author: HOLMES, Judge.

text:
    STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY v. Vicky Lynn HALL. In the Matter of Charlie Newton HALL.
    Civ. 747.
    Court of Civil Appeals of Alabama.
    March 3, 1976.

      William J. Baxley, Atty. Gen., Mary Lee Stapp, Asst. Atty. Gen., and Jamie L. Pet-tigrew, Asst. Atty. Gen., for appellant.
   HOLMES, Judge.

This is a child custody case. The Circuit Court of Madison County entered an order dismissing the petition of the Madison County Department of Pensions and Security. The department’s petition requested permanent custody of Charlie Newton Hall on the grounds of dependency and neglect. The trial court’s order granted custody of the child to his mother. The Department of Pensions and Security appeals from that order.

The issue before this court is whether the trial court erred to reversal in refusing to grant the department permanent custody of Charlie Newton Hall, and in giving the mother custody of the child. We find the trial court did so err, and reverse and remand the cause.

Although the appellee-mother has not favored this court with a brief, the record reveals the following pertinent facts:

The child, Charlie Newton Hall, was born in January of 1973. His mother, Vicky Hall, was arrested by the Huntsville Police Department for public drunkenness in August of 1973. The mother at that time was eighteen years old.

The child was brought to the Department of Pensions and Security a short time thereafter by his maternal grandmother. On August 27, 1973, the Family Court of Madison County issued an order granting temporary custody of the child to the department.

In May of 1974, the department commenced proceedings for the permanent custody of Charlie Newton Hall on the grounds of dependency and neglect.

At these proceedings, the officer who arrested Vicky Hall testified that he received a complaint of a disturbance at the trailer where she lived with her child, mother, and brother. Upon his arrival, he found Vicky Hall in the bedroom with a male. Another male was elsewhere in the trailer. The child was lying in his own excrement on a couch. He further testified that Vicky Hall was intoxicated and acted in a belligerent manner and refused to take care of her child despite several requests to do so.

An employee of the Department of Pensions and Security testified that when the child was brought to the department, he was very dirty and abnormally unresponsive. He was very pale and the back of his head was flattened. He did not know how to eat baby food, but could only drink milk.

The medical doctor who examined the child corroborated the above testimony as to his condition. He further testified that the child had what appeared to be multiple infected insect bites on his arms and legs, and was suffering from iron deficiency anemia, a condition usually caused by a diet of milk rather than solid foods. Additionally, he testified that the child’s flattened head was caused by the child having been placed on his back and left there for inordinate amounts of time.

Further testimony was that the child after a period of care was able to sit up and crawl about, learned to eat baby food, and that his condition was greatly improved.

A child welfare worker with the Department of Pensions and Security who was working with Vicky Hall testified that the mother moved to Nashville, Tennessee, in December of 1973. This worker and a Tennessee welfare worker both testified in substance that Vicky Hall was very difficult to locate and apparently did not maintain a stable residence. Vicky Hall told the Tennessee worker that there had been no reason for her child’s removal from her, and that she had made no changes since that removal because it was unnecessary to make changes.

Further testimony was that Vicky Hall had made false statements to the department concerning her living arrangements. The Alabama worker also testified that Vicky Hall vacillated a great deal concerning where she planned to live, and that she constantly contradicted herself in matters pertinent to her being given custody of her child.

The manager of a Red Lobster Restaurant in Nashville, Tennessee, testified that in June of 1974 he terminated Vicky Hall’s employment as a waitress with that entity. This was done due to her insubordination and the fact that despite repeated warnings she came to work dirty and wore dirty uniforms. On one occasion she threw a bowl of salad and used profanity. She also told the manager on two occasions that her mother had died so that she could be excused from work. She had held this job for approximately six months. A prior job had lasted for some three weeks.

Further testimony was given by one of the males who was present at the trailer when Vicky Hall was arrested for public drunkenness, as noted earlier. He testified that she had requested him to perjure himself as to the damaging circumstances of that occurrence. His testimony of what transpired that night was in sharp variance to Vicky Hall’s in several respects.

Vicky Hall stood alone in contradicting various unflattering aspects of the above testimony. Her testimony can be adequately summarized by stating that she took issue with the version of her arrest described above, alleged that she still was employed by the Red Lobster, and sought to explain away her various seeming untruths as being .justified by certain of her mother’s problems.

At the conclusion of the proceedings, the learned trial judge, as noted earlier, denied the department’s petition for custody and granted custody to the mother, Vicky Hall. Upon petition of the department, this court stayed the order of the trial court pending disposition of this appeal.

We initially note the well-established principle of law that the controlling consideration in child custody matters is the best interest of the child. See 12 Ala. Dig. Infants ®=>19.2(2) and cases cited thereunder. It thus follows that while the parent has a prima facie right to the custody of a child, this right is not absolute and must yield to the superior criterion of the child’s welfare. Borsdorf v. Mills, 49 Ala. App. 658, 275 So.2d 338; Kennedy v. State Dept. of Pensions and Security, 277 Ala. 5, 166 So.2d 736.

Applying these guidelines to the case before us, we are compelled to conclude that the learned trial judge committed reversible error by his awarding custody of this minor child to its mother.

The evidence is undisputed that Charlie Newton Hall had been seriously neglected when he was turned over to the Department of Pensions and Security. Vicky Hall, the mother responsible for Charlie Newton Hall’s condition, now seeks to be granted permanent custody of the child. However, speaking frankly, this court can find no evidence indicating that Vicky Hall is presently fit to properly discharge her responsibilities as a parent.

The evidence as revealed by the record has already been set forth. That evidence shows, in sum, a very unstable young worn-an of questionable ethics and at best dubious veracity. She has grossly neglected her child in the past. There is no evidence that she has rehabilitated herself since that time. Her present life style when taken together with her past conduct dictates that the best interest of this small child would not be served by remanding him to the custody of one so poorly qualified to care and provide for him.

It is appropriate at this point to note the following statement found in 59 Am.Jur.2d Parent and Child § 39, as cited to us in brief by counsel for the appellant:

“Generally, a parent who has been deprived of custody of his child on account of his misconduct is entitled to restoration of custody on a showing that he has reformed and is presently a suitable custodian. However, perhaps because such reformations have often proved unstable, the courts are sometimes reluctant to restore custody, especially where it appears that the child’s welfare would be best served by leaving it whe're it is. In any event, the child will not be restored to the parent where the latter’s reformation consists of an uncertain promise or occurs only a short time before he seeks to regain the custody of the child.” [Emphasis supplied]

Here, we have only the uncorroborated and often contradicted assertions of Vicky Hall, standing against an entire record showing her lack of fitness to be given custody of this child.

While the trial court’s findings in custody cases are favored, the reviewing court will reverse the trial court if those findings are plainly and palpably wrong. Lawson v. Jennings, 52 Ala.App. 582, 296 So.2d 176; Modling v. Modling, 45 Ala. App. 493, 232 So.2d 673. Such is the case here. The learned trial court’s final order is clearly contrary to the vast preponderance of the evidence in this cause.

The case is accordingly reversed and remanded to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

license: Public Domain

text:
    In re Lola PINKLETON v. Claude STEELE, d/b/a Long’s Cash Grocery. Ex parte Lola Pinkleton.
    Civ. 610.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1975.

      Don Conway, Mobile, for petitioner.
    Elwood L. Hogan, Mobile, as Respondent and Circuit Judge of the Thirteenth Judicial Circuit of Ala., pro se.
    Hand, Arendall, Bedsole, Greaves & Johnston and William C. Roedder, Jr., and Donald F. Pierce, McDermott, Slepian, Kittrell & Fleming and Stephen R. Windom, Mobile, for respondent.
   HOLMES, Judge.

This is a petition for writ of mandamus to compel respondent-judge to expunge his order setting aside a default judgment previously entered in favor of petitioner.

The pertinent facts as revealed by the record can be summarized as follows:

In March of 1974, in the Circuit Court of Mobile County, Alabama, petitioner Lola Pinkleton filed suit against Claude Steele, d/b/a Long’s Cash Grocery. Respondent-judge entered a default judgment for $10,000 against defendant-Steele and in favor of petitioner in August of same year.

Defendant moved in March of 1975 to have the default set aside pursuant to Rule 60(b)(6) of the ARCP. One ground of defendant’s motion was that a corporate entity, Long’s Supermarket, Inc., was the proper party defendant, rather than the individual Claude Steele. On June 9, 1975, respondent entered an order stating in pertinent part as follows:

“It is ordered and adjudged by the Court that defendant, Claude Steele’s said motion filed March 14, 1975, for Court to set aside the default judgment in this cause be, and the same is hereby granted subject to defendant, Claude Steele, dba Long’s Cash Grocery, the entity, and Long’s Supermarket, Inc., filing a waiver with this Court of all their rights under the Statute of Limitations with respect to this action within 30 days from date of this Order.”

Petitioner came to this court seeking mandamus in June of 1975, and rule nisi or alternative writ issued that same month.

Due to an infirmity in the learned trial judge’s order setting aside the default judgment, this court must issue the writ of mandamus.

Respondent’s order is a conditional one. Courts as a general rule may, within reasonable limits, impose such terms as they may deem fit to prescribe when setting aside a default judgment. See Mosaic Templars of America v. Hall, 220 Ala. 305, 124 So. 879.

To this court in this instance, it is unreasonable to condition the setting aside of a default judgment upon the performance of an act, to wit, the waiver of a defense of the Statute of Limitations, by one not a party to the litigation. This is so because the instant condition is apparently incapable of being performed by either party to the lawsuit.

The fact that the condition is unreasonable renders the order setting aside the default judgment erroneous as a matter of law. See 46 Am.Jur. Judgments § 784. The condition cannot be severed from the order itself, in that the wording of the order clearly indicates that it would not have issued without the attachment of the said condition. Therefore, as the condition is unreasonable, the order is erroneous in its entirety.

