author:
ALMON, Justice.
     MADDOX, Justice

text:
    Lois McDonald LEE et al. v. Kathryn L. McDONALD et al.
    SC 1287.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    Rehearing Denied Nov. 5, 1976.

      Lewis K. Cato and James B. Morton, Birmingham, for appellants.
    Donald L. Newsom and Samuel Maples, Birmingham, for appellees.
   ALMON, Justice.

This case involves a bitter dispute between family members over the ownership of property. Their disagreement led to this lawsuit in which the appellees, Kathryn McDonald and her seven children, sought to have a deed conveying the residence of Kathryn McDonald and her deceased husband, Fred McDonald, to Lois McDonald Lee, declared to be a mortgage. Lois McDonald Lee and D. C. Lee are appellants.

D. C. Lee, son-in-law of Kathryn and Fred McDonald, Sr., and husband of Lois McDonald Lee, testified that he paid a hospital bill of Kathryn McDonald’s in the amount of $3,609.95 in 1966. He paid the bill because he happened to have the money at the time but he testified that he did not consider it to be a loan. He later billed the rest of the McDonald children for their share.

On March 4, 1968, Kathryn McDonald and her now deceased husband, Fred McDonald, unconditionally conveyed their residence to their daughter, Lois McDonald Lee, for a consideration of one dollar. D. C. Lee testified that he was not present at the signing of the deed and did not even know about the conveyance until several weeks later when Lois decided to mortgage the property.

Appellees filed their complaint on July 16, 1974, seeking to have the deed set aside and alleging the following grounds: (1) a pre-existing debt was secured by the deed, and the deed should be construed to be a mortgage; (2) undue influence; and (3) fraud.

Appellants filed a motion to dismiss, which motion was denied, and filed their answer. The cause was heard on the merits on March 5,1975. At the close of appellees’ case, the appellants moved for a directed verdict, which motion was denied.

A judgment was entered on March 21, 1975, in which the court made the following findings of fact:

1. That appellee was hospitalized in 1966 and incurred medical bills in the amount of $3,609.00, which were paid by appellant;
2. That appellee and her late husband conveyed their homestead to appellant as security for the advances;
3. That such conveyance should be considered to be a mortgage, rather than a deed;
4. That since the execution and delivery of the deed to appellant, appellee and her late husband had repaid appellant for all sums expended in their behalf; and
5. That appellant, after securing a title to the property executed a first mortgage on the property in the amount of $6,400.00 and a second mortgage in the amount of $6,288.00.

The court ordered appellant to reconvey the property to appellee by warranty deed and to pay off two mortgages as the payments fell due.

On March 28, 1975, appellants filed a motion to amend the findings of fact and judgment. The motion was denied. Appellants have appealed the judgment to this court.

Appellants allege that the court erred in finding that the deed should be considered a mortgage.

There is no question but that a court with equity jurisdiction has jurisdiction to entertain a complaint to have a deed declared a mortgage and to grant such relief. See Cousins v. Crawford, 258 Ala. 590, 63 So.2d 670 (1953) for a thorough discussion of the principles of law governing cases of this kind.

The measure of proof required in a case of this nature was stated in Reeves v. Abercrombie, 108 Ala. 535, 19 So. 41 (1895) and was restated more recently in the case of Satterfield v. Satterfield, 288 Ala. 182, 184, 258 So.2d 889, 891 (1972):

“ ‘The burden is upon the complainant to establish the averments of his bill by “clear and convincing,” or, as has been otherwise expressed, by “strong and stringent, evidence.” “It is not sufficient to raise a suspicion or doubt as to whether the instrument which the parties have adopted as the evidence of their agreement correctly states the contract. The court must be satisfied by, at least, a clear preponderance of proof that a mortgage, and not an absolute sale, was intended.” Brantley v. West, 27 Ala. 542. Such must have been the clear and certain intention and understanding of the grantee, as well as of the grantor. West v. Hendrix, 28 Ala. 226; Adams v. Pilcher, 92 Ala. 474, 8 So. 757. No more striking proof of the steady adherence by this court to these rules can be afforded than a reference to the numerous cases in which complainants have failed to secure favorable decrees upon bills filed to have absolute conveyances declared to be mortgages. Ingram v. Illges, 98 Ala. 511, 13 So. 548; Adams v. Pilcher, 92 Ala. 474, 8 So. 757; Downing v. [Woodstock] Iron Co., 93 Ala. 262, 9 So. 177; Vincent v. Walker, 86 Ala. 333, 5 So. 465; Knaus v. Dreher, 84 Ala. 319, 4 So. 287; Perdue v. Bell, 83 Ala. 396, 3 So. 698; Douglass v. Moody, 80 Ala. 61; Mitchell v. Wellman, [80 Ala.] 16; Logwood v. Hussey, 60 Ala. 417; Haynie v. Robertson, 58 Ala. 37; Peeples v. Stolla, 57 Ala. 53; Phillips v. Croft, 42 Ala. 477; Swift v. Swift, 36 Ala. 147; Pearson v. Seay, 35 Ala. 612; Sewell v. Price’s, Adm’r, 32 Ala. 97; Harris v. Miller, 30 Ala. 221; West v. Hendrix, 28 Ala. 226; Brantley v. West, 27 Ala. 542; Bryan v. Cowart, 21 Ala. 92; Chapman v. Hughes, 14 Ala. 218; Freeman v. Baldwin, 13 Ala. 246; McKinstry v. Conly, 12 Ala. 678; Eiland v. Radford, 7 Ala. 724.’ ”

We think the trial court was erroneous in its conclusion that the burden was met in the instant case.

After reviewing the record in this cause, we do not find the requisite clear and convincing proof that a mortgage was intended instead of an absolute sale.

Part of Mrs. McDonald’s testimony was as follows:

“Q. I’ll ask you whether or not Mrs. Lee knew anything about this property reverting back to you and your husband after a certain period of time?
“A. Not that I know of.”

At no time did Kathryn McDonald testify that she intended the deed to operate as a mortgage. Her testimony at times was confusing and showed lack of memory, perhaps due to old age and failing health. The appellee’s burden was complicated by the fact that Fred McDonald, one of the grantors, was deceased at the time of trial. There was no evidence of his intent at the time the deed was executed.

Although several witnesses testified that they had seen a ledger upon which Mrs. McDonald kept a record of payments to her daughter, which were alleged to be in repayment of the hospital bill, there was little or no evidence that the conveyance of the property was in any way connected with these payments or with the hospital bills. From the evidence in the record, one could easily conclude that the conveyance was merely a gift of appreciation to a loving daughter. It is conclusive from the record that Mrs. Lee took more responsibility in caring for her aging parents than did the other children. For a number of years Mr. and Mrs. Lee brought groceries for and looked after the affairs of Mrs. Lee’s parents. This continued after the death of Mr. McDonald and until the family dispute arose.

At least two witnesses, Keith McDonald and D. C. Lee, testified that D. C. Lee had divided the hospital bill pro rata so that each member of the family could repay his proportionate share of the bill to D. C. Lee. They both testified that one of the family members, Mrs. Margaret Fowler, had repaid her share. If the deed were merely meant to provide security for a debt, it would seem inconsistent for D. C. Lee to bill the other members of the family for payment of their share of the hospital bill.

Under our system of jurisprudence, a conveyance of property must conform to certain formalities in order to receive the protection of our courts. Once these formalities are met, a conveyance should not be set aside and declared to be a mortgage unless the evidence is clear and convincing. We conclude that appellees failed to meet this burden of proof.

We are aware that where evidence is taken ore tenus, there is a presumption of correctness in favor of the findings of the trial court which will not be disturbed unless palpably wrong. We have concluded, however, that after considering the evidence most favorable to appellees, it was insufficient as a matter of law to support the judgment.

REVERSED AND REMANDED.

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

MADDOX, J., with whom JONES and SHORES, JJ., concur; dissents.

MADDOX, Justice

(dissenting).

I dissent. Upon review of the entire record in this cause, I am of the opinion that there was sufficient evidence presented to sustain the finding by the trial court that the conveyance in question should be considered to be a mortgage rather than a deed. It is a well-settled principle that where testimony is taken ore tenus, the findings of facts made and entered by the trial court will be sustained unless they are plainly and palpably wrong. Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1974); Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764 (1969). In view of the presumption accorded the trial judge’s findings, I do not believe they are clearly and palpably wrong.

JONES and SHORES, JJ., concur.

       The writer of this opinion was not present at oral argument but has listened to the tape recording of that proceeding.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Margie J. GRAVES v. Jack L. GRAVES.
    Civ. 786, 786-X.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.
    Rehearing Denied Sept. 8, 1976.

      Murray W. Beasley, Tuscumbia, for appellant and cross-appellee.
    Inge P. Johnson, Tuscumbia, for appellee and cross-appellant.
   WRIGHT, Presiding Judge.

