author: SHORES, Justice.

text:
    BALDWIN COUNTY COMMISSION et al. v. Walter C. JONES et al.
    SC 1994.
    Supreme Court of Alabama.
    April 22, 1977.

      T. M. Brantley, Bay Minette, for Baldwin Cty. Commissioners.
    Lucian L. Smith, Jr., and John W. Hart-ley, Jr., Montgomery, for Director of State Highway Dept.
    Robert A. Wills, Owen & Ball, Bay Mi-nette, for appellees.
   SHORES, Justice.

Walter C. Jones and George H. Skipper recorded a subdivision plat of Wildwood Estates in Baldwin County in the early part of 1973. Planning of the subdivision had begun in 1971. The plat was not offered for approval by the County Commission because approval of subdivisions was not required at that time. Baldwin County is one of some ten counties in the state described as captive counties which have limited authority over roads within the county. Act No. 142 of the 1951 Legislature relates to Baldwin County and provides in Section 1 that the State Highway Department shall, subject to the provisions and limitations contained in the act, be responsible for construction, maintenance and repair of existing roads in the county; Section 2 states that the authority of the Baldwin County Commission shall be to levy tax, borrow money, eminent domain and determine what roads will be built, subject to the approval of the Highway Department; Section 3 states that Baldwin County shall have no authority (a) to control personnel for maintenance or repair of roads, (b) to purchase equipment for maintenance or repair of roads, and (c) to pay any person for services rendered in the maintenance or repair of roads; Section 6 provides that Baldwin County “. . . shall continue to have under its present road laws the right, power, duty, authority and jurisdiction to establish new county roads and bridges . and the State at its election may take over the same for construction and maintenance . . . ”

Because of this Act, the county has the authority to “establish” new county roads and the State, at its election, may assume maintenance of the same.

The testimony in this case indicates that the developers conferred with an engineer for the State before they laid out the subdivision. He told them what the State requirements were, which were set out in Regulations of the Highway Department, insofar as width of roadbed, depth of ditches, and drainage pipes were concerned. The developers testified that the roads were constructed to conform to State requirements. Another State engineer inspected the roads upon completion and advised his superior by letter on September 4, 1973, that all State requirements appeared to have been met. This letter said: “The Commission asked that we look at the streets to see if there is a possibility of maintaining them, and give them a report so they may make a decision on this matter.”

On September 4, 1973, the same day this letter was written, the developers applied to the County Commission for acceptance of the roads. The minutes of the meeting of the County Commission held on October 2, 1973, are as follows:

“‘Motion by Commissioner McMillan, seconded by Commissioner Still, that the Commission not accept the Wildwood Estate Subdivision for the Maintenance Program as the roads to [sic] meet State Highway specifications but the Subdivision is not populated enough to take over for maintenance. Voting yea: Bishop, Still and McMillan — Nay: Hankins. . . .’”

These minutes indicate that a majority of the commissioners voted not to accept the roads for maintenance because the subdivision was not yet populated enough, although the roads at that time did meet State Highway Department specifications.

Shortly thereafter, the State began to “flat blade” the roads from time to time. It was the testimony of witnesses for the State that these roads had never been put on the regular maintenance program, that the county had never accepted them for maintenance; the State had, however, as a courtesy to the people living on these roads, scraped them every three or four months, but that such scraping with a flat blade is not a regular maintenance program. The State continued to do this from late 1973 until early 1976.

One of the residents of the area testified that the roads were beautiful roads and the ditches “good” when she bought her property in early 1974, but the State’s scraping them had just “ruined the roads — just flattened them.”

The minutes of the County Commission meetings and the record of the proceedings before us reflect that residents of the subdivision complained to the Governor, the Highway Department and the County Commission about the condition of these roads beginning as early as 1974. The minutes of the County Commission meetings show the following:

Meeting of January 6, 1976:
“ ‘Lonnie Walker and delegation appeared before the Commission to request the roads in the Wildwood Estates, South of Loxley, be accepted and maintained by the County Road Department. After a lengthy discussion and determining that twenty-one families were living in the subdivision and that the roads had not been accepted in 1973 due to the low occupan[c]y, the Commission suggested to Mr. Walker that a meeting be established with Jones & Skipper, the State Highway Department and the County Commission as soon as possible in order that Jones & Skipper may reapply to the County for the possible acceptance of the road in question, Mr. Walker also presented a petition from approximately fifty people requesting the same.’ ”
Meeting of February 17, 1976:
“ ‘George Skipper and Jones appeared before the Commission to request acceptance of the Wildwood Subdivision for maintenance. A letter was read from the State Highway Department giving their report on a recent investigation and the deficiencies that the subdivision has according to the April 15, 1975 Subdivision regulations. . . . ’ ”

The record shows that the Commission asked the Highway Department to investigate the matter and report on any deficiencies in the roads based upon subdivision regulations adopted after the first request for acceptance of the roads had been disapproved. The Highway Department reported a number of discrepancies on February 2, 1976, and stated that no further action would be taken by the Department until a formal letter from the Commission was received stating that the conditions of noncompliance had been waived by the Commission or that the deficiencies would be corrected. That letter indicated that the Highway Department would accept the maintenance of the roads if the Commission waived the conditions not in compliance with the then existing subdivision regulations.

On April 5, 1976, Mr. Risher, Division Maintenance Engineer, Highway Department, addressed a letter to Engineer. Bureau of Maintenance, Highway Department, in which he said:

“Several years ago, the developers, George Skipper and W. C. Jones, made a request to the Baldwin County Commission that the subdivision be accepted for maintenance. This request was rejected by the Commission because of very little or no occupancy. As a matter of courtesy to the people living on this road, we have tried to keep the road passable by an occasional blading.
“On Thursday, April 1, I met with Mr. Skipper and Mr. Jones, the developers, along with several members of the Baldwin County Commission and reiterated our position that the subdivision would have to be improved to meet our minimum subdivision standards before it could be accepted for maintenance. The subdividers agreed to grade, drain and base the project if the Baldwin County Commission would furnish the required wide drain pipe. The Commissioners agreed to bring this up for consideration at their next meeting on Tuesday, April 6. . .

On April 6, 1976, the developers wrote to the Commission and stated their position:

They had conferred with the Highway Department’s resident engineer prior to building the roads; they were built according to the then existing regulations and were so certified by the Highway Department’s engineer upon completion. The developers asserted that the roads were dedicated to Baldwin County in March 1973 (when the plat was recorded); they applied for acceptance of the roads in September, but the Commission did not officially accept them at that time, but only because the subdivision was not yet sufficiently populated and not because the roads were not in compliance with State standards; the State, at the request of the Commission, did commence to grade the roads as needed; and there are twenty-five families living in the subdivision, but as a result of heavy traffic and the “leveling” type grading done by the State for the past two years, the roads are in “terrible” shape.

The developers agreed at a meeting held on April 1, at which 2 commissioners and 2 representatives of the Highway Department were present, to furnish the dirt, pull the ditches, base the roads and cover the culverts. The county would furnish the culverts, if the other commissioners would agree, and the Highway Department agreed to lay the culverts to grade.

This letter ended:

“. . .In order to permanently end the problem, we have stated what we will do. Our offer as above, concerning pulling ditches, basing, and covering culverts, will remain good until 12:00 Noon today, Tuesday, April 6, 1976

Minutes of the April 6, 1976, meeting contain the following:

“ ‘The Commission discussed the proposal by Mr. Jones & Mr. Skipper concerning the Wildwood Subdivision. Motion by Bishop, seconded by McMillan, to authorize the Chairman to write the State Highway Department stating that an agreement has been made between the developers of Wildwood Estates and the County Commission and ask that the State Highway Department go along with the agreement for Skipper & Jones to pull the ditches in said subdivision, to base the roads and to cover the metal driveway pipes, and the property owners in the subdivision furnish the necessary metal culverts. The Commission at this time shall accept or recommend acceptance of the roads for maintenance. Variances shall be waivered [sic] in respect to width of right-of-way, five miles radius of Loxley, and that the road be paved. Voting yea: Bishop, McMillan and Lauder — Nay: Hankins. Hankins stated his objection to the motion was that the majority of the people in the subdivision are already on the pipe list and he feels the County is obligated to furnish the necessary driveway culverts at no expense. The Chairman asked the Attorney if the subdivision has not been accepted for maintenance was it legal for the County to furnish the pipe that had been requested by the property owners — in the opinion of the County Attorney it was not legal.’ ”

Thereafter, on April 19, 1976, the developers and one of the residents of the subdivision filed a petition for writ of mandamus against the Baldwin County Commissioners and the Highway Director of the State of Alabama setting out, in substance, the above facts and asking the circuit court to direct the respondents to maintain the roads. After a hearing, the trial court entered an order which included a finding that engineers employed by the State Highway Department maintained the roads or streets from September 1973 until about September 1975 and that . . Respondents are estopped from denying acceptance of the roads in the subdivision known as Wildwood Estates . . . ” The court then ordered all respondents to “. . . forthwith be responsible for the maintenance and repair of the existing public county roads shown on the map or plat of Wildwood Estates . . .”

The respondents appeal from this order.

