author: WRIGHT, Presiding Judge.

text:
    Ellis Elvin SMITH v. PROTECTIVE LIFE INSURANCE COMPANY, INC., and Merchants National Bank of Mobile.
    Civ. 1145.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1978.

      Joseph C. McCorquodale, III, Jackson, for appellant.
    Robert L. Byrd, Jr., Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee, Protective Life Insurance Company, Inc.
   WRIGHT, Presiding Judge.

Plaintiff appeals from a judgment in his favor charging insufficiency of the award. We affirm.

Plaintiff brought an action in equity against Protective Life and Merchants National Bank of Mobile seeking to enjoin foreclosure of a mortgage on real estate by the bank and to require Protective Life to pay to the bank the sums owed by plaintiff to the bank. Plaintiff later amended, adding claims for fraud and misrepresentation against Protective Life in the sale of a credit insurance policy to plaintiff.

The case was heard by the judge without a jury and judgment was entered against Protective and in favor of plaintiff for $i,370.so.

The evidence tended to show the following: Plaintiff had executed a note and mortgage on realty with the bank in 1972. The note was for $10,000 plus interest, payable $135 per month for eleven months with the balance becoming due the twelfth month. It was understood between plaintiff and the bank that the unpaid balance due on the twelfth month would be the subject of a new and similar note. This arrangement would be continued until the full indebtedness was paid. Such form of real estate loan was the only one used by the bank at the time.

Plaintiff requested that the bank provide him credit life and disability insurance on the loan. He told the officer handling the loan that he desired “full protection.” He paid $101.40 for life coverage and the same amount for disability coverage.

Upon receipt of the application and premium from the bank, Protective sent to plaintiff a certifícate of insurance. The certifícate showed the total amount of decreasing term life insurance to be $10,470.41 and the monthly indemnity under the health and accident coverage to be $135. The term of the insurance was shown to be twelve months. The certificate stated that Protective had issued insurance to plaintiff subject to the terms and conditions of a group policy issued to the bank. Under the health and accident coverage, the certificate provided that if the insured became totally disabled as a result of injury or sickness and such disability continued for more than thirty days, Protective, upon proof of disability, would pay to insured an amount equal to one-thirtieth of the monthly indemnity shown for each day of continuing total disability after the thirty-first day. It further provided that the aggregate monthly indemnity would not exceed $150 at any time and any premiums paid for insurance in excess of such amount would be refunded.

In May of 1973, plaintiff became temporarily totally disabled. He filed a claim and Protective paid the monthly indemnity of $135 to the bank for June and an equal amount for July. Coverage under the certificate began on July 31, 1972 and ended July 31, 1973.

Apparently, plaintiff personally, or by attorney, demanded that Protective pay the balloon portion of the note. The record is not clear when it became due. On April 17, 1974, Protective notified plaintiffs counsel that in checking the case upon his inquiry, it learned that the premium charged for the health and accident coverage was excessive. Instead of the $101.40 paid, the charge should have been $16.20. A refund check of $85.20 was sent by Protective. Suit was brought on October 31, 1974.

The only issue before us on this appeal is whether plaintiff was entitled to recover under the policy of insurance purchased the full amount of the unpaid balance of his note which came due on the twelfth month.

Only matters which affect the amount of damages recoverable may be presented on an appeal by the winner of the judgment at trial. Smith v. Winkles, 49 Ala.App. 454, 273 So.2d 215 (1973).

It is difficult to mentally adjust to the contention of plaintiff that by becoming disabled for three months he was entitled to be paid over $10,000 under a monthly indemnity disability insurance policy. We are unable to discern from the judgment of the trial court whether it determined liability based upon the policy of insurance or upon the claims of fraud and misrepresentation. It does not matter insofar as plaintiff’s appeal is concerned. The defendant has not appealed.

It appears from the evidence that plaintiff applied for a policy of insurance which would pay his monthly payments on his note in the amount of $135 in the event he became totally disabled from injury or sickness. A certificate of insurance was sent him by Protective Life in response to his application. He received the certificate which clearly stated the obligations of Protective and their limitations. Plaintiff accepted the certificate which was in effect for some nine months before he became disabled and made claim for benefits. Two monthly benefit payments were made upon his application.

It is the rule that if the policy is accepted by the insured, he is bound thereby even though the policy does not correspond to the preliminary negotiations. The oral negotiations for the policy are merged into the accepted policy. Hartford Fire Ins. Co. v. Shapiro, 270 Ala. 149, 117 So.2d 348 (1960).

There is ample evidence to support the conclusion that the premium overcharge was merely a mistake by the bank in calculation and that Protective did not know of the error until the controversy with plaintiff arose. Upon learning of the overcharge, Protective immediately corrected it and returned the excess. The terms of the policy, rather than the amount of the premium charged, provide the coverage. See 9 Couch on Insurance 2d, § 39:3. The overcharge merely gave to the insured the right to the return of the excess. The right of recovery under the certificate issued plaintiff and the group policy to which the certificate referred was limited to a monthly disability benefit of $135. Plaintiff received such amounts promptly upon making claim. He also received the excess premium. In addition, he received judgment for $1,370.40. The correctness of that judgment has not been challenged by defendant. It will stand against the insufficiency charged by plaintiff. The trial court made no error injurious to plaintiff.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Merchants Bank previously had been dismissed on motion.

      . Such a note is commonly known as a balloon note.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Jack STROTHER, Jr. v. Mary Knight STROTHER.
    Civ. 1239.
    Court of Civil Appeals of Alabama.
    Feb. 22, 1978.
    L. Y. Sadler, Jr. and Donald M. McLeod, Camden, for appellant.
    No brief for appellee.
   HOLMES, Judge.

The husband filed with the Circuit Court of Baldwin County a petition to modify the amount of child support for two minor children. The trial court did modify the decree by decreasing the required amount from $500 per month to $350 per month. We would note that the original amount of $500 per month for child support was by agreement of the parties which was incorporated into the decree of divorce.

The husband appeals, contending the trial court abused its discretion in failing to make a more substantial reduction.

This appeal is before this court on a statement of the evidence prepared pursuant to Rule 10(d), ARAP. This statement, in pertinent part, reveals that at the time of the divorce in 1975, the husband earned approximately $2,000 per month; that he now earns $550 per month, that he has remarried; that his present wife is the apartment manager of the apartment complex where they reside; that she has no other employment; and that their apartment is provided rent free because of the wife’s duties as apartment manager. The husband’s expenses as shown by the record are over $400 per month. The husband testified that he could pay $200 per month as child support.

The modification of a prior decree for child support in a divorce decree based on changed circumstances of the parties is a matter within the judicial discretion of the trial court and the exercise of such discretion is to be disturbed on appeal only if there is such an abuse of discretion as to make the decision plainly and palpably wrong. White v. White, Ala.Civ.App., 334 So.2d 908 (1976); 8 Ala.Dig. Divorce &wkey;309.

Here, in this instance, we cannot find such an abuse as to require reversal. The trial court in fact modified the decree by reducing the amount by $150 per month. The trial court could have found that the husband-father who, approximately two years before this proceeding, was able to earn $2,000 per month and now only earns $550 per month is not earning to his capacity. Furthermore, the trial court could have well concluded that to reduce the amount even greater would have not been in the interest of the two minor children. Put another way, the cost of living, which the trial court can take judicial knowledge of, has increased since the original decree.

We should not be understood by the above as indicating that the trial court’s action would have necessarily been this court’s action. However, the law does not allow this court to substitute its judgment for that of the trial court. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The case is due to be affirmed.

AFFIRMED.

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


text:
    Billy Leon BOWERS v. Carolyn BOWERS.
    Civ. 1365.
    Court of Civil Appeals of Alabama.
    March 1, 1978.
    H. Neil Taylor for Taylor & Taylor, Rus-sellville, for appellant.

      James H. Tompkins for Tompkins & Tompkins, Tuscumbia, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The issues on appeal are: (a) May alimony in gross and periodic alimony be awarded in a judgment of divorce; (b) Is the award of alimony an abuse of discretion? It is the judgment of this court that the answer to issue (a) is yes. The answer to issue (b) is no. The judgment of the trial court must be affirmed.