Both parties appeal from a judgment of modification of an original decree for alimony-

The parties were divorced by decree of January 28, 1967. By agreement incorporated in the decree, the wife was given custody of three minor children. She was given the home and furnishings together with various other personal property including bonds and six life insurance policies. The husband agreed to pay 28.23% of his income as alimony and 20.31% as child support. He was to maintain health insurance, a $10,000.00 life insurance policy on his life with the wife as beneficiary, and pay one-half of medical bills for the children above the insurance coverage.

Husband is employed by the United States Public Health Service. Over the years his income has increased from some $11,000.00 to over $25,000.00 per year. He faithfully maintained payments under the agreement except for a deficiency arising from disagreement as to what constituted income for alimony purposes. The judgment appealed from required the husband to pay to the wife the sum of $7,901.70 as arrears. That amount has been paid and is not involved in the appeal.

The children have reached majority and no longer receive support. The former wife has a master’s degree and presently earns over $13,000.00 per year. She has been employed as a teacher since the divorce. She is in good health, draws some $700.00 per year in interest from insurance policies. Her alimony at the time of the hearing was $592.00 per month. Her total income from employment, interest and alimony is over $20,000.00 per year.

The former husband has remarried and has a four-year-old child. His wife does not work.

After hearing the testimony orally, the court modified the payment of alimony from 28.23% of husband’s gross income to $175.00 per month. It is from this order that each party appeals. The wife contends she should continue to receive the full amount. The husband contends that the wife no longer needs alimony and it should have been totally eliminated.

This is an unusual case in several aspects. For ten years the husband has faithfully paid nearly 50% of his gross income to his wife and children together with other contributions. His income has more than doubled during that time and thus his payments to his family. There have been no court battles to alter or enforce payments. Except for an incorrect interpretation of the meaning of gross income by the husband, payments were properly made. The husband has now paid in cash over $7,000.00 to the wife to correct the misinterpretation. The wife has had a substantial income of her own since the divorce, and now makes over half as much as the former husband without benefit of alimony.

We have carefully considered the evidence in light of the presumption that the judgment of the trial court after oral hearing is correct. Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475. It is not the province of this court on appeal to substitute our view of the testimony for that of the trial court. Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558. That court has broad discretion and will not be reversed except for palpable abuse. Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616. We find no such abuse in the judgment below. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    In re Margie J. GRAVES v. Jack L. GRAVES. Ex parte Jack L. GRAVES.
    SC 2065.
    Supreme Court of Alabama.
    Oct. 29, 1976.
    Inge P. Johnson, Tuscumbia, for petitioner.
    No appearance for respondent.
   EMBRY, Justice.

Petition of Jack L. Graves for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Graves v. Graves, 338 So.2d 410.

WRIT DENIED.

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


text:
    In re Margie J. GRAVES v. Jack L. GRAVES. Ex parte Margie J. Graves.
    SC 2066.
    Supreme Court of Alabama.
    Oct. 29, 1976.
    Murray W. Beasley, Tuscumbia, for petitioner.
    No appearance for respondent.
   EMBRY, Justice.

Petition of Margie J. Graves for Certiora-ri to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Graves v. Graves, 338 So.2d 410.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Jarvis RYALS v. John Malcolm LANEY.
    Civ. 869.
    Court of Civil Appeals of Alabama.
    Oct. 13, 1976.

      Sarah L. Thompson, Tuscaloosa, for appellant.
    Joe G. Burns, Jr., Tuscaloosa, for appel-lee.
   HOLMES, Judge.

Prom a judgment awarding $900 in damages by the trial court sitting without a jury, the lessee, Dr. Jarvis Ryals, takes this appeal.

Dr. Ryals, through able counsel, contends that the judgment of the trial court is due to be reversed in that (1) the parties to the lease by their conduct, cancelled the lease; (2) that the lessor failed to sublet the premises for the remainder of the lease; and (3) that, in this instance, by selling the premises prior to the expiration of the lease, Dr. Ryals (lessee) is not liable for a portion of the rent. We find no merit in the above and affirm.

The record indicates the following:

In 1974, Mr. Malcolm Laney, the lessor and appellee, was the owner of a house located at 1305 Dearing Place in Tuscaloosa, Alabama. Mrs. Elon Hamner represented Mr. Laney in real estate transactions over a period of years and handled the leasing of the house to Dr. Ryals.

The lease was executed between Mr. La-ney and Dr. Ryals and ran from October 15, 1974, to October 15, 1975. It provided for monthly rental of $225 and also prohibited either the sublease or assignment by the tenant without the written consent of Mr. Laney.

Sometime in mid June, after making a rental payment covering the May 15 to June 15 period, Dr. Ryals and his family vacated the 1305 Dearing Place premises and moved into a newly built home. Dr. Ryals failed to inform Mr. Laney of the vacation of the premises, although he did turn in the house keys to Mrs. Hamner’s real estate office.

It is at this point in the chain of events that controversy arises concerning what thereafter transpired. Dr. Ryals testified that conversations with Mrs. Hamner led him to believe that he could vacate the premises; that she would find a suitable tenant to occupy the premises for the remaining four months of the lease term; and that an offer by a responsible individual, Dr. Howard Barry Hannah, to lease the premises for the remainder of the lease term was .refused by Mr. Laney through his agent, Mrs. Hamner.

Dr. Howard Barry Hannah testified that he attempted to rent the house for the remaining four months of Dr. Ryal’s lease, with an option to buy to be exercised at that time.

Mrs. Hamner, on the other hand, testified that she told Dr. Ryals, prior to his vacation of the premises, that he could sublease the premises so long as the terms of the lease were carried out. She stated that rather than selling the house in October of 1974, as had previously been the intention of Mr. Laney, she had obtained his consent to rent the premises to Dr. Ryals. She was prompted to obtain Mr. Laney’s consent to rent to Dr. Ryals by a plea from one of her personal friends, Dr. Jim Morris, to find a nice rental home for a new physician who was coming into town. Prior to Dr. Ryals’ leaving 1305 Dearing Place in June of 1975, Mrs. Hamner told him that the house was to go up for sale in October of 1975 and that it might be difficult to find a tenant for only a four month period. She further testified that she never made any attempt to sublease the house, as it was to be sold upon termination of Dr. Ryals’ lease. Additionally, she stated she explained to Dr. Hannah that he could move into the house under a lease which would contain an option to buy provision exercisable on or before October 15, 1976, but she never received any offer from him to execute such an agreement.

It is uncontroverted that Mr. Laney’s house was eventually bought by Dr. Robert G. Harris. The sale was closed on August 20, 1975; and Dr. Harris moved into the house on November 20, 1975. It is likewise clear that Dr. Ryals never attempted to obtain Mr. Laney’s written consent to either a sublease or assignment of the lease.

Mr. Laney’s complaint sought damages of $900 for unpaid rent accrued from June 15, 1975, through October 14, 1975; $300 for damages to the leased premises which occurred during Dr. Ryals’ occupation as lessee; and $300 in attorney’s fees. The transcript of evidence disclosed that the leased premises sustained $100 to $150 in damages prior to the time of Dr. Ryals’ departure.

On March 24, 1976, the Circuit Court of Tuscaloosa County found the issues in favor of Mr. Laney and awarded damages of $900 plus costs.

At the outset, we note that where the trial court has heard testimony and seen the witnesses the decree is clothed with a presumption of correctness and will not be reversed on appeal unless shown to be clearly and palpably wrong. Pearson v. Fountain, 280 Ala. 1, 189 So.2d 551; Seif v. Seif, 49 Ala.App. 665, 275 So.2d 345. Moreover, the record on appeal must be construed most favorable to the successful party below. Stathem v. Ferrell, 267 Ala. 333, 101 So.2d 546.

I

As noted above, Dr. Ryals contends that the evidence proves an agreement by the parties to cancel the lease. The testimony adduced at the trial fails to support that contention. Mrs. Hamner testified that Dr. Ryals could vacate the premises and find another tenant for the remaining four months of the lease, provided that he complied with its terms so that Mr. Laney would lose no rent. Her testimony indicates that Dr. Ryals could have sublet the house. However, the evidence fails to even suggest that Dr. Ryals sought to obtain written permission from the lessor to sublease, a mandatory requirement under the terms of lease between Dr. Ryals and Mr. Laney. Mrs. Hamner’s testimony that Dr. Ryals could vacate 1305 Dearing Place so long as he complied with the terms of the lease fails to show an intent on the part of the lessor to cancel the lease. Neither does the acceptance of the keys by Mr. Laney’s agent, standing alone, manifest an intent on the part of Mr. Laney to cancel the lease. McClure v. Daniel, 45 Ala.App. 558, 233 So.2d 500; 49 Am.Jur.2d Landlord & Tenant § 1100. We find insufficient evidence to find that the conduct of the parties cancelled the lease as a matter of law.