The facts in this case are not disputed. The issues are legal ones, i. e., whether the County Commission has accepted these roads as public roads by act or deed and, if not, is the Highway Department now es-topped to deny that it has an obligation to maintain them as public roads, because it undertook to grade them for a two-year period.

The County Commission in this case did not approve the subdivision plat before it was recorded . Approval was not required at that time. Even had it done so, however, such approval does not amount to an acceptance of the roads as public roads. Tuxedo Homes, Inc. v. Green, 258 Ala. 494, 63 So.2d 812 (1953). When the County Commission was requested by the developers to accept the roads, it refused. The minutes of the meetings show the county persisted in refusing to accept these roads up until its April 6,1976, meeting, at which time they were conditionally accepted.

The developers and residents of this subdivision concede that the county never expressly accepted these roads as public roads, but assert that the action of the Commission in asking the Highway Department to grade the roads, and the Highway Department having undertaken to do so, amount to an estoppel to deny that the roads have been accepted as public roads, requiring the Highway Department to maintain them as such. The facts as supplied by the petitioners themselves defeat this argument. It was their evidence that the Highway Department graded these roads some fifteen or twenty times or more over a two-year period. It was this grading which they claimed ruined the roads. All during the period in which the State was doing the grading, the residents and Developers continued to try to get the roads accepted as public roads. They obviously did not look upon the grading by the State as maintenance of the roads, but, to the contrary, continued to press for maintenance; but the roads were never, at any time, put on the maintenance program. The petitioners were aware of this. Under the undisputed facts, we cannot agree with the trial court in its conclusion that the respondents are estopped to deny that these roads have been accepted for maintenance. An equitable estoppel is to be determined upon the facts of each particular case. Madison County v. Williams, 236 Ala. 470, 183 So. 452 (1938).

This record discloses that the County Commission refused to accept these roads as public roads to be maintained as such until its meeting of April 6, 1976. At that time, it agreed to accept them upon the conditions set out in those minutes. The evidence fails to support the theory of estoppel relied on by the petitioners. Until the conditions of acceptance are met as set out by the County Commission at its meeting of April 6, mandamus will not lie to compel the appellants here to maintain the roads involved in this litigation.

The judgment of the trial court is therefore, reversed and remanded.

REVERSED AND REMANDED.

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

      . Baldwin County Commission adopted Subdivision Regulations on that date pursuant to Act No. 1094, enacted by the Legislature on September 17, 1973, after the Wildwood Subdivision plat was recorded.


source: Caselaw Access Project

license: Public Domain

text:
    VERNON CARPET MILLS, INC., et al. v. ROSSVILLE SPINNING CORPORATION.
    SC 1996.
    Supreme Court of Alabama.
    April 22, 1977.
    John A. Tinney, Roanoke, for appellants.
    Wiley D. Wood, II, Roanoke, for appellee.
   SHORES, Justice.

Vernon Carpet Mills, Inc. purchased yarn, which it used to make carpeting, regularly from Rossville Spinning Corporation. During the fall of 1974, Vernon became delinquent in its account to Rossville and owed Rossville some $43,000. In February of 1975, Rossville informed Vernon that the current accounts receivable from Vernon were approximately this amount and that, in addition, Rossville was holding a current inventory of yarn which had been ordered by Vernon, but not shipped, which amounted to some $23,000. By this letter Rossville demanded payment of these past due amounts.

Vernon responded to this demand by letter stating:

“Therefore, in an earnest effort to retire this payable, we will begin payment effective the week of February 23, 1975 in amounts of at least $500.00 each week until the account is paid in full. We are confident that payments will exceed this amount, but assure this minimum. The finished goods in inventory will be taken out on a cash basis as soon as it is possible for us to do so.”

On March 3, 1975, Vernon Carpet Mills, Inc., Joe H. Nix and Homer W. Pitts executed a note payable to Rossville which provided for the repayment of the principal amount of $43,000 at the rate of $500 per week, and for the removal of the finished goods inventory within a certain period of time.

After approximately two months, this note was in default and Rossville demanded payment. Again, negotiations took place which resulted in the execution of a new note dated May 27, 1975. This note was in the principal amount of $42,759.74, and provided for repayment at the rate of $600 per week, beginning June 3, 1975. The note also provided that if default be made in the payment of any weekly installment when due, or if Vernon failed to remove and fully pay for the finished goods inventory Ross-ville was currently holding for Vernon’s account within fifteen days from the date of the note, the note could be declared immediately due and payable.

This note was signed by Vernon Carpet Mills, Inc., Joe H. Nix and Homer W. Pitts.

Rossville filed suit on the note on September 26, 1975, demanding judgment in the amount of $39,531.47, plus interest at 8% per annum from July 8, 1975, and attorneys’ fees.

The defendants filed a general denial on October 23,1975. Extensive interrogatories were filed by the defendants to Rossville in early January, 1976. Rossville filed an amended complaint on January 15, 1976, which added an additional claim for the same amount due by open a.ccount. The defendants filed a general denial to the amended complaint on January 20, 1976.

A pre-trial hearing was held on January 27, 1976, which resulted in a pre-trial order setting out the positions of the parties as follows:

“3. Position of the parties.
“Plaintiff contends that the Defendants owe the Plaintiff $38,984.34. This is the amount that is due by open account and the amount due by the unpaid balance of the note executed May 27, 1975. Further, all open account payments are guaranteed by Defendants Nix and Pitts. Defendant[s] pleads [sic] the general issue.
“4. Stipulations and Admissions.
“The Plaintiff stipulates that the amount sued upon in Count One and Count Two should be $38,984.34 rather than $39,531.47. The difference in these two figures came to light after this suit was filed and by the accounting office of the Plaintiff. The Defendants stipulate that Homer C. Pitts and Joe H. Nix executed promissory notes in favor of the Plaintiff on May 27, 1975 and March 3, 1975. Further, Defendants stipulate that the guaranty of payment executed by Pitts on June 15, 1974 and by Defendant Nix on February 8, 1974 were signed by the Defendants as their signatures appear. Parties agree that all written correspondence concerning this suit between Defendants and Plaintiff is admissable.
“5. Discovery.
Discovery is complete.
“6. Additional orders.
None.”

The case was set for trial on February 24, 1976.

On February 20, the defendants filed an amended answer setting up, for the first time, a defense of failure of consideration, fraud in the inducement of the note, and that Pitts and Nix signed the note as accommodation-makers for the accommodation of Vernon and that a primary obligor cannot be sued in the same action. By the amended answer, the defendants also asserted a counterclaim claiming damages of $600,000 against the plaintiff for breach of contract and $80,000 for fraud and misrepresentation.

The plaintiff filed a motion to strike the amended answer of the defendants, which the court granted on the day of trial.

After a trial on the merits to a jury, the court directed a verdict in favor of the plaintiff. Defendants appeal and argue the following issues:

1. The note was not based upon sufficient consideration, because the debt secured by the note was already matured at the time of the execution;

2. The trial court abused its discretion in refusing to allow the defendants to amend their answer; and

3. The court erred in granting the plaintiff’s motion for directed verdict.

The first issue raised by the defendants on appeal goes to the trial court’s having granted the plaintiff’s motion to strike the amended answer filed by the defendants just four days before the case was set for trial and after a pre-trial order had been entered. This amended answer for the first time raised the defense of failure of consideration and fraud in the inducement of the note. Under these circumstances, we must determine whether the trial court erroneously granted the plaintiff’s motion to strike the amendment to the answer. Rule 12, ARCP, like all of the rules, is to be construed liberally to effect the purpose of the rules, stated in Rule 1, ARCP, to assure the “. . . just, 'speedy and inexpensive determination of every action.” Rule 12 should be considered along with the other rules, such as Rule 4, Rule 6, Rule 7, and Rules 8 through 11, and Rule 15, dealing with amendment of pleadings.

Rule 8(c) requires that affirmative defenses such as failure of consideration and fraud be set forth by the pleader. Rule 12(a) requires that an answer must be filed within thirty days, and Rule 12(b) requires that such answer set forth every defense . . in law or fact, to a claim for relief” except for specified defenses which may be asserted by motion. Rule 6(b) permits the court to enlarge the time for serving an answer, and Rule 15, which states a liberal amendment policy, allows a party to add defenses to his responsive pleading which have been mistakenly omitted, or that have become available to the defending party after he has served his pleading, providing it does not prejudice the opposite party. It has been said, however, that it is . . advisable for a party to interpose any defenses he has failed to include in his responsive pleading at the earliest opportunity.” Wright & Miller, Federal Practice and Procedure: Civil § 1348. Rule 15, ARCP, says:

“. . . a party may amend his pleading without leave of court but subject to disallowance on the court’s own motion or motion to strike of an adverse party; but such amendments shall be freely allowed when justice so requires. . . .”

Rule 15 is reflective of the policy of the rules to allow the maximum opportunity to state each claim and have it decided on the merits, and dispense with technical requirements so long as the parties are provided with notice of the nature of the pleader’s claim or defense. The question is whether the spirit of the rules has been violated by the court’s having granted the plaintiff’s motion to strike the defendants’ amendment to their answer under the circumstances of this case. We think not.