The husband brought the action for divorce alleging incompatibility. The wife counterclaimed alleging cruelty. The court granted the divorce on the counterclaim of the wife, awarded her the house and twelve acres of land, and one-half the net proceeds from the sale of another house as alimony in gross. The wife was awarded $153 per month as periodic alimony. A seventeen-year-old daughter was awarded $20 per week support. The husband appealed.

The parties had been married twenty-one years. They had each worked and lived frugally while rearing two girls. One child is of age and no longer dependent. The father of the wife had given them ten acres of land in 1960. They had begun with a four-room shell home and had improved and enlarged it until they had a three-bedroom, two-bath, comfortable home. They had purchased other adjoining property until the tract comprised twelve acres and was valued at some $60,000. They had assumed payments on another house and their equity was estimated to be $7,000 to $9,000 in value.

In 1974, the husband had been determined by the Social Security Administration to be totally disabled from back injuries. He was retired by Reynolds Metals Co. and draws retirement and disability payments in the present-amount of $203 per month. His Social Security benefits are $514 per month. In addition, the dependent daughter draws $153 per month from Social Security and will continue until majority. After the divorce, the benefit due the wife of $153 per month will cease. After the divorce the husband will draw a total of $564 from Social Security and retirement. The wife will have no benefits. The evidence tends to show that in spite of his total disability for retirement and Social Security, the husband produces an additional income as a carpenter, farmer and landscaper.

The wife is presently unemployed and has no skill except as a waitress. She earns $8 to $20 per week as a substitute on a newspaper delivery route.

The husband relies upon the authority of a case rendered by this court to support the first issue presented. That case is Welch v. Welch, decided March 21, 1973 and reported in 49 Ala.App. 647, 275 So.2d 162. Insofar as the legal proposition stated therein and relied upon by the husband, that case was overruled by the Alabama Supreme Court in the case of Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974).

Plaintiff’s second issue is that the award of alimony is arbitrary and an abuse of discretion. We have carefully read the evidence presented and heard orally by the trial court. When viewed in light of the presumption of correctness accompanying all judgments rendered after oral hearing, we are unable to hold the award to be so unsupported by the legal testimony as to constitute a clear and palpable abuse of the judicial discretion of the trial judge. Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte Justin Wayne WOOD.
    6 Div. 618.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Ex Mero Motu Denied Oct. 25, 1977.
    Certiorari Granted Nov. 29, 1977.
   No opinion.

All the Judges concur.

Writ Quashed, Ala., 355 So.2d 734.


author: BEATTY, Justice.

text:
    In re Justin Wayne WOOD, alias v. STATE of Alabama. Ex parte Justin Wayne Wood, alias.
    77-197.
    Supreme Court of Alabama.
    Feb. 10, 1978.
    Justin Wayne Wood, pro se.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   BEATTY, Justice.

The petition for writ of certiorari to the Court of Criminal Appeals, 355 So.2d 734 is quashed as improvidently granted.

WRIT QUASHED.

All the Justices concur.


author: TYSON, Presiding Judge.

text:
    Oliver Lamar YOUNG, alias v. STATE.
    1 Div. 822 & 845.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    Rehearing Denied. Jan. 24, 1978.

      Michael A. Figures and W. Clinton Brown, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and John B. Rucker, III, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The appellant, Oliver Lamar Young, was indicted for the robbery of the Little General Food Store, 2804 Spring Hill Avenue, Mobile, Alabama. The jury found appellant guilty as charged and fixed his punishment at sixty years in the penitentiary. The trial court then entered judgment in accordance with this verdict.

Deborah Ann Trimnal testified that, on December 17, 1975, she was employed by the Little General Food Store, located at 2804 Spring Hill Avenue, Mobile, Alabama. Trimnal stated that around 7:00 p. m. that evening a brown colored automobile with two black male passengers pulled up to the front of the store. Trimnal testified that the front of the store is glass and therefore the whole parking lot is visible from the inside of the store. According to Trimnal, the two black males sat in the car for several minutes, observing the store, then drove off. Trimnal identified the appellant as the passenger in the brown automobile that evening. Trimnal testified that approximately thirty to forty-five minutes later, the appellant came in the store and asked for a pack of Kool cigarettes and some “Contacs (cold capsules).” As Trim-nal was getting the cigarettes, she stated, the appellant pulled out a long-barreled pistol and said that this is a robbery. According to Trimnal, the appellant instructed her to put all the money in the cash register in a paper bag. The cash register, Trimnal stated, contains a ten dollar bill, which is separate from the other currency in the register. Once this ten dollar bill is removed, Trimnal testified, a silent alarm goes off at the Mobile Police Headquarters, signifying that a robbery is taking place at the food store. Trimnal stated that she removed this bill from the register along with seventy-two dollars in various denominations. As she was placing the money in a paper bag, Trimnal testified, a customer came in the store. The appellant told Trim-nal to act like she was getting him something from behind the counter. When the customer went to the back of the store, Trimnal stated, the appellant took the sack, told her not to move because he had her covered with a shotgun, and left through the front door.

Trimnal testified that, as the appellant was walking out the front door, Sergeant Gill of the Mobile Police Department was entering the store. Trimnal stated that Gill asked her if she knew that her silent alarm had gone off in the store. Trimnal testified that she told Gill she had just been robbed by the man leaving the store. Trimnal stated that Gill immediately gave chase.

Later that night, Trimnal picked the appellant out of a lineup as the man who had robbed the store earlier that day.

Sergeant James Gill of the Mobile Police Department testified that on December 17, 1975, around 8:00 p. m., he responded to a radio dispatch in his car concerning a robbery at the Little General Food Store, 2804 Spring Hill Avenue, Mobile, Alabama. Gill stated that he was informed in the dispatch that a silent alarm had been set off and therefore not to use his siren. Gill testified that he was working that evening in plain clothes and was driving an unmarked car located only a block from the store. According to Gill, it only took him a few seconds to arrive at the scene. Gill testified that he drove up to the front of the store and sat in his car for a while observing the people inside the store through the plate glass. Gill stated he observed a lady near the back of the store, a black male at the counter, and a young lady behind the counter. According to Gill, everything appeared to be in order. Gill testified that, as he walked into the store, the appellant passed him coming out. Gill stated that he identified himself to the young lady as a police officer and asked her if she knew that her alarm had been set off. The young lady, according to Gill, told him- that the man who had just left had robbed her. Gill testified that he turned around and noticed the appellant through the plate glass window walking in front of the store, looking back inside. Gill stated that he pulled his revolver and gave chase. Gill testified that he fired one shot in the air and ordered appellant to stop. The appellant, according to Gill, jumped a low fence and started running. Gill testified that he knelt down on one knee to take aim when he caught a movement out of the corner of his eye. The next thing he remembers is a shotgun blast, which struck him in the mid-section and hurled him several feet back onto the pavement. Gill stated he looked up and saw a brown automobile moving away from where the shotgun was fired. Gill testified that a police car drove up, and he yelled at them to get the man in the brown car who had shot him. Gill picked the appellant out of a group of photographs as the man who robbed the store.

Officer Thomas Calhoun testified that he was a sergeant with the Mobile Police Department on December 17, 1975. Calhoun stated that he also responded to the robbery radio dispatch on his car radio that evening. Calhoun testified that he was driving an unmarked car without a siren. When he arrived at the Little General Food Store, Calhoun stated, Officer Lee had just pulled into the parking area. Both Calhoun and Lee noticed a brown automobile with the headlights off, driving very slowly behind an adjoining service station. Calhoun stated that both he and Lee gave chase, but the brown automobile accelerated and left. Since Officer Lee was in a marked automobile with a siren, according to Calhoun, he (Calhoun) came back to help render first aid to Gill while Lee pursued the brown automobile.

T. E. Lee testified that he was employed with the Mobile Police Department on December 17, 1975. Lee stated that he also responded to the robbery dispatch that evening. When he arrived at the scene, Lee testified, Gill was lying on the parking lot pavement. Gill, according to Lee, said that a man in a brown automobile had just shot him. Lee testified that he got in his car and noticed a brown automobile behind a service station moving slowly with its headlights off. Lee stated that a chase ensued and reached speeds up to seventy miles per hour. After approximately a four to five block chase, Lee testified, the brown car slid into a residential front yard, and Lee was able to block the car from moving any further. Lee stated that he found a twelve-gauge shotgun and a holster suited for a long-barreled pistol on the floorboard. Lee testified that the driver was John Lewis Young, the appellant’s brother.