We would further note that petitioner, in an amendment to her petition, has apprised this court of the fact that the entity required to waive its defense of the Statute of Limitations has not done so. Put another way, the condition imposed by the judge that would trigger the default judgment being set aside has not been complied with.

The learned respondent-judge has by appropriate motion moved to strike the above mentioned amendment for the reason that the amendment was not served upon counsel for the respondent-judge, but was only served on the respondent-judge himself. While this court is of the opinion that it is certainly better practice to serve counsel, and most assuredly makes for a more harmonious bar, such is not, at this time, required by the law.

The party of adverse interest in this proceeding is the trial judge, and notice of the pleadings to him is sufficient. See Townson v. Harvey Implement Co., Inc., 51 Ala.App. 238, 284 So.2d 267, and cases cited therein. Additionally, Tit. 7, § 1072, Code of Ala. 1940, allows amendments to a mandamus petition while the proceedings are in progress, as was the case here. See Ex parte Hennies, 33 Ala.App. 229, 34 So. 2d 17.

We would further note that the proceedings here would appear to come within the purview of Supreme Court Rule 15 which allows service upon the adverse party or his counsel.

The amendment is therefore properly before us. Were we to consider the trial court’s order as correct, which we do not, the default judgment would appear to stand “reinstated” by the very terms of the order itself.

Able counsel for respondent-judge moves to strike the reply brief of petitioner. This motion is bottomed on the fact that the brief was not served upon counsel for respondent-judge.

We find this motion to be well taken and the reply brief of petitioner is not considered by this court. See Supreme Court Rule 11.

While it is the policy of this court to address itself to the merits of proceedings presented to it whenever possible, for the reasons stated herein we decline in this instance to so do. We specifically express no opinion as to the applicability of Rule 60(b), ARCP.

As the order is erroneous, the petition for writ of mandamus is granted and a writ of mandamus will issue within thirty days directed to The Honorable Elwood Hogan, Judge of the Circuit Court of Mobile County, unless he shall set aside his order of June 9, 1975.

WRIT OF MANDAMUS AWARDED CONDITIONALLY.

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

      . See Rule 21, Alabama Rules of Appellate Procedure, and comments thereunder.


text:
    Skeets PATTERSON and John B. Whitten, d/b/a Patterson and Whitten Motors, a partnership v. Verlon J. WHITTEN, as widow and as administratrix of the Estate of James Edward Whitten, Deceased.
    Civ. 605.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1976.
    Rehearing Denied Feb. 25, 1975.

      Thomas A. Smith, Jr., Cullman, for appellants.
   HOLMES, Judge.

This is a workmen’s compensation case. The Circuit Court of Marshall County found the issues in favor of appellee, the widow of the deceased employee and ad-ministratrix of his estate. The employer prosecutes this appeal from that judgment.

The issues for our determination are whether the evidence was sufficient to show that the deceased was in fact employed by the appellant; whether the accident which caused the employee’s death arose out of and was in the course of any employment with the appellant; and whether the trial court erred in the amount of compensation awarded to appellee.

After a lengthy and well-tried proceeding, the trial court made the following specific findings:

1. “That James Edward Whitten, deceased, was an employee of Defendants on October 22, 1971 and for a time prior thereto.”

2. “[TJhat James Edward Whitten, deceased, was involved in an accident on the 22nd day of October, 1971 at about 6:30 P.M. and that at the time of said accident, James Edward Whitten, deceased, was performing work out of and in the course of his employment.”

3. “[T]hat James Edward Whitten, deceased, had an average weekly wage of $111.25 for Workmen’s Compensation purposes, said determination being made from the wages of a person in the same grade, and employed by the same employer at the same work during the same period of time as which James Edward Whitten, deceased was so employed.”

The appellant-employer, through an excellent brief, contends the evidence does not support the above findings of the trial court.

It is appropriate at this point to note the following statements made by our Presiding Judge Wright in Aluminum Workers International v. Champion, 45 Ala.App. 570, 572, 233 So.2d 511, 512:

“[I]n every workmen’s compensation case coming for review before an appellate court, we must begin our consideration with the following well settled rules in mind. We will not review the weight or preponderance of the evidence. Pinto Island Metals Co. v. Edwards, 275 Ala. 351, 155 So.2d 304; Sloss-Sheffield Steel & Iron Co. v. Watts, 236 Ala. 636, 184 So. 201. When there is any legal evidence, or reasonable inference therefrom, to support the findings of fact by the trial court, such findings are conclusive and will not be disturbed on appeal. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380; Hamilton Motor Co. v. Cooner, 254 Ala. 422, 47 So.2d 270; United States Steel Corp. v. Danner, 263 Ala. 310, 82 So.2d 404.”

I

Bearing the above principles in mind, we find there was sufficient evidence before the trial court to sustain its determination that the deceased, James Edward Whitten, was in fact employed by the appellant.

The appellant-employer is a partnership in the business of selling used cars. The deceased was driving a car recently purchased by the employer for sale when he was involved in a collision with another vehicle which took his life.

Several witnesses testified as to remarks made by John Whitten, one of the partners and the brother of the deceased.

These remarks were made at the hospital where the deceased was taken after the above mentioned accident, and at the deceased’s home both immediately after his funeral and several days subsequent to it. As testified to by these witnesses, Whitten stated on these occasions that he had instructed the deceased to drive the automobile from its place of purchase in Huntsville to the deceased’s home in Albertville, and then to drive it to work the next day at the partnership’s place of business in Cullman. Whitten further stated that the deceased was employed by him as a car salesman; that he was paying the deceased $75 per week; and that the deceased’s widow would receive his pay check.

There was additional testimony by the deceased’s widow, appellee herein, that the deceased was working for the employer; had begun work the same week that he was killed; and prior to his death had picked up a car owned by the partnership in Birmingham and driven it home. Ap-pellee further testified that Kenneth Patterson, a partner in the business, had told her at the funeral that her husband began work with the partnership the week of his death.

While there is ample testimony to the contrary, the above clearly supports the trial court’s conclusion as to employment. As noted initially, this court does not review the weight or preponderance of the evidence, and when there is any legal evidence or reasonable inference therefrom in support of the trial court’s findings, such findings are deemed conclusive on appeal.

II

The appellant-employer further contends that the accident which caused the death of the employee did not arise out of and occur in the course of his employment, as must be the case for the death to be com-pensable under the Workmen’s Compensation Act. Tit. 26, § 253, Code of Ala. 1940. To support this contention, the employer cites the well-settled proposition that accidents which occur while an employee is traveling to and from work do not arise out of and in the course of his employment. He then points out that while there is an exception to this general rule when the transportation constitutes part of the consideration paid to the employee for his services, there is no evidence in the record that such an arrangement existed here.

The final argument is that the employee had deviated from the course of his employment when the fatal accident occurred, because he had intended upon reaching his home to watch his son play in a football game. It is clear that a deviation from the course of employment may preclude compensation.

While the appellee has not favored this court with a brief, the tendencies of the evidence in this regard, as previously noted, are as follows:

The employee was instructed by his employer late one afternoon to proceed to Huntsville from his place of employment in Cullman. There he was to pick up the car recently purchased by the employer, use it to drive home to Albertville, and drive it to the car lot in Cullman the next day. While on the road between Huntsville and Albertville the employee was killed.

From these facts, the trial court concluded that the accident arose out of and in the course of the deceased’s employment. Bearing in mind the aforesaid principles of review applicable to workmen’s compensation cases, we agree with this conclusion.

We believe that the employee’s instructions were, in effect, to take a specifically prescribed route in order to deliver the newly purchased automobile to the car lot in Cullman. There can be no question but that the delivery of the automobile would be in furtherance of the employer’s business. Where an employee during his travel to and from work is engaged in some duty for the employer which is in furtherance of the employer’s business, accidents occurring during such travel arise out of and in the course of the employment. Union Camp Corp. v. Blackmon, 289 Ala. 635, 270 So.2d 108. The rationale for this exception to the general rule is that “. . . the making of that journey . . . is in itself a substantial part of the service for which the worker is employed.” Larson, The Law of Workmens Compensation, § 16.00.

While the employee was in fact on his way home from work', and from the record apparently planned to attend his son’s football game that night, we do not find these facts to be dispositive in view of the employer’s instructions. To reiterate, the employee was instructed to take a specific route in delivering the automobile, which route included the employee’s journey home from “work.” We find the fact that the employee was so instructed to be determinative here.

The employee’s journey could be construed as a dual-purpose one, in that the delivery of the automobile served a business purpose while the trip home from work was personal in nature. Accidents occurring during such journeys arise out of and in the course of employment if the trip involves performance of a service for the employer which would have necessitated a trip by someone if the employee had been unable to perform that service in connection with his personal journey. Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181; Larson, infra, §§ 18.00, 18.21. In this instance, someone would have had to deliver the automobile if the employee had not been able to do so in connection with his trip home. Accordingly, if the journey be considered as having both a business and a personal purpose, we find the business purpose to be such that the accident arose out of and in the course of the employment.

Ill

The appellant-employer’s final contention, as noted earlier, is that the trial court erred in computing the average weekly wage of the deceased employee.

Tit. 26, § 279(G), Code of Ala.1940, provides that compensation shall be computed on the basis of the employee’s average weekly earnings, and sets out methods of computation.

It is clear, as noted above, that the learned trial judge in his final judgment employed that portion of § 279(G) of the Code which reads as follows:

“Where by reason of the shortness of the time during which the employee has been in the employment of his employer, or the casual nature or terms of the employment, it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the fifty-two weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, . . . ”

The pertinent facts in this regard show that the deceased employee worked for less than one week. There was testimony that his wages at the time of his death were $75, and that he would in the future make more than $75 as a car salesman. Additionally, the only other salesman (other than the two owners of the business) made an approximate average weekly wage of $131.30. The trial court thus found that the average weekly wage of the deceased employee for workmen’s compensation purposes was $111.25.