First, it should be noted that the defense of “failure of consideration” was insufficient as a matter of law. The defendants’ amendment asserts that there was a failure of consideration because the debt had already matured, and was then due, at the time the note was executed. Forbearance to sue on a due debt is in itself sufficient consideration. Air Engineers, Inc. v. Reese, 283 Ala. 355, 217 So.2d 66 (1969). It is undisputed that the March 3, 1975, note, which had also been executed by all of these defendants, was in default at the time the note sued on was executed. It is also expressly admitted by the defendants that the accounts receivable, which obligation the note was substituted for, were due to the payee, Rossville. Rossville was in a position to sue on that obligation at the time the first note was executed; likewise, it was in a position to sue on the first note at the time the second note was substituted therefor.

In the amendment to their answer, the defendants also raised fraud for the first time and asserted a counterclaim based upon fraud, as well as a counterclaim for damages for breach of contract. These claims were also stricken by the trial court. Again, we find no error to reverse. The counterclaims asserted by the amendment-are permissive, not compulsory counterclaims. The theory of both counterclaims is that Rossville represented to the defendants that certain yarns would be available to the defendants and they knew at the time these representations were made that such would not be available, and that as a consequence the defendants suffered damages in the conduct of their business. The contract claim is based upon an alleged breach of a contract to supply such yarns. In Minneapolis Brewing Co. v. Merritt, 143 F.Supp. 146 (D.C.N.D.1956), the plaintiff brought an action on a contract indebtedness. By counterclaim, the defendant asserted that the plaintiff made representations that the plaintiff would secure a buyer for the defendant’s business. The defendant claimed that it was damaged as a result of the plaintiffs failure to perform its promise, and by the misrepresentations of the plaintiff. There, the court held that such counterclaim could be asserted as a permissive counterclaim, but was not a compulsory one under Rule 13.

We find that logic persuasive under the facts of this case. The counterclaims were filed just four days before this case was due to be tried. It had been pre-tried and had been on the trial docket for some three weeks at the time the counterclaims were asserted. Although the trial court could have continued the case, allowing the plaintiff time to file responsive pleadings to the counterclaims, we do not think it was compelled to do so. Inasmuch as the counterclaims were not compulsory, the defendants have not been foreclosed from asserting these claims by way of independent action. To compel a new trial to permit the trial of these counterclaims along with the plaintiff’s claim when the defendants are free to proceed in another action, seems to us unjustified.

It is lastly asserted that the trial court erroneously directed a verdict for the plaintiff. Again, we disagree. The note sued on was based upon consideration; each defendant admitted the debt evidenced by the note, each admitted that the note was in default, and each admitted signing it. There was no evidence presented to refute the plaintiff’s claim.

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

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


text:
    BOLTON FORD OF MOBILE, INC., a corp. v. Jerry F. LITTLE.
    SC 2002.
    Supreme Court of Alabama.
    April 22, 1977.

      Erling Riis, Jr., Vickers, Riis, Murray & Curran, Mobile, for appellant.
    Robert T. Cunningham, Jr., Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee.
   SHORES, Justice.

Plaintiff, Jerry F. Little, sued Bolton Ford of Mobile, Inc., claiming that Bolton misrepresented that a 1973 Galaxie demonstrator sold to him had never been wrecked. A jury awarded him $12,000, compensatory and punitive damages. Bolton appealed.

The facts are essentially undisputed. When Bolton received the car in question in its inventory, it was new. It was later assigned as a “demonstrator” to a salesman, who admittedly hit a curb and damaged the vehicle. There was evidence that the impact was hard enough to bend in the front bumper and fender, blow out two tires and bend the rim on the front wheel. The ear was repaired in Bolton Ford’s shop, an insurance claim was filed on it, by Bolton Ford, and it was later put on Bolton Ford’s showroom as a “demonstrator” with a speedometer reading of “3,412” miles.

Little testified that in November of 1973, he went to Bolton Ford and dealt with Walter Spragg, Bolton’s salesman. He was told that the car was a demonstrator. He paid $3,900 for it. At the time the sale was being written up, Little said he asked Spragg if the car had been wrecked and Spragg said “No.” Spragg denied knowing that the demonstrator had, in fact, been damaged in a wreck. Little determined that the car had, in fact, been in a wreck, but this discovery was some twenty-one months later, when another automobile backed into the right fender and the repairman told Little’s mother that the car had sustained previous damages.

During the trial, Little testified that he would not have paid over $2,000 for the car if he had known it had been in a wreck. He said that he had to have the front end aligned several times and that he got fewer miles out of tires than he expected.

Bolton argues that since its salesman, Spragg, did not know that the car had been wrecked, buyer Little failed to prove the requisite elements of his action. We disagree. The evidence shows that several other agents of Bolton knew that the demonstrator had been in a wreck, and Bolton cannot escape liability merely because its salesman was not informed of the true facts. In J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967), the argument was made that the salesman there did not know where the car came from. This court opined: “These are fact questions which the jury resolved in favor of the plaintiff.”

Bolton Ford also claims that the buyer failed to prove his compensatory damages. We disagree. The buyer paid $1,900 more than he would have paid, according to his own testimony; he claimed extra expense because of the need to have the front end realigned, and because the front tires wore out unusually fast. The record also shows that the buyer financed the purchase; therefore, he financed $1,900 more than would have been necessary otherwise. We think that there was sufficient evidence to justify a jury award of $3,000, the amount claimed in Count I of the complaint.

The only other issue raised is whether the trial court erred in allowing the case to go to the jury on the issue of punitive damages. In Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 546, 133 So.2d 24 (1961), this court held, speaking through Justice Lawson:

“The imposition of such damages [punitive] m cases of fraud and deceit is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing a similar wrong. . . .”

This rule was restated in J. Truett Payne Company v. Jackson, supra, where it is stated:

“. . . It is no longer subject to question that punitive damages are allowed in this state in fraud cases where the defendant has made false misrepresentations intended to defraud the plaintiff. We have further held that the awarding of punitive damages in such a case is discretionary with the jury . . ” (281 Ala. at 429, 203 So.2d at 446).

There is evidence in the instant case from which the jury could have concluded that Bolton Ford, knowing that it was not true, represented to the plaintiff that the automobile he purchased had not been involved in a wreck, and that such misrepresentation was made with intent to deceive the plaintiff. The trial court, therefore, properly submitted the issue of punitive damages to the jury.

The judgment appealed from is affirmed.

AFFIRMED.

All the Justices concur.


author: FAULKNER, Justice.

text:
    Roger E. JONES et al. v. Daniel T. GRANT, etc.
    SC 2070.
    Supreme Court of Alabama.
    April 22, 1977.

      Charles E. Huey, Cooper & Huey and Hogan, Smith & Alspaugh, Birmingham, for appellants.
    Arthur D. Shores, Shores & Larkin, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal from the decree of the Circuit Court of Jefferson County, dismissing a class action against a charitable institution for lack of standing. We reverse.

Certain members of the faculty, staff and student body of Daniel Payne College, Inc. brought a class action against Daniel Payne College, Daniel T. Grant individually and as president of Daniel Payne, and the members of the Board of Directors of Daniel Payne, asking for an accounting of funds, a money judgment for any funds misused, punitive damages and a reasonable attorney’s fee and costs. Plaintiffs claim they were damaged by Grant’s breach of a fiduciary duty by misusing funds supplied by the federal government, African Methodist Episcopal Church and students of Daniel Payne and by the failure of the Board of Directors to remove Grant from the presidency and to account for the funds although the directors had knowledge of Grant’s breach.

The federal government gave money to Daniel Payne to give grants or loans to students qualifying under federal guidelines and to upgrade the staff, faculty, student body, equipment and facilities of Daniel Payne according to federal guidelines, subject to the terms of the grants and applicable statutes, rules and regulations. The African Methodist Episcopal Church gave money to the general operating fund of Daniel Payne for the usual and reasonable operation of its facilities and for the use and benefit of its students, staff and faculty-

The lower court dismissed the action on the ground that the plaintiffs lack standing to bring the action and, citing State ex rel. Carmichael v. Bibb, 234 Ala. 46, 173 So. 74 (1937), that the attorney general is “the proper party” to bring an action dealing with the administration of a charitable trust. Plaintiffs appeal.

The sole issue is whether members of the faculty, staff and student body of a charitable institution have standing to institute a class action against that institution, its president and board of directors for misuse of federal and church funds. We hold that they do.

State ex rel. Carmichael v. Bibb, supra, held that “the State, upon the relation of the Attorney General, was a proper party to institute” an action seeking the enforcement of a public charity, the removal and appointment of a trustee, an accounting and a sale for partition. In Bibb this court merely stated that the attorney general was the only person who could invoke jurisdiction for the state, not that the state was the only proper party. The question of whether anyone else has standing to institute a suit against a charitable trust has never been answered in Alabama. Thus, this is a case of first impression.