Officer John F. Saxon of the Mobile Police Department testified that he arrived at the location of the chase shortly after Lee had apprehended John Lewis Young. Saxon stated that he found a box of shotgun shells on the ground outside the passenger side of Young’s car which he identified at trial.

Officer Carl Freeman of the Mobile Police Department testified that he broke down the shotgun and found an expended shell.

Officer Hubert Bell of the Mobile Police Department testified that he went to the Mobile Work Release Center on Dauphin Street in Mobile, Alabama, later that same evening, and arrested the appellant, Oliver Lamar Young.

Sergeant Joseph Connick of the Mobile Police Department testified that he read the Miranda rights to appellant, and the appellant stated he understood them.

Mr. Tony Sewell testified that he was the Director of the Mobile Work Release Center on Dauphin Street. Sewell outlined the steps an inmate must go through to be placed in the Center and the qualifications which must be met. Sewell testified that the daily log which is kept by the Center’s personnel showed that the appellant was present at 7:15 p. m. and 8:55 p. m. on December 17, 1975. Sewell stated that he could not testify as to appellant’s whereabouts between 7:15 p. m. and 8:55 p. m.

Seven inmates appeared as witnesses and testified the appellant was present with them at one time or another during the evening hours of December 17, 1975, from 5:00 p. m. until 8:30 p. m., at the Work Release Center.

I

The appellant contends that the trial court committed reversible error in overruling appellant’s objections to certain remarks made by the district attorney during closing argument.

During this argument the following occurred (R. pp. 305-306):

“MR. GRADDICK: I wish you’d go back there and not give this man something minimum. The minimum is ten years, but you’ve heard testimony all day long about paroles and early releases and work release centers. Don’t go back there and give this man a minimum sentence because you know what kept him from getting the maximum right off the bat? Because he lived.
“MR. BROWN: Judge, I want to object at this time to the statement of the district attorney asking the jury not to give him a minimum sentence and commenting on the parole system of the State of Alabama.
“THE COURT: He hasn’t commented in that context on the parole system. Overruled.
“MR. BROWN: Your Honor, I state for the record that he has and I ask . . .
“THE COURT: Well, if I’m in error, I would be in error, but I assure you he did not.
“MR. BROWN: Your Honor, I ask that the portion of the argument be transcribed from the tape.
“THE COURT: It will be if you want it later. He did not say that in that context.”

Mr. Sewell of the Mobile Work Release Center had testified to the qualifications an inmate must meet in order to become eligible for work release status. In Sewell’s testimony there are several references to paroles. Such being the case, the district attorney’s statement was a reasonable inference deducible from the evidence. Edwards v. State, 56 Ala.App. 405, 321 So.2d 744, and cases therein cited. Thus, no error is shown.

II

Also, during closing argument, the following occurred (R. pp. 304-305):

“MR. GRADDICK: What else have you got? You’ve got the Defendant’s brother apprehended from the scene. Did he tell you he didn’t do it?
“MR. BROWN: Judge, we object and we’ve got a motion. We would like to approach the bench and state that motion for the record.
“THE COURT: Come on.
“(Whereupon, the following occurred out of the hearing of the jury:)
“MR. BROWN: Your Honor, we object to the statement of the district attorney to the jury, that in stating the evidence against our client, that they had a positive I.D. by two witnesses, that they had caught his brother, and at that point the district attorney turned and pointed at the Defendant and said, quote, ‘Did he tell you that he didn’t do it?’ Your Hon- or, that is a direct reference and comment on the failure of the Defendant to testify in violation of his constitutional rights, and we ask this Court for a dismissal of all charges. Mr. Graddick is well aware that that action on his part is prejudicial to our client.
“THE COURT: That’s not what he said.
“MR. BROWN: What did he say?
“THE COURT: I’ll tell you after we get through here.
“MR. BROWN: He pointed at my client and stated, ‘Did he tell you he didn’t do it.’
“THE COURT: Do you want to put anything in the record?
“MR. GRADDICK: I said his brother, did he tell you he didn’t do it?
“MR. BROWN: Judge, I would like to .have the actual tape — I understand it’s being tape recorded. I would like to have the tape transcribed. I think this transcription, with what we’ve got, is that there was a long pause of approximately four to five seconds and he turned and faced the Defendant and pointed to the Defendant and said, ‘Did he tell you he didn’t do it.’
“THE COURT: I didn’t take it that way, but it’s in the record. Go ahead.
“MR. BROWN: Judge, could I have a ruling on my motion?
“THE COURT: Denied.
“MR. BROWN: Our motion for a mistrial.
“THE COURT: Denied.
“MR. BROWN: We except.”

The appellant contends that this was a direct reference to and comment on the failure of the appellant to testify at trial. At the hearing on the motion for a new trial, Mr. Graddick admitted making a gesture toward the appellant while making the above statement, but maintained that such gesture was made on the second “he ” quoted above. Also, as shown above, the trial judge did not interpret the statement as being a reference to the appellant’s not testifying at trial. The reference was to appellant’s brother and not the appellant.

The trial judge was in a better position to observe the proceedings and the demeanor of the attorneys, and he understood the district attorney’s gesture as referring to. appellant’s brother, about whom there had been testimony at trial. In this state of the record, we are not in a position to overrule the trial judge’s understanding of the situation which transpired.

In Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666, we find this statement:

“. . . Rather, the law assumes that defense counsel will act with due diligence so as to have such witnesses as necessary available at trial. Then, by way of compulsory process for obtaining such witnesses, the defendant is secured of a proper presentation of his case at trial. See Veith v. State, 48 Ala.App. 688, 267 So.2d 480, and eases cited. “Moreover, a searching cross-examination is also available to the defense. The record here reveals a thorough and sifting cross-examination of each eyewitness called to testify for the State, and thus we find no prejudicial effect on appellant’s rights.”

The appellant’s brother was at the courthouse and was therefore equally available at trial to either side to be called as a witness. The decision to call or not to call the brother was one for the respective parties to decide in the course of developing their evidence at trial. Under the circumstances presented, we cannot ascribe error to such decision to call or not to call the brother, and we therefore cannot attribute error to the above-quoted reference. See Keeby v. State, 52 Ala.App. 31, 288 So.2d 813, cert. denied, 292 Ala. 724, 288 So.2d 817; also, Gissendaner v. State, Ala.Cr.App., 338 So.2d 1025, cert. denied, Ala., 338 So.2d 1028.

Because of our decision in this cause, we find it unnecessary to make reference to a separate trial of the appellant, which took place on March 29, 1977, or any occurrence therein.

This Court has carefully considered this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Oliver Lamar YOUNG.
    77-309.
    Supreme Court of Alabama.
    March 3, 1978.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Robert RUDOLPH v. STATE.
    3 Div. 786.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Rehearing Denied Jan. 24, 1978.
    Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   ON REHEARING

BOWEN, Judge.

The appellant was indicted and convicted for a crime against nature as condemned by Title 15, Section 106, Code of Alabama 1940. Sentence was fixed at ten years imprisonment. The appellant is represented by retained counsel both at trial and on appeal.

The conviction of the appellant was affirmed without opinion by this court, all judges concurring, on December 20, 1977. On rehearing, the appellant has requested this court to deliver an opinion setting out the facts and reasoning behind its decision.

While we fully appreciate appellate counsel’s skilled and diligent efforts to prosecute this appeal, we see no reason to detail the particular facts surrounding the conviction. They entail various homosexual and inhumanly cruel acts which deserve neither repetition nor preservation in any written record. They reveal not so much the deplorable conditions that existed in a county jail as they disclose the foulness and degradation of the minds and actions of a few imprisoned creatures. For purposes of this appeal, it is sufficient to state that the unwilling victim testified that the appellant performed an act of anal intercourse upon him. This in itself is sufficient to sustain the conviction. Fuller v. State, 39 Ala.App. 90, 94 So.2d 788 (1957); LaBryer v. State, 45 Ala.App. 33, 222 So.2d 361, cert. denied, 284 Ala. 732, 222 So.2d 366 (1969); Stevens v. State, Ala.Cr.App., 333 So.2d 852, cert. denied, Ala. 333 So.2d 855 (1975).

