text:
    AMERICAN SERVICE MUTUAL INSURANCE COMPANY, a corporation v. Johnny F. GRIZZARD, Jr., III.
    Civ. 1295.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      E. Cutter Hughes, Jr. of Lanier, Shaver & Herring, Huntsville, for appellant.
    Jimmy E. Alexander, Athens, for appel-lee.
   HOLMES, Judge.

The Circuit Court of Limestone County granted the plaintiff’s motion for a new trial. The defendant appeals, contending the trial court erred to reversal in granting the motion for new trial. We affirm.

The record before this court reveals that the lawsuit from which this appeal is taken involved the question of whether an insurance policy had been canceled. Put another way, was the plaintiff afforded coverage under a policy of insurance issued by defendant insurance company.

The lawsuit was tried before a jury and the following verdict was returned: “We find in favor of the defendant. We also find the policy was canceled unjustly.” Thereafter, the plaintiff filed a motion for new trial. The plaintiff’s motion was bottomed on the premise that the trial court erred “in instructing the jury that the policy of insurance sued upon could be canceled for any reason, that the insurance company, the defendant, had the right to cancel the policy whether they had a reason or not.” As noted above, this motion was granted; hence, this appeal.

The lawsuit which is the basis of this appeal was, to this court, clearly tried on the premise that the insurance policy in question was canceled for nonpayment of premiums. The case was obviously, from a reading of the record, ably tried by two experienced trial lawyers. The trial court gave to the jury a lengthy oral charge to which no pertinent objection was made. After the jury retired, they returned to the courtroom for further instructions. The following question was asked by a juror:

“MR. GLAZIER: I understand plainly that that’s the only question, whether the insurance was in effect or whether it had been cancelled, but there was a reason on there for being cancelled. Does it have to state a reason?”

The trial court responded as follows:

“THE COURT: No. It can be can-celled for any reason. The insurance company could write me today and decide they didn’t want somebody with brown eyes.”

The above response is the basis of the new trial motion. We would note, as counsel for the defendant in an excellent brief points out, there was no objection made to the above statement by the trial court. We would further note that in the trial court’s original oral charge to the jury, virtually the same “statement” is made on more than one occasion and no objection was made in that instance, either.

It is the plaintiff’s contention that Tit. 28A, § 485(1)—(9), Code of Alabama 1940, renders the trial court’s “statement” to the jury erroneous and misleading. The defendant responds by saying any error, if there be any, is harmless; that no objection was made thereto; and that the evidence is clear that the defendant was in fact entitled to a verdict.

The appellant argues that the failure of appellee to object to the erroneous charge of the trial court before the jury retired precludes him from alleging error based upon the charge. Appellant relies on Rule 51, ARCP, for his authority.

However, this appeal solely concerns the propriety of the trial court granting a new trial and not whether the trial court was in error for giving such an erroneous charge which could not be raised on appeal unless an objection was made.

The granting or denying a new trial motion rests largely in the discretion of the trial judge. The judgment of the trial judge is presumed correct on appeal. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973); Hubbard Bros. Const. Co., Inc. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975).

With the above principles of law in mind, this court cannot say the trial court erred to reversal. We are clear to the conclusion, contrary to defendant’s persuasive argument, that the trial court’s “statement” to the jury was erroneous. Put another way, the trial court’s charge to the jury was at least a misstatement of the law or, at best, a misleading statement of the law. To this court, Tit. 28A, § 485(1), etc., does not permit a policy of insurance to be canceled for “any reason.” A policy must be canceled in compliance with the aforementioned code section.

Code of Ala.1975, § 27-23-21 [formerly Tit. 28A, § 485(2), Code of Ala.1940], in pertinent part provides as follows:

“No notice of cancellation of a policy of automobile liability insurance shall be effective unless it is based on one or more of the following reasons:
“(a) Nonpayment of premium; or
“(b) The policy was obtained through a misrepresentation; . . . ” [Emphasis supplied.]

With the above in mind, the issue then becomes whether or not the trial court erred in granting a new trial motion based on the fact that the trial court gave an incorrect or misleading charge or statement to the jury.

The law of Alabama is that an incorrect charge or even a misleading charge to the jury may be the basis for the granting of a new trial and, if such motion is granted, it will not be overturned on appeal. See Montgomery City Lines, Inc. v. Scott, 248 Ala. 27, 26 So.2d 200 (1946). See also Proctor v. Coffey, 227 Ala. 318, 321, 149 So. 838, 840-41 (1933), wherein the Supreme Court of Alabama stated:

“Moreover, since the charge was misleading, if the trial court in its discretion found that by reason of such tendency a new trial should have been granted, his act in that respect will be reviewed with the same presumption as is usual in the exercise of such power. . . . ”

We can find no basis for saying there must have been an objection for the above principle to apply. Rule 51, ARCP, contemplates a situation in which an appellant’s appeal is based on the trial court’s erroneous, misleading or improper oral charge. In that case, an objection is required in order to allege such oral charge as error. However, a misleading charge to the jury may be a basis for a new trial without the necessity of objecting to the charge. See Montgomery City Lines, Inc. v. Scott, supra; Proctor v. Coffey, supra; Rule 51, ARCP.

While the evidence is substantial that the defendant was entitled to a verdict, we cannot say, in this instance, that he was so entitled as a matter of law. In view of the above, we find that any discussion of the evidence would be inappropriate.

Keeping in mind the jury verdict wording itself and what we have said above, the following as found in Montgomery City Lines, supra, is appropriate:

“Should we adopt the construction that, at most, the charge was merely misleading, a reversal would still be unwarranted in view of the favorable presumption attending the ruling of the trial court. By granting the new trial, the misleading and injurious tendencies of the charge were thus declared and no case is shown for overriding this presumption. . . . ” (248 Ala. at 31, 26 So.2d at 202)

Nothing we have stated above should be interpreted or construed as holding that in this instance the trial court was required to grant the motion for new trial. We only hold he was not in error for granting the motion for new trial.

The case is due to be affirmed.

AFFIRMED.

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

      . It appears to this court that there are some discrepancies in the appendix furnished to this court and the record proper. This court cannot discern the reason for these discrepancies. In any event, this court has gone to the record proper to marshal the necessary information for the rendition of this opinion.

      . Which, quite frankly, this court finds confusing.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Ruth Marie Runzler WARWICK v. William H. WARWICK.
    Civ. 1298.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      Robert D. Segall, Montgomery, for appellant.
    Luther H. Waller, Jr., Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals from that part of the judgment failing to grant alimony. The issue is whether the trial court abused its judicial discretion. We reverse.

The action for divorce was begún by the husband filing a petition alleging incompatibility. The wife counter-filed alleging incompatibility, abandonment and adultery. After oral hearing the court entered a judgment of divorce for incompatibility. The judgment provided that each party retain the property possessed and they pay their own debts. No award was made to the wife except an attorney fee of $300.

The evidence presented disclosed the following: The husband and wife are fifty and fifty-four years of age respectively. The marriage of some thirty years produced children who are no longer dependent. The husband is retired from the navy and is presently receiving retirement pay of $3,744 annually. He is employed as a pharmacist’s assistant and earns approximately $7,800 annually. The wife is employed by a realty company earning $7,800 annually. Her future employment is uncertain. The department in which she works is being phased out. A divorce will end her rights to the benefits of a retired serviceman’s wife. Neither party owns any real property or other material assets.

During the marriage, the primary responsibility of rearing the children and maintaining a home had been carried by the wife. Since his retirement in 1969, the husband has left the home, first in South Carolina, then in Ohio and last in Montgomery and resided with other women. He admits to both extended and casual adulterous relationships with more women than he can estimate. In 1975, he left the family home and began cohabitation with another woman. That relationship presently continues. During the separation, the wife has received the husband’s retirement check and used it for her benefit and that of the children then residing with her.

The wife contends that the failure of the trial court to grant her alimony was due to its refusal to consider the fault of the husband in the destruction of the marriage and the erroneous view of the court that the alimony statute denies equal protection of the law. Statements by the judge which appear in the record support such contention.

Though a divorce granted upon the ground of incompatibility does not directly require a finding of fault, this court has stated that fault related to the cause of the divorce or breakdown of the marriage is an element for consideration in the exercise of the discretion in granting alimony. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974); Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71, cert. denied, 290 Ala. 370, 274 So.2d 80 (1973). It must follow that a refusal to consider fault, particularly that of abandoning the wife and living in an open and notorious state of adultery for more than a year, must be considered improper and erroneous.