“The prevailing view of other jurisdictions is that the Attorney General does not have exclusive power to enforce a charitable trust and that a . . . person having a sufficient special interest may also bring an action for this purpose.” Holt v. College of Osteopathic Physicians and Surgeons, 61 Cal.2d 750, 40 Cal.Rptr. 244, 394 P.2d 932 (1964) (footnote omitted) (citing Thurlow v. Berry, 247 Ala. 631, 25 So.2d 726 (1946)). See Paterson v. Paterson Gen. Hosp., 97 N.J.Super. 514, 235 A.2d 487 (1967); Restatement (Second) of Trusts § 391 (1959); 4 A. Scott, The Law of Trusts § 391 (3d ed. 1967); 15 Am.Jur.2d Charities § 145 (1976); 14 C.J.S. Charities § 58 (1939).

Beneficiaries of a charitable trust have a right to maintain a suit to enforce the trust or prevent diversion of the funds. Annot., 62 A.L.R. 881 (1929). See Holt, supra; Duffee v. Jones, 208 Ga. 639, 68 S.E.2d 699 (1952); Greenway v. Irvine’s Trustee, 279 Ky. 632, 131 S.W.2d 705 (1939); G. Bogert & G. Bogert, The Law of Trusts and Trustees § 414 (2d ed. 1964).

The students of a charitable institution are beneficiaries of a charitable trust. See Montclair Nat’l Bank & Trust Co. v. Seton Hall College, 90 N.J.Super. 419, 217 A.2d 897 (1966); Ettlinger v. Trustees, 31 F.2d 869 (4th Cir. 1929); Eckles v. Lounsberry, 253 Iowa 172, 111 N.W.2d 638 (1961). Where the grants and loans were for the purpose of upgrading the staff and faculty, as well as the student body, members of the staff and faculty also are beneficiaries.

Where permitted, courts have generally found that the plaintiff had some special interest which would entitle him or her to sue without making the attorney general a party. Bogert, supra. We find that the interest of the students, staff and faculty as beneficiaries in the financing of the educational institution with which they are associated is a sufficient special interest to entitle them to bring suit.

As stated in Paterson, supra,

“It must be conceded that . throughout the country . . . supervision of the administration of charities has been neglected. . . . The manifold duties of [the attorney general] make readily understandable the fact that such supervision is necessarily sporadic. . While public supervision of the administration of charities remains inadequate, a liberal rule as to the standing of a plaintiff to complain about the administration of a charitable trust . . . seems

decidedly in the public interest.” Therefore, we adopt the rule that beneficiaries with a sufficient special interest in the enforcement of a charitable trust can institute a suit as to that trust, and we find that the plaintiffs here have such an interest and thus have standing.

REVERSED AND REMANDED.

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


author: MADDOX, Justice.

text:
    GRAND LODGE OF FRATERNAL ORDER OF POLICE v. David J. VANN.
    SC 2099.
    Supreme Court of Alabama.
    April 22, 1977.

      J. William Thomason, Dawson & Thoma-son, Birmingham, for appellant.
    Charles H. Wyatt, Jr., Birmingham, for appellee.
   MADDOX, Justice.

Elbert A. Dodd, as President of the Fraternal Order of Police, Birmingham Lodge # 1, filed mandamus proceedings against appellee-defendant, David J. Vann, Mayor of the City of Birmingham, seeking to direct the mayor to withdraw his executive order requiring all employees of the City of Birmingham, employed after July 13, 1976, to reside within the City of Birmingham. The mayor filed a “demurrer” to the petition which was sustained by the trial court. Appellant declined to amend its petition, or to plead further and judgment was entered in favor of the mayor. We affirm.

The basic inquiry on appeal is whether there exists a named plaintiff with standing to raise the issue before the court. The mayor contends that appellant’s petition contains no facts or averments that affirmatively show that appellant organization has a legal right to the relief requested. The mayor points out that appellant’s petition states that its members are already employed as policemen of the city and since the executive order plainly excludes this group from the effect of the order, there exists no “case or controversy.” Furthermore, the mayor calls attention to paragraph three of appellant’s petition wherein it is alleged that the Personnel Board of Jefferson County has the exclusive power to determine eligibility for employment of individuals by cities within a class occupied by the City of Birmingham. Appellant contends that the mayor’s executive order violates the Personnel Board Act applicable to Jefferson County in that the order constitutes an unauthorized restriction into an area where the Alabama Legislature has delegated all authority to the County Personnel Board. The mayor asserts that even assuming the executive order is inconsistent with the regulations of the County Personnel Board regarding the hiring of employees, the Personnel Board has the power to sue and be sued and therefore, appellant organization has no standing to litigate on behalf of the Personnel Board.

Appellant relies primarily on the case of Thurston v. Dekle, 531 F.2d 1264 (C.A. 5, 1976) in support of its contention that it has standing to raise this claim. Without question, appellant’s reliance on Thurston v. De-kle, supra, is misplaced. Unlike the case at bar, in Thurston, the named plaintiff was an employee of the City of Jacksonville who was suspended without pay by the city and his termination was upheld on appeal by the Civil Service Board. Thurston, on behalf of himself and other city employees, sought declaratory relief and to enjoin the city from terminating their employment absent constitutionally sufficient pretermination proceedings. In holding that Thurston had standing, the Fifth Circuit held:

“ * * * [W]here the purpose of the standing requirement has been fulfilled by the presence of an adversary context which has remained concrete throughout the entire proceedings and where standing was subsequently determined not to exist because of a change in law affecting subject matter jurisdiction, this court should reach the merits.”

531 F.2d at 1271.

In the instant case, there was no named plaintiff who had standing at the time the action was filed. Appellant seeks to have this court issue a writ of mandamus directing the mayor to withdraw his order solely on behalf of individuals who may choose to become members of appellant’s organization. We are unaware of any case where any court has reached a substantive issue absent a named plaintiff who has standing at the time the action was filed. Clearly, appellant organization is not the proper party to request an adjudication of this particular issue and to allow appellant to proceed would be tantamount to rewriting the law of standing. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Blast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Wright, Handbook on The Law of Federal Courts, § 13 (2d ed. 1970).

Appellant’s petition fails to allege that it or its members possess a sufficient interest for standing to be conferred. In light of this finding, we need not reach the merits.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.

      . The Executive Order, which applies to all departments of the City of Birmingham, provides as follows:
      “1. It shall hereafter be the administrative policy of the city of Birmingham to require all of its employees to live within the corporate limits of the City. An exception to this policy shall be recognized as to all employees hired before July 13, 1976, and residing outside of the corporate limits of the City of Birmingham on that date.
      “2. Residents of the City of Birmingham are to be given preference in hiring. In the case of classified employees, if the name of a resident of the City appears on a certification from the Jefferson County Personnel Board, he must be offered the job before it is offered to a non-resident, unless a specific written exception from the Mayor’s Office is granted upon good cause shown. If no City resident’s name appears on such a list, or if all City residents decline, this information must be communicated to the Mayor before a nonresident is hired. In the case of unclassified employees, the same principles shall be applied, with Birmingham residents being given the preference in all hiring applications.
      “3. In the event of the employment of a non-resident, it shall be a condition of his employment that he will move his and his family’s residence within the City within ten (10) months of his employment and that an employee’s failure to do so shall result in automatic discharge of such employee. Each employee hired shall be so informed in writing at the time of employment.
      “4. For the purpose of the interpretation of this executive order, an employee maintaining a full time residence for his family outside of the City which he also frequents on a regular basis on weekends or other regular occasion shall not be deemed a resident of the City.”


author: MADDOX, Justice. FAULKNER, Justice,

text:
    CUSTOM FARM SERVICES OF ALABAMA, INC., a corporation v. Wheeler G. FOSHEE, Jr., and Eugene C. Foshee, et al.
    SC 2146.
    Supreme Court of Alabama.
    April 22, 1977.

      Charles B. Paterson, Duke, Kaufman & Rothfeder, Montgomery, W. Harold Albrit-ton, Albrittons & Givhan, Andalusia, for appellant.
    Earl V. Johnson, Andalusia, for appellees.
   MADDOX, Justice.

The record designated by the appellant did not include a transcript of the evidence, and it fails to show whether the trial court found that the credit arrangement between the parties was an “open end credit plan,” as those terms are defined in Alabama’s Mini-Code. Title 5, § 316(e), Code.

The judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER, J., concurs specially.

FAULKNER, Justice,

concurring specially-

Custom Farm Services brought suit under the common counts against the Foshees to collect a debt for fertilizer sold to them. Custom claimed interest under the so-called Mini-Code (Act 2052, Acts of Alabama 1971, Vol. IV, p. 3290) at the rate of U/2% per month or 18% per annum. The court allowed interest at V2% per month, or 6% per annum.

The pertinent part of the court’s judgment follows:

“There being no evidence tendered to the Court that any charge for merchandise was incorrect and there being no evidence tendered to the Court that the Defendants made any payments which were not credited on the ledger sheet, the Court is bound to have to accept and does accept as true all records of charges and payments as reflected upon ledger cards and there being evidence that some of the charges represented carrying charges or service charges of one and one-half percent (1V2%) per month and the Court being of the opinion that is an illegal interest rate and the Plaintiff is only entitled to interest at the rate of one-half (V2) of one percent per month. The Court computed its judgment by subtracting two-thirds (%) of all coded charges on said ledger leaving a total net balance of $44,-843.43.”

