author: BEATTY, Justice.

text:
    Robert R. BRYAN et al. v. Roger BROWN et al.
    SC 1661.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    Rehearing Denied Dec. 3, 1976.

      Robert L. Wiggins, Jr., Birmingham, for appellants.
    James M. Fullan, Jr., Birmingham, for appellees.
   BEATTY, Justice.

Roger Brown and Larry Waites filed identical, separate libel actions against Robert R. Bryan and James Allen Brown, as codefendants. Each complaint contained one count as follows:

“Plaintiff claims of the defendants the sum of Five Hundred Thousand and No/100 ($500,000.00) Dollars as damages for that heretofore on, to-wit: the 14th day of January, 1974 in Jefferson County, Alabama defendants falsely and maliciously published of and concerning the plaintiff in a writing styled ‘Petition for Removal’ the following matter, with intent to defame the plaintiff:
/ ‘That plaintiff asked the defendant, James Allen Brown, to plant narcotics in defendant, Robert Bryan’s, airplane and residence and that'a conviction of defendant, Bryan, could most likely be obtained for possession of narcotics/
“Plaintiff alleges that on said occasion, to-wit: the 14th day of'January, 1974, he was a Deputy District Attorney in Jefferson County, Alabama and that said matter was false and untrue and said matter was maliciously published by defendants, all to plaintiff’s damage as aforesaid, hence this suit.”

The defendants filed identical answers alleging five defenses: (1) Not guilty; (2) That Robert Bryan did not make any statement in his individual capacity but filed a Petition in the United States District Court in behalf of his client; (3) That “there is no evidence” that Robert Bryan performed any service other than in his capacity as an attorney acting for a client; (4) That Robert Bryan individually never made a statement pertaining to plaintiff; (5) Plaintiff t/was guilty of negligence which proximately contributed to his injuries.

By consent of all parties the two cases were consolidated for trial. Motion by defendants for summary judgment was denied, and a jury trial ensued resulting in a verdict for each plaintiff in the amount of $15,000.00. Judgment was entered accordingly in each case on September 16, 1975.

On December 22, 1975 the following Notice of Appeal was filed by the defendant-appellants:

“Notice is hereby given that Robert R. Bryan and James Allen Brown appeal to the above named court from the judgment of the trial court entered on September 15, 1975 and the final order of said court entered on December 10, 1975. With this notice of appeal appellants file security for costs of appeal.”

Security for costs of appeal was filed and approved by the circuit clerk on that same date.

On December 12, 1975, the attorney for plaintiff, Roger Brown, filed an Affidavit in Garnishment on Judgment, which was followed on December 22,1975 by a Writ of Garnishment directed to a Birmingham bank. Thereafter, on January 12, 1976, defendant-appellants filed with the clerk their Supersedeas Bond approved by the trial judge. With this bond a sureties affidavit was filed. The garnishment was then released by the judge.

The next day, January 13,1976, plaintiffs filed their motion to set aside the order releasing the garnishment and to strike the supersedeas bond. Thereafter, on January 16, 1976, the Court allowed the defendant, Robert Bryan, until January 30,1976 to file and have approved an additional supersede-as bond. Such an additional bond was filed and approved on February 2, 1976.

We note these steps in the appeal in view of appellees’ motion to dismiss the appeal which raised several grounds, among them that appellant, James Allen Brown, (1) failed to timely effect his appeal by giving notice and filing therewith security for costs under Rule 7, ARAP, and (2) failed to file a notice of appeal within forty-two days from the entry of judgment against him.

Rule 7 of our Appellate Rules contemplates filing of “a supersedeas bond or other undertaking which includes security for the payment of costs on appeal,” or security for costs which is to be filed in the trial court by appellant. This security for costs is, under the rule, to be approved by the court clerk. This was done here. Rule 7, however, pertains only to costs on appeal, and the failure to give security for costs is not fatal to appellate jurisdiction.