II

Mrs. Hamner also testified that she never received a “bona fide offer” from Dr. Hannah to lease the house. This testimony disposes of Dr. Ryals’ second argument — that Mr. Laney should not be awarded damages due to his refusal to sublease to a suitable tenant. There was no testimony whatsoever that Dr. Hannah contacted Mr. Laney. While the doctor did discuss with Mrs. Hamner the possibility of subleasing the premises for the remaining four months of the lease, her testimony indicates he made no offer to that effect. We need not decide the effect on an award of damages to a lessor occasioned by his alleged refusal to sublet to a responsible individual when the evidence discloses no such refusal. However, we do note that when the tenant abandons the leased premises prior to the expiration of the term agreed upon in the lease, “it is the option of the lessor to allow the premises to remain vacant and recover rent for the whole term, or to put an end to the lease by re-entry.” McClure v. Daniel, 45 Ala.App. 558, 562, 233 So.2d 500, 502. Accord, Deming et al. v. Scoville, 220 Ala. 424, 125 So. 683; Schuisler & Donnell v. Ames, 16 Ala. 73; Cobb v. Lee, 44 Ala.App. 277, 207 So.2d 143. In other words, the lessor is under no duty to attempt to relet the vacated premises. However, acceptance of the abandonment by the lessor does terminate the tenant’s liability for rent accruing thereafter. Deming, supra.

III

As seen from the above, it is clear that Dr. Ryals is liable for rent from June 15 to August 20, 1975, the latter being the closing date for the sale of the house to Dr. Harris. If the closing date terminates Dr. Ryals’ liability for rental payments, it is only because that event must be deemed an acceptance of the abandonment by the lessor. A sale of the abandoned leasehold may constitute evidence of acceptance of the abandonment. 49 Am.Jur.2d Landlord & Tenant § 1101. However, the evidence as viewed in the most favorable light for Mr. Laney, the lessor-appellee, does not lead to that conclusion.

Whether the lessor accepts an abandonment of the premises by the lessee is a question of fact. McClure, supra. Here, Mrs. Hamner’s testimony implies that the premises were available for Dr. Ryals’ use until October 15, 1975. Moreover the purchaser, Dr. Harris, testified that he did not occupy 1305 Dearing Place until November 20, 1975. In short, the evidence fails to reveal that the sale of the premises was inconsistent with the terms of the lease agreement. Put another way, there is no showing that the buyer could have occupied the house prior to October 15. Hence, the evidence manifests no acceptance of Dr. Ryals’ abandonment by Mr. Laney.

Therefore, sufficient evidence exists to substantiate trial court’s award of $900 in damages. The judgment is therefore due to be and is ordered affirmed.

AFFIRMED.

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


text:
    Kenneth Edward GRIFFIN, Sr. v. Barbara Moody GRIFFIN.
    Civ. 835.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1976.

      Holt, McKenzie, Holt & Patterson, Florence, for appellant.
    Haltom & Patterson, Florence, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The dispositive issue on appeal is whether the trial court’s division of property was an abuse of discretion so as to require a reversal. The husband contends that there was such abuse. We disagree and affirm.

While the record on appeal is voluminous, the pertinent facts reveal the following:

The parties were first married in 1945. One child was born of the union. This child is now over twenty-one years of age. The parties first divorced in 1971; a division of property by agreement was made at that time. The parties remarried that same year and lived together until they separated in 1975.

Both parties are now employed and have been employed by the same respective employers for over twenty years. Upon retirement, both will be the recipients of liberal retirement benefits. The wife earns approximately $18,000 a year. The husband earns approximately $12,000 a year. There is also testimony that since the first divorce in 1971, the wife has earned considerably more money than the husband. The husband is fifty-two years old and is an alcoholic; the wife is fifty years old. Both are in apparently good health except for the husband’s “drinking” problem.

Other than certain personal property, not involved on this appeal, the parties owned two pieces of real property. The division of this real property is the subject of this appeal. In the trial court’s decree regarding the real property we find the following:

“1. Sannoner Street residential property in the City of Florence, owned jointly by Wife and Husband with right of survivor-ship and purchased by them for use and occupancy by Wife’s aged mother, found by the court to have an appraised value of $21,750.00 with mortgage debt thereon of approximately $5,250.00 and with equity ownership in each of the parties of approximately $8,250.00, awarded in full to Wife subject to her payment of the balance mortgage indebtedness thereon. “2. Hermitage Drive Residential property in City of Florence, homeplace of the parties, owned jointly by Wife and Husband with right of survivorship, found by the court to have an appraised value of $52,500.00 with mortgage debt thereon of approximately $26,900.00 and with equity ownership in each of the parties of approximately $12,800.00, awarded in full to Wife subject to her payment or discharge of the balance mortgage indebtedness thereon and further subject to Wife paying to Husband by way of adjustment of equities the cash sum of $9,800.00 within prescribed time certain, for which lien affixed by court against real estate in favor of Husband.”

There was no award of periodic alimony and the divorce was granted on the ground of incompatibility of temperament.

The husband argues to this court that the above mentioned real property should have been sold and the proceeds equally divided. Put another way, the husband, through able counsel, contends that since both parties worked and both contributed in acquiring the assets the property should be divided equally.

Viewing the trial court’s decree with the attendant presumption of correctness, we find no abuse of discretion in the above described division of property, and we cannot substitute our judgment for that of the trial court. Conwell v. Conwell, 56 Ala. App. 188, 320 So.2d 694.

As this court has stated on numerous occasions, a division of property does not have to be equal but one which is graduated to the nature of the case. See Hamaker v. Hamaker, 57 Ala.App. 333, 328 So.2d 588; 8 Ala.Dig. Divorce Key 25.

Keeping in mind the money earned by the respective parties, the trial court could well have concluded the wife and not the husband was the primary source of funds which purchased the property in question and have considered this factor in arriving at the decree. See Crane v. Crane, 57 Ala. App. 685, 331 So.2d 699. Additionally, the husband’s problem with alcoholism may well have been a contributory factor in the trial court’s conclusion that the wife should be granted the real property and be responsible for making the mortgage payments thereon.

Counsel for husband further contends in brief and during oral argument that since the divorce was granted on the ground of incompatibility of temperament, the alimony statutes, to wit, Tit. 34, § 31-33, Code of Ala. 1940, are inapplicable. As we perceive the husband’s contentions, they are the same as that presented in Huggins v. Huggins, 57 Ala.App. 691, 331 So.2d 704. We, here, reaffirm what was said in Huggins, supra, and find no error by the trial court.

The wife has filed with this court a motion for an award of attorney’s fee in this appeal. In view of the facts as set out hereinabove we decline to award such fee. Motion denied.

This court, after careful consideration of all the evidence and the issues presented by the husband in his excellent brief, finds no abuse of discretion by the trial court so as to require reversal.

AFFIRMED.

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


text:
    EMPLOYER’S CASUALTY COMPANY and Smith Lumber Company v. BAXTER FERTILIZER COMPANY, INCORPORATED and Pennwalt Corporation, et al.
    Civ. 843.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1976.

      Rowe & Rowe, Enterprise, for appellants.
    John M. Milling, Jr., Montgomery, for appellee Baxter Fertilizer Co., Inc.
    H. E. Nix, Jr., Montgomery, for appellee Pennwalt Corp.
   WRIGHT, Presiding Judge.

Plaintiff appeals from judgment entered upon directed verdict for defendant and from judgment denying motion for new trial.

The issue is whether there was evidence produced to show negligence by defendant which proximately resulted in the injury and damage of plaintiff.

The plaintiff initially was Smith Lumber Company. Upon disclosure that Employer’s Casualty Company was plaintiff’s insurer and had paid to plaintiff all of its damages except $100, Employer’s was added as a plaintiff.

The complaint charged that plaintiff’s tractor-trailer truck and the tractor-trailer truck of defendant were traveling in the same direction on the highway at night. Defendant’s truck passed that of plaintiff. A short time thereafter, plaintiff’s driver observed a tire and wheel spinning on the highway in his lane of travel. In an effort to avoid striking the wheel, the driver left the highway and wrecked plaintiff’s truck. The truck was a total loss except as salvage. The damage of plaintiff was caused by defendant negligently allowing a spare tire to come unfastened and fall from its truck into the path of plaintiff’s truck.

Defendant admitted that its truck was involved in an accident, but denied negligence causing damage to plaintiff.

Plaintiffs driver testified that he was operating the truck at a legal speed; another truck passed him; shortly thereafter, while the other truck was still in sight ahead, he saw a spinning wheel appear in his headlights directly ahead at a distance of about 20 feet; that he attempted to avoid the wheel, left the highway, struck a culvert, jackknifed the truck and destroyed it.

Plaintiff further elicited testimony from his driver that he had many years’ experience as a driver; that spare tires did come loose from trucks because of weak chains; that it was his normal practice as an experienced truck driver to inspect from time to time the chain by which the tire is secured underneath the trailer; that he had found a chain at the scene of the wreck and noted that the end of the snapper was broken off; that the driver of defendant’s truck came to the scene of the accident and told him that the wheel which he had seen in the road came from his truck.

Upon cross-examination, plaintiff’s driver reiterated that the snapper on the chain was broken but stated that he could not say it was defective. Upon redirect he stated that the manner of inspecting the securing chain was to examine it visually and perhaps pull at it to determine if it was tight.

There was no testimony connecting the chain found to defendant’s truck, nor that it was the type of chain by which a spare tire is usually secured on a truck. There was no testimony as to a defect in the chain which caused it to break. The chain was not placed in evidence nor explanation given as to where it was or who possessed it.