The appellant-employer contends that the trial court erred in using the comparative wage method in that the salesman whose wages were used was an experienced salesman, whereas the deceased employee had no sales experience.

Appellant further contends that since there was testimony that the deceased employee’s wages were in fact $75 per week, this should be his actual average weekly wage.

While appellant’s arguments have merit, we do not feel that the trial court was in error in following a method prescribed by the statute.

The deceased employee was employed a very short time, less than a week. The wages of a car salesman in the same business were used. While there is certainly some difference in experience, to wit, the compared salesman had worked for appellant-employer for approximately one and one-half years and had some general sales experience prior to that time, we cannot say the difference precludes the trial court from finding as it did. This is particularly so when the tenor of the Alabama decisions dealing with this code section seems to be that if the formulas set forth are impracticable to apply in a particular case so as to arrive at a result which is fair and just to both parties, much must be left to the trial court’s sound judgment and judicial discretion. See Aluminum Workers International v. Champion, supra; Willis v. Storey, 268 Ala. 205, 105 So.2d 128; Unexcelled Mfg. Corp. v. Ragland, 52 Ala. App. 57, 289 So.2d 626.

We would be remiss in not commenting that this is a “close case.” However, under the method of review by certiorari in workmen’s compensation cases, we cannot say the evidence does not support the trial court’s findings.

The case is due to be affirmed.

Affirmed.

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

ON REHEARING

Able counsel for the appellants charges in his brief suppporting his application for rehearing that there is no testimony upon which to base a finding made in our original opinion. There, we stated that, “ . . . the employee’s instructions were, in effect, to take a specifically prescribed route in order to deliver the newly purchased automobile to the car lot in Cull-man.”

While another choice of words would perhaps be more appropriate, the following testimony found on pages 33-34 of the record is the basis for our statement:

“Q Would you tell the court what Mr. Whitten told you?
“A He came up to me and asked me how he was.
“Q How your husband was ?
“A Yes, sir, and then I said ‘The doctor told me that he was going to die, that there’s no chance for him.’ And he said, ‘Oh, my God; it’s all my fault.’ And I said, ‘Well, John, why do you say this ?’ and he said, ‘because I told him to come back that way, to drive the car home and bring it to work the next day, and had I not told him this, he wouldn’t have been at the place of the accident.’ ”

There is also a not inconsiderable amount of additional testimony substantially identical to the above.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama v. MONK & ASSOCIATES, INC.
    Civ. 699.
    Court of Civil Appeals of Alabama.
    March 3, 1976.
    William J. Baxley, Atty. Gen., William H. Burton, Acting Chief Counsel, Dept, of Revenue, and Asst. Atty. Gen., B. Frank Loeb, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellant, State of Alabama.
    Denaburg, Schoel, Meyerson & Ogle and Ben L. Zarzaur, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

The Alabama Department of Revenue entered a sales tax assessment against Monk & Associates, Inc. in the amount of $7,454.65. Upon appeal by Monk to the Jefferson County Circuit Court the assessment was set aside. State appealed. We affirm in part and reverse in part.

Monk is a wholesaler of candy. Since 1971, a large volume of its sales has been to various groups and organizations within the elementary and secondary schools of the public school system oí Alabama. The testimony is voluminous to the effect that such groups and organizations exist within the various schools as a part thereof, with the approval and permission of the administrative authorities and are subject to the control and supervision of the administrative head of each school. Representative of such organizations are Beta Clubs, Hi-Y Clubs, Band Clubs, Athletic Clubs, Civics Clubs and class organizations. These organizations serve the school in fund-raising projects of various kinds, including selling candy to students, faculty, parents and the public generally. Every parent and teacher is well aware of the activities of such groups. The testimony is replete that were it not for such means of fund raising the schools would be unable to meet multiple needs because of lack of appropriated public funds. Several witnesses stated that raising money by selling candy and other merchandise through student sales is a fact of life in the schools and is necessary to supply unfunded needs.

The assessment of sales tax in this instance arose out of the charge of the state that Monk’s sales of candy to these school groups were not wholesale sales but retail sales. Monk contends its sales were at wholesale and if not wholesale, were sales to schools which are exempt from paying sales tax.

The evidence in the case below was heard by a special master who reported his findings of fact and conclusions of law to the court. The court adopted the report of the master and incorporated it in its judgment. Under the circumstances, this court on appeal reviews the judgment without a presumption of correctness as in cases heard ore tenus by the court. Murphree v. Smith, 291 Ala. 20, 277 So.2d 327.

We affirm the judgment of the trial court insofar as it finds the assessment void as to sales to schools because it reached the correct result. We reverse as to sales to P.T.A.s.

The trial court found that the sales by Monk to groups and organizations within the schools were, in fact, sales to schools. We agree with that finding. The trial court found that the sales by Monk to schools were exempt from taxes under Title 51, Section 786(34)(m) of the Code of Alabama (1940). We disagree that the sales fall within that exemption. The trial court found that the sales by Monk were wholesale sales to “dealers” under Title 51, Section 786(2) (i). We disagree with that finding.

Our conclusion as to the correctness of the judgment voiding the assessment of taxes to Monk upon its sales to school organizations is founded upon the following:

Title 51, Section 786(2) (i) as pertinent, is as follows :

“The term ‘wholesale sale’ or ‘sale at wholesale’ means any one of the following: a sale of tangible personal property by wholesaler to licensed retail merchants, jobbers, dealers, or other wholesalers for resale . . . .”

Title 51, Section 786(2) (j) provides that all sales not defined by Section 786(2) (i) as wholesale sales are retail sales. Therefore, if not a wholeslae sale it is a retail sale and sales tax must be collected and paid by the seller.

It is clear that the sale of candy to a school for resale does not fall strictly within the above definitions. The schools purchased the candy for resale. They are not licensed retail merchants. Neither do they fall within the category of “dealer” as found by the trial court, whatever that term means in the statute. Therefore, standing alone, it would appear that Monk sold to an unlicensed retailer and should have collected sales tax.

Monk, however, says even though it may have sold to an unlicensed retail merchant, such retailer is a school and is exempt from paying sales tax on purchases under Section 786(34) (m) of Title 51. That section is as follows:

“There are exempted from the provisions of this article and from the computation of the amount of the tax levied, assessed, or payable under this article the following: . . . (m) The gross proceeds of the sale or sales of tangible personal property to county and city school boards . . . and all educational institutions and agencies of the state of Alabama, the counties within the state or any incorporated municipality of the state of Alabama.”

The above exemption from sales tax clearly applies only to sales of property to schools for use and consumption for school purposes. Regulation G27-0513 issued by the Department of Revenue pursuant to the exemption statute provides:

“Tangible personal property is exempted from sales and use tax when purchased for the sole use and benefit of, and for the use under the control of a state, county or city school. . . .”

The purchase of candy for resale to raise cash funds could not fall within the exemptions of Section 786(34) (m).

The question now is presented — If Monk did sell to an unlicensed retail merchant, a school, and the purchase was not exempt from sales tax under Section 786(34) (m), why is Monk not liable for the tax upon the gross proceeds of such sale?

The answer is, because Section 786(3) of Title 51, the Code, the levying statute, does not require the collection of sales tax by the schools upon their sales. The Supreme Court of Alabama in the case of City of Anniston v. State, 265 Ala. 303, 91 So.2d 211, held that under the language of 786(3) it was not the intent of the legislature to require the collection of sales tax upon gross sales in instances not specifically set out in the statute. Regulation G27-021, issued by the Revenue Department, adopts such interpretations when it provides as follows:

“Sales made by all colleges, universities, or other institutions of higher learning, both privately and publicly owned and operated, are by specific provisions of the sales tax law subject to sales tax.
“Gross proceeds of sales made by schools (not including institutions of higher learning) owned and operated by the counties and municipalities of the state are not subject to the tax. (Act No. 100, Sec. 2(a); Title 51, Section 786(3)(a))”

Regulation G27-031 applies the same exemption to meals sold by schools.

Having determined from the evidence presented that fund-raising activities of groups and organizations within the schools who received and resold the candy sold by Monk were, in fact, activities of the school; such sales were exempt from sales taxes under Title 51, Section 786(3) (a) and regulations of the Department of Revenue issued pursuant thereto.

This court in a recent decision, State v. Advertiser Company, Ala.App., [Ms.Civ. 635] Feb. 11, 1976, recognized the purpose of requiring collection of sales tax by a wholesaler selling to an unlicensed retailer. That purpose is to insure collection of sales tax from the best source. If a retailer is unlicensed, that is, not registered with the Revenue Department and possessing a sales tax number, there is no means of insuring payment of tax-upon his gross receipts. The burden is thus placed upon a wholesaler either not to sell to an unlicensed retailer, or to be liable for payment of tax upon the goods he sells to such retailer.

However, if the sale is to an unlicensed retailer who is not required to collect tax upon the goods he resells, the purpose of the statute is unneeded. If the retailer is not required to collect tax upon the sale of goods sold, the wholesaler is not required to pay the tax. Sales tax is a burden upon the ultimate consumer. The retailer is merely the collector. In the case of a retailer exempt from collection there is no tax. We must conclude that Monk cannot be liable for failing to collect tax from an unlicensed retailer who is exempt from collecting the tax from the ultimate consumer.

The exemption applicable to sales by schools does not apply to the various P.T.A. organizations. Therefore, the judgment below is affirmed as to the sales to schools or organizations therein under the supervision and control of the school administration. We reverse as to sales by Monk to other associated groups or organizations such as the P.T.A. We remand for determination of the amount of tax due on such sales.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED IN PART WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Annie Laura SCARBROUGH v. Norman D. SCARBROUGH.
    Civ. 729.
    Court of Civil Appeals of Alabama.
    Feb. 25, 1976.