In view of our recent decisions in the cases of Blackwell v. Blackwell, 348 So.2d 500 (Ala.Civ.App.1977) and Orr v. Orr, 351 So.2d 904 (Ala.Civ.App.), cert. denied, 351 So.2d 906 (Ala.1977), and subsequent reaffirmances, we also must consider adherence by the trial judge to a contrary view erroneous and cause for reversal.

In view of the absence of a conflict in the material evidence relating to the status of the parties and their financial affairs, we review the judgment of the trial court without presumption of correctness. Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970). It is our opinion under the undisputed facts that the discretion of the trial court was abused in failing to award reasonable alimony to the wife in this case. We therefore reverse the judgment insofar as it fails to award alimony. We further remand to the trial court for a determination of what is a reasonable amount of alimony to be awarded the wife.

In view of the undisputed evidence that the wife has been a faithful and forgiving companion and mother while the husband sailed the seas and enjoyed the favors of a multitude of “strange” women, it would appear to this court that such a long-suffering wife, when finally totally abandoned by the wandering husband in favor of another companion, should not be left completely to her own resources, but should share in the benefits of the retirement so happily earned by the husband. We respectfully suggest, but do not direct, that a reasonable award would be one-half the amount of the retirement of the husband.

At the request of the wife, we award her the sum of $300 as a reasonable attorney fee on appeal.

AFFIRMED IN PART, REVERSED IN PART & REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Donald Meredith MONROE v. Lucille R. MONROE (Porter).
    Civ. 1309.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      Richard C. Belser and Robert T. Meadows, III, Montgomery, for appellant, Donald Meredith Monroe.
    John S. Bowman and Charles S. Coody, Montgomery, for appellee.
    W. Mark Anderson, III, Montgomery, for appellee, First Alabama Bank.
   HOLMES, Judge.

This is an appeal from a decree of the Circuit Court of Montgomery County ordering the husband to convey to his ex-wife certain property. This order further provides the husband would be held in contempt if he failed to satisfy a second mortgage on that property.

Specifically, the pertinent parts of the decree are as follows:

“3. If he has not already done so, Mr. Monroe shall convey by an instrument acceptable to the Court all of his right, title and interest in the real estate to his former wife within 30 days of the date of this Decree. Should he fail to do so, the Deputy Register of this Court is directed to convey by Register’s deed all the right, title and interest of Mr. Monroe in said property to Mrs. Porter.
“4. Mr. Monroe shall, within thirty days of the date of this Decree, satisfy the second mortgage held by The First National Bank of Montgomery, N.A. and/or cause a release of said real estate from any and all encumbrances he may have wherein said property may be held as collateral. The above shall be done to the satisfaction of this Court within the thirty day period described and should Mr. Monroe fail to do so, he shall be held in contempt of this Court.”

From the trial court’s action, the husband appeals.

The following history of the case, as revealed by the record, is necessary for an understanding of this appeal.

The parties to this action were divorced in September, 1974. The wife was given custody of the children and the husband was ordered to pay child support and periodic alimony. The divorce decree further made a division of the property as follows:

“5. The house owned jointly by the parties located at 2013 Drexel Street, Montgomery, Alabama, shall remain in their joint names and the Wife and children shall have the use and occupancy of the said house for so long as the children or either of them shall reside there with their mother. The Wife shall make the monthly mortgage payments on the said property and the Husband shall pay all reasonable and necessary maintenance and repairs to the said property. At such time as the children, or either of them, shall no longer reside with their mother in the said house, or in the event of the remarriage of the Wife, the said property shall be sold and the net proceeds of sale divided equally between them.” [Emphasis supplied.]

Subsequent to the entry of the divorce decree, the husband mortgaged his undivided interest in the house. This mortgage secured prior personal and business loans totaling approximately $11,000.

Thereafter, in October, 1975, the trial court, upon the wife’s petition for rule nisi and both parties’ petitions for modification of the final decree, issued the following order, in pertinent part:

“3. The aforesaid Decree is modified nunc pro tunc relative to Paragraph 5 of said Decree to provide that title to the house and lot owned jointly by the parties located at 2013 Drexel Street, Montgomery, Alabama, is vested in the said Lucille R. Monroe, and the said Donald Meredith Monroe is ordered and directed to pay that certain indebtedness to the First Alabama Bank secured by a second mortgage on the said property on which there is a principal balance in the approximate amount of $11,000.00, and to save the Wife harmless from such indebtedness encumbering the said property, and the said Donald Meredith Monroe is further directed to convey his interest in the said property to the said Lucille R. Monroe by an appropriate warranty deed.” [Emphasis supplied.]

The husband then moved to alter, amend, or vacate the October, 1975, order. Specifically, the husband attacked the trial court’s order modifying the property settlement and ordering him to pay the second mortgage. The trial court denied the husband’s motion to set aside that portion of the decree. The husband did not appeal.

The husband did not convey his interest in the house to his ex-wife nor did he satisfy the second mortgage. Thereupon, the wife filed a petition for rule nisi, seeking to enforce the trial court’s October, 1975, order as set out above. The trial court, in August of 1977, acting on the wife’s petition, issued the following order which is the basis of this appeal:

“1. That Mr. Monroe is not in contempt of this Court.
“2. The First Alabama Bank of Montgomery, N.A. may proceed with its foreclosure proceedings within 45 days of the date of this Decree.
“3. If he has not already done so, Mr. Monroe shall convey by an instrument acceptable to the Court all of his right, title and interest in the real estate to his former wife within 30 days of the date of this Decree. Should he fail to do so, the Deputy Register of this Court is directed to convey by Register’s deed all the right, title and interest of Mr. Monroe in said property to Mrs. Porter.
“4. Mr. Monroe shall, within thirty days of the date of this Decree, satisfy the second mortgage held by The First National Bank of Montgomery, N.A. and/or cause a release of said real estate from any and all encumbrances he may have wherein said property may be held as collateral. The above shall be done to the satisfaction of this Court within the thirty day period described and should Mr. Monroe fail to do so, he shall be held in contempt of this Court.”

The husband appeals.

At the outset, we note two matters which are clear to this court. First, the trial court in its October, 1975, order had no authority to modify the previous property division. In contrast to an award of child support and periodic alimony, a provision for a property settlement in a decree of final divorce is not a continuous provision. After a lapse of thirty days from the date of the decree, a court cannot modify a property settlement provision except to correct clerical errors. See DuValle v. DuValle, Ala.Civ.App., 348 So.2d 1067 (1977); McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977).

The second aspect that is clear to this court is that the contempt aspect is not such an order as will support an appeal. The trial court did not hold the husband in contempt. A further action by the court is contemplated and necessary in order to hold him in contempt. The contempt aspect of the trial court’s order is not final and ripe for review. A final judgment is necessary to give jurisdiction to the appellate court. Marsh v. Wittmeier, 280 Ala. 172, 190 So.2d 920 (1966). See also 2 Ala.Dig. Appeal & Error <&wkey;66.

Along the same line, we note that the proper remedy for review of a contempt proceeding is by habeas corpus if the party is in jail or by certiorari if the party is not in jail. Appeal is not the proper remedy. See Hayes v. Hayes, Ala.Civ.App., 337 So.2d 770 (1976).

The final dispositive issue regarding the trial court’s action in ordering the husband to convey his interest in the house is not as clear. As noted above, the husband did not appeal the October, 1975, decree which ordered him to convey his interest and to satisfy the mortgage. The trial court, by its August, 1977, order, is seeking to enforce that order by way of commanding the appellant to perform such actions or face contempt proceedings. The appellant now comes to this court on appeal from the August, 1977, order and seeks to avoid such order by contending the trial court was without authority to issue its modified order of 1975.

The law in Alabama is settled in that any attempt to impeach or annul a judgment other than by a direct appeal, before the expiration of the time for appeal, is a collateral attack. A judgment cannot be the subject of a collateral attack unless such judgment is void. See Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14 (1930); 13 Ala.Dig. Judgments 470-523.

Clearly, the trial court, in its 1975 decree, committed reversible error but this did not make that decree void so as to render it vulnerable to collateral attack. Under Alabama law, a party is not entitled to relitigate issues which were raised or could have been raised in the prior suit. Anderson v. Moorer, 372 F.2d 747 (5th Cir. 1967).

The proceeding which appellee-wife initiated by her petition for rule nisi and which culminated in the trial court’s 1977 decree is in reality a new proceeding and the husband cannot, on appeal of it, open up matters contained in the original proceedings years before. See Committee Comment to Rule 4, ARAP.