Defendant’s driver was then called as plaintiff’s witness. His testimony, as pertinent, was in substance as follows: He was driving a truck on the occasion as an employee of defendant Pennwalt Chemical Company; he passed a truck and shortly thereafter ran over a large bump in the highway; he heard a noise, looked in his mirror and saw sparks flying behind his truck; he pulled over and stopped; found that the tailgate of his trailer had come loose and was being dragged along the pavement by a chain; he saw the lights and dust where plaintiff’s truck had wrecked; he went to the wreck and found plaintiff’s driver; he lost a spare wheel from his truck and he could have lost it when he hit the bump; he did not see the wheel at the wreck.

On cross-examination, defendant’s driver stated that he and another had thoroughly inspected defendant’s tractor-trailer prior to beginning the trip; that they had placed new tires on the spare wheels and securely fastened them with the chains which originally came with the trailer when purchased two years before; that he had inspected the chain and pulled at it after it was fastened around the wheel; it was his opinion that the bump which he had passed over was sufficient to have caused the tailgate to bounce out of its slots and for the spare wheel to break loose.

At the conclusion of the plaintiff’s evidence, defendant moved for a directed verdict on the ground that plaintiff had presented no evidence of negligence by defendant. There was a colloquy between counsel and the court on the question of whether a scintilla of negligence was shown by the evidence of the broken chain. Plaintiff contended that the broken chain tended to show negligence of inspection. Plaintiff further contended that a statute, Title 36, Sec. 58(45), Code of Alabama (1940), applied and that the evidence showed a violation thereof and thus negligence per se by defendant.

After the colloquy, the court declared that plaintiff had failed to meet the burden of proving negligence and directed the jury that if they believed the evidence they must render verdict for defendant. Such verdict was rendered. Motion for new trial was denied. Plaintiff appealed. We affirm.

Plaintiff contends that there was negligence per se shown by the falling of the spare tire from defendant’s truck. The contention is stated to be founded upon a violation of Title 36, Sec. 58(45), Code. That statute is a rule of the road applying to the securing of loads being hauled by trucks upon the highway. The statute is inapplicable to the facts of this case and cannot support the negligence per se theory of plaintiff.

Plaintiff further contends that the evidence of the broken chain furnishes a scintilla of negligence for the jury’s consideration. We cannot agree. The plaintiff did not connect the chain found at the scene in any way to the defendant. It was not shown that the chain described as having a broken snap was the chain used by defendant to secure the spare tire, nor that it was such a chain as was normally used upon trucks for that purpose. The chain was not produced at trial. It was not stated to be defective by anyone, or to have had a defect that could be found by a reasonable inspection. Though plaintiff used defendant’s driver as its witness, he was not asked to identify the chain found, nor if he had seen the chain after the accident. In fact, his testimony was that the chain used to fasten his spare tire had hooks on the end rather than snaps as stated by plaintiff’s driver.

Assuming that the broken chain was connected by the evidence to defendant’s spare tire and the jury could reasonably infer that it was defective and such condition could have been detected with proper inspection, plaintiff by his own witness rebutted absence of proper inspection. Plaintiff chose to place defendant’s driver on the stand without invoking Rule 43, ARCP. The driver stated that he not only inspected the vehicle and secured it prior to beginning the trip, but that he had installed the spare tire, secured it and checked it by pulling at it. Plaintiff was bound by the uncontra-dicted testimony of his own witness. Cone v. Ragan, 288 Ala. 352, 261 So.2d 28.

The duty of the operator of a motor vehicle upon the public highways is to see that it is in reasonably good condition so as not to present a source of danger to others. To fulfill such duty/ the operator must exercise reasonable care in inspection and operation. Al DeMent Chevrolet Co. v. Wilson, 252 Ala. 662, 42 So.2d 585. Plaintiff in this case alleged that defendant negligently allowed the spare tire to fall from its truck. In proof of the complaint plaintiff produced evidence that its truck struck a spare tire that fell from defendant’s truck, and its truck was thereby damaged. At this point, plaintiff might have sought to invoke the doctrine of res ipsa loquitur, and place the burden of going forward with the evidence upon defendant. Holmes v. Birmingham Transit Co., 270 Ala. 215, 116 So.2d 912. However, plaintiff did not do so and proceeded to try its case upon the theory of negligence per se resulting from violation of a rule of the road and upon the theory of a defective chain. In proceeding upon these theories plaintiff abandoned the benefit of any presumption of negligence which might have been available under the doctrine of res ipsa loquitur, and attempted to prove by his own testimony the particular negligence of defendant.

Having tried its case upon the stated theories, and having failed to produce any evidence of negligence, but to the contrary, establishing by its own witnesses that inspection and installation of the spare tire were without negligence, plaintiff failed to carry the burden of producing a prima facie case.

Plaintiff did not try the case upon the doctrine of res ipsa loquitur nor did it present the application of the doctrine as a ground of the motion for new trial. On appeal it is raised for the first time. It is too late. This court does not review a case on a theory different from that on which it was tried below. Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149. Rule 15(b) ARCP has no application to this case.

Though not necessary to this opinion, we state that one of the three essentials necessary to be shown for the application of the doctrine of res ipsa loquitur was not shown by plaintiff’s evidence. That is, the circumstances were not such that according to common knowledge and experience the accident would not have happened unless defendant was negligent. The Supreme Court in Holmes v. Birmingham Transit Co., supra, held that evidence of such circumstances must be proved by plaintiff before the doctrine may be applied. We further observe that in this case, the rationale for the doctrine of res ipsa loquitur is absent. That is, because of the circumstances surrounding the injury, the plaintiff cannot know and prove the cause therefor, but that defendant is possessed of superior knowledge due to his control of the instrumentality. DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126. The evidence here, as related, is that the chain which held the wheel broke. It was in the possession of plaintiff. Plaintiff had at least equal opportunity to establish the presence of a defect, and if it could have been discovered by defendant through proper inspection.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Jeffrey Lee MARSH v. Alice MARSH.
    Civ. 907.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1976.
    Hornsby, Blankenship, Higgs, Smith & Robinson, Huntsville, for appellant.
    Ernest L. Potter, Jr., Huntsville, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from denial of relief under Alabama Rules of Civil Procedure Rule 60. We affirm.

Judgment modifying a prior divorce decree was entered upon stipulation of the parties and counsel. The fifth and next to last paragraph of the judgment contained an award of $2,500 to the former wife as a reasonable attorney fee. Thirty days after the judgment, the former husband and petitioner for the modification filed motion for new trial. That motion was never set for hearing nor ruled upon. Under Rule 59.1, ARCP, the motion was deemed denied upon expiration of 90 days from filing. No appeal was taken from the judgment of modification.

Six and one-half months after judgment the husband through new counsel filed a Rule 60(b) motion to set aside alleging that (1) paragraph 5 of the judgment was void; (2) paragraph 5 was a miscarriage of justice; (3) that paragraph 5 was not according to stipulation and was not supported by any evidence; (4) there is no basis for the provisions of paragraph 5. The motion was subsequently amended to aver that paragraph 5 was the result of clerical mistake or omission. No exhibits or affidavits were filed with the motion.

The motion was duly heard by the court and denied. The record does not disclose any exhibits, affidavits or testimony taken at the hearing.

There is nothing to support movant’s ground that the specific paragraph of the judgment is void. A judgment cannot be void when the court has jurisdiction of the parties and the subject matter. Halstead v. Halstead, 53 Ala.App. 255, 299 So.2d 300. In this instance the court had continuing jurisdiction of the subject matter — -modification — as a result of the original divorce action. It had jurisdiction of movant through his own petition for modification.

There was nothing presented in the motion nor at the hearing thereon to support the ground of clerical mistake or omission. There appears to be no question but that the judgment represents the intended pronouncement of the court. West Virginia Oil & Gas Co. v. Breece Lumber Co., 5 Cir., 213 F.2d 702.

The remaining grounds of the motion are matters which would be proper upon appeal but are not proper for a 60(b) motion. Rule 60 is not a substitute for appeal. Flett v. W. A. Alexander & Co., 7 Cir., 302 F.2d 321, cert. denied, 371 U.S. 841, 83 S.Ct. 71, 9 L.Ed.2d 77.

The issue on appeal from denial of a Rule 60(b) motion is not the underlying judgment, but whether the trial court abused its discretion in denying the motion. Halstead v. Halstead, supra.

In determining whether there was an abuse of discretion, the reviewing court looks to the grounds presented by the motion and matters presented in support thereof. In this case, nothing by way of testimony or affidavit was presented. The motion primarily charged that the judgment was contrary to the stipulation of the parties in relation to the amount of the attorney fees granted. The record of the stipulation presented on appeal does not support the charge.

The cases applying Rule 60(b), though seeking to accomplish justice, have indicated careful consideration for finality of judgment. In that regard, they have required the movant to show good reason for failure to take appropriate action sooner, Coclin Tobacco Co. v. Brown & Williamson Tobacco Corp., 2 Cir., 353 F.2d 727, and to show a good claim or defense. Gomes v. Williams, 10 Cir., 420 F.2d 1364. 11 Wright & Miller, Federal Practice & Procedure, Sec. 2857, at 161. Movant in this case failed to fulfill either of such requirements. Therefore, this court is unable to find an abuse of discretion in the denial of the motion.