      J. Richmond Pearson, Chatom, for appellant.
    Edward P. Turner, Jr., and C. Robert Land, Chatom, for appellee.
   HOLMES, Judge.

This is a divorce case. The Circuit Court of Washington County divorced the parties on petition of appellant-wife, and granted her alimony in gross of $12,000. The wife appeals from that judgment.

The issues for our determination are whether the trial court abused its discretion in its award of alimony and its refusal to award the wife attorney’s fees.

The tendencies of the evidence as revealed by the record are as follows:

The parties were married in 1956 and separated in 1974. At the time of trial they had been married approximately eighteen years. Two children were born of the marriage. Their custody is not an issue on this appeal due to the fact that the parties agreed in that respect to abide by the wishes of the children, who elected to remain with the father.

The husband owns 320 acres of land deeded to him by his parents in 1961. Approximately $10,000 of indebtedness on this land was paid off by the parties. The husband testified that the present value of the land was $100 an acre, while the wife testified that its present value was $350 an acre. Other testimony showed that 40 acres of the land in question had been sold for $125 an acre in 1961.

The parties’ homeplace, situated on the above mentioned land, was built for $14,000. The wife testified its current value was $20,000. The amount outstanding of a mortgage executed on the homeplace is $6,700.

The parties had accumulated some $1,300 in various bank accounts. There was also a herd of thirty to fifty cattle which the husband had sold or given to his sons after the parties separated, and which were valued by him at $100 apiece. Finally, the husband owned farm equipment of an undetermined valuation, and the parties had accumulated various items of personal property, also of indeterminate value.

Both parties worked during the marriage. The husband worked at different jobs and farmed. He now earns $120 a week at a job in addition to his farming. The wife worked for 12 years, and currently earns some $460 monthly. Apparently, during the marriage, the husband paid for the indebtedness against the land mentioned earlier; the farming operation; the payments on the homeplace; and some living expenses. The wife paid for certain living expenses and contributed to making house payments.

As noted previously, the trial judge upon granting appellant-wife a divorce, awarded her $12,000 as alimony in gross and denied her attorney’s fees.

It is appropriate at this point to state the well-established propositions that an award of alimony must be based upon the particular facts of the individual case, Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348, and that the granting of such award is within the sound discretion of the trial court. Colombaro v. Colombaro, 54 Ala. App. 157, 306 So.2d 23. Furthermore, when the evidence in a divorce case is heard ore tenus, the findings of the trial court are presumed correct and will not be disturbed without a clear showing of an abuse of discretion and this has particular applicability to an award of alimony. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794.

In the instant case, the trial court could reasonably have found the value of the estate accumulated by the parties to be approximately $60,000. The $12,000 award of alimony in gross thus represents approximately 20% of the estate. An award of permanent alimony usually varies from one-half to one-third of the husband’s estate, although there is no fixed rule. Watson v. Watson, 45 Ala.App. 306, 229 So.2d 807.

As set out earlier, the record tends to show that the wife is gainfully employed, while the husband earns $120 per week at his job and needs his land to carry on his farming operations. Additionally, the husband has custody of the two minor sons of the marriage, whom he must provide for.

In view of these facts, and the aforesaid presumptions applicable to divorce cases, we are not persuaded that the trial court has committed error to reversal by its award of $12,000 alimony in gross. While this court may not have taken the same action on the instant set of facts as did the trial judge, we cannot substitute our judgment for his. We reverse only for palpable abuse of discretion, Chancellor v. Chancellor, supra, and such is not the case here.

The appellant-wife’s final contention is that the trial judge abused his discretion by refusing to grant her attorney’s fees. However, there is no evidence in the record as to the reasonable value of appellant’s attorney’s services or her inability to pay therefor. As such, the trial judge cannot be placed in error for his refusal to grant appellant-wife attorney’s fees. Ledyard v. Ledyard, 46 Ala.App. 27, 237 So.2d 511.

All issues presented having been considered, and there being no error in the record, the case is due to be and accordingly is affirmed.

Affirmed.

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


author: BOOKOUT, Judge.

text:
    Johnny Ray FISHER v. STATE.
    8 Div. 721.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      C. Wayne Morris, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Rape; sentence: ten years imprisonment.

The prosecutrix testified she returned home from work around 11:30 P.M. on January 27, 1975. As she walked up on her porch, a person came up to her and asked if she had a telephone, and she answered, “no.” The prosecutrix was attempting to unlock the door to her apartment and was trying to awaken her husband to let her in. She could not awaken him, and the appellant returned and grabbed her from behind, around the neck. She stated that she screamed and that she could not say anything. The appellant then “drug” her approximately a block and a half to a secluded spot. She testified that, “[h]e kept telling me that I was going to give him anything he wanted. Would I give him anything he wanted and I agreed with him because I was scared he would hurt me. And so, he told me to take my clothes off.” She testified that he had sexual intercourse with her at that time.

After the ordeal, they returned to the front of her apartment building. The prosecutrix stated that appellant asked if she had any money and that she emptied all the contents of her purse on the sidewalk and gave him some pills and all of the money that she had. She told appellant that she did not have any more money, but would have some more the next day. The appellant then told her that he would come back the next morning.

As soon as the appellant left, the prose-cutrix went to her husband and told him what had happened. Her husband got her mother, who then called the police. He then took the prosecutrix to the hospital for an examination.

The appellant came back to the apartment the next morning, but ran when he was confronted by the prosecutrix’s husband. He later ran from the police, but was captured. He was positively identified by the prosecutrix immediately after his arrest and also during the trial.

Ronald Adams, a Huntsville police officer, testified for the State that he went to the home of the prosecutrix at 12:27 in the early morning hours of January 28, 1975. He testified that he was met at the front door by the husband and that once inside, he found the prosecutrix sitting in a chair, crying. After a conversation with her, he advised her husband to take her to the emergency room of the hospital for an examination.

The prosecutrix’s husband testified that on the night in question, his wife came into their bedroom and stated that she had been raped and some money had been taken from her. He also testified that the next morning when the appellant came to the back door, he asked appellant, “[w]ere you the guy that messed with my wife last night?” He stated that the appellant ran, and he chased him for about two blocks.

The appellant, Johnny Ray Fisher, testified that he approached the prosecutrix on the front porch and inquired about the use of a telephone. He testified that he walked off two or three steps and then turned around and put his arm around her shoulder. She turned around and “hollered” slightly. After this, the prosecutrix asked him where he was going, and he then asked her if she would like to go for a walk, and she said that she would. The appellant testified that they walked around the apartment and that the prosecutrix asked him if he had ever had sex with a white lady. The appellant stated that they started hugging and kissing, and that she made advances concerning his sexual organ. He testified that he had no weapons in his possession at any time. He further stated that the prosecutrix started taking her clothes off and that he had not asked her for anything. He said she pulled him down on top of her. He admitted to having sexual intercourse with the prosecutrix, after which he said she asked if he needed any money. She had left her purse on the front porch when she went for a walk with him, and they went back to the front of the apartment for her to get her purse. She then emptied the purse on the sidewalk and offered him some pills and money. The appellant stated that the prosecutrix asked him to come back at 7:00 or 7:30 A. M. She told him not to come to the apartment, however, if he saw a black and white car parked there.

Erssie Draper, the next door neighbor of the prosecutrix testified as to the incident on the night of the rape. She stated that the appellant “grabbed” the prosecutrix, and the prosecutrix screamed. She further stated that “[h]e had her around the neck and he carried her on around.” The witness also observed them return to the front of the apartment and saw the prose-cutrix empty her purse onto the driveway and give the appellant a bottle. She heard him say, “I will see you and don’t forget.” She then heard the prosecutrix say, “I won’t.” After this, the appellant walked away. She also testified that the prosecu-trix, after the incident, came to the wrong window and “she pecked on my daughter’s window.”

The State put on a rebuttal witness, Emily Lofty, an employee of a Huntsville motel. Over objection, she told of being assaulted by the appellant five days prior to the instant case. The appellant was called in rebuttal and denied ever seeing the witness and stated that he did not attack her.

I

Counsel for appellant ably and vigorously asserted the rights of his client both in the trial court and here on appeal. Counsel contends that the trial court erred in refusing to allow the appellant to strike a jury from forty-eight veniremen.

Act No. 532, Acts of Alabama 1969, approved August 21, 1969 [Title 13, § 125 (90h) 1973 Cum.Supp., Code of Alabama, Recompiled. 1958] provides that in the Twenty-third Judicial Circuit, a defendant, “. . . in capital felony cases shall be entitled to strike from a list of not less than forty-eight competent-jurors . . . .”

The appellant challenges the trial court’s ruling that capital felonies are now to be considered non-capital felonies since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Appellant’s challenge of the venire is based upon the recent ruling of the Alabama Supreme Court in Ex parte Bynum, Jr., 294 Ala. 78, 312 So.2d 52 (1975). There the Court held that “capital offenses” still exist in Alabama stating, “. . . The only effect of Furman was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.”

Contrary to the broad language employed by the Supreme Court in Bynum, we are of the opinion that the Court was addressing itself solely to the question of bail. The purpose for a special venire in “capital cases” was to give a defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Act No. 532, supra, and Title 30, § 63, Code of Alabama 1940, were enacted, the only distinction between “capital” and “non-capital” cases was the possible imposition of the death penalty. Since the imposition of the death penalty has been suspended, there is no rational justification for a special venire in a case formerly classified as “capital” where the maximum punishment is now the same as in a “non-capital” case.