On appeal the only ground for reversal cited is the failure of the trial court to give five of the written charges requested by the appellant. Our review convinces us that the same principles of law requested in the refused charges were substantially and fairly covered in the oral charge of the court and in other written charges given at the request of the appellant. Therefore the refusal of the charges was not error. 6A Alabama Digest, Criminal Law, ®=»829(1); Title 7, Section 273, Code of Alabama 1940. The oral charge need not contain the same phraseology as that of the charges refused for this rule to apply. Roberson v. State, 233 Ala. 442, 172 So. 250 (1937). The refusal of correct charges is justified where the charges given cover every phase of the applicable law. Williams v. State, 24 Ala.App. 446, 136 So. 840, cert. denied, 223 Ala. 557, 136 So. 841 (1931); Mullins v. State, 28 Ala.App. 288, 183 So. 894, cert. denied, 236 Ala. 578, 183 So. 896 (1938).

The appellant has in no way been prejudiced by our failure to give a more detailed or lengthy statement of the law or the facts. Under Rule 39(k) Alabama Rules of Appellate Procedure, the appellant may copy into his brief those facts which we have omitted. Additionally the oral charge of the trial court is relatively brief and may be reviewed in its entirety by the Supreme Court on certiorari.

We have searched the record for error and considered those arguments advanced by the appellant. Our conclusion is that the judgment of the trial court is due to be affirmed.

APPLICATION OVERRULED.

All Judges concur.


text:
    Ex parte Robert RUDOLPH.
    77-307.
    Supreme Court of Alabama.
    March 3, 1978.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Susan ZIERER v. STATE.
    8 Div. 4.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.

      Robert W. Walker, Florence, for appellant.
    William J. Baxley, Atty. Gen. and Susan B. Bevill and Samuel J. Clenny, III, Asst. Attys. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent, was indicted for possession of a Controlled Substance listed in Title 22, § 258(35)(b)(5), schedule IV, Recompiled Code, 1958. During the progress of the trial, and after some evidence was adduced, defendant entered a plea of guilty. Sentence: four years. Probation denied. This appeal is from a judgment entered pursuant to the guilty plea.

We have examined the record and find that the Court, before accepting the plea of guilty, fully informed appellant of her rights under the law.

Attached to the written plea of guilty was a written statement, signed by defendant, in which she lists her rights and acknowledged that she had read the statement and understood it.

Defendant’s attorney signed a certificate thereto appended. He acknowledged that his client had read the statement or that he had read it to her. He further certified that he had explained to defendant her constitutional rights in detail and that she stated to him that she fully understood the same. Suffice it to say that appellant was fully informed of her rights.

The plea of guilt, tendered by appellant and accepted by the Court, purged the record of error and cut off review of such assertions here tendered. Knowles v. State, 280 Ala. 406, 194 So.2d 562(2)(3); Hanes v. State, 56 Ala.App. 711, 325 So.2d 219(1); Mack v. State, 51 Ala.App. 611, 288 So.2d 150(4); Monroe v. State, 50 Ala.App. 302, 278 So.2d 751(6).

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.

      . Ireland v. State, 47 Ala.App. 65, 250 So.2d 602.


text:
    Alvin Lee COBB v. STATE.
    4 Div. 586.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.

      Timothy B. Loggins, Opp, for appellant.
    William J. Baxley, Atty. Gen. and Susan B. Bevill, Asst. Atty. Gen.,, for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Covington County returned an indictment against the appellant, Alvin Lee Cobb, charging him with robbery. Appellant entered a plea of not guilty. A jury found him guilty as charged and fixed his punishment at 20 years imprisonment in the penitentiary and the court duly sentenced him to twenty years in the penitentiary. The appellant appeals to this Court.

Appellant was represented at all proceedings in the trial court, and is here represented by court appointed counsel. This appeal was submitted to this Court on briefs.

It is not necessary to state the evidence of the robbery and of defendant’s plea of alibi, other than to make the observation that the guilt or innocence of the appellant presented a question of fact to be decided by the jury.

The appellant argues in his brief five reasons why his conviction should be reversed; first, because the trial court permitted the introduction into evidence a waiver of search warrant and a consent to search; second, that the consent to search did not apply to appellant but only to the party who signed it; third, that the state did not prove that the consent to search was given freely, unequivocally and voluntarily; fourth, that the party who signed the consent to search was not in court to be cross-examined by appellant; fifth, by allowing to be introduced into evidence a pair of blue shoes, fruits of the search.

There was evidence presented during the trial in the lower court in the presence of the jury, and on voir dire that Mrs. Alberta McGhee was a tenant and in the actual possession of the premises located at 2480-6th St. N.E., Winter Haven, Florida; that she freely and voluntarily, and without compulsion or threats of any kind, and understanding her constitutional rights in regard to the search, completely and intentionally waived them, and consented that the premises be searched without a search warrant; that the waiver of search warrant and consent to search was in figures and writing, and signed by Alberta McGhee as a tenant, and was witnessed by Don Harrell, Chief Deputy, Covington County, Alabama, Detective David Smith, Polk County, Florida, Sheriff’s Office, and Detective Guy W. Henry of Winter Haven, Florida Police Department; that the consent to search was signed in the presence of the three witnesses, and is in words and figures, as follows:

“POLK COUNTY SHERIFF’S OFFICE
BARTON, FLORIDA
DATE 5-12-77
IN RE: CASE NO. 0429 Alabama Case Number
CONSENT TO SEARCH
AND
WAIVER OF SEARCH WARRANT
I,_Alberta McGhee_hereby give my full consent that the premises located at 2480 6th ST. NE. Winter Haven. FL._ may be searched by the Sheriff, or any Deputy Sheriff, or Police Officer of Polk County, Florida, or all. This consent extends to the main building and any enclosures found on the property. I give this consent freely and voluntarily, without compulsion or threat of any kind.
I fully understand my Constitutional Rights in regard to the search and it is my intention to fully and completely waive such rights by this consent.
I further agree that anything or article that may be found in the search of the premises may be used in a court of law in any matter of which I may stand accused.
Signed Alberta McGhee
Authority Alberta McGhee
(Owner, tenant, employer, employee, common occupant, agent, custodian, or other).
WITNESSES:
Don Harrell. Chief Deputy Cov. Co. Al.
Pet. David M. Smith P. C. S. 0.
Pet. Guv W. Henry W. H. P. D.”

State’s evidence further tends to prove that the above named officers searched the premises and found a pair of blue shoes, and that Alberta McGhee was the only person present except the officers making the search.

The appellant testified that he rented and was buying the premises that were searched; that the premises were his home and that Alberta McGhee was a girl friend living in the home with him.

First we consider the authority of Alberta McGhee to waive a search warrant and to consent to a search of the premises. The authority of a person to waive a search warrant and to consent to the search of premises rest on the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit an inspection in his or her own right, and that the others have assumed the risk that one of their members might permit the common area to be searched.

The evidence before the trial court fully sustains the finding of the trial court that Alberta McGhee was in possession of the premises searched and lived in them with the appellant as his girl friend. The premises searched was a house trailer.

We hold that under the decisions of this Court when applied to the facts in this case the trial court did not err in determining from the evidence that Alberta McGhee had the authority to waive a search warrant and consent’ to a search of the premises. Scott v. State, Ala.Cr.App., 337 So.2d 1342; Smith v. State, Ala.Cr.App., 340 So.2d 889, cert. denied, Ala., 340 So.2d 895; Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. den. Ala., 335 So.2d 688.

Appellant contends that the consent to search did not apply to him but only to the party who signed it. We hold that when a consent to search is lawfully given by a person lawfully authorized to give consent, that the fruits of the search tending to prove the appellant had committed a robbery are lawfully seized and would be admissible in evidence against him. Lucy v. State, 46 Ala.App. 484, 243 So.2d 756; Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353.