In summary, the trial court, by its 1977 decree, is enforcing its 1975 decree. The court rendering a judgment had the inherent power to enforce it and to make such orders and issue such process as may be necessary to render it effective. Jones v. City of Opelika, 242 Ala. 24, 4 So.2d 509 (1941); 49 C.J.S. Judgments §§ 585-591.

The trial court therefore did not commit error in ordering the appellant to convey his interest in the house or face further proceedings in that the trial court has inherent power to enforce its prior decrees.

The above being dispositive of the issues in this appeal, the trial court is thereby due to be and is affirmed. In view of the above, the appellee’s motion to dismiss the appeal is denied.

AFFIRMED.

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

      . We note that the husband’s present attorneys did not represent him at this time.


author: BRADLEY, Judge.

text:
    Lawrence P. ZAMPELLA v. CREDIT LIFE INSURANCE COMPANY, a corporation.
    Civ. 1344.
    Court of Civil Appeals of Alabama.
    March 8, 1978.
    J. Paul Lowery, Montgomery, for appellant.
    James T. Upchurch, III, Montgomery, for appellee.
   BRADLEY, Judge.

This appeal arises from an order by the Circuit Court of Montgomery County granting appellee’s (Credit Life Insurance Company) motion for summary judgment.

Appellant, Lawrence P. Zampella, instituted an action against Credit Life Insurance Company alleging that the latter had breached the terms of an accident and disability insurance policy. Zampella’s complaint asserted that Credit Life had wrongfully denied insurance coverage on a policy which Zampella had obtained with Credit Life. Zampella sought to recover the lost benefits under the terms of that policy. These benefits amounted to $960.

The pleadings and interrogatories of the parties reveal that Zampella was injured while unloading a truck at his place of employment. This accident occurred on November 11, 1975. Three days later Zam-pella applied for benefits under the Alabama Workmen’s Compensation Act.

As a result of the accident Zampella experienced back discomfort. A doctor diagnosed his injury as a hernia and surgery was performed on November 21, 1975 to correct this condition. However, there was no additional diagnosis indicating that Zam-pella had suffered a back injury.

Following convalescence from his surgery for the hernia, Zampella’s physician advised Zampella and his employer that Zampella was physically capable of returning to his job. Zampella subsequently returned to his place of employment but continued to experience difficulties with his back. After consulting a number of doctors in the Montgomery area, a local neurosurgeon finally diagnosed Zampella’s problem as a herniated disc. This diagnosis occurred in February 1976. In the summer of 1976 a lumbar surgical operation was performed on Zam-pella in an effort to correct this condition. Zampella then sought to have a portion of the costs of this surgery paid for out of proceeds from an insurance policy which he had with Credit Life. However, Credit Life denied coverage and Zampella filed a civil action seeking the accident and disability benefits provided under the controverted policy.

Credit Life’s denial of coverage was premised on a limitation clause in the policy which stated that the policy was effective only if the “sickness or disease” was “contracted and first manifested during the term of the insured[’s] . . . insurance,” or if the “bodily injury caused by an accident” occurred “during the term of the insured[’s] insurance.” Credit Life contended that Zampella’s injury was the result of an accident which occurred on November 11, 1975 and that Zampella did not obtain accident and disability insurance from Credit Life until December 4, 1975. Moreover, since Zampella admitted that the back injury for which he underwent surgery was the “direct, proximate and primary” result of his accident on November 11, 1975, Credit Life argued that his disability could not have been incurred during the effective date of policy coverage. And on this basis Credit Life made a motion for a summary judgment under Rule 56, ARCP.

After an examination of the pleadings, affidavits, depositions and interrogatories submitted on behalf of both parties, the trial court granted Credit Life’s motion for summary judgment and dismissed Zampel-la’s suit. From the trial court’s order dismissing his suit Zampella appeals.

Although it would seem that Zampella’s accident was in the nature of a “bodily injury” and thus subject to the provision in the policy requiring that a bodily injury occur during the term of the insurance coverage, the trial court’s order granting summary judgment indicated that its determination was applicable to both the “sickness” and “bodily injury” portions of the policy.

The order of the trial court granting Credit Life's motion for summary judgment stated:

“The parties are in agreement that Mr. Zampella’s disability, for which he claims payment under the Credit Life disability insurance policy which is the subject of this action, was the direct, proximate and primary result of an on-the-job accident suffered by the plaintiff on November 11, 1975. The parties further agree that the effective date of the policy, and the date of the application therefor, was December 4, 1975. The Court finds that the clear and unambiguous language of the Credit Life policy limits coverage to disabilities resulting from accident or sickness occurring and first manifested during the policy period. The disability is therefore not covered by the policy.” (Emphasis added.)

Since no objection was made in regard to the election of the court to treat the separate provisions of the policy in the same manner and subject to the same conditions, we are not at liberty on appeal to change the general construction given the policy’s language by the trial court.

Nevertheless, we do not believe that the trial court erred in granting Credit Life’s motion for summary judgment. Rule 56(c), ARCP, provides that a summary judgment may be granted only when the materials filed in regard to a suit demonstrate: (1) that there is no genuine issue as to any material fact and (2) that the moving party is entitled to a judgment as a matter of law. It is only when both elements of this two-pronged test are met that a summary judgment is proper. In the instant case both elements were sufficiently supported by the materials on file to warrant the dismissal of Zampella’s cause of action by means of a summary judgment.

The insurance policy in question involved a limiting clause which stated that recovery by the insured was premised on his sickness being “contracted and first manifested” during the policy’s period of coverage. Under the terms of this policy the insured was entitled to recover only if two conditions were met: (1) that the policy was in effect at the time the sickness was contracted; and (2) that the policy was in effect at the time the sickness was first manifested. According to these provisions Zampella had no right to any insurance proceeds unless both the incurrence of his disability and the symptoms or indications thereof took place after the date of the policy’s issuance. However, in this instance there was no dispute in regard to when the injury was contracted. Nor was there disagreement as to whether that injury resulted in the lumbar surgical operation out of which Zampella’s claim arose. Zampella admitted in the interrogatories submitted to him by Credit Life that his injury occurred before the effective date of the policy and that this injury was the direct cause of his back operation. As a consequence, there was no genuine issue of fact with regard to one of the two conditions necessary for Zampella’s recovery. And the inability of Zampella to establish that his injury was contracted after the date the policy was issued eliminated as a matter of law his capacity to demonstrate that he had met both conditions of his insurance contract with Credit Life. Under these circumstances there was nothing to support recovery by Zampella.

Since the twin elements of Rule 56(c) were evident, we believe that the trial court acted correctly in granting the insurer’s motion for a summary judgment. Accordingly, the dismissal of the insured’s action is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

      . Decisions in this jurisdiction demonstrate that the injury incurred by Zampella could properly be denominated as a “sickness.” Indeed, National Casualty Co. v. Hudson, 32 Ala. App. 69, 21 So.2d 568 (1945), defined “sickness” as any morbid condition of the body which hinders or prevents the organs from normally discharging their several functions; it is any disease or disorder of the body which deprives the body, either temporarily or permanently, of the power to fulfill its usual function.


text:
    Edward Clayton REEDER v. Virgie L. REEDER.
    Civ. 1355.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      Frank W. Riggs, Montgomery, for appellant.
    Sterling G. Culpepper, Jr. and Charles S. Coody, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This action represents the latest of a series of disagreements between the parties following their uncontested divorce in 1973. The husband asks for review of an order of the trial court finding him in contempt for failing to pay certain medical expenses of the wife as required by a provision of the separation agreement incorporated in the divorce decree.

The provision in question ordered:

“5. That Edward Clayton Reeder, Jr. shall pay medical expenses and physicians bills which may be incurred in the treatment of each minor child in an amount not to exceed $500 per child per condition. Further, that Edward Clayton Reeder, Jr. shall pay medical insurance premiums for the entire family including Virgie L. Reeder, provided that Edward Clayton Reeder, Jr. shall not be liable for any medical expense for Virgie L. Reeder in an amount exceeding one-half of the amount of any medical expense in excess of the amount covered by hospital insurance.”

The wife has been involved in an accident, incurring medical expenses of $11,515.08. All but $1,871.00 has been covered by insurance. The wife brought a petition to show cause, claiming that the husband failed to pay medical insurance premiums; the insurance was purchased with deductions from the wife’s salary and the husband’s promise to reimburse her was not kept. Though restitution for these payments was not specifically sought, she does claim the sum of $935.50, one-half of the amount of medical expenses not covered by insurance.

The case was submitted on the pleadings, record and trial memoranda without a hearing. An order was entered finding the husband in contempt for failure to pay the medical expenses. He was ordered to pay to the wife $935.50 and attorney fees. Notice of appeal from this order was filed.