In view of the amount of attorney fee granted in the original judgment, appellee’s motion for attorney fees on this appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOOKOUT, Judge.

text:
    Susan MORTON v. STATE.
    6 Div. 915.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied Aug. 24, 1976.

      J. Louis Wilkinson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: twenty years.

This is the latest in a line of trials and appeals resulting from the murder of Gordon Zuck on December 5, 1973. The present appeal was taken from the appellant’s second trial. The first trial ended in a mistrial.

The State indicted and convicted the appellant of being a member of a conspiracy which carried out the murder of her father, Gordon Zuck. Other members of the conspiracy were alleged to be the appellant’s mother, Ruth Zuck, and the appellant’s brother, Richard Zuck. The actual perpetrators of the murder were alleged to be two employees of the Zuck family, Jackie Farris and Jennifer Worthington.

The facts surrounding the present case have more than adequately been set out by Judges DeCarlo and Tyson in their respective opinions concerning appeals by Richard and Ruth Zuck. Zuck v. State, 57 Ala.App. 15, 325 So.2d 531 (1975), cert. denied 295 Ala. 430, 325 So.2d 539; Zuck v. State, Ala. Cr.App., 331 So.2d 777, cert. denied Ala., 331 So.2d 796. We will not discuss the facts in the present case except insofar as they are relevant to this appeal.

The most damaging testimony presented at trial was that of Jennifer Worthington. She testified that approximately five days before Gordon Zuck’s death, a conversation took place in the lobby of a Zuck owned movie theater. Present during the entire conversation were Richard Zuck, Jackie Farris, Joan Farris, Jennifer Worthington, and the appellant. Richard Zuck said something had to be done about Gordon Zuck. Richard Zuck stated that the business was in trouble, and he thought Gordon Zuck would have to be killed. Jackie Farris responded that chloroform would be a good way to kill Gordon Zuck. Richard Zuck said he didn’t know, but there had to be a way. At this point, Jennifer Worthington asked Richard Zuck if he was serious, and Zuck said he was.

Then Jennifer Worthington testified about transactions that took place at the time of Richard Zuck’s trial. She testified that the appellant twice gave her money “to get out of town” and to maintain silence during that period.

Three days after the murder, the details were related to Joan Farris by Jackie Farris in Jennifer Worthington’s presence. This conversation took place at the home of the appellant. The appellant and Joan Farris were roommates, and Jackie Farris on occasion also roomed with them.

I

The appellant contends that the testimony of Jennifer Worthington should have been excluded at trial. It is well settled that before a co-conspirator’s testimony may be admitted, there must be pri-ma facie grounds for believing in the existence of the conspiracy. Collins v. State, 137 Ala. 50, 34 So. 403 (1903); Cox v. State, 240 Ala. 368, 199 So. 806 (1941); Langham v. State, 243 Ala. 564, 11 So.2d 131 (1943); DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979, cert. denied 201 Ala. 523, 78 So. 877 (1918). While it is preferable that a co-conspirator testify after the prima facie showing of the existence of a conspiracy, such order of proof is not mandatory. The order of proof requirement is for the purpose of expediting the trial and saving the valuable time of the trial court, rather than protecting or securing any supposed right a defendant might have. Smith v. State, 8 Ala. App. 187, 62 So. 575 (1913).

II

The real issue in this case is whether or not there was sufficient evidence, independent of Jennifer Worthington’s testimony, to connect the appellant to the conspiracy. If such independent evidence was present, then there was no error in allowing Jennifer Worthington to testify against the appellant. We have examined the record carefully. There is sufficient evidence, aside from Jennifer Worthington’s testimony, from which the trial judge could find the following:

(1) There was a conspiracy to kill Gordon Zuck.

(2) Jennifer Worthington, Jackie Farris, and Richard Zuck were members of the conspiracy.

(3) Jennifer Worthington and Jackie Far-ris killed Gordon Zuck pursuant to the conspiracy.

The State contends that there was also sufficient evidence to show that the appellant was part of the conspiracy. The"record reveals eight pieces of evidence from which the trial judge might infer that the appellant was a member of the conspiracy.

A.

Frank Meadows, a former employee of the Zuck’s, had three conversations in late July 1973 with Ruth Zuck and the appellant. The conversations occurred approximately four months before Gordon Zuck’s death. The first conversation took place in the Zuck owned theater in Vestavia and was related to the court by Meadows as follows:

“A. Susan offered me the money.
“Q. What did she say? Tell us the words, as best you recall.
“A. Susan said do you think you could find somebody to kill our old man. I said I don’t know, I’ll check on it and see.
* * * * # *
“Q. Did you attempt to find someone? “A. Yes I did.”
B.

On the following Friday while in Selma, Frank Meadows had a telephone conversation with Ruth Zuck and the appellant. The conversation was related to the court by Frank Meadows as follows:

“Susan asked me did I find somebody and I told her I may have, I didn’t know

C.

Frank Meadows then met with Ruth Zuck and the appellant at the Vestavia Hills Country Club the following Sunday. They conferred as follows:

“A. I was asked did I find somebody. “Q. Who asked you that?
“A. Mrs. Zuck, I believe. I said I think I may have. They said well forget it, we’ll handle it ourselves.
“THE COURT: Who said that?
“A. Mrs. Zuck.” (Emphasis supplied.)

D.

Eight days after the murder of Gordon Zuck, the appellant had a conversation with Betty Saunders, a neighbor, who testified about the conversation as follows:

“Q. Did you have any conversation after Mrs. Zuck and Richard Zuck left your house, did you have a conversation with Susan Morton about her spending the night there at your house?
“A. Nothing other than she said she was afraid to go home because the police had a tape with her offering a man five hundred dollars to kill Gordon.”

E.

In the first part of February 1974, approximately two months after the murder, Alice Salter had a conversation with the appellant. Alice Salter’s testimony was as follows:

“We were sitting in the kitchen of Susan’s home in Homewood and she told me that the reason she knew that I had lied for Rick about what time he came into his apartment that night was because the two people who had murdered her father had told her that Rick’s car was sitting at the Pancake House at four o’clock that morning and for me not to worry about Rick being convicted for the murder of her father because these two people were so close to the family and so devoted to the family that they would never let Rick accept the responsibility for the death.”

F.

On May 18, 1974, Richard Zuck, Alice Salter, and the appellant had a conversation. Alice testified about the conversation as follows:

“Just Rick and myself at first. We were having an argument. Susan came in and I was in Selma, she was having a birthday party. She came in and told us to stop arguing that it was her birthday and she wanted everybody to have a good time and Rick said Alice says she’s going to the police and she’s gonna tell them the truth and Susan said you know she won’t do anything like that because she loves you too much.”

G.

At the time of Richard Zuck’s trial, his brother, Lou Zuck, had a conversation with the appellant. Lou Zuck told the appellant that he had seen Jennifer Worthington kill Gordon Zuck. On the State’s cross-examination of the appellant, the following colloquy occurred:

“Q. At the time that Lou Zuck told you that, that he had seen what was going on, was he correct in saying that you said let’s go talk to mama about it?
“A. Yes sir.
“Q. Is that what was said?
“A. Yes sir.
“Q. At that time, as I understand it, you knew absolutely nothing about Richard Zuck’s involvement in this murder, is that correct?
“A. That’s right.
“Q. All you knew at that time was that a woman you had known for three weeks and a boy you knew was an ex-convict had killed your father, right?
“A. Yes sir.
“Q. Did you walk in the motel room and call the police or anybody and say hey these two people, some woman I’ve never known until three weeks ago and an ex-con killed my father?
“A. No sir.
“Q. Did your mother do that?
“A. No sir.”

H.

Sometime in June or July 1974, Diane Chandler, an employee of the Zuck’s in Selma, had a conversation with the appellant. The appellant told Diane Chandler the following:

“A. Susan asked me did I remember when Jennifer came into the theatre and called her and I told her yes. Susan said that she might have to come up here to court and Susan told me that if she had to come up here that I might have to get up here and testify and Susan asked me if the money that she gave Jennifer was it for the babysitter and I said yes.
“Q. Was that the truth?
“A. No.”

The preceding eight excerpts from the testimony at trial must connect the appellant to the conspiracy before Jennifer Worthington’s testimony is admissible. Taken individually, none of the testimonial excerpts would be enough, standing alone, to tie the appellant to the conspiracy. However, when the eight pieces of evidence, along with the logical inferences which may be drawn from them, are taken together, they then begin to fit together into a mosaic which ties the appellant into the conspiracy. We find that there was sufficient evidence from which a jury could draw an inference that appellant was a co-conspirator in the murder of her father. Therefore, there was no error in admitting the testimony of Jennifer Worthington.

