive or threatening.

A representative passage from the supplemental charge of the trial court is as follows: “Let each juror examine for himself the grounds of his opinion, and reason with his fellows concerned with the facts and honest desire to arrive at the truth with a view of rendering a true verdict according to the evidence. It should be the objective of all of the jury to arrive at a common conclusion and to that end you should deliberate together with calmness, candor, and patience; lay away all pride of opinion and judgment and examine any differences of opinion that may be among you' in a spirit of fairness. Reason together, talk over such differences and harmonize them if this is possible so that the case may be justly disposed of. Every juror should listen to the arguments of his fellows and endeavor conscientiously to reach a verdict. It is not my purpose, Ladies and Gentlemen, to force or to coerce you to a verdict in this case and don’t get that idea. What I have said to you must not be taken as any attempt on the part of this Court to require or force any of you to surrender your honest and reasonable convictions that bind upon the law and evidence of this case. My sole purpose is to impress upon you your duty and the desirability and the importance of reaching a verdict if you can conscientiously do so.

“Give a fair and reasonable and patient consideration to the argument of your fellows. Consider the evidence under the rules of law as given to you by the Court and remember that each juror must be governed by his own conscience and that he cannot be controlled by the mind and conscience of his fellows.”

Considering the supplemental charge as a whole we find that it is without error. Whittle v. State, supra, Bufkins v. State, 20 Ala.App. 457, 103 So. 902, cert. den., 212 Ala. 638, 103 So. 906; Hankins v. State, 25 Ala.App. 504, 150 So. 708, cert. den., 227 Ala. 454, 150 So. 709; Poellnitz v. State, supra.

An additional answer to this contention is that exceptions to the oral charge of the court must be made in the presence of the jury and prior to their retirement, in order that the court may correct error. Exceptions made later will not be considered on appeal. Owens v. State, 53 Ala.App. 553, 302 So.2d 240, cert. den., 293 Ala. 769, 302 So.2d 243. The record discloses that this objection to the supplemental charge came too late.

We have examined the rpcord for errors injuriously affecting the substantial rights of appellant and have found none.

The foregoing opinion was prepared by Hon. Gardner F. Goodwyn, Jr., Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur except CATES, P. J., not sitting.