The record is devoid of any evidence of a contract for an open end credit plan. Moreover, there has been no compliance with § 7 of Act 2052.

Section 1(e) of the Act defines open end plan as follows:

“ ‘Open end credit plan’ refers to a plan prescribing the terms of credit transactions which may be made thereunder from time to time and under the terms of which a finance charge may be charged from time to time on an outstanding unpaid balance.”

Section 2(b) provides for the maximum finance charge (interest) for a debt created under an open end credit plan:

“If the debt is created under an open end credit plan, the maximum finance charge in connection therewith shall be one and one-half (1%%) percent per month on the unpaid balance from time to time thereunder.”

Section 7 states the condition with which a creditor must comply before bringing suit under the Act on any debt for collection:

“No creditor under this act shall bring suit on any debt for collection, and no judgment by default or otherwise shall be rendered until the creditor shall file an affidavit stating that (a) there has not been a violation of provisions of this Act, and (b) that the debtor (if a resident of this state) on information and belief of creditor is a resident of the county in which the suit is filed. If such violation exists or if the debtor is not a resident of the county in which suit is filed, the suit shall be abated.”

The trial judge was correct in holding that interest at the rate of 18% per annum charged the Foshees was illegal. At most, Custom Farm Services was entitled to the rate of interest fixed by T. 9, § 60, Code of Alabama 1940.


text:
    Rudolph SLAGLE v. REYNOLDS METALS COMPANY et al.
    SC 2231.
    Supreme Court of Alabama.
    April 22, 1977.

      Lloyd W. Gathings, Edmond & Vines, Birmingham, for appellant.
    Robert D. Hunter and Lyman H. Harris, Birmingham, for appellees.
   MADDOX, Justice.

Appellant, Rudolph Slagle, filed suit for the wrongful death of his minor son in the Circuit Court of Jefferson County against Reynolds Metals Company, Liberty Mutual Insurance Company, Luther Parker, J. P. Newman, Danny Altman, Ed Miller and Leon Folsom. The trial court granted a summary judgment in favor of Reynolds Metals Company. We affirm.

Briefly, the facts are as follows:

On August 6, 1974, Dennis Slagle, a minor, was employed by Reynolds Metals Company, a corporation, located in Sheffield, Alabama. On that date, the minor, in the course of his employment with Reynolds, was electrocuted. The deceased was not survived by any dependents. It is undisputed that Reynolds paid the following expenses on account of the minor employee’s death which included $588.75 in funeral expenses, $132 to Colbert County Hospital, and $35.00 to Dr. R. F. Bowen. In addition, Reynolds paid $100 to the Second Injury Trust Fund.

The basic issue on appeal is whether the Alabama Workmen’s Compensation Act provides the exclusive remedy against the employer for the death of a minor employee when the fatal injury arose out of and in the course of his employment and when the minor employee died leaving no dependents.

Appellant concedes that where an employee is fatally injured in an employment related accident, and where the employee dies leaving dependents who are paid compensation by the employer, the Alabama Workmen’s Compensation Act provides the exclusive remedy against the employer. However, appellant contends that where a minor employee dies leaving no dependents, he is provided with no remedy for the death of his minor son. Appellant contends that Reynolds had a common law duty to provide a reasonably safe place for its employee to work and due to a breach of that duty, appellant, as the parent of the deceased employee, can maintain an action for injuries causing the death of the minor child under Tit. 7, § 119, Code. We disagree.

Where an employee is fatally injured in a work-related accident, compensation by way of damages is provided by the Alabama Workmen’s Compensation Act, Tit. 26, § 253, et seq., Code. Section 272 of the Act, reads as follows:

“Excluding other remedies. — The rights and remedies herein granted to an employee shall exclude all other rights and remedies of said employee, his personal representative, parent, dependents or next of kin, at common law, by statute or otherwise on account of said injury, loss of services or death; and except as herein provided in article 1 and article 2 (as the case may be) of this chapter, no employer included within the terms of this chapter, shall be held civilly liable for any personal injury to or death of any workman due to accident while engaged in the service or business of the employer, the cause of which accident originates in the employment; but nothing in this section shall be construed to relieve any employer from criminal prosecution for failure or neglect to perform any duty imposed by law.” [Emphasis added.]

Without question, the above-mentioned statute provides immunity for an employer for injuries arising out of and in the course of employment. Furthermore, this section expressly includes any claims against the employer by the parent of an employee. An action brought under the Alabama Workmen’s Compensation laws is purely statutory. Hartford Acc. & Indem. Co. v. Rigdon, 418 F.Supp. 540, 542 (S.D.Ala.1976); Boatright v. Dothan Aviation Corp., 278 Ala. 142, 176 So.2d 500 (1965). A lengthy discussion of the cases interpreting the Workmen’s Compensation statutes is unnecessary. Suffice it to say that the rights and remedies granted by the Act against an employer for injuries resulting from a work-related accident are exclusive. Patterson v. Sears-Roebuck & Co., 196 F.2d 947 (CA 5, 1952); Gunter v. U. S. Fid. & Guar. Co., Ala., 340 So.2d 749 (1976); De Arman v. Ingalls Iron Works Co., 258 Ala. 205, 61 So.2d 764 (1952) (dictum); Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251 (1972).

Appellant contends that if Alabama Workmen’s Compensation Act does provide the exclusive remedy for the death of a minor employee leaving no dependents, it violates due process and equal protection guaranteed by both federal and state constitutions, at least to the extent that the employer is immunized from suit under the facts and circumstances of the instant case. We disagree.

As stated previously, the terms of the Alabama Workmen’s Compensation Act are a legislative matter. An employee forfeits all other rights against his employer, whether common law or statutory, for the rights granted under the Act. Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251 (1972). Clearly, the legislature did not provide that the employer must make compensation payments where the workman dies leaving no dependents. In Patterson v. Sears Roebuck & Co., supra, the administrator of an estate of an employee fatally injured in a work-related accident sued the decedent’s employer, alleging that since the decedent was survived by no dependents, the plaintiff could recover damages under Tit. 7, § 123, Code. In granting the defendant’s motion to dismiss, the Fifth Circuit held that the Workmen’s Compensation Act provided the exclusive remedy against the employer. To the appellant’s argument that the Act is, in the instant case, nullified because of the limited remedies provided, the Fifth Circuit stated:

“Such reasoning is opposed to the fundamental theory of construction applied to statutory rights and remedies. Those claiming the benefit of them must bring themselves precisely within them. They cannot extend or enlarge them beyond the statute’s terms. Nor is the result, of which appellant makes so much, that no action could be brought against an employer for death damages where a particular employee has no dependents, of importance in law unless by express provision the statute makes it so. The Legislature could take away all remedy for injuries resulting in death, or condition it as it saw fit. It could provide, as it has done under the Workmen’s Compensation Act, and as it does in many death damages cases in other states, for a strictly limited kind of recovery.” [Emphasis added.]

196 F.2d at 949. See De Arman v. Ingalls Iron Works Co.; Johnson v. Ralls, 286 Ala. 565, 570-71, 243 So.2d 673 (Maddox, J., concurring specially).

We agree with the Patterson decision which holds that in death damage cases against employers our Legislature has provided that the Workmen’s Compensation Act is exclusive. In response to appellant’s argument that the Act is unconstitutional, we find that the Legislature’s purposes are met by the terms of the Act and the legislative grant of immunity is neither violative of Art. 1, § 13 of the Alabama Constitution or of the 14th Amendment to the Constitution of the United States. Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924).

The judgment of the lower court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: HARRIS, Judge.

text:
    John David LUKER v. STATE.
    1 Div. 668.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.
    Crawford, Blacksher, Figures & Brown, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted for violating the Alabama Uniform Controlled Substances Act and, because he had been convicted for violating this same act on two previous occasions, the Court sentenced him to 30 years imprisonment in the penitentiary. Prior to arraignment he was found to be indigent and the Court appointed counsel to represent him. At arraignment he pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was furnished a free transcript and new counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The GRAND JURY of said County charge, that before the finding of this indictment JOHN DAVID LUKER whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully possess codeine phosphate, phenobarbital, butalbital, a derivative of barbituric acid, phentermine hydrochloride, secobarbital, a derivative of barbituric acid, mazindol, pentobarbital sodium, a derivative of bar-bituric acid, against the peace and dignity of the State of Alabama.”

The testimony adduced by the State established that George Sullivan, Jr., a member of the Mobile Police Department for 16 years, was assigned to the Narcotics Division prior to April 6, 1975. He testified that he received a telephone call on the night of April 6, 1975, from a confidential informer that appellant was selling drugs at his apartment which was the southeast apartment located at 160 North Lafayette Street in the city and county of Mobile, Alabama. He stated that this informer was reliable and had given him information in the past that led to the arrest and conviction of three persons who were dealing in drugs and that at no time had this informer given him information that proved to be untrue. Sullivan was at home on the night of April 6, 1975, when this informer called him. He further testified that he received a second call on the morning of April 7, 1975, from the same informer in which he told Sullivan that appellant had the drugs in the bottom dresser drawer in the bedroom of his apartment and said that appellant represented the drugs to be codeine.