The law in this State is well settled that when two or more persons, by prearrangement or on the spur of the moment, enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a co-conspirator, and if the purpose of such enterprise is carried out, each is guilty of the offense committed, whether he did any overt act or not. Positive testimony is not necessary to prove community of purpose. It is the duty of the jury to determine whether such exists, and the extent of it, from the conduct of the parties and the testimony in the case. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). Neither is the accused’s presence at the scene of the crime necessary. All persons concerned in the commission of a felony, whether they directly commit the act, or aid or abet in its commission, though not present, must be tried and punished as principals. Title 14, § 14, Code of Alabama 1940; Mitchell v. State, 51 Ala.App. 411, 286 So.2d 85 (1973).

Ill

The appellant contends that the trial court erred in failing to grant the appellant’s motion to exclude the State’s evidence. We disagree.

A verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless after allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969).

Conflicting testimony presents a question for the jury, and a verdict rendered thereon will generally not be disturbed on appeal. Pugh v. State, 51 Ala. App. 164, 283 So.2d 616 (1973). A motion to exclude the State’s evidence is properly overruled where a prima facie case is presented by the State. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969). We find that the State, though barely so, presented a prima facie case which would support the finding of the jury.

It is not our function to examine the record in order to satisfy ourselves that the appellant is guilty beyond a reasonable doubt. Our function, where sufficiency of the evidence is properly before us, is to examine the record and determine if the State put on sufficient evidence from which a jury might have found the accused guilty. The logical inferences that may be drawn from the combined testimony of Jennifer Worthington, Alice Salter, and Frank Meadows are devastating to the appellant, and would support the verdict of the jury. The appellant put on evidence, which if believed by the jury, would have rebutted, impeached and explained away the State’s evidence. The jury obviously believed Jennifer Worthington, Alice Salter and Frank Meadows, and just as obviously, did not believe the appellant.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


author: JONES, Justice.

text:
    In re Susan MORTON v. STATE. Ex parte Susan Morton.
    SC 2037.
    Supreme Court of Alabama.
    Oct. 29, 1976.
    J. Louis Wilkinson, Birmingham, for petitioner.
    No appearance for the State.
   JONES, Justice.

Petition of Susan Morton for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Morton v. State, 338 So.2d 423.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Raymond ELLIS v. STATE.
    7 Div. 437.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied Aug. 24, 1976.

      Loma B. Beaty, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant went to trial in the DeKalb County Court upon the original complaint charging him with the offense denounced by Title 14, Section 115(1), Code of Alabama 1940. Specifically he was charged with willfully or wantonly destroying 46 head of cattle, the personal property of H. W. Thompson, of the value of $18,500.00. The above section charges a misdemeanor and provides that the punishment must be proportioned to the offense and shall be a fine of not more than $10,000.00 or a sentence to imprisonment in the County Jail or to hard labor for the County for not more than 12 months. Appellant demanded a jury trial. At arraignment, in the presence of retained counsel, appellant pleaded not guilty. The jury found appellant guilty as charged and assessed a fine of $10,000.00 against him. As additional punishment the trial court sentenced him to imprisonment in the County Jail for 12 months. At the time sentence was imposed, appellant gave notice of appeal.

The evidence adduced by the State is not contradicted. Appellant did not testify but offered evidence as to his good reputation and character.

Appellant and the complaining witness, Mr. H. W. Thompson, were neighbors and had been for a good many years. Both were engaged in raising cattle and tendencies of the State’s evidence for the State disclosed that appellant and the complaining witness had been feuding for a number of years because a number of Mr. Thompson’s cattle were found dead in one of his pastures and he suspected appellant was poisoning his cattle.

In March of 1975 Mr. Thompson fed his cattle from a haystack that was in one of his pastures and soon thereafter he noticed the cattle became sick and unsteady on their feet and they fell on the ground and died. Mr. Thompson contacted the Sheriff of DeKalb County, a Mr. Morris Cousins of the Cattlemen’s Association, and Dr. G. S. Killian, a veterinarian of Fort Payne, Alabama, all of whom came to the Thompson place and viewed the dead and dying cattle.

Dr. Killian testified that when he viewed the cattle, they were showing signs of intense pain in the abdominal cavity, walking humped up, kicking up at their stomachs with the back feet, getting up and lying down, and some rolling, and some down to the point where they couldn’t rise, that they had a very weak, rapid heartbeat, and labored breathing. He further testified:

“We watched one there; well, I checked it about, I would say probably five to ten minutes later, we came back to it; it was already dead. Another thing I noticed was profuse diarrhea on a good many of them. Of course, this one was dead, which died after I got to the farm, we did an autopsy on. The main thing we found was the change in color from normal col- or of the liver; it had darkened some; in the rumen, the lining of the rumen, which is the first stomach on the cow, gave the appearance of being boiled; the propella (sic) was turning loose, that is the lining was turning loose from the wall of the rumen.”

Dr. Killian stated that he had practiced veterinarian medicine for 27 years and in that time he had performed many autopsies. He said he removed the liver and the contents of the rumen and put them in separate plastic bags and turned the bags over the the Sheriff to deliver to the Department of Toxicology in Huntsville.

He further testified that in his professional opinion the cow on which he performed the autopsy died from arsenic poisoning.

Martha Odom, a criminologist with the Department of Toxicology in Huntsville, testified that she examined a substance identified to her as being part of a liver, finding an arsenic content therein, and further testified that she examined a substance identified to her as hay, and found an arsenic content therein. She stated that she could not determine from the tests she made whether sufficient arsenic existed in the animal tissue to cause death, nor could she testify that the content of arsenic in the substance identified to her as hay was sufficient to cause death.

Appellant filed a motion to suppress any statements made by him that tended to incriminate him on the ground that he was not give the Miranda rights and warnings, and considerable testimony was taken on this motion. It developed that while appellant was arrested and carried to jail, the record does not reflect that he was interrogated by any law enforcement officers. On the contrary, the testimony shows that appellant expressed a desire to talk to Mr. Thompson and his two sons.

A Deputy Sheriff went to Mr. Thompson and told him that appellant wanted to see him. Mr. Thompson went to the Sheriff’s Office to see appellant. Appellant was not in jail but in an office below the Sheriff’s Office. When Mr. Thompson entered the office, he asked appellant, “Did you send for me?” Appellant said, “Yes, why can’t we be friends?” Mr. Thompson said, “Well, from the time over at Mountain Home that you promised never to poison my cattle again, we shook hands; haven’t I kept my end of the bargain? Have you kept your end?” Appellant replied, “No, I sure ain’t, I don’t know why I did it, but I did. I poisoned your cattle.” That was all that was said at that time and Mr. Thompson walked out of the office.

Mr. Thompson went and got his two sons and returned somewhere around 9:00 or 9:30 that night and they all had a conversation with appellant. This conversation took place in the same office as the first conversation with Mr. Thompson and appellant. The Thompsons were not law enforcement officers and there were no law enforcement officers present at this meeting with appellant. Appellant’s counsel objected to any conversation had at that time because appellant was in custody of the Sheriff. The Court overruled the objection and the testimony continued:

From the record:

“A. Well, he said, we went in, spoke to him, and sat down, and asked him why he was poisoning our cattle.
“Q. Who asked him that?
“A. I did.
“Q. All right, sir.
“A. And he said, ‘I don’t know’; and he said, T poisoned your cattle; y’all can go ahead and send me off’; but said, ‘Don’t sue me and take my home away from my wife and kids.’ And I said, ‘We don’t want your home; all we want to do is get you for poisoning our cattle.’
“Q. Is that all that was said, Mr. Thompson?
“A. Well, no, we talked on a while.
“Q. Tell us whatever you can recall.
“A. That may be hard for me to remember. He said, T didn’t mean to kill all your cattle,’ said, T just meant to kill three, or four, or five,’ and said, ‘Jimmy,’ said, ‘your cattle, I can get you them back, your three,’ but said, T can’t give your daddy back his because I ain’t got that many.’ He said, T will work by the year if y’all won’t sue me and take my home away from my wife and kids; I will work for the year and pay you back everything above my living to pay y’all for those cattle I killed.’
“Q. Did he say anything about the method he used or how he poisoned the cattle?
“MR. BEATY: We object to the leading. “THE COURT: Overruled.
“MR. BEATY: He said he told you all he had said.
“THE COURT: Overruled.
“CONTINUATION BY MR. IGOU:
“A. Yes, he said that some time ago he had stole five gallons of poison from Norman Waldom.
“Q. Did he tell you what he had done with it?
“A. He said that was what he used to poison them over the years, to soak the corn in and what he poured on the haystack.”

Over appellant’s objections photographs showing a number of dead cattle and a haystack were introduced into evidence.