Appellant’s third contention in his brief is that the State did not prove that the consent to search was given freely, unequivocally and voluntarily. It is stated in the case of Scott v. State, supra, that when the State relies on a consent to search given by a third party that the burden is on the State to prove by clear and convincing evidence that the consent was voluntarily and knowingly given and that the third party who gave the consent had sufficient authority to do so. We hold that the evidence presented by this record fully discharges this burden on the State.

The appellant’s next contention is that he was denied his constitutional right to have Alberta McGhee in court to be cross-examined by appellant.

It appears from the record that the above waiver of search warrant and consent to search, signed by Alberta McGhee, was presented to the trial court by the state for the benefit of the trial court in making a determination of the validity of the search. Alberta McGhee lived in the State of Florida; she was not within the jurisdiction of the trial court. There was evidence before the trial court by a witness to the consent that the witness saw Alberta McGhee sign it, that she was in possession of the property. We hold that the written waiver of a search warrant, and consent to search was admissible evidence on the issue as to whether there was a valid waiver of a search warrant, and a valid consent to search. Liptroth v. State, supra; Smith v. State, supra.

Finally we come to appellant’s contention that the trial court erred in allowing into evidence the blue shoes, a part of the fruits of the search. We hold that the trial court did not err in allowing the blue shoes in evidence as against the objection that they were the fruits of an unlawful search and seizure.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a Retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Lloyd DUNCAN v. STATE.
    8 Div. 995.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    E. Charles Ogden, III, of Jetton & Ogden, Guntersville, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen. for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Marshall County returned an indictment against the appellant, Lloyd Duncan, charging him with rape. Appellant entered a plea of not guilty. A jury found him guilty as charged and fixed his punishment at ten years imprisonment in the penitentiary and he was duly sentenced by the court to ten years in the penitentiary. He appeals to this Court.

Appellant was represented at all proceedings in the trial court by counsel of his choice and is here so represented. This appeal was submitted to this Court on briefs.

The appellant contends that his conviction should be set aside and he should be given another trial due to the trial court overruling his motion for a continuance of his trial. The grounds for a continuance were to allow the counsel for appellant to have time to study a recent Act of the Legislature of the State of Alabama about evidence in a rape case.

On April 21,1977 the following act passed by the Legislature of Alabama became effective:

(Vol. 1 Acts of Alabama Regular And Special Sessions 1977, Page 328)
“Be It Enacted by the Legislature of Alabama:
Section 1. As used in this act, unless the context clearly indicates otherwise:
(a) ‘Complaining witness’ means any person alleged to be the victim of the crime charged, the prosecution of which is subject to the provisions of this act.
(b) ‘Criminal sexual conduct’ means sexual activity including, but not limited to rape, sodomy, sexual misconduct, sexual abuse, or carnal knowledge.
Section 2. (a) In any prosecution for criminal sexual conduct, or for assault with intent to commit, attempt to commit, or conspiracy to commit criminal sexual conduct, evidence relating to the past sexual history of the complaining witness, as defined in Section 1 of this act, shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses, except as otherwise herein provided. For the purpose of this act past sexual behavior includes, but is not limited to evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchastity or sexual mores contrary to the community standards.
(b) In any prosecution for criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness shall be introduced if the court, following the procedure described in paragraph (c), finds that such past sexual behavior directly involved the participation of the accused.
(c) The procedure for introducing evidence as described in paragraph (b) shall be as follows:
(1) At the time the defense shall seek to introduce evidence which would be covered by subsection (b), the defense shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine into the defendant’s offer of proof. All in camera proceedings shall be included, in their entirety, in the transcript and record of the trial and case.
(2) At the conclusion of the hearing, if the court finds that any of the evidence introduced at the hearing is admissible under paragraph (b), the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.
(3) The defense may then introduce evidence pursuant to the order of the court.
Section 3. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
Section 4. All laws or parts of laws which conflict with this act are hereby repealed.
Section 5. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.
Approved April 21, 1977.
Time: 5:45 P.M.’’

The alleged rape was on the night of May 14 and 15, 1977. The appellant was arrested May 15,1977 and charged with rape, and on May 18, 1977 admitted to bail. The indictment was returned against him on May 26, 1977 and on June 8, 1977 he' was duly arraigned and entered a plea of not guilty and his case was set for trial on July ,25, 1977 at 9:00 o’clock, A. M. On July 25, 1977 the appellant’s attorney, when asked by the trial judge if he was ready to strike a jury for the trial of the case, stated he was not and asked the court to continue the case so that the attorney for appellant could have time to study the above act; that appellant’s defense was consent and that he had prepared his case to present the defense of consent to the jury; that counsel had diligently researched the law on the question and did not know of the existence of the above action of the Legislature until this morning; that he needed time to study the act in order to present his client’s defense to the jury. The court overruled his motion for a continuance and proceeded with the trial.

The granting or denying a continuance is within the sound discretion of the trial judge. Unless it appears to this Court from the record that the trial judge has abused his discretion and such action was prejudicial to the appellant, this Court will not interfere. Fletcher v. State, 291 Ala. 67, 277 So.2d 882; Fisher v. State, Ala.Cr.App., 346 So.2d 4, certiorari denied, Ala., 346 So.2d 8.

We have reviewed the entire record and conclude that the trial court did not abuse its discretion in overruling the appellant’s motion for a continuance. Appellant was allowed to introduce all evidence offered by him of all of the complaining witness’ past sexual behavior directly involving the participation of the appellant.

No other rulings of the trial court are argued in appellant’s brief.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Walden Paul JARRELL v. STATE.
    1 Div. 863.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    E. H. Bixler, IV, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen. for the State.
   BOWEN, Judge.

This is an appeal from a conviction for manslaughter in the first degree arising out of an automobile accident in which a seventeen year old boy was killed. Punishment was fixed at ten years’ imprisonment. At trial the appellant was represented by retained counsel. On appeal he is represented by court appointed counsel and provided with a free transcript.

Two issues are presented on appeal: (1) Whether the trial judge erred in denying the appellant’s challenge for cause of certain prospective jurors and (2) whether his motion for a new trial was due to be granted on the grounds of newly discovered evidence.

Alabama State Trooper Oscar D. Kyles investigated an automobile accident which occurred around 11:30 on the evening of February 19, 1977, on Alabama State Highway 163 near Dauphin Island Bridge in Mobile County, Alabama. The appellant’s vehicle, a 1965 Ford pickup truck, had collided with the 1974 Ford Mustang driven by Charles Jackson Head, the deceased. Both vehicles were heavily damaged although the Mustang was demolished. There were fresh gouge marks near the center of the highway and debris from the wreck was scattered in an area of approximately ninety to one hundred feet. Skid marks belonging to the appellant’s vehicle extended 138 feet south of the point of impact which Trooper Kyles determined to be in the middle of the deceased’s lane.

When Trooper Kyles arrived Charles Head was already dead and his face was caved in completely. Carlton Wayne Tillman, a passenger in Head’s Mustang, received only minor injuries. The appellant was taken to the emergency room at the University of South Alabama Hospital by ambulance. The two passengers who were with the appellant, Joseph Dale Gentry and Barry Faggard, received only minor injuries.

At the hospital Trooper Kyles attempted to interview the appellant who appeared “delirious” and smelled strongly of alcoholic beverages. The appellant was moaning and apparently could not understand the Trooper’s questions.

Dr. Brian Keith Montgomery testified that he was a medical pathologist at the Mobile Infirmary. He stated that Charles Head died from “a massive crushing deformity of the face with massive injury to the brain”.

Dr. Douglas H. Brown was an M.D. interning at the University of South Alabama Medical Center and treated the appellant following the accident. He testified that a blood alcohol test of a sample of the appellant’s blood resulted in 315 milligrams percent alcohol. A level of 300 “usually implies that the patient is stuporous” and has a tendency to fall asleep or pass out. The appellant was “clinically” intoxicated. Dr. Brown also noticed the odor of alcohol on the appellant. Besides intoxication, the appellant was found to have suffered a cut of the bridge of the nose, several small lacerations and multiple bruises over his body and bruised ribs. Though the appellant made no complaint about his foot, when the appellant returned to the hospital the next day it was discovered he had a fractured bone in his foot. Dr. Brown testified that the blood alcohol test was done as a matter of routine in such cases where intoxication is suspected primarily to determine whether the patient’s state is due to trauma from the accident or the alcohol and also to protect the hospital and doctors in a potential malpractice action for not discovering a fracture because the patient was intoxicated and did not complain about that specific injury.