The husband has erred in his choice of method of review. It is well established that the proper remedy for review of a contempt proceeding is by habeas corpus if the party is in jail, or by certiorari if the party is not, and that appeal is not proper. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969); Stout v. Stout, 336 So.2d 1123 (Ala.Civ.App.1976); 4A Ala.Digest, Contempt 6(1), 67. See Wilson v. Wilson, 53 Ala.App. 194, 298 So.2d 616, cert. denied, 292 Ala. 759, 298 So.2d 622 (1973). However, we choose to treat this appeal as a petition for certiorari and entertain the husband’s arguments. Armstrong v. Green, 260 Ala. 39, 68 So.2d 834 (1953); Nichols v. Nichols, 46 Ala.App. 67, 238 So.2d 186, cert. denied, 286 Ala. 156, 238 So.2d 190 (1970).

The scope of review in contempt cases on certiorari is limited to questions of law. Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965). Questions of fact, if there is any evidence to support the lower court’s decree, will not be disturbed. Hardy v. Hardy, 46 Ala.App. 249, 240 So.2d 598 (1970).

The husband contends that the provision of the separation agreement under consideration does not impose upon him any obligation to pay the wife’s medical expenses. The terms of this provision are unclear. A literal reading reveals no direct imposition of a duty to pay any of her medical expenses, yet the limitation to one-half of the amount not covered by insurance would be superfluous if there were no such obligation. Judgments and decrees are to be construed like other written instruments. Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970). If there is uncertainty and ambiguity in a contract, the court must construe it so as to express the intent of the parties. Reid v. Casey, 339 So.2d 79 (Ala.Civ.App.1976). Such intent can be derived from the provisions of the contract. Sisco v. Empiregas, Inc., 286 Ala. 72, 237 So.2d 463 (1970). Had the parties not intended that the husband be obligated to pay some medical expenses, the inclusion of the limitation would have been pointless.

Where a judgment or decree is so obscure as to not clearly express the exact determination of the court, reference may be had to pleadings and other proceedings to which it refers, and it should be interpreted in light of the pleadings and the entire record. Brown v. Brown, 276 Ala. 153, 159 So.2d 855 (1964). The record contains a joint petition for modification proposed by the husband in 1976 asking that he be released from responsibility for medical expenses of the wife. This evidences the parties’ intent that such an obligation be created in the separation agreement. The husband’s handwritten response to the petition to show cause also recognizes the obligation. (R.41).

The husband further contends that any obligation regarding the wife’s medical expenses or insurance was terminated by a July 1974 modification agreement providing: “That all alimony payments from Husband to Wife be forthwith terminated.” He argues that “alimony” as used therein encompasses such incidental payments as medical expenses.

He cites authorities indicating that the theoretical basis of such payments is the right of alimony. Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966); Hardy v. Hardy, supra; 24 Am.Jur.2d, Divorce and Separation § 609. However, we are not here determining whether the imposition of this type of obligation is permissible as an incident of the court’s power to award alimony; rather, we are merely examining the intended breadth of the word “alimony” in this particular agreement. The alimony and medical provisions of the separation agreement were stated in separate paragraphs. It would have been logical to make a separate provision terminating the medical obligations in the modification agreement had such been the intent of the parties. The husband’s recognition of the obligations in his proposed modification, discussed above, occurred subsequent to the termination of alimony and is relevant to the question of its intended effect. It is clear that his duty regarding medical expenses of the wife was not intended to be extinguished. See Flowers v. Flowers, 334 So.2d 856 (Ala.1976).

We hereby order the husband to pay the wife $300.00 for the services of her attorney.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The husband’s argument that the failure to hold a hearing was improper is not well grounded. It was requested in the trial memorandum on his behalf that the matter be disposed of on the law without a hearing.


text:
    Dewey DAVENPORT v. Betty S. DAVENPORT.
    Civ. 1378.
    Court of Civil Appeals of Alabama.
    March 8, 1978.

      Clyde A. Smith, Montgomery, for appellant.
    George H. B. Mathews, Montgomery, for appellee.
   BRADLEY, Judge.

This appeal is from a judgment of the Circuit Court of Montgomery County wherein it refused to modify a prior divorce decree.

The parties to this proceeding were divorced in March of 1975 and, among other things, the decree recited that the appellant-husband was to provide his children with “child support until each of the said minor children obtains the age of 21, is fully self-supporting, married, or dies.” There were three children, ages fifteen, thirteen and nine, affected by the decree. The ap-pellee-wife was given custody of them. The husband was ordered to pay $150 per month for each child until such time as one of the events listed above occurred. The minor children were also to be made the beneficiaries of certain insurance policies.

At the time of the divorce, the husband was a master sergeant in the United States Air Force and he earned a net income in excess of $1,000 a month. In September 1977 the husband retired from the Air Force. Upon his retirement he did not obtain employment in another capacity. His retirement pay is approximately $670 per month.

The husband averred in his petition to modify that one of the children, Carmen, had married and no longer lived with her mother. The petition also stated that another child, Greg (who is eighteen years old) was enrolled in a trade school in Birmingham, worked parttime and was fully self-supporting. Apparently the youngest child, Kevin, still lived with his mother. Consequently, the husband requested that the trial court modify the original decree so that he would no longer be responsible for the support of Carmen and Greg. He also asked to have the modified decree declare that he would be required to pay $150 per month for support of Kevin only until the latter reached nineteen years of age (rather than twenty-one as originally provided), became self-supporting, married, or died.

After an ore ten us hearing, the trial court rejected the husband’s petition for modification with regard to his two sons. The court decreed that although Greg was eighteen years old and enrolled in a trade school in Birmingham, Alabama, he was nevertheless not fully self-supporting. Thus the court held that the husband was not relieved of his obligation to provide child support for Greg. The trial court further determined that the husband’s responsibility to furnish child support to his two minor sons, Greg and Kevin, did not terminate upon the boys’ nineteenth birthdays. Instead, the court followed the order previously decreed and held that the husband was to support his sons until they reached twenty-one years of age, became fully self-supporting, married, or died.

Appellant-husband argues that the evidence presented to the trial court is insufficient to support the court’s finding and conclusion that the minor son, Greg, needed the continued support of his father because he (Greg) was not yet self-supporting. Further, appellant maintains that the court erred in finding that appellant’s net income was about $930 per month when in fact his retirement pay does not exceed $670 per month.

The appellee-wife replies that the issue of whether there was sufficient evidence to support the trial court’s decree cannot be reviewed on appeal in the absence of a transcript of the evidence.

In the present case the services of a court reporter were waived in the trial court and, as a consequence, we do not have a transcript of the evidence taken before the trial court. Nor do we have a statement of the evidence or proceedings prepared pursuant to the provisions of Rule 10(d), ARAP

We have held that in situations where the trial court has heard and reviewed evidence which is not a part of the record on appeal and where the presentation of this evidence may have influenced the court’s decision, such unrecorded evidence is conclusively presumed to support the finding of the trial court and will not be disturbed on appeal. See Cordell v. Poteete, 57 Ala.App. 645, 331 So.2d 400 (1976).

Since the record before us contains no transcript of the evidence presented in the proceedings below, we have nothing which would enable us to appraise appellant’s contention that the trial court erred when it determined that appellant was able to support his son Greg, and that he was obligated to continue to provide this support until Greg was fully self-supporting. Consequently, in view of the above stated rule, we have no alternative but to refuse to disturb on appeal the trial court’s finding in regard to this matter.

Appellant’s next contention is that the trial court erred in holding that he was not to be relieved of child support when his two minor sons became nineteen years of age.

The appellant argues that it is the law in Alabama that a father is relieved of child support when a minor child reaches the age of majority. Huckaba v. Huckaba, Ala.Civ.App., 336 So.2d 1363 (1976). Accordingly, appellant submits that in the absence of an agreement — and there was none in this case — a court cannot require a father to support a child who has exceeded the age of majority. The age of majority in Alabama is now nineteen.

Appellee replies that while it is true that the age of majority was reduced from twenty-one years to nineteen years in 1975 by Act No. 77, Acts of Alabama 1975 (now found in Title 26, chapter 1, section 1, Code of Alabama 1975), this act cannot be applied retrospectively. Since the original divorce decree involving the parties to this dispute was entered prior to the effective date of Act No. 77, and since it specifically mandated that appellant provide child support until his children reached the age of twenty-one, appellee asserts that the trial court acted correctly in rejecting appellant’s request that his obligation to support his children terminate upon their nineteenth birthday.