An agreement was drawn up with reference to the Thompsons not suing appellant and it was signed by appellant, Billy Thompson, H. W. Thompson and Jimmy Thompson. This agreement was introduced into evidence as Defendant’s Exhibit No. 2, and State’s Exhibit No. 3, and is as follows:

“March 21, 1975
BILL ABLES SHERIFF
DEKALB COUNTY FORT PAYNE, ALABAMA 35967
“This is an agreement between H. W. Thompson and his two sons and Raymond Ellis. That there won’t be any suit from these three persons against Raymond Ellis of any nature. Against his farm, his cattle, or anything that Mr. Ellis owns concerning the poisoning of H. W. Thompson’s. Since Mr. Ellis agrees to give state evidence concerning the death of these cows.
Deft, sign here /s/ Raymond Ellis
signature /s/ Billy Thompson
signature /s/ H. W. Thompson
signature /s/ Jimmv Thompson
witness /s/ Stanley Hollingmont
witness /s/ Anthony Jones
witness /s/ Dell Rucks”

Appellant signed a statement with reference to the poison he used to pour on the haystacks from which the cattle were fed. It was introduced as Defendant’s Exhibit No. 1, and is as follows:

“March 22 12:03 PM
“I Raymond Ellis got a quart of potato poison at Norman Waldrop’s place about two years ago. I got it from a can in his potato house and put it in an orange juice bottle. At the time I got the poison, I did not know at that time what I would do with it. About two weeks ago I Raymond Ellis decided to take this jar of potato poison and pour it on a stack of Mr. Thompson’s hay. After I poured the poison on the hay, I took the bottle and threw it in Town Creek.
/s/ Raymond Ellis
(witness) /s/ J. Morris Cousins
(witness) /s/ Harold Bartlett”

Appellant raises two major contentions upon which this case should be reversed and remanded: (1) the statements of appellant were made while he was in the custody of the Sheriff and he was not give the Miranda rights, and (2) the corpus delicti was not proved.

It is clear to us that appellant’s confession of his guilt to the Thompsons was for the express purpose of avoiding a civil suit for damages in which he could well lose his home and farm and thus deprive his wife and children of the property owned by him. His confessory statements were not made to any law enforcement officer while in custody but were made to the parties whose cattle he had willfully poisoned.

Miranda warnings have no application when confessions or admissions otherwise admissible are given to persons who are not officers of the law nor their agents. Truex v. State, 282 Ala. 191, 210 So.2d 424; Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408.

The evidence is not contradicted that appellant sent for Mr. Thompson so that he could discuss the cause of his arrest. By no stretch of the imagination can it be said that the Thompsons came to see appellant at the behest or the instigation of any law enforcement officer.

The corpus delicti is a fact, proof of which may be established by circumstantial evidence, and if there is a reasonable inference to prove its existence, the Court should submit to the jury for consideration the question of the sufficiency and the weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Burleson v. State, 52 Ala.App. 399, 293 So.2d 317; Bass v. State, 55 Ala.App. 88, 313 So.2d 208.

This Court is required to consider the evidence in the most favorable light for the prosecution. Womack v. State, 34 Ala. App. 487, 41 So.2d 429.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


author: TYSON, Judge.

text:
    Murphy Labron CARROLL v. STATE.
    8 Div. 815.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied Aug. 24, 1976.

      John F. Proctor, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with buying, receiving, concealing, or aiding and concealing one 1973 Ford F100 truck, two-tone blue, Identification No. F10YCQ47787, of the value of $2,000.00, the personal property of Melton Lance Autry. The jury found the appellant guilty as charged, and the trial court set sentence at five years imprisonment in the penitentiary. The appellant’s motion for a new trial challenging the weight and sufficiency of the evidence was duly overruled.

Melton Lance Autry testified he lived at Route 4, Box 201, Ringgold, Georgia. He testified that on May 24, 1975, he owned a blue Ford, two-tone, F100, XLT truck. Mr. Autry stated that the truck was dark blue on top, light blue on bottom and had a white camper with a bluish interior. He stated that he had been employed to play some country music at Willie’s Supermarket in Rossville, Tennessee, and had parked his truck in the parking lot at the supermarket before he began playing. He stated that he walked out to the parking lot between 10:00 and 10:30 P.M. and found his truck was missing. He stated he then telephoned the crime alert system in Chattanooga, Tennessee, and gave them the manufacturer’s identification number which was F10YCQ47787-73-8 and that it was an 8 cylinder pickup of the approximate value of $3,500.00. Mr. Autry stated that the Identification sticker, Bert Brown Ford, Chattanooga, Tennessee, was missing. He stated that in the camper was an electric guitar, about $45.00'worth of tapes, a tape case, some tools and a rain suit.

On cross-examination, Mr. Autry stated that the truck was taken on a Saturday evening between 10:00 and 10:30 from the parking lot at Willie’s Supermarket in Ross-ville and that he did not see this vehicle until he received a telephone call to come to the Harbin Motor Company the following Monday at Scottsboro, Alabama. He was told that he could pick up the missing truck there and that he had never authorized the appellant Murphy Labron Carroll to use the truck nor had he ever seen the appellant.

Betty Jean Paschal (Mrs. Thomas Paschal) testified she lived at Route 1, Dutton, in Jackson County, Alabama. She testified that she and her husband lived in a mobile home and that a mobile home in which the appellant, Murphy Carroll, lived was about fifteen or twenty feet from her home. She testified she was awakened on the night of May 24-25, 1975, around 3:00-3:30 in the morning as she heard a car door slam and heard some dogs barking, that she also awakened her husband. She testified she saw a two-tone dark blue and light blue pickup truck with a camper pull in the driveway next to the Carroll trailer. She testified that some lights were on, and she saw the appellant, Murphy Carroll, near the rear end of the truck squatted down at the bumper. She said she could see his hand move back and forth, and that another man was with him, and she could see him carrying things from the truck. Mrs. Paschal further stated that the other car left and that the appellant got into the truck and turned it around and parked it toward the trailer. She stated that she further watched the appellant as he got out and took a screw driver or wrench and was working around the steering wheel and that he would jump back and run toward the door of the trailer. Later, in the early morning, she watched him and that he had a white plastic-like bottle and cloth on the left-hand back side of the truck and that he was scraping something. She said that the noise had awakened both her and her husband, and she saw him remove the camper and place it on the ground after unscrewing it. She said that early in the morning, her husband got up and left for a short time and then came back and that he told her he was going to call Mr. George Tubbs, the county investigator. She said that later that morning, Mr. Tubbs came by.

Thomas Paschal testified that he and his wife Betty lived at Route 1, Dutton, Alabama. He stated that they had been to church on the night of May 24, 1975, and had come home around 10:00. He stated that they went to bed and that his wife awakened him after she heard a noise and that he looked out a window of his trailer which had been boarded up with some plywood. He observed a light blue and dark blue Ford pickup truck sitting close to the appellant’s trailer. He said he also saw another car there and that it was around 3:30 in the morning.

Mr. Paschal stated that he and his wife began to watch the appellant and that the other car left. He saw the appellant carry some items from the truck and put them inside his trailer. He also said he saw the appellant filing something near the rear of the truck. He stated that he then got up and took his fishing tackle and put it in his car and acted as though he was going fishing, and he went and telephoned the county investigator, Mr. George Tubbs.

George Tubbs testified that he was employed as County Investigator for the Sheriff’s Department of Jackson County on May 24-25,1975. He testified that about 5:15 in the morning of May 25, he received a call from his dispatcher that Mr. Thomas Paschal wanted to talk to him. He testified that he went to the trailer residence within a quarter of a mile where the appellant, Murphy Carroll lived, and saw the appellant backing up a 1973 blue and white pickup truck and that it was two-tone blue. He saw that the camper had been removed from it and that he saw the appellant later come out and drive off in the truck. He said after the appellant left, he went over where the truck had been parked and noticed a switch had been taken out, that the tag had been removed, that there was some bright spots around the bumper, and that a tag with the name of Bert Brown Ford, Chattanooga, had been removed and left on the ground. He testified that he collected these filings, the tag and the Bert Brown sticker and when the appellant returned, they arrested him and took possession of the truck and took it to Harbin Motor Company in Scottsboro. From his investigation, he determined the identification number was F10YCQ47787.

Deputy Mike Wells testified that he received a telephone call on May 25, 1975, from Investigator George Tubbs and that based upon this information, he went before Judge John Haislip, of the Jackson County Court, and obtained a search warrant for the residence of the appellant, Murphy La-bron Carroll. He testified he and Investigator Tubbs arrested appellant and upon going into his home, found tapes, tape box container, and a rain suit. The appellant made a motion to exclude and also moved to quash the indictment that the State had failed to make out a prima facie case. These were overruled.

Appellant Murphy Labron Carroll testified he lived at Route 1, Dutton, Alabama, and had been living there about eighteen months since he moved back to Alabama from the state of Tennessee. He testified he worked as a carpenter for Parsons Company in Jackson County. He testified that in the month of May 1975, he had been to an automobile sale at Lafayette, Georgia, and had met a man named James Marsh. He testified that he talked with Mr. Marsh about purchasing a truck and that he told him he would bring a 1973 Ford truck over and that he did so on the early morning of May 25, 1975. He stated Mr. Marsh came to his home Sunday morning about 5:00 and had two more men with him. They discussed price at about $2,850, and the men were in a hurry as they wanted to go to the races in Huntsville. He stated he asked Mr. Marsh for a bill of sale for the truck and that he wanted to check the mileage. He stated that he removed the camper cover from the truck because he wanted $200.00 more for this. He stated that he had not seen Mr. Marsh since he brought the truck over, but that he had made three or four trips to Lafayette, Georgia, looking for him.