Should the legislature ever enact a death penalty statute which meets all the constitutional tests for validity, then such special venire statutes would again become applicable, in our opinion. We do not believe the Alabama Supreme Court intended that its reasoning in the Bynum decision should be extended to require a special venire in cases where the death penalty cannot be imposed.

II

The appellant contends that the trial court committed reversible error in certain rulings concerning testimony given by Officer Ronald Adams.

Adams testified that the prosecutrix’s husband met him at the door of the apartment, and the following occurred:

“A. Yes, sir. He stated that his wife had been raped by a colored fellow.
“MR. MORRIS: We object and move to strike any testimony not part of the res gestae.
“THE COURT: I sustain it. But let me point out that you heard the question and you sat there and had an opportunity to hear it without objection. So, the point I am making is, enter your objection timely.
“MR. MORRIS: I didn’t understand all the answer he was giving or the question.
“THE COURT: You understood the question. Go ahead.
“MR. MORRIS: We accept to the Court’s ruling.
“THE COURT: Anyway, I sustain the objection, but enter your — I sustain it, but enter it at the time, next time.”

It is the contention of the appellant that the above statement identified the appellant. The appellant cites a number of cases to the effect that the State may prove that a complaint was made, but details of the occurrence, including the identity of the person accused, are not proper subjects of inquiry. Hall v. State, 248 Ala. 33, 26 So.2d 566 (1946).

Although the proposition of law is correctly stated by appellant, we do not find that the statement here objected to goes into the details of the occurrence or identifies the person accused. The husband’s statement that, “his wife had been raped by a colored fellow,” in no way identified Johnny Ray Fisher as the rapist. The term “colored fellow” is too broad to identify any particular person out of a group of thousands who could fit that description. The trial court sustained the appellant’s objection, but made no ruling on the motion to “strike” the testimony. We find no prejudicial error on the part of the trial judge in sustaining appellant’s objection, but failing to exclude the testimony from the jury.

Officer Adams further testified concerning his investigation, and the following occurred :

“A. She was sitting in a chair in the living room and she was crying.
“MR. MORRIS: Objection, Your Hon- or.
“THE COURT: Overruled.
“MR. MORRIS: Move it be stricken, not part of the res gesta and tending,— not tending to show the particulars of the complaint.
“THE COURT: Overruled.
“MR. MORRIS: Accept, (sic)
“Q. She was crying you say ?
“A. Yes, sir.
“Q. What else, if anything ?
“A. She was hysterical like.
“MR. MORRIS: Objection; calls for a conclusion of the witness and hearsay. Not part of the res gesta and move to exclude.
“THE COURT: I sustain it.
“MR. MORRIS: Move for a mistrial.
“THE COURT: I sustain it as to the conclusion. Overruled.
“MR. MORRIS: Move for a mistrial and—
“THE COURT: Overruled.
“MR. MORRIS: We accept, (sic)”

Hall, supra, holds that where the appellant admits the intercourse, but claims it to be with consent, there is no prejudicial error in eliciting, in addition to the fact of the complaint, the details of the occurrence and identity of the person accused. Supreme Court Rule 45, appendix, Title 7, Code of Alabama 1940. Also see: Etheridge v. State, 47 Ala.App. 233, 252 So.2d 655 (1971).

Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967) states:

“There are two cases, at least, where details of the complaint may be proved: (1) They may be elicited, on cross-examination, by the defendant; and where this is done only in part, the state on rebutting examination, may then proceed to prove the whole complaint. (2) Where testimony of prosecutrix is sought to be impeached, by attempting to discredit her story, it is permissible, by way of corroboration, for the state to prove such details. Barnett v. State, 83 Ala. 40, 44, 3 So. 612.”

In the instant case, there is no question as to the identity of the appellant. At no time did the appellant ever deny having intercourse with the prosecutrix; he freely admits it. He contends it was the prosecu-trix who propositioned him and enticed him into the sexual act.

The appellant contends that the testimony of Officer Adams that he found the prosecutrix sitting in a chair and crying tends to show the particulars of the complaint. We are of the opinion that such testimony, if tending to show the particulars of the complaint, would fall within the second exception set forth in Cox, supra.

In the instant case, the appellant repeatedly attempted to discredit the prosecu-trix’s story by asking her:

“Q. Isn’t it a fact that he wasn’t choking you at all?
“Q. Is it not a fact . . . that it was your idea to go around behind this apartment back there ?
“A. No, sir.
“Q. Is it not a fact that you stated to the defendant, ‘Have you ever had a white woman before ? ’
“Q. Is it not a fact that you made advances to the Defendant on the way around there?
“A. No, sir.
“Q. When you got to the fence back there was it not your idea to have sexual relations ?
“Q. All right. Now, after the defendant got through, after you all got through, is it not a fact that you asked him did he need any money ?
“Q. Isn’t it a fact that you told him you would give him some money when you got around there if he needed any money and he said, ‘Yes.’ And when you got around there you found out you didn’t have any money and you offered him some pills?
“Q. You didn’t tell him that your husband and kids wouldn’t be there the next morning, to come back when they weren’t there ?
“A. No, sir.
“Q. And you would give him some more, not talking about money ?
“Q. Is it not a fact that you told the defendant not to come back as long as that black and white car was parked out there on the curb ?
“Q. Is it not a fact . . . that you were afraid your husband had seen you out there talking to this black boy and you went inside and fabricated all this rape story?
“A. No, sir. That’s not true.
“Q. Is it not a fact that on the porch around there you made some gestures to him and sort of lead him on ?
“A. No, sir. That’s not*true.
“Q. He walked around the house with his arm around you on your shoulder?
“A. No, sir.
“Q. That you came back talking and laughing or talking in a casual way, is that not a fact ?
“Q. Is it not a fact that you enjoyed having sex with this man and reached a climax ?
“Q. Is it not a fact that you stated under oath at the preliminary hearing that you and the defendant embraced each other at the time that he left, the last occurrence, the night this happened ?”

• In addition to attempting to discredit the prosecutrix’s story by the above leading questions, counsel for appellant cross-examined her as to her mental and physical state:

“Q. And you were upset and hysterical and you were — had your senses enough to think to tell this man to come back the next morning, is that correct ?
“MR. SOMERSET: Judge, the question is argumentative. I object to it in that form.
“COURT: Overruled.
“Q. You can answer the question.
“A. Would you repeat it, sir ?
“Q. You were nervous and upset during this situation that you had enough control of yourself to think ahead and tell this man to come back the next morning, is that correct?
“A. No, I didn’t tell him to come back. He said he would come back, I told him it would be o.k. to come back, that I would have some money.
“Q. Were you injured in any other way?
“A. What do you mean, injured ?
“Q. You stated your neck was bruised or something.
“A. Yes. My neck was bruised and he had held me so tight that my tongue, I had bitten my tongue and bruised it.
“Q. Were you bleeding?
“A. Yes, sir. My tongue was bleeding.”

Counsel for the appellant by attempting to discredit the prosecutrix’s story, and by going into her mental and physical state on cross examination, opened the door for the State, for purposes of corroboration, to prove the details of the complaint and to show the appearance of the prosecutrix at the time the complaint was made. Cox, supra; Barnett v. State, 83 Ala. 40, 3 So. 612 (1887).

The trial court sustained the appellant’s objection to Officer Adams’ statement that, “She was hysterical like.” Counsel for appellant then moved for a mistrial which was overruled. In light of the above discussion, we are unable to find that a mistrial should have been granted.

Ill

On cross examination, the appellant admitted to having sex with one other white woman in Oregon, but stated that he had never attempted to have sex with another white woman except the prosecutrix. The State then called Emily Lofty as a witness. She testified that she was an employee of a Huntsville motel on January 22, 1975. She stated that on that date, the appellant came into a room which she was cleaning and asked for someone named Mr. Bob. She told him she did not know anything about a Mr. Bob. She said the appellant then started toward her and told her not to scream. She further stated that, “He started toward me and he said, if you scream I will kill you. So he started choking me.” She testified that she was able to break away from him and ran to the office. The attack took place five days prior to the alleged rape of the prosecutrix.

In Chambers v. State, 264 Ala. 8, 84 So. 2d 342 (1955), Mr. Justice Merrill stated:

“We are cognizant of the line of cases holding that in prosecution for a particular offense, evidence, as to the guilt of the accused of another distinct offense, unconnected with the one charged, is not admissible as substantive evidence to prove guilt of the offense charged. 6 Ala.Digest, Crim.Law, Key 369(1). However, when the accused takes the stand to testify in his own behalf, he does so in a dual capacity — (1) as the accused and (2) as a witness. In his capacity as a witness his credibility may be impeached in the same way or ways in which the credibility of any other witness may be impeached. Stone v. State, 208 Ala. 50, 93 So. 706; Pitts v. State, 261 Ala. 314, 74 So.2d 232. 'A defendant, who testifies for himself as a witness, may be impeached in the same manner as other witnesses, by showing that he has been convicted of crime involving moral turpitude, or that he has made contradictory statements, or that he is a person of bad character.’ Carpenter v. State, 193 Ala. 51, 69 So. 531, 532; Gast v. State, 232 Ala. 307, 167 So. 554; Vaughn v. State, 235 Ala. 80, 177 So. 553; Title 7, § 435, Code 1940.”

Other exceptions to the rule against allowing evidence of collateral crimes are listed in Wharton’s Criminal Evidence,, Section 31:

“These exceptions fall under the following general divisions: (1) Relevancy as part of the res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one band, and, on the other hand, to protect the accused and secure to him the rights guaranteed to him by the Constitution and the laws.”