Before getting a search warrant Sullivan contacted Patrolman John Saxon and asked him to determine whether or not appellant was at home. Saxon checked and found appellant was at the apartment and he went before a municipal court judge in Mobile and signed an affidavit based upon the informer’s tip and procured a search warrant. Sullivan and several other officers went directly to this apartment. As the officers got within 50 feet of the apartment they observed a girl named Mary Prichard, whom Sullivan knew, running down an alley and as they approached the alley, the officers saw appellant coming out of the door of the apartment. Sullivan stated that he had seen appellant before and informed him that he had a search warrant and presented the warrant to him upon his request. Appellant opened the door and went in the apartment followed by Officers Sullivan, Pickett and Saxon, and the girl also entered the apartment.

Before Sullivan asked appellant any questions, he made the statement, “I have kidnapped this girl, Mary Prichard, here,” from Gateway Drug Rehabilitation Center. Sullivan then explained that Gateway was a rehabilitation center where “known drug addicts go for treatment to try and kick the habit” and he verified that Mary Prichard was living there at that time.

The search continued and Officer Pickett found a brown paper bag containing all kinds of narcotics in the bottom dresser drawer which was precisely the place the informer said the drugs were located. Sullivan looked in the bag and intended to arrest appellant but before he could say anything, appellant stated, “All of these drugs belong to me. She has no knowledge of the drugs whatsoever. They are all mine.” These statements made by the appellant were not objected to by the defense.

At this point a hearing was held outside the presence of the jury to determine the legality vel non of the search warrant. Appellant did not attack the sufficiency of the affidavit about the reliability of the informer but contended that the warrant was defective under the provisions of Title 15, Section 112, Code of Alabama 1940. Appellant contended that items 16 and 17 which were on the original return did not appear on the copy that was given to him, and therefore, the entire warrant must fail. This objection was overruled by the Court saying, “that the defendant’s constitutional rights were not violated in the execution of the search warrant and that the items recovered were recovered pursuant to lawful practices by the police department.” Items 16 and 17 were personal letters of appellant and Mary Prichard and there was no attempt to introduce these letters into evidence.

After the jury returned to the courtroom, Officer Sullivan identified a brown paper bag as being the one found in a bottom dresser drawer of the apartment searched. Sullivan then identified 18 exhibits as items which were in the brown paper bag.

Sullivan then testified that he started to advise the appellant of his Miranda rights but appellant “interfered with a spontaneous statement” that the narcotics were his and not Mary Prichard’s. At this time Sullivan advised appellant of his rights and he stated that he understood his rights, but that he had “nothing to say.”

Sullivan then identified State’s Exhibit 20 as a piece of aluminum foil containing small tablets given to him by Officer Saxon while executing the search warrant and this exhibit was received in evidence over appellant’s objections. Sullivan said that appellant told him the tablets were saccharin that he used in his coffee. Sullivan said that men’s clothes were found in two drawers in the apartment and that appellant’s shoes were under the bed and he was barefooted when he was arrested.

On cross-examination Sullivan stated that at the time of the search he knew that Mary Prichard had been indicted by a federal grand jury for the sale of heroin and that she lived at Gateway, a drug rehabilitation center. Sullivan did not know who owned or leased the apartment at 160 Lafayette Street but he had information that appellant had been living there for two weeks prior to the search.

Sullivan further testified that on the day of the search and arrest Mary Prichard was wearing one of appellant’s shirts and a pair of blue jeans, in fact the shirt was the same one that appellant had worn to court on the previous day. Sullivan qualified his previous statement that no women’s clothes were found by stating that he meant “no dresses, no bras, or undergarments that a woman would wear. Just pants and shirts.”

On redirect examination Sullivan stated that Mary Prichard had on a pair of men’s pants on the day of the search and that the items of clothes found in the apartment consisted of two pairs of blue jeans, one pair of brown corduroy pants, a green and white long-sleeved shirt, a brown suede buckskin jacket and one pair of boots which appellant put on before being carried to jail. No underwear was found in the apartment.

Officer Walter Pickett accompanied Officer Sullivan to the apartment to execute the search warrant. He saw appellant coming out the door and heard him say that he had kidnapped Mary Prichard and at the time he made that statement no officer present had asked him any questions. Pickett went to the bedroom where he found a brown paper bag in the bottom drawer of a dresser and the appellant made the statement “that the stuff belongs to him and that he lived there and that everything was his and not the girl’s.” Pickett further testified that appellant repeated this statement after being advised of his rights.

Patrolman John Saxon testified that as a result of a telephone call from Officer Sullivan on the morning of April 7, 1975, he stationed himself in a position where he could observe the apartment at 160 North Lafayette Street through a pair of binoculars. Prom this position Saxon observed appellant and a white female leave the apartment and reenter on two occasions from approximately 11:30 to 11:35 a. m. According to Saxon he had seen appellant at the apartment about two weeks earlier.

Saxon participated in the search of the apartment and found 30 small white tablets wrapped in aluminum foil in the kitchen. He found no dishes, glasses, eating utensils or food in the apartment. Appellant stated the tablets were saccharin.

On cross-examination Saxon testified that appellant and Mary Prichard appeared to be having an argument while he observed them outside the apartment. Saxon stated that he recognized appellant because he had been pointed out to him as a “known narcotic dealer,” and that he had observed him during the daytime at the apartment several times during the two-week period preceding the search and arrest.

Alilee Pillman had been employed by the State Department of Toxicology since 1951. She testified that she had a degree in general chemistry, analytical chemistry and instrumental analysis and had performed thousands of analyses on controlled substances and had testified in court a hundred or more times. She conducted a laboratory analysis on all the drugs that were delivered to her as having been found in the search of appellant’s apartment and they were all controlled substances. There were approximately 800 pills, tablets and capsules on which she conducted a laboratory analysis. She stated the 30 small white tablets in the aluminum foil were not saccharin tablets but were codeine tablets. She testified that she ran tests on State’s Exhibits 17, 18, and 19, which were two syringes, a needle and a cap, and that these tests disclosed that only one of the items contained a controlled substance, pentobar-bital sodium, a derivative of barbituric acid.

On cross-examination this witness stated that Exhibit 3 (containing dihydrocodeinone vitrate) and Exhibit 13 (containing diaza-pen) were substances not listed in the indictment.

George Sullivan was recalled to the stand and testified that he saw another officer pick up State’s Exhibits 17, 18, and 19, that they were handed to him and he delivered them to Nelson Grubbs, Assistant State Toxicologist of the Mobile Division of the Department of Toxicology. These exhibits were introduced into evidence over appellant’s objection that they were not listed on the return to the search warrant in violation of Title 15, Section 112, Code of Alabama 1940, and that the search violated the constitutional and statutory rights of appellant. At this point the State rested its case.

Appellant called his mother, Mrs. Rosetta Luker, to testify in his defense. She testified that appellant had been living with her at her home in Theodore for about two weeks before he was arrested and that he had slept there every night. Mrs. Luker stated that prior to that time he had been living with Mary Prichard on Lafayette Street, but that they had broken up. She said he received his mail at her home and some of his clothes had been left by mistake at the Lafayette Street apartment. She said that appellant arrived at her home around 9:30 the night before he was arrested.

At the close of Mrs. Luker’s testimony appellant moved to exclude the State’s Exhibits 3 and 13 on the ground that they were controlled substances and were not included in the indictment. This motion was denied.

Defense counsel then informed the Court that during a recess some police officer informed him that some five or six years previously, while he was an Assistant District Attorney for Mobile County, he had prosecuted and convicted appellant’s brother on a burglary charge. He told the Court that he did not know this until within the last five minutes. That he had informed the defendant and was now informing the Court.

From the record:

“THE COURT: Do you feel, yourself, that would be a conflict as far as your representing this defendant to the very best of your ability?
“A. No, sir, I don’t. I don’t remember his brother, to be very frank about this.
“THE COURT: You don’t remember this particular case?
“A. No, sir. He was one of hundreds—
“Q. As Assistant District Attorney, you prosecuted a number of cases, did you not?
“A. Yes, sir, I did.
“THE COURT: And you are stating to the Court that you don’t even remember this particular case. Do you remember the brother of this defendant?
“A. I don’t remember him whatsoever or any part of the case.
“THE COURT: Now that you have been advised and apprised of the fact that you had prosecuted his brother four or five years ago when you were an Assistant District Attorney, would that in any manner at this time in your opinion interfere with your continuing with representing this defendant to the best of your ability and based on all the experience you have had in representing him as he should be represented?
“A. No, I do not but I thought I should bring it to the Court’s attention.
“THE COURT: All right. Now, let me address myself to the defendant. Based on what has just been stated to the Court by your attorney, Mr. Ralph Loveless, do you wish to continue with this trial?
“A. No, sir.
“THE COURT: On what grounds do you not?
“A. I don’t know, Man. It would be kind of weird having him defending me and he sent my brother to the penitentiary-
“THE COURT: Do you feel that he has not in any way represented you properly?
“A. No, sir.
“THE COURT: Did you hear him state to the Court that he feels that he could go ahead and continue and represent you and that he doesn’t remember the case against your brother?
“A. Sir?
“THE COURT: Do you understand what he has stated to the Court that he feels that he could continue representing you as he has before this time and continue on with the case representing you. Do you believe he could do that?
“A. I don’t know.
“THE COURT: Would you state to the Court why you wouldn’t know? Is there anything indicated to you that he has not properly represented you?
“A. No, sir.
“THE COURT: Do you feel like he has well represented you?
“A. Yes, sir, up to this point.
“THE COURT: Did you hear him state that he does not remember this prosecution against your brother four or five years ago?
“A. Yes, sir, I heard him say that.
“THE COURT: Do you believe that statement by him?
“A. Yes, sir.
“THE COURT: With that, then, the Court will continue with the case. Bring in the jury.”