In support of her argument, appellee places substantial reliance on Baker v. Baker, 80 Wash.2d 736, 498 P.2d 315 (1972), which held that the Washington statute changing the age of majority in that state from twenty-one years to eighteen years did not apply to a divorce decree providing for the support and education of a minor child until that child reached the age of twenty-one years. The court in Baker v. Baker reached its conclusion based on the fact that the decree was rendered prior to the effective date of the statute. And the holding in Baker v. Baker has been followed in a number of jurisdictions. 75 A.L.R.3d 228 (1977).

On the other hand, there is ample authority which is contrary to the line of decisions rejecting in divorce cases the retrospective application of a statutory change in the age of majority. 75 A.L.R.3d 228 (1977). Those jurisdictions which refuse to permit a divorce decree providing for child support until the age of twenty-one to be affected by a legislative change in the age of majority take the view that child support is a vested right which the legislature is powerless to annul by the enactment of a general law. E. g., Baker v. Baker, supra; Waldron v. Waldron, 13 Ill.App.3d 964, 301 N.E.2d 167 (1973). However, those courts which have held that a decree of child support may be modified to reflect a change in the statutory age of majority have adopted the rationale that neither the parent nor the child has any vested right in a support order which would extend payments beyond the age of adulthood. E. g., Shoaf v. Shoaf, 282 N.C. 287, 192 S.E.2d 299 (1972); Schmitz v. Schmitz, 70 Wis.2d 882, 236 N.W.2d 657 (1975).

We believe that the latter view is the better reasoned of the two views and is supported by Alabama law.

Act No. 77 provides as follows:

“Any person in this state at the arrival at the age of nineteen years shall be relieved of their disabilities of minority; and thereafter shall have the same legal rights and abilities as persons over twenty-one years of age . . .

In other jurisdictions the rule appears to be well settled that minority is a status rather than a fixed or vested right and that the legislature has full power to fix and change the age of majority. Stanley v. Stanley, 112 Ariz. 282, 541 P.2d 382 (1975); Sillman v. Sillman, 168 Conn. 144, 358 A.2d 150 (1975); Rice v. Rice, 213 Kan. 800, 518 P.2d 477 (1974); Shoaf v. Shoaf, supra; Schmitz v. Schmitz, supra. Likewise, the rule in Alabama would seem to be that minority is a status. Indeed, our supreme court said in Hutchinson v. Till, 212 Ala. 64, 101 So. 676 (1924) that:

“. . . The Legislature has conferred upon a minor having no parent or guardian, and claiming the right to have his disabilities removed, privilege of appearing in his own name, and presenting for the court’s decision the facts entitling him to the relief. The subject-matter of the proceeding is the fixing of his legal status — making him sui juris. . . . ” (Emphasis added.)

Admittedly, the legislature, by reducing the age of majority, did affect the disabilities and entitlements accruing to persons because of their age. However, a claim to child support is no more a vested right than is the status upon which it depends. When a person no longer has a particular status, he cannot validly assert claims based on that status. In Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969) the Supreme Court of Alabama stated:

“Where support has been awarded for a minor child in a divorce proceedings, and the child reaches the age of 21 years, the obligation for support payments cease[s], even though the child is mentally or physically disabled. This is the rule of the common law, and being unchanged by statute, is the prevailing rule in this state. Murrah v. Bailes, Judge, 255 Ala. 178, 50 So.2d 735.”

Accordingly, we are not persuaded that Act No. 77 was intended to exempt persons from the responsibilities of adulthood merely because they were the beneficiaries of child support payments on the date that the act became law. There is not the slightest hint in Act 77 that any group of persons was to be exempted from its mandates or that the statutory change in adulthood was to apply to the future only, or, for that matter, to the past. In the California and Florida statutes reducing the age of majority from twenty-one to eighteen there was a specific provision making the acts prospective only. Moreover, these statutes exempted from their reach all judgments awarding child support until the child reached twenty-one, the age of majority under the superseded statutes. Ganschow v. Ganschow, 14 Cal.3d 150, 120 Cal.Rptr. 865, 534 P.2d 705 (1975); Finn v. Finn, 312 So.2d 726 (Fla.1975). Conversely, no such provision exists in Act 77 and therefore we believe that Act 77 affected all minors on its effective date.

Appellee contends that a modification of the court’s prior decree because of Act 77 would result in the retrospective application of that act. The Kansas Supreme Court in Jungjohann v. Jungjohann, 213 Kan. 329, 516 P.2d 904 (1973) answered that argument thusly:

“As we have previously stated the rights of minority are not fixed or vested rights but privileges subject to termination. . . The statute made eighteen the age of majority from and after July 1, 1972. It affected no rights accrued before that date. It did not reach back to make a person an adult from and after his eighteenth birthday but only operated from and after the effective date of July 1, 1972.”

Moreover, in Shoaf v. Shoaf, supra, the Supreme Court of North Carolina said:

. The authority of the court to require support for a normal child ceases when the legal obligation to support no longer exists. The parents’ duty to support, as well as the right to control and to receive its wages, cease[s] upon emancipation. Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732; Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31.
“The custody of minor children during their infancy cannot be controlled finally. ‘Changed conditions will always justify inquiry by the courts in the interest and welfare of the children, and decrees may be entered as often as the facts justify.’ In re Herring, 268 N.C. 434, 150 S.E.2d 775; In re Marlowe, 268 N.C. 197, 150 S.E.2d 204. Hence neither the parent nor the infant has any vested right in a support order which would extend the payments beyond the age of emancipation.
“Change from minority to majority in legal effect means that legal disabilities designed to protect the child are removed. ‘The removal of the disabilities does not result in the creation of any new rights, but merely in the termination of certain personal privileges. There is no vested property right in the personal privileges of infancy.’ In re Davidson’s Will, 223 Minn. 268, 26 N.W.2d 223.
Since the passage of the above Act, the court had no more authority to say the father’s obligation to support continues to twenty-one than it had to say it stops at fifteen. The age of emancipation is precisely fixed — eighteen. It is the business of the law-making body to determine the age of majority. The courts are without power either to raise or lower the age so fixed. The power of the court to force the father to support his minor dependent son arises because of his legal duty to provide that support.
A child support payment falls in the same category as an alimony payment and becomes subject to review by the court upon change of conditions. The Legislature unequivocally changed the conditions by fixing a different date upon which liability to support a child terminated. Certainly the mother’s liability, as well as the father’s, to support the son ceased when he became emancipated on July 5, 1971.”

We believe the holding and rationale stated by the North Carolina Supreme Court are sound. As a consequence we also find that the removal of the disabilities of non-age does not create new rights nor abrogate existing ones; it merely extends new privileges to a class of persons to whom these privileges were formerly unavailable. Likewise, a change in the age of adulthood may terminate certain privileges, one of which is the receipt of child support by a child who previously would have been deemed a minor. Thus a child has no claim or vested right to support payments once he reaches the age of majority. Since the passage of Act No. 77, the trial court has no more authority to say that the father’s legal obligation to support continues to age twenty-one than to say it stops at age sixteen. The fixing of the age of majority is within the sphere of the legislature not the courts. See Hutton v. Hutton, supra; Beavers v. Southern Ry. Co., 212 Ala. 600, 103 So. 887 (1925). A court’s authority to modify support payments is activated by a change in conditions affecting the child and we accept the premise that the legislature changed one such condition by fixing a different date upon which the responsibility of supporting a child terminated. Accordingly, we conclude that the appellant’s legal liability to support his children ceases on the date each child reaches nineteen years of age, the new age of majority in Alabama. This aspect of the trial court’s decree is in error.

As pointed out above, that aspect of the trial court’s decree which found that the minor son, Greg, is not self-supporting and needs his father’s continued support is affirmed. That aspect of the decree holding that the father is liable for the support of his children after they obtain the age of nineteen and until they reach the age of twenty-one is reversed.

Appellee’s request that she be awarded an attorney’s fee on appeal is granted and she is hereby awarded $300 for her attorney’s fee.

ATTORNEY’S FEE AWARDED.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.

      . As with the Kansas statute, Act 77 became operative only after its effective date of July 22, 1975.


author: BOWEN, Judge.

text:
    Richard THOMAS v. STATE.
    6 Div. 277.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied March 29, 1977.

      Albert D. Lipscomb, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

Rape; sentence: ten years.

The appellant was indicted and convicted for the rape of Patricia Brown. Punishment was fixed by the jury at ten years in the penitentiary and the trial court entered judgment and sentence accordingly.

On appeal, Richard Thomas complains that several articles of clothing should not have been permitted into evidence because the state failed to show a proper and unbroken chain of custody. Such evidence not being admissible, the testimony of a state toxicologist as to his examination of them should have been likewise prohibited. The appellant further argues that the failure of the trial judge to give certain requested charges amounts to error fatal to the appellant’s conviction.