In the instant case, the prosecutrix contends she was raped. The appellant contends that the sexual intercourse was voluntary and in fact was at the urging of the prosecutrix. Since the intercourse is admitted, the sole question for the jury was whether the act was committed by force or whether it was voluntary. When the appellant took the stand, he denied ever attempting to have sex with white women other than the prosecutrix and a woman in Oregon. He was certainly subject to being impeached on that statement alone. Additionally, his testimony would lead one to believe that he in no way used any force on the prosecutrix, but was an innocent victim of her lust. The testimony of Emily Lofty, that she was attacked by this same appellant five days prior to the alleged attack upon the prosecutrix, should be relevant to show motive and intent or to rebut the appellant’s defense that the act was voluntary. We are of the opinion that the trial court did not err in admitting the testimony of Emily Lofty. See Hogue v. State, 54 Ala.App. 682, 312 So.2d 86, and cases cited therein.

IV

Appellant contends that the trial court erred in refusing Requested Charges No. 32 and 33, which were as follows:

“DEFENDANT’S REQUESTED CHARGE No. 32
“I charge you ladies and gentlemen of the jury that if you believe from the evidence that the conduct of the prosecutrix was such toward defendant, at the time of the alleged rape, as to create in the mind of the defendant the honest and reasonable belief that she had consented, or was willing for the defendant to have connection with her,' then you must acquit the defendant.
“Refused
“Thomas N. Younger
“Circuit Judge
“DEFENDANT’S REQUESTED CHARGE No. 33
“I charge you, ladies and gentlemen of the jury, that in a case of rape, the consent given by the prosecutrix may be implied as well as expressed, and the defendant would be justified in assuming the existence of such consent if the conduct of the prosecutrix towards him at the time of the occurrence was of such a nature as to create in his mind the honest and reasonable belief that she had consented by yielding her will freely to the commission of the act. Any resistance on the woman’s part falling short of this measure would be insufficient to overcome the implication of consent.
“Refused
“Thomas N. Younger “Circuit Judge”

The appellant contends that both charges, dealing with consent, have been approved in other cases and should have been given. The identical issue concerning such charges arose in Rhoden v. State, 49 Ala.App. 605, 274 So.2d 630 (1973). In that case, this Court held the requested charge on consent to have been properly refused as it was substantially covered in the trial court’s oral charge to the jury. Although the charge there had been approved in McQuirk v. State, 84 Ala. 435, 4 So. 775, and Allen v. State, 87 Ala. 107, 6 So. 370, this Court found the court’s oral charge to have sufficiently covered the element of consent.

In the instant case, we find the trial court’s oral charge to be more comprehensive concerning consent than that given in the Rhoden case.

The trial court’s oral charge here, was in pertinent part as follows:

“Rape is the unlawful carnal knowledge of a woman forcibly and without her consent. The carnal knowledge of a woman forcibly and against her will. Rape is the having of unlawful carnal knowledge by a man of a woman forcibly where she does not consent. To sustain an indictment for rape, proof of actual penetration is sufficient when the act is shown to have been committed forcibly and against the consent of the person on whom the offense was committed.
“The elements (sic) of rape then is, proof of an actual penetration committed forcibly against the consent of the person upon whom it was committed. Force need not be actual physical force. It may be, but it need not be. It is sufficient if it is a constructive force such as duress or being put in fear. Overcoming the resistance of the woman is an indispensable element of the offense of rape. Overcoming the resistance of a woman is complete when the woman is made to yield through fear and does not consent voluntarily, whether or not the apprehension of bodily harm is reasonable. One who by force and against the consent of the female has sexual intercourse with her, is guilty of rape. The law does not require that the degree of force must be such as to place the woman under the reasonable apprehension of death or serious bodily harm, but the offense is complete if the female is under such duress as that the act is accomplished against her consent.
“Consent which will be sufficient assumes a mental capacity in the person consenting to the extent that she understands and appreciates the nature of the act of sexual intercourse, its character and the probable or natural consequence which may attend it.” (Emphasis supplied).

We, therefore, are of the opinion that consent was adequately and substantially explained to the jury, therefore, obviating the necessity to give the repetitious charges requested. Title 7, § 273, Code of Alabama 1940.

V

Appellant next contends the trial court erroneously refused to give Requested Charges 37 and 38, dealing with the issue of consent prior to penetration:

“DEFENDANT’S REQUESTED CHARGE No. 37
“I charge you ladies and gentlemen of the jury that where a man takes hold of a woman against her will and she afterward consents to intercourse before the act is committed, his act is not rape.
“Refused
“Thomas N. Younger “Circuit Judge
“DEFENDANT’S REQUESTED CHARGE No. 38
“I charge you ladies and gentlemen of the jury that to sustain a charge of rape, the female must not at any time consent prior to penetration; her consent, given at any time prior to penetration, however reluctantly given, or if accompanied with mere verbal protest and refusals, prevents the act from being rapé, provided the consent is willing and free of initial coercion.
“Refused
“Thomas N. Younger “Circuit Judge”

The appellant, in his testimony, never contended that he used force and that afterward, the prosecutrix consented. He at all times during his testimony stated that the prosecutrix originated the idea of having sex and that he merely acquiesced. He did not claim that he used force when he first approached her on the porch. His testimony was that he put his arm around her shoulder which startled her. He said she then smiled at him and asked where he was going, and he told her he was going to his sister’s house. He asked if she wanted to go for a walk, and she agreed. He said he did not have his arm around her neck, did not threaten her in any way and did not force her in any way to have sexual relations.

The prosecutrix testified that the entire episode, from beginning to end, was accomplished through force and at no time did she ever freely consent. Under this state of testimony, we find no evidence in the record suggesting that after force was used that the prosecutrix changed her mind, ceased to resist and consented to intercourse free of the initial coercion. Therefore, Charges 37 and 38 would be misleading and not based upon the evidence, and thus were properly refused.

It is contended that the refusal of Charge 40 was likewise erroneous. Charge 40, which dealt with lesser included offenses is as follows:

“DEFENDANT’S REQUESTED CHARGE No. 40
“I charge you ladies and gentlemen of the jury that in a charge of rape there are included the following offenses: Assault with intent to Ravish and Assault and Battery.
“Refused
“Thomas N. Younger “Circuit Judge”

There were two separate and distinct stories rendered by the prosecutrix and by the appellant. She said it was rape, and he said it was not. His testimony as to first touching her on the porch does not suggest assault with intent to ravish. The essence of his story was that he was merely asking if she wanted to go for a walk and that sex was suggested by her and was her idea. The testimony from neither party suggests an assault where penetration was either not accomplished, or where there was an assault, but consent occurred prior to penetration.

Under the evidence, the jury could either believe the prosecutrix, in which case the appellant would have been guilty of rape, or they could have believed the appellant, in which case he was guilty of nothing. Requested Charge No. 40 was, therefore, properly refused. Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516 (1973).

Affirmed.

All the Judges concur.


author: ALMON, Justice.

text:
    In re Johnny Ray FISHER v. STATE of Alabama. Ex parte Johnny Ray Fisher.
    SC 1715.
    Supreme Court of Alabama.
    March 5, 1976.
    Cecil Wayne Morris, Huntsville, for petitioner.
    No appearance for the State.
   ALMON, Justice.

Petition of Johnny Ray Fisher for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Fisher v. State, Ala. 57 App. —, 328 So.2d 311.

Writ denied.

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


text:
    Dessie THOMAS, Jr. v. STATE.
    4 Div. 183.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.

      Joseph P. Hughes, Geneva, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This appeal is from a conviction for robbery and a sentence to ten years imprisonment in the penitentiary.

Appellant was jointly indicted with two other defendants for robbing Ruth Helms of the sum of $281.00. He was tried separately; his plea was not guilty. Each of the other defendants was also tried separately, according to the records of this Court. Each of the other defendants was under the age of 21 years, but was tried without being informed of his rights under provisions of the Youthful Offender Act, Code of Alabama, Title 15, Section 266 (1) (2), (3), (4), (5) and (6), recompiled 1958. On appeal from a conviction in one of the cases, we remanded to the trial court with directions. In accordance therewith, defendant was given an opportunity to petition for a trial as a youthful offender, which he did, but the petition was denied. We have recently affirmed his conviction. Wilson v. State, 57 Ala.App. 124, 326 So.2d 314, 1975, cert. denied 295 Ala. 218, 326 So. 2d 315, Alabama Supreme Court, 1976. We also remanded with the same directions the case of the other defendant. His petition for treatment under the Youthful Offender Act was granted; he pleaded guilty to the charge of being a youthful offender and was duly sentenced. After the return to the order of remand, his appeal was dismissed as moot. Whitfield, v. State, 56 Ala.App. 656, 324 So.2d 797.

No youthful offender problem is presented here. Appellant testified that he was 21 years of age.

Ruth Helms testified on the trial of appellant that on September 29, 1971, she was manager of the Scooter Store in Hartford. About 10:30 P.M., appellant-defendant came into the store, bought a bag of candy and left. Immediately thereafter, Leroy Wilson and Walt Whitfield, codefendants, walked in. After she waited on a customer and the customer left, either Wilson or Whitfield pointed a gun at her, and the other said, “Baby, I hate to do this to you, give me your money.” They ordered her to lie on the floor, which she did. One of them picked up her pocketbook and walked with it to the number one cash register, opened the cash register and loaded the pocketbook with the money. The one who pointed a gun at her told her to open the number two cash register; one of them asked her where the money was that she had taken out of the cash register and she replied by giving him the bag, which he opened and took three twenty-dollar bills out of it and left the bag in the store. They told her to stay on the floor and then left. She had observed 'that each had a pistol while in the store. As she got up from the floor she saw them in an automobile moving slowly through the parking lot. It was a heavy type car, about the size of her Buick, either a gray with a white or a light top or blue with a light top; she didn’t know the make of the car. Neither of the two was driving the car; she could not see the driver. She then called the police. Her pocketbook was returned to her the next day at the sheriffs office. Missing from it were money and several other items, including a cigarette lighter, a roll of old pennies, some loose silver coins and a set of keys; some of these items were on the sheriff’s desk; she positively identified the cigarette lighter because of the flints underneath, and she stated that she was sure the roll of coins was hers. There was a street light outside the store on the corner, and there were double rows of lights across the building underneath the “overhead” of the porch; the front of the store, including the doors, was made of glass, and no merchandise was stored in front of the windows at that time; the windows were absolutely clear. While the robbery was taking place, she noted a police car driving through the parking lot about thirty to thirty-five feet from the building.