Appellant testified that he was a former drug user. He met Mary Prichard in November of 1974 and lived with her at the Lafayette Street Apartment for one and a half weeks. That he moved out of the apartment about two weeks before he was arrested leaving behind two pairs of pants. He stated that he and Mary Prichard broke up because she had been using drugs and having sex with another man.

Appellant further testified that he received a telephone call from Mary Prichard on the morning of April 7, 1975, and he went over to the apartment to see her. He stated that the apartment was leased to Mary Prichard and that this was the only occasion since they broke up that he had visited the apartment.

Appellant’s own counsel elicited testimony from him that he had previously been convicted of grand larceny, burglary, forgery and drug offenses and had served time in the penitentiary. He testified that he last used drugs in March of 1973. He stated that he had no knowledge of the presence of drugs in the apartment before the police officers arrived and found them.

On cross-examination he admitted that he was presently on parole. Appellant explained the absence of kitchen utensils in the apartment by stating that he had taken them with him when he moved out. He stated that he claimed the drugs the officers found in the apartment in order to protect Mary Prichard. He admitted that he had used heroin in the past and that he had been to the rehabilitation center for the 21 day treatment program for drug addicts. He admitted he had sexual relations with Mary Prichard and that was his purpose in going to the apartment on April 7, 1975, when she telephoned him.

The general rule is, that it is sufficient to prove so much of an indictment as shows that the defendant has committed a substantive offense therein specified. Porter v. State, 58 Ala. 66; Blakeney v. State, 244 Ala. 262, 13 So.2d 430; Cook v. State, 56 Ala.App. 250, 320 So.2d 764; Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760; Parks v. State, 46 Ala.App. 722, 248 So.2d 761.

Spontaneous statements made to officers by custodial questioning are generally admissible as voluntary. Truex v. State, 282 Ala. 191, 210 So.2d 424; Barnes v. State, 45 Ala.App. 6, 221 So.2d 399.

The conflicting evidence made and presented a question for the jury’s determination and the issue was resolved against appellant. The truthfulness or falsity of conflicting evidence is not within the province of this Court to pass judgment. Fagan v. State, 35 Ala.App. 13, 44 So.2d 634; Snipes v. State, 50 Ala.App. 139, 277 So.2d 413.

Appellant contends that the imposition of a 30 year sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States. The sentence prescribed and imposed was authorized by the law under which appellant was prosecuted. The evidence disclosed that he was a multiple drug convicted felon. This was his third narcotic conviction and the sentence was authorized by Title 22, Section 258(53) Code of Alabama 1940. The Alabama Uniform Controlled Substances Act was held to be constitutional in Boswell v. State, 290 Ala. 349, 276 So.2d 592.

Finally, appellant contends that after it was revealed that his attorney, while serving as an Assistant District Attorney, prosecuted and convicted appellant’s brother for the offense of burglary, that the Court should have permitted appellant to represent himself. He relies on the case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. In Faretta there was a request for pro se representation and in the instant case there was no such request.

We have set out in full just what occurred when this matter was brought to the attention of the Court and we find no reversible error in the trial court’s ruling.

There was no motion to exclude the State’s evidence; there was no motion for a new trial; there was no request for the affirmative charge, and there were no exceptions reserved to the oral charge which contained any merit. In this state of the record very little is presented to this Court for review. We have written to all of the issues presented on this appeal. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

We have carefully examined the record and find no reversible error.

The judgment of conviction is affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Ex parte John David LUKER.
    SC 2045.
    Supreme Court of Alabama.
    April 22, 1977.
    W. Clinton Brown, Jr., of Crawford, Blacksher, Figures & Brown, and H. Diana Hicks, Mobile, for petitioner.
    William J. Baxley, Atty. Gen. and Eric A. Bowen, Asst. Atty. Gen., for the State, respondent.
   TORBERT, Chief Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: HARRIS, Judge. CATES, Presiding Judge,

text:
    Charles David WOODS v. STATE.
    4 Div. 486.
    Court of Criminal Appeals of Alabama.
    Nov. 17, 1976.
    Rehearing Denied Jan. 4, 1977.
    Bob Faulk, Phenix City, for appellant.
    William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at 22 years in the penitentiary. Appellant was represented at arraignment and trial by retained counsel. He pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was found to be indigent and a free transcript was furnished him. Trial counsel represents him on this appeal.

The evidence was in sharp conflict. The corpus delicti of the crime of robbery was clearly established. Appellant denied any involvement in the robbery and offered alibi testimony.

It is not disputed that on June 2, 1975, two white males, one armed with a pistol, robbed the office of Tri-Cater’s Trailer Park in Phenix City, Alabama, of $300.00 in cash and took a number of checks totaling several thousand dollars.

Miss Linda Ann Cater testified that she was the office secretary and helped her father manage the trailer park and had held this position for five years. She stated that on the afternoon of June 2, 1975, at approximately 4 o’clock, she was in the office with a Mrs. Ruth Daisey, a tenant of the trailer park, who came in to pay her rent. At this time a man rushed in the office wearing a raincoat and work clothes. His face was disguised by a wig cap that had some type of fur on it and he had a thick dark mustache and was wearing large dark colored sunglasses. This man pulled a pistol and pointed it at Miss Cater and told her to, “stay put, this is a holdup.” At this point the second bandit entered the office carrying two wires in his hands. He went through the trailer to see if anyone else was present. The second man was dressed, and his face was disguised, in the same manner as the man with the pistol. Both women were ordered to lie face down on the floor with their hands behind them and their hands were tied with the wire. In binding Miss Cater the bandit twisted the wire so tightly that one of the bones in her right wrist was broken and she had to be carried to the emergency room at a local hospital where a cast was applied. As soon as the robbers left, Mrs. Daisey managed to crawl to the door of the office and call for help.

Miss Cater stated that the robbers were in the office for several minutes and that she got a good look at the pistol and identified State’s Exhibit 1 as the pistol used in the robbery. Miss Cater stated that she knew appellant as he had lived in the trailer park for about two years, but had moved several weeks before the robbery. She could not identify him as one of the bandits because of the disguise.

Mrs. Daisey corroborated the testimony of Miss Cater as to the manner in which the bandits were dressed and disguised. She was shown State’s Exhibit 1 and stated that it was identical in size, shape and color to the pistol used in the robbery.

Mr. Leonard M. Cater testified that he was the owner of the trailer park that was robbed on the afternoon of June 2, 1975. He identified appellant as one of his former tenants. He stated that he left the trailer park around 4:00 p. m. to attend the funeral of a police officer and that he was running late. His car was parked at a store nearby and while walking to his car he saw appellant and they had a short conversation in which appellant asked him where he was going and he replied that he was going to Officer Lee’s funeral.

David White was called as a witness for the State and testified that he had worked with appellant on several occasions and that he had two conversations with appellant concerning the alleged robbery. He stated that the first conversation occurred around the end of January, 1975, and that appellant told him that he was going to rob Tri-Cater Trailer Park and that he and his accomplice were going to use wigs and mustaches as disguises. White said he saw these disguises at the home of Michael Kenneth Davidson in Columbus, Georgia, and that appellant and Davidson were trying on the disguises. White stated that appellant asked him to participate in the initial attempt to rob the place as the driver of the getaway car. White agreed to the proposal made by appellant and then backed out as he was afraid they might get caught. White further stated that the first attempt to rob the place was to have occurred in February, 1975, but appellant said that when he and his partner arrived at the trailer park, they discovered there had been an automobile wreck at the place and there were too many police officers around the place.

According to White’s testimony the second conversation with appellant occurred while they were working together at Wade Construction Company in July, 1975, and at this time appellant told White that he and his partner had robbed the trailer park and had taken $300.00 in cash, between eleven and twelve hundred dollars in checks, and a certificate of deposit in the amount of five thousand dollars. White was shown State’s Exhibits 1 and 2 and stated that these were the same gun and shoulder holster he had seen at Woods’ house. He said the reason he recognized the pistol was because appellant had let him shoot the pistol and told him that the gun belonged to him. He said the pistol was a .357 Magnum service revolver from the Columbus Police Department and he noticed that the gun had Badge No. 162 or 172 on it. White further stated that the pistol had been in a black shoulder holster with a white strap on it and he saw it in appellant’s trailer after the robbery.

On cross-examination he testified that he was an informer for both the Phenix City and Columbus Police Departments. He was shown two photographs marked Defendant’s Exhibits 2 and 3 and identified the two photographs as one Benny Driggers and stated that Driggers was the last person he saw with this pistol and that was in July, 1975.