A detailed recitation of the facts surrounding the crime is unnecessary. Therefore, only those facts pertinent to this appeal are set forth below.

On September 19, 1975, Patricia Brown had a date with the appellant. They went to a night club in Bessemer, Alabama, and drank some beer and wine. Throughout their date, the appellant kept “leaning over” and “trying to kiss” Miss Brown who kept fending him off. Finally, Miss Brown asked the appellant to take her home. After they were in the car, the appellant told Miss Brown that he wasn’t going to take her home until she did what he wanted, that she could “make it easy or hard, . but you are going to do what I want you to”.

As the automobile slowed for a red light, Miss Brown jumped out, tearing her pants. The appellant stopped the car and caught her, then took her to a deserted area and parked near some bushes. Miss Brown once again tried to escape but the appellant caught her, forced her up against the back of the car and began ripping her clothes off.

Miss Brown resisted him and scratched his face but he soon overpowered her and raped her while they were both standing up.

While the appellant and Miss Brown were still standing outside the car, a Bessemer police officer arrived and arrested the appellant.

Miss Brown did not go to a doctor or receive medical attention following the rape. After going to the Sheriff’s office in Bessemer, she went home. The next morning she returned her clothing to the Sheriff’s office and gave it to the “lady who works the radio”.

Sergeant C. L. Walden of the Jefferson County Sheriff’s Department, Bessemer Division, testified that the first time he saw the clothing consisting of a blouse, a pair of pants and a pair of panties, was two days later on Monday morning when he came to work. He found it in his evidence locker which was shared by four or five other deputies. The articles of clothing were packaged and sealed in a brown paper bag. The bag was initialed by the person who had brought the clothing down to his office and locked it up. Markings on the bag indicated that it had been sealed by Deputy Wickler.

Sergeant Walden opened the bag, examined the contents, and then resealed the bag with tape.

The next day he personally took the sealed bag to the State Toxicologist’s office and turned it over to a secretary. At that time a toxicologist, Lawden Yates, Jr., was present and gave Sergeant Walden a signed receipt for the evidence.

Crime Lab Analyst Layne M. Thigpen stated that he received the articles of clothing from toxicologist Yates and conducted an examination on each article of clothing. He testified that the crotch area of both the panties and the pants revealed the presence of blood and semen. There was no testimony as to whether the blood and semen on the pants and panties were of the same type as that of the appellant. Mr. Thigpen did testify that it was possible that the clothing had been soiled for two or three months and that he could not determine the age of the sperm or blood cells.

Although the appellant did not testify, the defense put on several character witnesses in an attempt to impeach the testimony and credibility of the prosecutrix.

The state introduced testimony of the good character of Miss Brown.

I

The appellant assigns as error the fact that witnesses, including a state toxicologist, were allowed to testify about and give their opinion to certain articles of clothing worn by the prosecutrix when she was raped. This claim of error is based on the contention that the state failed to establish a proper chain of evidence.

The testimony as previously recited reveals that the prosecutrix personally delivered her blouse, pants, and panties to the Sheriff’s office; that a deputy sheriff took the same articles to the State Toxicologist’s office; and that there they were examined by a crime lab analyst. The fact that the prosecutrix did not personally deliver the articles of clothing into the hands of the deputy sheriff and the fact that the deputy sheriff did not personally deliver these same articles of clothing into the hands of the crime lab analyst who actually examined them do not constitute such a break in the requisite chain of custody as to require the exclusion from evidence of the clothes and any testimony about them. Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 (1960); Oury v. State, 53 Ala.App. 240, 298 So.2d 661 (1974); Gandy v. State, 49 Ala.App. 123, 269 So.2d 141 (1972); Green v. State, 42 Ala.App. 439, 167 So.2d 694 (1964); Robinson v. State, 53 Ala.App. 145, 298 So.2d 75 (1974).

Before the articles of clothing were introduced into evidence they were identified by the prosecutrix as being those articles of apparel which she was wearing when raped. Her testimony also identified the clothes as being in substantially the same condition when offered in evidence as they were immediately after the rape. While we do not reach this conclusion here, several cases have suggested that articles of clothing duly identified and shown to be in substantially the same condition as at the time in issue are admissible on that showing alone. Robinson v. State, 243 Ala. 684, 11 So.2d 732 (1943); Chancellor v. State, 38 Ala.App. 89, 80 So.2d 313 (1954); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960). See also, Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953); Williams v. State, 27 Ala.App. 421, 173 So. 655 (1937).

There is not the slightest inference that the clothes were tampered with. We find that the requisite claim of custody was sufficiently established as to allow the introduction into evidence of the articles of clothing. The weak links in the chain of possession were a question of credit and weight rather than one of legality or admissibility. King v. State, 45 Ala.App. 348, 230 So.2d 538 (1970); McClary v. State, 51 Ala.App. 30, 282 So.2d 379 (1972).

II

The appellant contends that the trial judge should not have refused the following charges which were requested in writing:

Defendant’s Requested Charge No. 7. “The court charges the jury that if a witness has come upon the stand and testified to a different state of facts here to what he or she testified upon the preliminary trial of the defendant had before Judge J. Dawson Britton, you have the right to look to this evidence as evidence tending to impeach the witness who has made such conflicting statements.”
Defendant’s Requested Charge No. 8. “The court charges the jury that if Patricia Brown has come upon the stand and testified to a different state of facts here to what she testified upon in the preliminary hearing of the defendant had before Judge J. Dawson Britton, you have the right to look to this evidence as evidence tending to impeach the witness who has made such conflicting statements.”

We find that the refusal of the trial judge to give these requested instructions was not error because they were covered by the general charge. Thus, in the oral charge we note that the trial judge instructed the jury:

“If you find that some witness has testified to you corruptly and falsely on any material matter you have a right to disregard any of or all of that witness’ testimony.”

Though jury instructions requested by the defendant state correct principles of law, it is not error to refuse them where they are adequately and substantially covered in the oral charge. Stuckey v. State, 57 Ala.App. 85, 326 So.2d 150 (1967), Code 1940, Recompiled 1958, Title 7, § 273. The trial court’s oral charge entirely obviated the need to give the requested charge of the appellant. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied, 288 Ala. 735, 265 So.2d 202, cert. denied, 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512 (1972); Keith v. State, 253 Ala. 670, 46 So.2d 705 (1950); Lawman v. State, 18 Ala.App. 569, 207 Ala. 419, 93 So. 69 (1922); Shaw v. State, 19 Ala.App. 581, 99 So. 319, cert. denied, Ex parte Shaw, 211 Ala. 701, 99 So. 923 (1924).

Ill

The appellant requested the following written charge:

“The court charges the jury that if they believe from the evidence that the witness Patricia Brown is a person of bad reputation for truth and veracity in the community where she lives, then, as a matter of law, this fact tends to discredit her testimony, and the jury may entirely disregard it.”

The trial judge refused this charge and upon this refusal the appellant predicates error.

At trial, the defense presented some testimony as to the prosecutrix’ bad reputation for truth and veracity. The state countered with testimony as to her good reputation for the same traits. Under the evidence the requested charge was properly refused because it pretermitted corroboration of the named witness by other evidence. Hamilton v. State, 147 Ala. 110, 41 So. 940 (1906); Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); see also Churchwell v. State, 117 Ala. 124, 23 So. 72 (1897); Leatherwood v. State, 17 Ala.App. 498, 85 So. 875 (1920).

Our review of the entire record fails to find any error injuriously affecting the substantial rights of the appellant. For this reason and those set forth above, this case is due to be and is hereby

AFFIRMED.

All Judges concur.


author: SHORES, Justice. BEATTY, Justice

text:
    In re Richard THOMAS v. STATE. Ex parte Richard Thomas.
    SC 2499.
    Supreme Court of Alabama.
    March 10, 1978.
    Albert D. Lipscomb, Bessemer, for petitioner.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   PETITION FOR WRIT OF CERTIORA-RI to COURT OF CRIMINAL APPEALS, 356 So.2d 210.

SHORES, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER and JONES, JJ., concur.

ALMON, EMBRY and BEATTY, JJ., dissent.

BEATTY, Justice

(dissenting).

Certiorari was granted to determine whether the Court of Criminal Appeals had applied the correct rule of law when that Court had reviewed the trial court’s refusal to give certain requested charges. In affirming this petitioner’s conviction for rape, the Court of Criminal Appeals held that no error resulted in the refusal to give the petitioner’s requested charges because the principles of law contained in them were adequately and substantially covered in the trial court’s oral charge. I disagree with that conclusion and would remand the case to that Court for an order not inconsistent with this opinion.