Carlton Wayne Tillman was a passenger in the Mustang driven by the deceased. He was dozing when the deceased ran off the road. He raised up and thought he caught a glimpse of headlights but could not identify the driver of the other car. He stated that neither he nor the deceased had had anything to drink.

John Henry Ferrouillat had a fishing camp on Peavy Island and testified that the appellant came to help him with some mullet nets they had set out. The appellant arrived about four or five o’clock that afternoon and brought ten beers with him. The appellant did not appear intoxicated at any time and only consumed three beers before he left at 11:00 P. M. The appellant did not take any beer with him but left “at a high rate of speed”. Mr. Ferrouillat stated that as the appellant was leaving someone asked him why didn’t he let one of the two boys drive. The appellant left the fishing camp on one side of Dauphin Island Bridge, drove across the bridge, and the accident happened when he came off the other side of the. bridge.

Barry Lamont Faggard was a passenger in the vehicle driven by the appellant. He testified that the appellant did not have anything to drink on the way to the fish camp. However on the way home, as they were crossing the Dauphin Island Bridge, the appellant almost hit two cars on the bridge by swerving into their lane. The appellant was driving about ninety miles an hour Faggard thought, though he did not see the speedometer. When the appellant went around “that little curve” he was on the wrong side of the road and crashed into the Mustang driven by the deceased. Despite the fact that the appellant’s truck was twelve years old, Faggard stated that he “had seen the speedometer of this truck at speeds over 100 miles an hour”. He did not know whether his parents had made a claim for an insurance settlement on his behalf based on their uninsured motorist clause which would only allow recovery if the appellant was at fault.

The state rested its case and defense counsel’s motion to exclude the evidence was denied.

The main thrust of the defense went to an attempted showing that the appellant was not intoxicated or driving in a reckless manner at the time of the collision.

Mrs. Pearl Ferrouillat testified that the appellant was not intoxicated when he arrived at or left their fishing camp, and that during the entire time he was there he only had three beers.

The appellant took the witness stand in his own behalf and testified that he did not drink any beer until he arrived at the fishing camp and only drank three beers during the six or seven hours he remained there. He stated that his truck was on its “last leg”, would just barely pull itself, and certainly wouldn’t go ninety miles per hour. The appellant testified that he was going thirty-five or forty miles per hour as he crossed the bridge and denied almost hitting two cars or swerving into the oncoming lane of traffic. He stated that he never saw the vehicle driven by the deceased and never saw any oncoming headlights. All he saw was a “flash” at the instant of the crash.

Cross examination of the appellant by the Assistant District Attorney revealed that the appellant did not have a driver’s license, that it had been revoked for about fifteen years because of “minor tickets” including speeding, illegal mufflers, driving while intoxicated and reckless driving. The appellant admitted having three convictions for driving while intoxicated and one for reckless driving since 1974. In 1962 the appellant was convicted of second degree burglary. Because of these convictions, the appellant was not even eligible for a license when the crime occurred. The remainder of the testimony of the appellant was devoted to denying or attempting to explain away the wealth of incriminating evidence presented against him.

I

We find no merit to the appellant’s contention that the trial court erred in denying his challenges for cause of certain prospective jurors. Each juror challenged was individually examined by the trial judge and each testified in substance that he could render a fair and impartial verdict.

Where jurors testify that they have opinions but that they would try the case fairly and impartially according to the law and the evidence, and that their opinions would not influence their verdict, they are competent to serve and it is not error for a trial judge to deny a challenge for cause. Godau v. State, 179 Ala. 27, 60 So. 908 (1913); McCorvey v. State, Ala.Cr.App., 339 So.2d 1053, cert. denied, Ala., 339 So.2d 1058 (1976); 13 Alabama Digest, Criminal Law, «=>103(2).

II

• The appellant contends that the. motion for new trial was due to be granted because of “newly discovered evidence”. This evidence was the testimony of Joseph Dale Gentry, a passenger in the appellant’s truck at the time of the collision. It is alleged that this witness moved to Mississippi shortly after the accident and could not be located at the time of trial. .

In an affidavit attached to the motion for new trial, Gentry states that Barry Fag-gard was very drunk from having consumed one and one-half beers during the course of evening; that the appellant did not appear to be intoxicated; that the appellant might have driven as fast as seventy miles per hour in crossing the bridge but ■ not faster; that on two occasions the appellant did cross the center line on the bridge but there was no .traffic coming; that he (Gentry) did not see the other vehicle because it did not have any lights; and that at the time of the collision the appellant was in his own lane.

The record reveals that the trial judge continued the appellant’s trial from June 20th til June 23rd because defense witnesses Mr. and Mrs. John Ferrouillat were not present. On the date of trial (June 23rd), the judge issued attachments to secure the presence of these witnesses and delayed the start of the trial until they arrived on defense counsel’s representation that “the defense will not be ready for trial unless these witnesses are present” and that “the defense will be ready for trial if these witnesses are present”. “These witnesses” referred to Mr. and Mrs. Ferrouillat. Witness Gentry was never mentioned or subpoenaed before trial. His presence was requested for the first time on the motion for new trial.

The issue in this regard was settled by the case of Vinet v. State, 38 Ala.App. 299, 301, 83 So.2d 357, cert. denied, 263 Ala. 701, 83 So.2d 359 (1955), wherein the court held that the matter of a defendant’s absent witness could not be raised for the first time by motion for new trial, where the defendant had rested his case without requesting any compulsory process for attendance of the witness, had not moved for any delay in the trial proceedings and had not requested that he be allowed showings on the testimony of the absent witness. To permit this matter to be raised for the first time by a motion for new trial where the existence of the witness was known before trial would be to allow the defendant to speculate on the verdict of the jury.

Here defense counsel announced ready for trial and the court’s action in denying the motion for new trial was not error.

We have reviewed the record and found no error. This crime reveals an utter and total disregard for the laws of this State and the lives of others. The trial was fair and the punishment just. The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Donald William McBRIDE v. STATE.
    4 Div. 603.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.

      Cary L. Dozier, Troy, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Atty. at Law, for appellee.
   CLARK, Retired Circuit Judge.

Appellant-defendant was charged in an indictment with the unlawful possession of marijuana after a prior conviction for the same offense. A jury found him guilty and declined to assess a fine. The court fixed his punishment at imprisonment for six years.

The prosecution was based on the Alabama Uniform Controlled Substances Act. Acts of Alabama 1971, Act No. 1407, Vol. Ill, P. 2378. Marijuana is included in § 204(d)(10) thereof as a Schedule I Controlled Substance. Section 401 thereof prescribes the penalty for “subsequent offenses relating to possession of marihuana” at imprisonment for not less than 2 nor more than 15 years and, in addition, permits a fine of not more than $25,000. Unquestioned proof was made of defendant’s previous conviction of possession of marijuana.

The guilt or innocence of defendant of the possession of marijuana in instant case hinges in almost all respects upon the testimony of two witnesses only: Deputy Sheriff Ray Norris and the defendant. They were the only two persons present on July 22, 1977, when Officer Norris testified he found the alleged substance in a match box in a “van type truck” in the possession of defendant, which substance was thereafter analyzed and tested and proved to be marijuana. Also, according to Norris, there was a paper bag in the truck behind the driver’s seat in which was a small amount “of what looked to be marijuana.”

According to the testimony of defendant, he had been fishing from his van type truck; Officer Norris approached him and asked him if he had seen a person named by the officer and stated that he wanted defendant to set the person up for sale of drugs by the other person and that, upon defendant’s refusal to agree to do so, Officer Norris went into the truck and returned with a match box and stated, “I’ve got you now.”