Officer Steve Allen Pendleton of the Columbus Police Department testified that he had been employed with that Department since September 4, 1973. He was shown State’s Exhibit 1 and stated the pistol was similar to the one that was issued to him by the Columbus Police Department and identified the weapon as a Smith & Wesson model 66, .357 Magnum, serial number 4K52900, City number C.P.D. 162 and that these numbers should be inscribed under the cylinder on the left hand side of the weapon. He stated that he last saw the .357 Magnum that was issued to him on the night of February 6, 1975. He said the weapon was stored inside the console compartment of his private automobile which he left parked in the First National Bank parking lot while he attended a movie at the Georgia Theatre. That when he returned to his car, he found the window on the passenger side of his car had been completely broken out and glass was scattered everywhere and the console compartment had been torn loose and his pistol was missing. He further testified that he had not seen his pistol again until he came to testify in this case. This witness identified a copy of the inventory sheet showing the serial number of the weapon that was issued to him and stated that it was a true, accurate and correct copy of the original on file with the Columbus Police Department. This was introduced into evidence. We have examined this inventory sheet and it shows that on January 20, 1975, this officer was issued a “.357 Magnum, serial number 4K52900, C.P.D. 162.”

Terry Harris testified that he was a lifelong friend of appellant and he identified State’s Exhibit 2 as being the holster similar to the one he traded to appellant on February 19, 1975, in exchange for a .25 automatic and $10.00 in cash. He stated that he specifically remembered the date as it was the same date he shot himself in the hand with the .25 automatic that he had received in the trade with appellant. He further stated that State’s Exhibit 1 (the .357 Magnum) was similar to the gun that appellant was trying out in the holster and that he observed the letters “C.P.D.” on the right side of the gun above the trigger handle and that appellant brought this gun with him when he came to Harris’s home to trade.

Benny Driggers testified that he was an associate of appellant for eleven years. He identified State’s Exhibit 1 as being the pistol he stole from appellant’s trailer along with the holster as the gun was in the holster at the time. He stated that after stealing the gun he filed off the numbers and that he sold the gun and holster to Mr. DeLois Ludmand, the manager of a Texaco Service Station in Phenix City, for $60.00. Driggers stated that he had seen this gun and holster in appellant’s trailer on several occasions and that it was kept in a compartment under the bathtub in Woods’ trailer.

On cross-examination Driggers testified that he sold the gun and holster around the end of June or the first of July, 1975. He further stated that he was positive it was the gun he stole and the gun had “C.P.D.” or something on it, but that he did not recall the numbers.

Mr. DeLois Ludmand testified that he runs the Texaco Station on 4th Avenue in Phenix City and that he bought the gun from Benny Driggers some time in July of 1975, and he identified State’s Exhibits 1 and 2 as the gun and holster he purchased from Driggers for $60.00. He later sold these items to a relative for $125.00 but he helped the police recover the weapon and holster from his relative.

Mr. Tillis Hudson testified that he was a criminologist with the State Department of Toxicology and his qualifications were admitted by the defense. He stated that State’s Exhibit 1 was delivered to him by the police with a request to see if he could restore the serial numbers that had been filed down on the weapon. He was asked to describe what he did in attempting to restore the numbers and the results. He testified as follows:

“A. Well, it consisted of examining the weapon under a stereoscopic microscope and polishing the area where the serial numbers are down and subjecting it to an acid and viewing it under the microscope during this time and seeing if the serial numbers are restored. Now, this is done or occurs because when a number is stamped on metal, it compresses the metal under where that stamp is made and then the acid will eat the metal out where the stamp was made and it will reveal the number even though it has been filed off. If it hasn’t been filed too low, it will reveal the number that was originally stamped on the surface.
“Q. What numbers — what were you able to raise, please, sir; would you mind pointing out to us where on the gun and what numbers you raised?
“A. On the left hand side of this weapon, right under the cylinder here — I am going to have to refer to my notes — the letters, “C.P.D.” and the numbers, “1” and “2” were detected. Now there was a space between the 1 and 2 and I was not able to detect that number but I was able to see the letters, “C.P.D.” and the numbers, “1” and “2.” Now, the serial numbers of this weapon is stamped on the base of the butt here, under the handle grips and it was mutilated to such an extent that I was not able to polish it down as smoothly as this one was; but subjecting it to the acid and the microscopic viewing of the fragment of the numbers that were left on the butt, we were able to come up with the number “4K5200.” Now, there was a number between the 2 and the 0 that we weren’t able to say for certain, but we all agreed that it was either a 9 or 3 or 6.
“Q. ‘9, 3, or 6’?
“A. Yes, sir.”

Mr. Hudson further testified that the Assistant State Toxicologist, Mr. Noggle, ran a separate test in attempting to restore the numbers and that both of them came up with identical results.

Appellant testified in his behalf and stated that he knew David White and he also knew Benny Driggers. He admitted that at one time he owned a .357 Magnum similar to State’s Exhibit 1 and that he purchased it from a man named John Mullen around the 10th or 15th of February, 1975. He said Mullen was not in court to testify and he didn’t believe that he would be there to testify. He said he did not know his address. He admitted that he kept his gun and holster under the bathtub and he did not know who stole it. He also admitted that he traded a .25 automatic to Terry Harris and got a holster similar to the State’s Exhibit 2.

He denied that he was involved in the robbery. That on the day of the robbery he was at home all day with his wife and baby except for about 15 or 20 minutes when they went to deliver a small chest of drawers to one of his friends. Appellant’s wife testified and corroborated his alibi.

Appellant claims that the special prosecutor committed numerous errors in propounded questions to various witnesses. A careful examination of the record reveals that the witnesses did not answer the questions or that appellant’s objections were sustained and the jury was instructed to disregard the testimony of the witnesses. On several occasions the questions were withdrawn upon objections being made by appellant and before the questions were answered.

If the trial court acts promptly to impress upon the jury that improper questions and improper statements are not to be considered by them in their deliberation the prejudicial effect of such remarks is removed. Gavin v. State, 52 Ala.App. 469, 294 So.2d 169; White v. State, 40 Ala.App. 378, 114 So.2d 325; Sparks v. State, 37 Ala.App. 631, 75 So.2d 96; Pelham v. State, 23 Ala.App. 359, 125 So. 688.

Improper questions which are not answered are harmless. Strickland v. State, 269 Ala. 573, 114 So.2d 407; Packer v. State, 55 Ala.App. 30, 312 So.2d 601.

Appellant contends that the chain of possession relating to the pistol allegedly used in the robbery was not connected and it was error to admit the pistol into evidence. We do not agree. State witnesses Officer Pendleton, David White, Benny Driggers, Terry Harris, DeLois Ludmand, Tillis Hudson and Officer Williams all testified as to the identity or similarity of the weapon and holster as being one with which they had some direct involvement or for which they assert that appellant was directly involved with and had seen it in his possession. There was direct evidence from Driggers that he stole the gun and holster from appellant’s trailer and filed the identifying marks off the gun so that he could sell it to DeLois Ludmand. Appellant permitted David White to shoot the pistol and appellant admitted that he owned a .357 Magnum pistol that was very similar to the pistol introduced into evidence. Appellant admitted that he kept the pistol in a holster under the tub in his bathroom.

Conflicting evidence presents a question for the jury as to the guilt of the defendant, and a verdict rendered thereon will not be disturbed on appeal. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616; Waters v. State, 55 Ala.App. 646, 318 So.2d 342.

Conflict in the testimony between defendant’s alibi and the testimony adduced by the State presented a question for the jury in robbery conviction. Clay v. State, 52 Ala.App. 272, 291 So.2d 364; Paige v. State, 56 Ala.App. 121, 319 So.2d 740; Cronnon v. State, 56 Ala.App. 192, 320 So.2d 697.

Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided it points to the guilt of the defendant. Where the prosecution relies to a great extent on circumstantial evidence for a conviction, very wide latitude is allowed in making proof. Willis v. State, 37 Ala.App. 185, 66 So.2d 753; Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270; Creel v. State, 53 Ala.App. 504, 301 So.2d 267; Lewis v. State, Ala.Cr.App., 337 So.2d 108.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Washington v. State, 55 Ala.App. 116, 313 So.2d 544; Jones v. State, Ala.Cr.App., 337 So.2d 116.

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

AFFIRMED.

All the judges concur, except CATES, P. J., who dissents with an opinion.

CATES, Presiding Judge,

dissenting.

I dissent because, inter alia, the special prosecutor—even though squelched by an initial adverse ruling by the trial judge— persisted in trying to get over to the jury that appellant was a user and/or seller of drugs. Brantley v. State, 294 Ala. 344, 317 So.2d 345, and Blue v. State, 246 Ala. 73, 19 So.2d 11.


author: BEATTY, Justice.

text:
    Ex parte Charles David WOODS.
    SC 2312.
    Supreme Court of Alabama.
    April 22, 1977.
    Wayne Johnson, Phenix City, for petitioner.
    William J. Baxley, Atty. Gen. and Michael L. Weathers, Asst. Atty. Gen., for the State, respondent.
   BEATTY, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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