The record reveals that upon her cross-examination the prosecutrix gave testimony which was inconsistent with answers to the same questions asked her during the preliminary hearing:

Q In fact, none of your female organs were damaged or bruised in any way, were they?
A I don’t know.
Q You don’t know. Are you saying they were, they are not, or what?
A Was they damaged?
Q Yes, ma’am.
A I don’t know whether they were damaged. I tore my knee when I fell out of the car, jumped out of the car.
Q Going to ask you again. I know it’s a delicate question, but were any of your private parts injured or damaged in any way?
A Beg pardon?
Q Were any of your private parts injured or damaged in any way?
A I don’t know.
Q Do you recall at the preliminary hearing I asked you this question. ‘Were any of your private parts injured or damaged in any way.’ Do you remember answering that question?
A Yes.
Q My asking that question?
A Yes.
Q And do you remember answering ‘no’?
A No.
Q You don’t recall that?
A No.

Her lack of recollection was a sufficient predicate for her impeachment, Weaver v. State, 33 Ala.App. 207, 31 So.2d 593 (1947). Petitioner then offered for impeachment purposes the prosecutrix’s prior statement at the preliminary hearing.

Based on the foregoing testimony of the prosecutrix, petitioner requested the trial court to instruct the jury as follows:

Defendant’s Requested Charge No. 7:

The Court charges the jury that if a witness has come upon the stand and testified to a different state of facts here to what he or she testified upon the preliminary trial of defendant had before Judge J. Dawson Britton, you have the right to look to this evidence as evidence tending to impeach the witness who has made such conflicting statements.

Defendant’s Requested Charge No. 8:

The Court charges the jury that if Patricia Brown has come upon the stand and testified to a different state of facts here to what [s]he testified upon in the preliminary hearing of the defendant had before Judge J. Dawson Britton you have the right to look to this evidence as evidence tending to impeach the witness who has made such conflicting statements.

The trial court refused to give these charges. The Court of Criminal Appeals upheld that refusal on the ground that the requested instructions, stating correct principles of law, were covered by that portion of the Court’s oral charge which states:

If you find that some witness has testified to you corruptly and falsely on any material matter you have a right to disregard any or all of that witness’ testimony.

Further, the State contends that the defendant’s requested charges were also covered by that portion of the trial court’s charge which is:

Now, you have heard witnesses testify in this case. It is your duty as jurors to reconcile all of the testimony that you heard to make all of the witnesses speak the truth, because the truth is what you are after in this case. If you find that the testimony is in conflict, then you have a right, ladies and gentlemen, to believe that testimony you deem worthy of belief and disregard that testimony you deem unworthy of belief.

A comparison of the requested charges with the trial court’s oral charge does not convince me that the trial court adequately covered the principles of law set forth in the Requested Charges No. 7 and 8, and the refusal to give those two charges was error.

In Birmingham Ry., Light & Power Co. v. Glenn, 179 Ala. 263, 60 So. 111 (1912), this Court stated that where particular evidence is offered for a particular and limited purpose, collateral to the main issue, as in the case of all impeaching of discrediting evidence, parties have a right to have its proper function and its limited operation presented to the jury by an. appropriate instruction. Such instructions are an exception to the general rule against charges to the jury which give undue prominence or emphasis to particular parts of the evidence. Smith v. State, 88 Ala. 73, 7 So. 52 (1889); Roberts v. State, 122 Ala. 47, 25 So. 238 (1898). Applying the rule of the Glenn case, I fail to see how the proper function of the impeaching or discrediting evidence could have been explained to the jury for that body’s proper application to the facts of this case unless one or the other of these charges had been given. The oral instruction which refers only to testimony which is corrupt or false on any material matter does not ipso facto explain the proper function of impeaching evidence by way of self-contradiction; neither does the reference to the jury’s option to believe or disbelieve certain testimony which is in conflict. In fairness to the accused, the rule of the Glenn case should have been strictly observed. Because it was not observed, the case should have been remanded to the Court of Criminal Appeals.

ALMON and EMBRY, JJ., concur.


text:
    Donald R. WILLIAMS, alias v. STATE.
    4 Div. 517.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.
    See also, Ala.Cr.App., 348 So.2d 1113.
    Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was sentenced to five years imprisonment in the penitentiary on a conviction of a violation of the Alabama Uniform Controlled Substances Act, Code of Alabama, 1973 Cum. Supp., Tit. 22, § 258(25) et seq.

Two separate propositions are advanced as bases for a reversal:

(1) That the trial court was in error in ordering the trial of this particular case prior to the trial of another case against the same defendant on an indictment in the same language as the indictment in this case, which other case was one case ahead of this case on the docket; and
(2) That the trial court was in error in charging the jury in effect that it could not find defendant guilty of any offense other than that of a sale of the controlled substance.

Appellant’s brief sets forth as his statement of the facts the following:

“In March, 1976, the Covington County Sheriff’s Department along with officers of the ABC Board, Enforcement Division, contrived a plan to make a purchase of marijuana from Williams. The plan involved the use of a non-officer, Chester Kirksey, and it was this individual who was supposed to make the buy from Williams. The plan was for Kirksey to take a marked twenty-dollar bill and make a buy from Williams in Opp, Alabama. Kirksey went to Opp on Tuesday before the actual arrest was made with the intention of making a buy but claimed he could not find Williams. On that trip he went alone. The very next day he returned to Opp along with the above-mentioned officers and he stated that he made a buy of marijuana from Williams and that he gave Williams the marked twenty-dollar bill that the officers had given him.
“Williams was arrested shortly thereafter by Deputy Sheriffs George Szpeck and Howard Easley and searched; the twenty-dollar bill could not be found.”

To appellant’s statement of the facts it should be added that appellant testified in his own behalf and admitted the car ride with Kirksey, during which, according to Kirksey, he bought a lid of marijuana from Williams, but appellant denied that such a transaction took place. He said that Kirk-sey told him of the plan of the officers to have Kirksey buy marijuana from defendant.

There was testimony that after Kirksey alighted from the car of defendant, he threw a white plastic bowl containing two lids of marijuana out of the door of the car. The officers stopped the automobile, arrested defendant, searched his automobile and found a partially smoked marijuana cigarette therein, as well as a silver spoon and a syringe.

Three indictments were returned against defendant; all charging in the same language, a violation of the Alabama Uniform Controlled Substances Act, one count in each indictment alleging the substance to be marijuana and another count alleging it to be tetrahydrocannabinols.

There was evidence that the substance that Kirksey said defendant sold him contained both marijuana and tetrahydrocan-nabinols. There was also evidence that the partially smoked cigarette found in the automobile of defendant and the package thrown from the automobile of defendant contained marijuana and tetrahydrocanna-binols. Both are listed as controlled substances. Code of Alabama 1940, 1973 Cum. Supp., Tit. 22, § 258(29)(d).

The three cases against defendant were numbered 6504, 6505 and 6508. Case No. 6505 was the one tried. All three were set for trial on the same day. When Case No. 6504 was called, defendant announced ready, but the State made it known that it desired that that case be put off until after the trial of No. 6405, and announced ready as to No. 6405. There was considerable discussion among counsel for both sides and the court.

We do not understand that defendant took the position, or that appellant now takes the position, that it was not discretionary with the court to try the second case first. He moved for a continuance of the case tried “ . . . to allow this Defendant time to make the proper and necessary and appropriate motions to determine the difference in the offense as alleged in the three indictments. . . . ”

We fully understand that there could have been some misunderstanding on the part of defendant’s counsel as to which of the three cases against defendant set for the same day constituted Case No. 6505, as the indictment in each case charged that defendant “did intentionally and unlawfully possess, sell, furnish, or give away the particular controlled substances alleged.” However, during hearing on defendant’s motion for a continuance, it was made clear to all concerned that the particular case to be tried, and which was tried, involved the alleged sale of marijuana to Chester Kirk-sey in Opp while Kirksey was in the automobile driven by defendant. There is no contention that there was any other occasion on which defendant sold Chester Kirk-sey marijuana while Kirksey was in defendant’s automobile. Although the three indictments against the same defendant containing identical language could easily lead to confusion, there was no confusion or uncertainty as to the identity of the offense relied upon by the State as constituting the offense for which defendant was tried. The record is clear that case numbered 6504 was for possession of marijuana found the next day in defendant’s residence. The record does not show how much marijuana was claimed to have been found in defendant’s possession, whether more than enough to show that it was not for his personal use only, which thereby would present defendant an opportunity for a reduction of the offense from a felony to a misdemeanor. Code of Alabama 1940, 1973 Cum. Supp., Tit. 22, § 258(47).