Although stoutly contending that the testimony of Officer Norris is not true in material respects, there is no contention that the evidence is not factually sufficient to support the verdict of the jury. Appellant’s chief contention is that the evidence presented by the testimony of Officer Norris was obtained under circumstances that deprived defendant of his Constitutional rights against self-incrimination and to the benefit of counsel, granted by the Fifth and Sixth Amendments, respectively, as extended to the area previously to the states by the Fourteenth Amendment, to the Constitution of the United States. Appellant insists that the admission of the evidence, consisting of the testimony of Officer Norris as to what defendant told him, is in conflict with principles set forth in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Both cases make clear that not all pretrial incriminating statements made to officers by a defendant without benefit of counsel are inadmissible, that their admissibility is dependent upon the circumstances, particularly the stage, at the time the evidence was obtained, of the activity that led to the prosecution of defendant and whether defendant had voluntarily and understandingly waived his Constitutional rights. We hereby attempt to set forth a narrative of the material evidence relevant to the question.

The evidence for the State commenced with the testimony of Officer Norris. He testified that when he first saw defendant on July 22, 1977, defendant was in his truck at a little beaver pond off Brooksville Road; defendant was in the seat with his feet hanging on the edge of the door facing out of the truck. Immediately after such testimony was given, counsel for the State, evidently having in mind the propriety of an in camera hearing on the question of the admissibility of the testimony to follow, suggested a hearing out of the presence of the jury, and the jury was sent to the jury room. During the hearing out of the presence of the jury, Officer Norris was further interrogated by counsel for the State and cross-examined by defendant’s counsel. Also on the in camera hearing defendant testified in response to questions asked by his counsel.

Testimony of Officer Norris on the hearing out of the presence of the jury was that upon his seeing defendant in defendant’s truck, the officer drove his automobile up behind the van, parked it, got out of the car and started around the van; as he started around the van defendant threw a part of a rolled type, homemade cigarette into the edge of the beaver pond; he asked defendant, “What are you doing?” The witness didn’t remember exactly what defendant said. He further testified that as he walked up to the truck, he could smell the smoke of marijuana, and he asked defendant if he had been smoking it, and defendant replied that he had. Mr. Norris then asked defendant whether defendant had any more and defendant said, “All I have is enough for me” or something to that effect. The two then walked back to the officer’s car. No search of the truck had been made at that time. The officer then, “read him his rights.” About that time three men came by in a truck, and Officer Norris had to move his car so they could get by. His testimony continued as follows:

“. . .We got back out of the truck and I asked him if that is all he had. He replied it was. We walked back up to the front of the van. They [sic] was a match box sitting up on the motor cover— “Q. Is there a motor cover or console between the two seats?
“A. It is a motor cover is what I call it.
“Q. All right.
“A. I asked him what was in the match box. At that time he said he didn’t know. He handed me the match box and it contained vegetable material such as what I would say was marijuana or what I believed to be marijuana at that time.
“Q. Did you take that into your possession?
“A. I did. At that time I asked him if he had any more, if that was all, and he said that was all he had. At that time I got in the driver’s seat of the van, sitting in the driver’s seat, and he had an old black chair sitting right behind the driver’s side of the van, kind of behind the console. Sitting down on the floor board in a small brown candy sack is what I call it, small tote paper sack, was what contained just several little — just a small quantity of the green vegetable material.”

Continuing his testimony, the witness said he had known defendant several years and knew that he had had a prior conviction for possession of marijuana.

On the in camera hearing, defendant’s testimony was a complete denial of the testimony of the deputy sheriff as to practically all material points. He denied that he had been smoking marijuana. He said he had been smoking a regular cigarette that day. He did not toss a cigarette away as the deputy came up. He did not have any marijuana in his truck at that time; there was no match box in his truck.

In the trial before the jury, Officer Norris and defendant testified substantially in accordance with the testimony of the two, respectively, out of the presence of the jury. In addition, Officer Norris said that he read defendant his rights from a card in his billfold, which he read to the jury, and which contained a plenary statement of rights and warnings, including, his right to a lawyer, and that if he could not afford a lawyer one would be appointed to represent him if he wished “before any questioning.” He said defendant indicated that he understood what the officer was talking about when he read him his rights from the card. He further testified that he offered defendant no hope of reward and did not threaten him in anyway to get him to say anything. He said that defendant stated that the match box containing the green vegetable matter that was afterwards analyzed and found to be marijuana, “was one of his friend’s, that they had been together that morning and smoked a joint.” Instead of admitting that he had attempted to get defendant to get another person to sell marijuana, the witness said, on cross-examination by defendant’s counsel, that defendant asked the witness if the witness would go light on him if defendant would help the witness trap a particular person by buying marijuana from him.

In his testimony before the jury, defendant went into considerable details as to his previous contacts with Officer Norris, in which, according to him, there was some connection between him and Norris in attempting to catch others in the process of having marijuana. He said that immediately after the occurrence made the basis of the prosecution in this case, Officer Norris told him to call him at his office that afternoon; that Officer Norris then left in his car, but thereafter rode up to defendant while defendant was going to his mother’s in his truck, took defendant with him, pointed out to him the person he wanted defendant to buy some marijuana from, but that defendant declined to do so and thereafter Officer Norris gave him a bond for him to get signed.

Although the testimony of defendant was in sharp and irreconciliable conflict with that of Officer Norris that' he fully advised defendant of his “rights” and gave him warnings as prescribed by Miranda, the court was well within its province in accepting the testimony of Officer Norris as a basis for the admission of the incriminating statements made by defendant thereafter. As to the admissibility of any incriminating statements made before defendant’s being advised of his rights and given appropriate warnings, we must look intently at the stage of the activity of Officer Norris at the time such statements were made.

“We hold only that when the process shifts from investigatory to accusatory— when the focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1766, 12 L.Ed.2d 977, 987.

It is clear to us that, at the time of every statement made by defendant prior to the reading to him of his rights, as related by Officer Norris, no accusation had been made against defendant. In fact, it is doubtful that even an investigation as to his possession of marijuana had commenced. Although smoking marijuana necessarily involves possession of marijuana, the evidence does not indicate that Officer Norris ever even purported to make any charge against defendant for his having smoked marijuana that day. There is nothing in the record to indicate that he was tried for the possession of any marijuana other than the marijuana found' in his truck. The first question asked defendant was “What are you doing?”, a perfectly natural and casual question. The next question, as to whether he had been smoking marijuana, was also natural and casual. The next question, as to whether he had any more, could be said to be investigatory, but certainly it was not accusatory. Before defendant answered that he had no more than enough for himself, there was no basis for any accusation that he was then in possession of marijuana. With apparent consciousness of the then approach to an accusatory stage, his rights were then fully explained to him. His previous statements do not fall within the condemnation of either Escobedo or Miranda. His statements made thereafter were predicated upon full compliance with both.

Not until some time after Officer Norris commenced informing defendant as to his Constitutional rights \Vas there a custodial interrogation of defendant.

“In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court of the United States set out the definition of custodial interrogation:
“ ‘By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Sims v. State, 51 Ala.App. 183, 190, 283 So.2d 635, 641.

We further note that at no time during the hearing in camera or in the presence of the jury, was any objection made by defendant to the evidence relative to statements made by defendant to Officer Norris. We are appreciative of the responsibility of the trial court in safeguarding the constitutional rights of defendant, particularly in the area here involved, but the circumstances here indicated that the interrogation now considered objectionable was not deemed objectionable by defendant on the trial and it calls for application of the principle that whatever right he. may have then had to a sustention of an objection was waived by his failure to object. Wilkerson v. State, 50 Ala.App. 150, 277 So.2d 423, cert. denied, 291 Ala. 802, 277 So.2d 427 (1973); Shiflett v. State, 52 Ala.App. 476, 294 So.2d 444, cert. denied 292 Ala. 749, 294 So.2d 448, cert. denied 419 U.S. 867, 95 S.Ct. 124, 42 L.Ed.2d 105 (1973).

Appellant also urges that the acquisition by the officer of the match box and its contents consisting of marijuana, and the sack and its contents resembling marijuana was an unreasonable search and seizure in contravention of the Fourth Amendment to the Constitution of the United States. His premise for the contention is that the officer did not then have probable cause for believing that marijuana was in the truck. We cannot agree.