The appellant presented the testimony of his wife, Doris Carroll, and before she testified, she was advised of her right not to testify being the wife of the appellant, and also her privilege against self-incrimination under the Fifth Amendment of the United States Constitution.

Mrs. Carroll took the stand and corroborated her husband’s testimony concerning Mr. Marsh bringing the pickup to their home on the morning of May 25,1975. She stated that the two men agreed upon a sale price of $2,850.00 and that her husband had made several trips to Georgia attempting to locate Mr. Marsh.

The appellant then presented several character witnesses who testified that his reputation for truth and honesty was good.

Appellant also presented the testimony of Clines Cuzzort who testified that he had observed the appellant during the month of May 1975 at a car sale in Lafayette, Georgia, and that he spoke to the appellant and that the appellant told him he was looking for an automobile to purchase for his wife.

I

In Johnson v. State, 41 Ala.App. 351, 132 So.2d 485, Judge Price stated:

“To establish the offense of buying or concealing stolen property it must appear that the property was stolen; that accused bought, received or concealed it knowing that it had been stolen; and that she had no intention of returning it to the owner. Moore v. State, 26 Ala. App. 607, 164 So. 761; Trail v. State, 39 Ala.App. 467, 103 So.2d 833.
“The corpus delicti may be proven by circumstantial evidence as well as by direct proof. Coates v. State, 36 Ala.App. 371, 56 So.2d 383; Wright v. State, 17 Ala.App. 621, 88 So. 185. “To meet the burden of proving that the property was stolen, it is necessary only that the state offer sufficient legal evidence to show a severance of the possession of the owner and an actual possession of the wrongdoer. It is immaterial how short the distance moved, or the length of time he exercised dominion over it. It may constitute larceny if there was a severance of the possession of the owner and an actual possession and removal by the wrongdoer. Phelps v. State, 6 Ala.App. 58, 60 So. 537; Molton v. State, 105 Ala. 18, 16 So. 795; Blakeney v. State, 244 Ala. 262, 13 So.2d 430; Arthur v. State, 38 Ala.App. 490, 93 So.2d 793.”

Our Presiding Judge, then Cates, J., in Stanley v. State, 46 Ala.App. 542, 245 So.2d 827, stated the trial court “in a receiving case approved inferring the requisite scien-ter from recent possession of stolen goods.”

This Court is of the opinion that the facts above set forth show the material elements of the offense charged, and that the evidence being in conflict, the trial judge properly submitted this matter to the jury for their determination. Paul v. State, 48 Ala.App. 396, 265 So.2d 180, cert. denied 288 Ala. 747, 265 So.2d 185; Johnson v. State, supra; Coe v. State, 53 Ala.App. 457, 301 So.2d 223; Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218.

II

The appellant next argues that State’s Exhibit No. 3, a bumper sticker with the words Bert Brown Ford, Chattanooga, Tennessee, and the metal filings, should not have been admitted into evidence. Under the testimony of the owner, a similar sticker was missing from the truck in question when he saw it on Monday, May 26,1975, at Harbin Motor Company, which had been there when he left it at the parking lot of Willie’s Supermarket in Rossville, Tennessee. In light of the testimony of both Mr. and Mrs. Paschal, as well as of the County Investigator, Mr. George Tubbs, we are of the opinion that these items were properly admitted into evidence. Simmons v. State, 54 Ala.App. 291, 307 So.2d 96; Diggs v. State, 54 Ala.App. 414, 309 So.2d 123; Coe v. State, supra.

As noted by Mr. Justice Harwood, then Harwood, P. J., in Gaddis v. State, 39 Ala. App. 630, 106 So.2d 268:

“. . . The learned trial judge was most careful in his rulings to see that every right of the appellant was scrupulously protected. The record is, in our opinion, as clean as a hound’s tooth, and as free of error as any we have ever read.”

The judgment is therefore due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    John Riley GALES, alias v. STATE.
    2 Div. 157.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.
    Charles H. Sims, III, Selma, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

The appellant was indicted, tried and convicted for the February 8, 1975, slaying of Alfred Ford. There was overwhelming evidence presented from which the jury could find the appellant guilty of first degree murder. A recapitulation of the facts surrounding the murder is unnecessary. Suffice it to state that there was no evidence whatsoever that the appellant was insane on February 8, 1975.

I

The appellant contends the trial court erred in excusing certain potential jurors from jury duty. The jurors were excused without the presence of the appellant and without the knowledge and consent of the appellant or his counsel. Prior to 1972, a defendant in a “capital case” had the right to have excuses from jury service heard and determined at trial. Lassiter v. State, 36 Ala.App. 695, 63 So.2d 222 (1953).

In 1972, it was held that the death penalty, as then imposed, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Usrey v. State, 54 Ala.App. 448, 309 So.2d 485, cert. denied, 293 Ala. 776, 309 So.2d 489 (1975), it was held that in light of Furman, excusáis of jurors could be made outside the presence of a defendant who was charged with first degree murder, in that such an offense is no longer a “capital felony.” Usrey held that the mandate of Lassiter was without force and effect.

The Supreme Court of Alabama subsequently stated in Ex parte Hugh Otis Bynum, Jr., 294 Ala. 78, 312 So.2d 52 (1975) the following:

“. . . 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.”

The appellant cites Bynum and concludes that Lassiter continues to state the correct rule regarding the procedure for excusing jurors in a capital case and that Usrey should be overruled. We do not agree.

On the question of Bynum’s effect on the selection of a special venire in a “capital case” this Court held in Fisher v. State, Ala.App., 328 So.2d 311, cert. denied, Ala., 328 So.2d 321 (1976) as follows:

“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.”

The policy behind the restrictions placed on the excusal of jurors in a “capital case” was the same policy that was behind the selection of a special venire in a “capital case.” Therefore, despite Bynum’s broad language, Usrey is dispositive of the appellant’s contention. Lassiter is without force or effect.

From a review of the record, including testimony by the trial judge, we conclude there was no abuse of discretion in the excusal of certain jurors before the trial. Title 30, § 5, Code of Alabama 1940, Recompiled 1958.

II

At arraignment, the appellant plead not guilty and not guilty by reason of insanity. The appellant was and is an indigent. He made a timely motion, before trial, for a psychiatric examination. The motion was denied by the trial court, and the appellant contends the denial was error.

Title 15, § 425, § 426 and § 428, Code of Alabama 1940, Recompiled 1958, provide somewhat related methods by which the trial court may have an investigation made into the sanity of a defendant, before his trial. Only when the evidence presents sufficient doubt as to a defendant’s sanity is such an investigation mandatory. Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197 (1971); Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974).

The trial court ordered that the appellant be examined by two qualified psychologists employed by the Department of Mental Health. They found the appellant mentally competent to stand trial and competent to cooperate with his attorney in his defense. One of the psychologists stated that perhaps the appellant was suffering from a permanent disorder, compatible with being “just plain mean.” There was no evidence indicating that the appellant was insane at the time of trial or on February 8, 1975. Mere assertions contained in the appellant’s brief are not sufficient to bring this case within the purview of Edgerson, supra. Goulden v. State, 53 Ala.App. 276, 299 So.2d 321 (1974).

The appellant also appears to contend that the fact he is indigent entitles him to a free psychiatric examination. He points out that a rich man would be able to hire a psychiatrist even if such a man had exhibited no signs of insanity. Our answer is that a rich man is free to waste his money as he sees fit, but equal protection does not require that the appellant be free to £utilely waste the money of the Alabama taxpayers. See: Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974). If there was any reason to believe the appellant insane, then a psychiatric examination would not have been wasteful. There is no basis in the record for such a relief.

Ill

The trial court in its oral charge to the jury stated that the appellant’s special plea of not guilty by reason of insanity could not be considered. There was not a scintilla of evidence, “not even a tittle, glimmer or thread,” tending to show that the appellant was insane when he murdered Alfred Ford. Where there is no evidence to establish a plea of insanity, it is not error for the trial court to take the issue of insanity from the jury. Miles v. State, 50 Ala.App. 70, 277 So.2d 104, cert. denied, 291 Ala. 792, 277 So.2d 107 (1973); Brodka v. State, 53 Ala.App. 125, 298 So.2d 55 (1974).

IV

The appellant made a written request for fifty-six charges to the jury. The trial court granted forty-two and denied fourteen. The refused written charges were affirmative in nature, incorrect statements of applicable law, argumentative under the evidence, or fully and substantially covered in the oral charge or in other requested charges given. The trial court committed no error in refusing the aforementioned fourteen charges. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974).

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., not sitting.


text:
    In re John Riley GALES v. STATE. Ex parte John Riley Gales.
    SC 2039.
    Supreme Court of Alabama.
    Oct. 29, 1976.
    Charles H. Sims, III, Selma, for petitioner.

      No appearance for the State.
   JONES, Justice.

Petition of John Riley Gales for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Gales v. State, 338 So.2d 436.

WRIT DENIED.

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