Notwithstanding the desire of defendant to try Case No. 6504 ahead of Case No. 6505 and the possible tactical advantage that would have thereby accrued to him, appellant shows no substantial injury to him as a result of the trial of Case No. 6505 first. The record does not show why the State preferred to try it first; it does not show whether the State was ready to try 6504, but it does show that defendant was prepared, as well as he could be, to try Case 6505 at the time.

In the absence of any showing of any prejudice whatever to defendant, it is clear that the overruling of defendant’s motion for a continuance of the trial of the case now before us was well within the discretion of the trial court. In the absence of an abuse of such discretion, the action of the trial court is not reviewable. Johnson v. State, 54 Ala.App. 581, 310 So.2d 504; Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied, 294 Ala. 764, 318 So.2d 341; Brown v. State, 53 Ala.App. 674, 304 So.2d 17, cert. denied, 293 Ala. 746, 304 So.2d 27.

Appellant relies upon Powers v. State, 49 Ala.App. 690, 275 So.2d 369 (1973) to support the contention that under the evidence in the case defendant could have been convicted of the possession of marihuana for his personal use only. Such offense on first conviction constitutes a misdemeanor. Code of Alabama 1973 Cum. Supp. Tit. 22, § 258(47). In Powers, no sale of marijuana was involved. There was possession only. It was held:

“The jury could have inferred from the evidence that the defendant had the marihuana for his personal use only. The jury was entitled to consider the small quantity found plus the evidence of Dr. Grubbs, the State Toxicologist, who testified that ‘some of the marijuana is sold in match boxes, but it is also carried in match boxes for addicts — it could be either.’ ...”

In the course of the proceeding in the trial court, including the argument on the motion for a continuance, the State was limited to the charge that a sale of marijuana had been made by defendant to Kirksey while the two were in the automobile on the occasion testified to by both of them. Although there was evidence that there was other marijuana in the automobile at the time, as demonstrated by defendant’s throwing two lids of marijuana therefrom and the finding of a partially smoked cigarette therein, the possession thereof by defendant was disclaimed by the State as a charge in the case tried, and such evidence was only circumstantial and incidental to the charge against defendant in the case tried.

Selling marihuana is inconsistent with possession of marihuana for personal use only. The guilt of defendant turned on whether he made a sale to Kirksey, as testified by Kirksey, or, on the other hand whether he did not make a sale, as testified by defendant. The testimony of the one is not reconcilable with the testimony of the other. There was no middle ground. The only factual finding possible, consistent with the evidence, was either a finding of not guilty or a finding of guilt of selling marihuana. The court was not in error in charging accordingly.

Any contention by appellant that the injection into the evidence in this case of the testimony as to the other two lids of marihuana, and the stub of a marihuana cigarette, constitutes double jeopardy as to any charge against defendant for the possession of such items, is a matter to be raised if and when any such charge is made or pressed against defendant.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Donald R. WILLIAMS.
    SC 2771.
    Supreme Court of Alabama.
    March 31, 1978.
   ALMON, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jack PANNELL v. STATE.
    8 Div. 923.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    Rehearing Denied Jan. 24, 1978.

      Ralph E. Slate, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted and tried for murder in the first degree. A jury found him guilty of manslaughter in the first degree and fixed his punishment at ten years imprisonment. He was sentenced accordingly.

On the night of December 21, 1975, a group of close to a dozen men and women, old and young, had assembled at the home of Doc Callahan in rural Morgan County. Their main occupation at the time was drinking whiskey and beer. According to the evidence of at least six witnesses for the State, defendant had an argument with William Jack Dempsey and one or two others present about some whiskey and struck Dempsey, knocking him to the floor, and then kicked him several times according to some of the witnesses. It was promptly noticed thereafter that Dempsey was dead. It was generally agreed with those present that they would say that Dempsey died of a heart attack. Word went out and the coroner of Morgan County came to the scene. He was informed that deceased had died of a heart attack, and no other person there at that time told him otherwise. A county investigator went to the scene the next day and was told that Dempsey had died of a heart attack.

Two weeks after the burial of Dempsey, his body was exhumed and an autopsy was performed by Dr. James M. Buttrem of the Alabama Department of Toxicology and Criminal Investigation. He testified that he found nine bruises on the body as a whole, four on the head; an extensive sub-arachnoid hemorrhage covering large areas of the brain which extended into “the cervical or neck and spinal canal”; that in his opinion death ■ was due “to subarachnoid hemorrhage as a result of one or more blunt force injuries delivered to the upper right neck region in the back.”

Some of the eyewitnesses were related to defendant. Some stated that their fear of him was the reason they expressly or impliedly reported that Dempsey died of a heart attack and had not been beaten by defendant.

Defendant testified that he had become drunk and had passed out at Callahan’s house that night and had no knowledge whatever of the events immediately preceding Dempsey’s death and did not learn of his death until his body had been removed. He emphatically denied that he had hit or kicked Dempsey. There was ample evidence to support defendant’s testimony that he was intoxicated to some extent, but there was no witness to support his contention that he did not hit or kick Dempsey.

At the threshold on appeal, appellant raises a question, which was never raised on the trial or even on defendant’s motion for a new trial, as to bias or prejudice of the trial judge against defendant, and alleges that it was the duty of the trial judge to recuse himself from the trial of the case. He says in effect that such bias or prejudice is shown in the action of the trial judge in the following instances:

(1) Some rulings adverse to defendant,

(2) Some statements made by the trial judge to defendant at the time he was sentenced, and

(3) The determination by the trial judge of the amount of the bond on appeal.

As to (1), our attention is not called to anything, and we find nothing, in any of the rulings of the trial judge that indicates any bias or prejudice against defendant.

As to (2), in sentencing the defendant in accordance with the punishment fixed by the jury, which was beyond the power of the trial court to change, the trial judge reminded the defendant of his former appearances before the judge and of cases in which defendant had been previously prosecuted that were handled by the judge before he was a judge and when he was the prosecuting attorney. It can hardly be questioned that defendant knew the judge as well as the judge knew the defendant. Irrespective however of any question of waiver by defendant, no disqualifying bias or prejudice as to defendant is to be found in the judge’s reference to previous official contact with the party, whether to the party’s discredit or not. Disqualifying prejudice or bias as to a party -must be of a personal nature. Johnson v. State, Ala.Cr.App., 335 So.2d 663 (1976); Stinker v. State, Ala.Cr.App., 344 So.2d 1264; Canon 3, A(5), Alabama Canons of Judicial Ethics.

The contention that prejudice or bias is shown in the increase of the amount of defendant’s bond on appeal from what it was before conviction is without merit. True, the grade of the offense charged in the indictment was reduced by the verdict. On the other hand, an increase in the amount of bond on appeal from the amount prior to conviction is normal and is to be expected. The amount of the bond prior to conviction was $8,000.00; after conviction, the judge at first fixed it at $18,000.00, but upon reflection, doubtless taking into consideration the conviction for a lesser included offense than that expressly charged in the indictment, he reduced the amount to $5,000.00.

Appellant also raises on appeal for the first time a question as to the validity of the jury panel from which the jury was selected, by the usual process of striking, to try the case, appellant now complaining that he was not allowed the full available jury venire from which to select a jury. The record neither confirms nor negates in fact the factual contention of appellant, but the record is clear to the effect that no objection was made to the procedure and no ruling of the court was invoked as to the point. Whatever irregularity there was, if any, was waived by defendant. Hurley v. State, Ala.Cr.App., 341 So.2d 494, cert. denied, Ala., 341 So.2d 497 (1976).

Appellant insists on appeal on a ground of a motion for a new trial, which motion was overruled by the court, that “the cumulative effect of improper questions, improper objections, and improper argument by the District Attorney . was to prevent the defendant from receiving a fair and impartial trial.” By not singling out any alleged impropriety or any particular group of claimed improprieties, it is understood that appellant does not contend that the same of itself was sufficient to require a new trial. We see little, if any, impropriety in any of the claimed improprieties in questions, objections, and argument of counsel for the State. We are confident that there was not such an accumulation thereof as to require a new trial on the ground stated. The court was not in error in overruling the motion for a new trial.

Our review of the record fails to reveal any error prejudicial to defendant. 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. 320); his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Jack PANNELL.
    77-319.
    Supreme Court of Alabama.
    March 24, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J„ and MADDOX, SHORES and BEATTY, JJ., concur.