State Investigator Joe Tom Masters testified that about 10:30 A.M. September 30, 1971, he searched Dessie Thomas’ 1969 Cadillac automobile in front of the Geneva City Hall, where it was parked. He described the automobile as one with a blue bottom and a white or light top and a Miami, Florida, tag on it. He had a search warrant for it. In searching the car, including the trunk, he found a paper bag with forty-four one dollar bills in it, a roll of pennies, four Top Value yellow stamps; several quarters, dimes, nickels and pennies and a cigarette lighter. He also found two other paper bags with money in them. One hundred and ten quarters were in one; forty-four one dollar bills, ninety-nine dimes, eleven nickels and fifteen pennies were in the other. Appellant was present when the search was made and let them have the key to open the trunk of the car. Captain Masters left all of the items in the sheriff’s office. The first bag mentioned had been opened when shown to Captain Masters while on the witness stand. The other two had not been opened apparently, and he had signed and sealed them before leaving them in the sheriff’s office.

A first cousin of appellant testified that on the morning of September 30, police officers came to his grandfather’s, where Dessie Thomas was visiting and Walt Whitfield and Leroy Wilson were at the time, and took Walt and Leroy to the City Hall. About ten or fifteen minutes after they left, Dessie gave him a pistol, stating that he (Dessie) did not have a permit, that “if they caught him they would give him a fine.” The witness afterwards turned the pistol over to Captain Masters. A pistol was then introduced in evidence, which Captain Masters had testified was the same pistol.

Defendant testified that he took no part in the robbery of the Scooter Store and that he had no knowledge of or information concerning it until the next day. He said he was in the Scooter Store about five minutes after ten o’clock and bought some candy and chewing gum. He narrated his whereabouts the afternoon before and the entire night of the robbery. He stated that he had brought his two friends, Leroy Wilson and Walt Whitfield, from Miami to Geneva County, Alabama, about a week before the robbery. He and they were staying at the home of his grandmother in Geneva. His aunt also lived in Geneva, and he was keeping his clothes at his aunt’s house. On the night of the robbery he went to his aunt’s house and changed his clothes; he left there and went to Dothan with Walt Whitfield and Leroy Wilson; he was driving his Cadillac; they left Dothan around 9:15 P.M., stopped at Hartford, drove on to Geneva where he left Wilson and Whitfield at his grandmother’s house about a quarter to ten. He then returned to Hartford by himself, arriving there about 10:00; he went by his girl friend’s house and upon leaving stopped at the Scooter Store and bought some candy and chewing gum. He then went to the home of Jacqueline Peacock at Samson, stopping on the way briefly in Geneva. He arrived at the home of Jacqueline about 10:30 P.M. and stayed there the rest of the night, until about 9:30 the next morning. She was the only one there when he arrived, but later four others came and there was some drinking. He passed out and woke up the next morning. He went to his grandmother’s house and was informed there that the police had Wilson and Whitfield. He gave his gun, the gun that had been offered in evidence, to John Doss McKinney and told him to keep it for him. He went to the City Hall in Geneva and parked his car in front. Soon thereafter he and Wilson and Whitfield went with officers to the Scooter Store in Hartford. They returned in about forty-five minutes or an hour to Geneva and went to the sheriff’s office. His automobile was searched. He didn’t have his trunk key on him at the time. He had left it the night before at his aunt’s house. He was taken to his aunt’s house where he procured the key with which the trunk was opened.

Explaining the money found in the trunk of his automobile, defendant testified that when he came to Geneva from Miami, he had about $600.00 and had won about $120.00 or $130.00 in two dice games; he put the small bills in a sack or sacks in the trunk of the car and the large bills in a painting kit in the trunk of the car, which was referred to by Captain Masters in his testimony, but apparently the kit was not searched. Defendant said he also had a cigarette lighter in the trunk of his car but that the lighter introduced in evidence was not his lighter, because his lighter was newer and had recently been bought by him. He said also that he had bought some pennies to give to his child.

The testimony of a large number of other witnesses for the defense corroborated defendant’s testimony as to the time spent with Jacqueline commencing about 10:30 the night of the robbery and his testimony as to his winnings in the dice games as well as some other parts of his testimony.

Appellant advances nine “PROPOSITIONS OF LAW” in support of his argument for a reversal. The first two relate to a confrontation or lineup at the Scooter Store the morning after the robbery. The next two question the legality of the search of the defendant’s automobile and urge that the court should have suppressed and not admitted evidence of the results of the search. The next three question the sufficiency of the evidence to support a conviction. The next charges that it was error to admit into evidence the pistol owned by defendant. The last proposition “CHARGES ERROR IN THE REFUSAL TO GIVE A PARTICULAR CHARGE REQUESTED BY DEFENDANT.” We consider the contentions of appellant in the order stated.

Well before the trial commenced, defendant sought to prevent the admission in evidence of the identification of the robbers by the victim, and testimony relative to the contents of the trunk of defendant’s automobile, by motions to suppress, which motions were heard and overruled by the court.

In support of his position relative to evidence of the victim identifying the robbers, appellant cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Appellant argues that he was entitled to counsel at the time that he and his codefendants went to the Scooter Store on the morning after the robbery and were there identified by the victim in what is referred to by appellant as a lineup. The evidence shows that they with two others were viewed by the victim. As to appellant, there is no evidence of any coercion of him or of any involuntary conduct on his part. Even though denied by him, the evidence is strong that he was fully advised of his right to counsel, that counsel would be supplied him if he did not have counsel, and that he did not have to say anything or do anything. The cases cited by appellant, constituting the Wade-Gilbert-Stovall trial of June 12, 1967, are inapposite. In Wade and in Gilbert, an indictment had been returned. Stovall involved a show-up, or confrontation between a witness and one possible or potential defendant, not a true lineup between a witness and two or more persons. As to Wade and Gilbert we held in Ratcliff v. State, 49 Ala.App. 77, 268 So.2d 858, cert. denied 289 Ala. 750, 268 So.2d 859 through Judge, now Justice Almon:

“Appellant’s sole contention on appeal was that he was not accorded the right to counsel at the time of the line-up as required by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Since this case was submitted, the United States Supreme Court has on June 7, 1972, rendered a decision in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L. Ed.2d 411, which is dispositive of the issues in this cause.”

We have followed Kirby v. Illinois in several cases and as recently as in the companion case of Wilson v. State, 57 Ala. App. 125, 326 So.2d 316.

The only evidence of identification by the victim of the robbery shown by the State was the in-court identification. No effort was made by the State to show a lineup identification. Defendant on cross-exámination of the victim injected into the evidence the identification made by her of appellant’s codefendants. In Wilson, supra, we rejected appellant’s claim that the lineup “was so unnecessarily suggestive and conducive of irreparable mistaken identification that he was denied due process of law” (Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. 1967) and followed views expressed' and conclusions reached in Neil v. Diggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Thomas v. State, 50 Ala.App. 227, 278 So.2d 230. Opposed to appellant’s contention are also Smith v. State, 55 Ala.App. 26, 312 So.2d 598 (1975); Clark v. State, 54 Ala.App. 217, 307 So.2d 28 (1975); Sims v. State, 51 Ala.App. 183, 283 So.2d 635 and other cases.

Participating in the lineup were the three defendants and two young men of the same color, one of whom was approximately the same age as appellant and the other approximately the same age as the codefendants. There is some conflict in the evidence presented on the motions to suppress, but on the whole we find little basis for any contention that there was any effort on the part of the officers to lead or mislead the victim in her efforts to identify the persons who robbed her.

What we have held in Wilson v. State, supra, should apply with greater force in this case. The victim did not identify appellant as one of the robbers. She did identify him as one who was in the store before the robbery occurred. This was admitted by appellant when he took the stand. The only difference in the appellant and the victim as to this fact was that according to appellant’s estimate of time he was there and left immediately before the the robbery occurred but the victim said he was there und left immediately before the robbers entered the store. To be added to the “totality of the circumstances” to be considered is the obvious acumen of appellant. He was extraordinarily wise in the ways of the world, by no means a bumpkin. His ability to live luxuriously by his wits bespeaks his brilliance but is no testimonial to his integrity.

As to appellant’s insistence that the evidence is insufficient to support the verdict or too weak to justify the trial court’s overruling of defendant’s motion for a new trial, we must say that it is far from conclusive and not one of the strongest cases to be found. Even so, we are convinced that the evidence was sufficient to sustain the verdict of the jury and that it was within the province of the trial court to uphold it against an attack to the effect that it was against the weight of the evidence.

The alibi evidence was not strong, in our opinion. This by reason chiefly of the fact that the time testified to by defendant’s witnesses was so close to that testified to by the victim of the robbery as to fail to present an obstacle to the reconciliation of the two views, consistent with defendant’s presence at the place of the robbery immediately before the robbers entered the store. Furthermore, the presence of the kind of money in the truck of defendant’s automobile in all the circumstances is strong evidence of his connection with the robbery as an aider or abettor. His explanation is interesting but not convincing. There is no contention that the robbers put the loot or a part of it in the trunk of his automobile. He was the only one that had the key to it. In the trunk was found money remarkably similar to some of the money taken from the victim, an identical roll of pennies, according to her. Also in the trunk was the cigarette lighter she said was taken from her, which defendant-appellant acknowledged was not his and which the victim said she could positively identify by reason of some of the flints that were in it. There was no error in the overruling of defendant’s motion to exclude the testimony, in refusing his requests for the general charge 'in his favor or in the action of the trial court in overruling his motion for a new trial.