He had noted the match box in open view in the van or truck. Before seeing the match box, he had smelled the smoke of marijuana; he had seen defendant smoking a “homemade cigarette,” which defendant had thrown into the edge of the water; defendant had told him that he had been smoking marijuana and that he had no more marijuana than was enough for himself. Upon being asked what was in the match box, defendant replied that he did not know. The officer knew at the time that defendant had a criminal record as a possessor of marijuana. Although a match box in and of itself could not be considered sufficient as probable cause for belief that it contained marijuana, at the particular time it fit so nicely into the other circumstances that they together informed a perfect tongue and groove for reasonable ground for believing that marijuana was in defendant’s truck. To this we add that there is a basis for a reasonable conclusion that the match box containing marijuana was voluntarily handed the officer by defendant.

Although there is little in the evidence to indicate that anything in the truck was taken by the officer other than items that were in the plain view of the officer, we have no doubt that a search warrant was not necessary to give validity to the conduct of the officer.

“Where there is probable cause to believe that a vehicle, which is capable of being moved, contains evidence of a crime, law enforcement officers may search the vehicle without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706.” Landry v. State, 56 Ala.App. 421, 321 So.2d 759, 761 (1975)

No error prejudicial to defendant is found in the record, and the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Larry Dale WALKER v. STATE.
    6 Div. 374.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.

      Frank S. Buck, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from two convictions of buying, receiving, concealing or aiding in concealing stolen property in Jefferson County, Alabama. Sentence was set by the trial court at a total of eight years’ imprisonment. At trial the appellant was represented by retained counsel. On appeal the trial court appointed different counsel.

Two questions are presented on appeal: (1) The insufficiency of the evidence and (2) whether the appellant was afforded effective legal counsel at trial.

The testimony was clear and undisputed that on the night of October 21, 1975, two 1966 Volkswagens were stolen. One belonged to Patricia Ard and the other to William Russell Garrick. It is also undisputed that both Volkswagens were found in the back yard of the appellant’s grandmother’s house approximately two weeks later. The interiors of the Volkswagens had been interchanged so that the interior of Ms. Ard’s Volkswagen, which was originally red, was now black. Mr. Garrick’s had been changed from black to red. The license plates- on the two automobiles had been interchanged and the vehicle identification numbers had been removed and altered.

The license tag from Ms. Ard’s Volkswagen was found in the glove compartment of Mr. Garrick’s automobile. Evidence technicians from the Birmingham Police Department were able to recover two fingerprint lifts from this tag. An expert identified these two prints as being the right index and right middle fingers of the appellant.

On November 15, 1975, Sergeant Dwight Lowe interviewed the appellant in the presence of his attorney and after the appellant had consulted with counsel. Sergeant Lowe testified that the appellant told him that he had seen the two Volkswagens at his grandmother’s house around Halloween or the last of October and that he had not seen them before. The appellant stated that two days later he saw the white Volkswagen (Ms. Ard’s) at his residence and it was being driven by Larry Keeton. When the appellant saw the automobile he told Keeton to “get it away from there” because he “had heard rumors about the car” but would not tell Sergeant Lowe what the rumors were. The appellant then took a stake and broke out one of the headlights. Sergeant Lowe also stated that .the appellant told him that he might have touched the cars on the outside but not on the inside.

With this witness the state rested its case. Defense counsel’s motion to exclude the evidence was overruled.

For the defense, Ms. Terry Arnold testified that she had seen the brother of the appellant with one of the Volkswagens.

The appellant’s brother, James Allen Walker, testified that he purchased both of the automobiles from a friend of his, John Wayne Whitworth, around the last part of August or the first part of October. He placed them in his grandmother’s back yard where he was living at the time. The brother testified that he interchanged the upholstery in the Volkswagens and that upon his request, the appellant helped him. The appellant also replaced or “changed out” a starter on one of the automobiles and “might have” touched the license tags “but I don’t believe he swapped them out”. The brother admitted “swapping the tags out” himself and told the appellant that he had purchased the two vehicles.

The appellant’s brother admitted that he had been convicted of burglary and grand larceny in December of 1974, of buying, receiving or concealing stolen property and burglary August of 1976, and also of robbery in late August of 1976.

I

Initially the appellant argues that the prosecution failed to prove the essential elements of the charged'offense.

The elements necessary to prove a prima facie case of buying, receiving, • or concealing stolen goods are (1) that the goods in question had been feloniously taken and carried away by someone; (2) that the defendant bought, received, concealed, or aided in concealing the goods, knowing that they were stolen; and (3) that the defendant bought, received, concealed, or aided in concealing the goods without the intent to restore them to the owner. Scott v. State, 55 Ala.App. 318, 314 So.2d 921 (1975); Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (1973). All of these necessary ingredients may be, and most of them usually are, shown by circumstances from which the jury, using their everyday common sense and observation, must draw their conclusions. Tyler v. State, 17 Ala.App. 495, 496, 86 So. 93 (1920).

The only question in this regard is whether the appellant aided in concealing the stolen automobiles with the requisite and necessary knowledge or criminal intent. Under the appellant’s own evidence there is no question that he aided his brother in interchanging the upholstery in the two automobiles. This act in itself, if done with the knowledge that the vehicles were stolen and with the intent not to return them to the owner, would support a conviction for aiding in the concealment of stolen property. Scienter may be inferred by the jury from the facts and circumstances of the entire transaction or event. Vacalis v. State, 204 Ala. 345, 86 So. 92 (1920); Vines v. State, 57 Ala.App. 117, 326 So.2d 307 (1975). If the jury believes beyond a reasonable doubt the existence of facts which were known to the appellant and which are sufficient in the opinion of the jury to show the existence of reasonable grounds for believing that the automobiles were stolen, and they were in fact stolen, no further inquiry in that regard need be pursued. Farzley v. State, 231 Ala. 60, 163 So. 394 (1935).

Considering all the circumstances in this case, including the testimony of the brother of the appellant which contradicted the statement the appellant gave the police, the question of the appellant’s guilt or innocence was due to be submitted to the jury.

Circumstantial evidence will not support a conviction if it is merely consistent with guilt, Jordan v. State, 229 Ala. 415, 157 So. 485 (1934), or fairly permits an inference consistent with the accused’s innocence. Anthony v. State, 30 Ala.App. 425, 7 So.2d 513 (1942).

However circumstantial evidence may afford satisfactory proof of the corpus delicti and if facts are presented from which the jury may reasonably infer that the crime has been committed, the evidence must be submitted to the jury. Davis v. State, Ala.Cr.App., 331 So.2d 813 (1976).

While mere speculation, conjecture or surmise will not authorize a conviction, the jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inference it chooses to draw. United States v. Strickland, 509 F.2d 273 (C.A.Ala.1975).

On appeal from a conviction based on circumstantial evidence, the task of the reviewing court is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the innocence of the accused-whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilty. Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270 (1958).

Unquestionably this case was close. While from the record it would appear that the jury could have reached a different conclusion, it was, nonetheless, a jury question. This court would not be justified in overturning its finding. Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919).

II

The appellant raises the issue of the alleged incompetence of his retained trial counsel and asserts that his attorney failed to subpoena two essential witnesses and failed to adequately prepare and investigate his case. In this regard the allegations of the appellant are serious and of utmost concern to this court.

The record in this case does not reveal that defense counsel was so incompetent as to reduce the trial to a farce or a mockery of justice. Freeland v. State, 43 Ala.App. 406, 191 So.2d 245 (1966); Trammell v. State, 276 Ala. 689, 166 So.2d 417 (1964). Though the appellant would have this court reject the “farce and mockery” test in favor of a less severe standard for establishing the incompetence of counsel, the present state of the record will not allow this. We note that there is a trend rejecting the traditional “farce and mockery” rule and adopting less stringent criteria in determining the competency of retained counsel. See 74 A.L.R.2d 1390, June 1977 pocket part at p. 29.

Yet even in this serious matter we are bound by the record, which, in this case, reveals no evidence, other than the allegations of the motions for new trial and for post conviction relief, to support the assertions of incompetence. The appellant’s statements that the two witnesses his attorney failed to subpoena would have proven his innocence are entirely speculative and without support. In this context it cannot be said that the appellant was denied effective assistance of counsel. Haggard v. State of Alabama, 550 F.2d 1019 (5th Cir. 1977); Howard v. Henderson, 519 F.2d 1176, cert. denied, 423 U.S. 1036, 96 S.Ct. 573, 46 L.Ed.2d 412 (5th Cir. 1975).

We have searched the record for error as required by law and have found none. Therefore the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.