Appellant makes a strong case to the effect that the search warrant did not measure up to all of the requirements of a valid search warrant, but we see no necessity for ruling upon this particular question. The search of the automobile, including the trunk of the automobile, according to all the evidence in the case, was without any objection whatever upon the part of defendant. He was apparently active voluntarily, in all of his conduct, after learning that the officers had brought the codefendants to the City Hall. This is some evidence, we think, in favor of him on the question of his guilt, but it is evidence against him on the question of the validity of the search. In addition, after the officers went to the store where the robbery took place at Hartford and returned to Geneva, they unquestionably had probable cause for believing defendant par-ticeps criminis and that there were some fruits of the crime in the automobile. They had learned that appellant was in the store a few moments before the robbery took place; that the robbers had been his companions that day and for a week before; that he was the oldest of the three; that he was well acquainted with the people and places of Geneva County. They had been reliably informed that an automobile very much like defendant’s was at the store at the time of the robbery, that the robbers left the store in it and that it was not driven by either of them. At that time the only information they had and information upon which they had the right to rely pointed ,almost conclusively to him as the driver of the automobile. There was probable cause for search of the automobile while it was in front of the City Hall. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 25 L. Ed.2d 419 (1970); United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971); Suggs v. State, 49 Ala.App. 118, 269 So.2d 136. The fact that a search warrant was obtained, even if defective, does not militate against the principle that with probable cause for the search the search was not unconstitutional or illegal. Bassett v. State, 290 Ala. 259, 275 So.2d 720, cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86.

Appellant urges that there was error in admitting the pistol of appellant into evidence, saying that it was “completely irrelevant and immaterial, as the state never did connect it up with the robbery.” “Any indications of a consciousness of guilt by a person suspected of or charged with crime, or who may after such indication be suspected or charged, are admissible evidence against him.” McAdory v. State, 62 Ala. 154; Seals v. State, 271 Ala. 142, 122 So.2d 513; Cobb v. State, 50 Ala. App. 707, 282 So.2d 327. Two pistols were used by friends of appellant in the commission of the robbery. If his possession of a pistol the next day was the only evidence against him of any connection with the robbery, evidence thereof would have had no standing. It was a circumstance, however, to be considered by the jury, together with all other circumstances, on the question of his guilt. If his explanation of his possession of it and of his reasons for attempting to conceal it from others was true, testimony as to the jristol would not have been relevant, but the jury did not have to believe his explanation and evidently did not do so. The pistol was properly admitted in evidence.

Finally, appellant asserts that the court was in error in refusing the following charge requested in writing by defendant :

“DEFENDANT 27.
“I charge you that if the evidence of the State consists in the statements of witnesses, the truth of which the jury have reasonable doubt, you cannot convict on such evidence, although you may not believe the testimony of the Defendant’s witnesses.”

As stated by appellant, the predecessor of this Court has held that it was reversible error for the trial court to refuse such a requested charge. Brown v. State, 20 Ala. App. 39, 100 So. 616. The ruling ran into rough sailing. The correctness of the charge was seriously questioned. The question of the reversibility of the judgment of the trial court by reason of the refusal of such charge was resolved adversely to appellant in Crews v. State, 218 Ala. 145, 117 So. 801 [answer conformed to 22 Ala.App. 564, 117 So. 801] (1928), wherein it was said:

“. . . We are of the opinion that the charge in question is, upon its face, subject to objection, and may be properly refused. We think, also, it could be given without error.”

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

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

Affirmed.

All the Judges concur.

      . Although it seems clear that all parties, witnesses, jurors, the judge and the jury were so well acquainted with the places and distances between places involved that there was no necessity for any evidence on the subject, it should be stated perhaps that Hartford, where the robbery occurred, is approximately twelve miles east and that Samson, where defendant testified he spent the night with Jacqueline, is about twelve miles west of the city of Geneva.


author: PATTERSON, Presiding Justice:

text:
    Bernard CURRY v. STATE of Mississippi.
    No. 48859.
    Supreme Court of Mississippi.
    March 16, 1976.
    Joseph H. Benvenutti, Bay St. Louis, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   PATTERSON, Presiding Justice:

Bernard Curry was tried and convicted in the Circuit Court of Hancock County for murder. From this conviction and sentence to life in the state penitentiary he appeals. We affirm.

Forrest Summers was shot and killed in his grocery store in Pearlington, Mississippi, at 8:30 a. m. on August 31, 1973. The shot was fired in an attempted robbery by a man who wore a mask. None of the witnesses could identify the face of the murderer who escaped after the killing.

Mrs. Eldora Summers, wife of Forrest Summers, testified that the afternoon before her husband was shot a man whom she later identified as Bernard Curry came into the store. She also testified that the man who ran out of the store after the shooting had the same build and height as Bernard Curry.

Two witnesses placed Curry in Slidell, Louisiana, not too far distant from Pear-lington, at 7:30 a. m. on August 31, 1973. At that time he occupied a car with Alfred Thomas who was later named an accomplice by Curry in his confession of the crime.

On January 22, 1974, Willie Lee, a part-time deputy sheriff of Hancock County, was transporting a truckload of junk-scrap to New Orleans, Louisiana, for sale. At the Louisiana-Mississippi border he stopped his truck and picked up a hitchhiker who later introduced himself as “Wild Man Curry.” Curry told Lee that he was “hot” and that he had “knocked a guy off.”

He accompanied Lee into the city of New Orleans where the two made arrangements to meet about an hour later in a junkyard where Curry had requested to be taken.

During the trip Deputy Lee recalled Summers’ death by gunshot some several months before. As soon as Curry departed the truck, Lee hastened to a phone and called the Sheriff’s Office in Hancock County and they notified the Police Department of the City of New Orleans of Curry’s presence. Four police officers of the city thereafter arrested Curry as a felony fugitive from the State of Mississippi.

Curry was informed of his Miranda rights at the time of the arrest and later driven to the New Orleans Police Station. There he signed a waiver of his constitutional rights and told the officers that he and Alfred Thomas had met early on the morning of August 31 and had driven to Pearlington, Mississippi. He told them that he had walked into the Summers store, drawn a .38-caliber revolver, and shot Summers when the latter advanced on him during the robbery. Thereafter he ran from the store and fled the scene in an automobile with Alfred Thomas who had been parked nearby.

The appellant presently contends for reversal that the confession should not have been permitted in evidence by the trial court. Three of the four New Orleans police officers who were present at the time of the confession testified at the trial. The absence of the other was explained by his presence in San Francisco, California, attending another trial. Each of the three officers testified there were no threats, coercion or offer of reward made or offered to the defendant to obtain the confession. Their testimony was that it was freely and voluntarily made. In Jones v. State, 209 Miss. 896, 48 So.2d 591 (1950), this Court held:

When evidence is conflicting on the admissibility of a confession, the Court will not disturb the trial court’s finding unless it appears clearly contrary to the evidence. (209 Miss, at 900-901, 48 So.2d at 593).

See also Agee v. State, 185 So.2d 671 (Miss.1966); and Ivey v. State, 246 Miss. 117, 149 So.2d 520 (1963).

The trial court’s finding on the vol-untariness of the confession, in our opinion, was in accord with the great weight of the evidence and since this is so, we cannot state that it clearly appears to be contrary to the evidence. We conclude that the confession was a proper part of the state’s evidence.

The argument is advanced, however, that the trial court erroneously permitted it in evidence because in ruling on the volun-tariness of the confession the trial judge referred to and relied upon the testimony of Deputy Willie Lee in reaching his conclusion. This argument is buttressed by the fact that Deputy Lee was not present when the confession was made. However, our review of the trial judge’s discourse indicates that the judge had reference to Curry’s propensity toward confession as revealed by his conversation with Deputy Lee while they were enroute to New Orleans. Moreover, in his ruling the trial judge also referred to the testimony of the New Orleans officers, clearly indicating, we think, that his ultimate finding of vol-untariness was not restricted to the sole testimony of Deputy Lee. It is our conclusion, therefore, that the trial judge’s reference to Lee did not discredit the confession.

The appellant next contends that a picture of Summers’ body should not have been admitted into evidence since the coroner’s report on the cause and fact of Summers’ death was stipulated and hence the picture served no useful purpose and had the likelihood of prejudicing the jury. We are of the opinion the introduction of the photograph was within the sound judicial discretion of the trial judge. Crosby v. State, 270 So.2d 346 (Miss.1972). We agree that the photograph under the circumstances of this case served no useful purpose, but on the other hand, it is our opinion that no prejudice emanated from its introduction since it does not appear inordinately gruesome and would not appear so to an adult jury acquainted with the norms of life and death.

The final argument for reversal is that the district attorney in his closing argument improperly commented upon the defendant’s possession of a Bible during the trial. The incident arose when the district attorney commented on the action of the defendant in holding and fondling a Bible by stating to the jury that the Bible also says “Thou shall not kill.” The defendant’s objection was overruled.

In Stewart v. State, 263 So.2d 754 (Miss.1972), we held that in a criminal case the state’s attorney should be careful not to indulge in personal abuse or vilification of the defendant. We repeat this pronouncement because it reminds that convictions are to rest upon evidence rather than persuasive summation of attorneys. We are of the opinion the referenced comment was not prejudical since the great likelihood existed that the jury was familiar with the quotation from Holy Writ and was at most merely reminded of that which it already knew. Overall we do not think the comment prejudiced the appellant.

Our review of the record reveals no error in the trial prejudicial to the defendant. He was afforded a fair trial, in open court, and was convicted from competent evidence, necessitating the cause to be affirmed.

AFFIRMED;

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JT-, concur.