Under Rule 3, ARAP, an appeal is taken in a civil case by the timely filing of a notice of appeal with the clerk of the trial court, specifying the parties appealing, designating the judgment appealed from, and naming the court to which the appeal is taken. Joint notices of appeal are permitted, after which the appellants are allowed to proceed as a single appellant. Timely filing of the notice of appeal is jurisdictional, and under Rule 4 must be filed with the clerk of the trial court within forty-two days (six weeks) of the date of the entry of the judgment appealed from. The time limitation of Rule 4, however, is subject to the exception found in Rule 49, ARAP, which applies those rules to:

“. . . all appellate proceedings
“(2) in which the decision, judgment or order is entered prior to December 1, 1975, and the notice of appeal is filed on or after December 1, 1975, except those rules which establish a time for invoking an appellate proceeding, including an appeal under Rule 4;”

Thus the time limit of the new rules, forty-two days, did not apply to Brown’s notice of appeal, but the old six months limitation applied.

As noted above, judgments on the verdicts were entered in each case on September 16, 1975. Motions for judgments N.O.V. or for new trial which suspended the running of the time for filing a notice of appeal were filed in each case on September 25, 1975 by Robert T. Bryan (but not by Brown) and continued from time to time until overruled on December 10, 1975. Under the old rules notice of appeal was due to be filed not later than six months thereafter, or by March 16,1976. Because notice of appeal was filed on behalf of defendant Bryan on December 22, 1975, we conclude that his notice was timely filed. Brown also timely filed his appeal. The time for filing his notice of appeal began to run from the date of the judgment, September 16, 1975. His notice of appeal was filed on December 22, 1975. Therefore, we deny appellee’s motion to dismiss Brown’s appeal.

Appellees additionally assert in their motion to dismiss the appeal that the clerk’s record was not completed and a certificate of completion filed in this Court within twenty-eight days from the date of notice of appeal. Here appellees rely upon Rule 11, ARAP. According to the record, the certificate of completion of clerk’s record, dated January 30, 1976, was filed in this Court on February 3, 1976, or forty-three days after notice of appeal, or fifteen days after the date required. The certificate of completion of the record on appeal, which was due to be filed in this Court within seven days of the filing with the circuit clerk, on February 12, 1976, of the reporter’s transcript, was filed in this Court on February 16, 1976, or four days thereafter, thus it was filed within the time provided by Rule 11.

However, in view of the serious nature of' this case and the fact that the parties each applied to this Court and received additional time in which to file briefs in a case which all considered complex, and involves a record over two hundred pages in length, with many exhibits, we do not consider it appropriate at this juncture to dismiss the appeal on this appellee’s other grounds, i. e., that appellants’ brief was not followed by a statement of the case, that the appellants’ table of cases was not alphabetically arranged, and that appellants failed to designate the Appendix, even though we deprecate these departures from the appellate rules, and by this particular decision we are not establishing a precedent of liberality in applying the time limitations imposed by the appellate rules.

Accordingly, we deny appellees’ motion to dismiss the appeal.

The defendant, Robert R. Bryan, was called as a witness for plaintiffs. He testified that on January 14, 1974 he was a practicing attorney in Birmingham and that the two plaintiffs were assistant district attorneys, the same persons referred to in the petition for removal Bryan filed in federal court. Bryan was representing James Brown in three criminal cases, two heroin sales and one robbery, the drug charges having been sounded on the Jefferson County Circuit Court trial docket that morning. Apparently, Bryan had represented James Brown as counsel in the robbery case, being employed by Brown shortly after his arrest following indictment, about September 22, 1972. According to the removal petition set out below, Bryan began to represent James Brown in the drug cases on August 9, 1973 but learned of the alleged conspiracy to “frame” him “during the early portion of 1973.” Bryan announced “ready” subject to the availability of a witness, Pamela Mason, then sometime later that day he returned to his office. That afternoon he filed a Petition for Removal in the clerk’s office of the United States District Court in Birmingham, the pertinent part of which follows:

“3. Upon information and belief, the trial of Case Nos. 26107 and 26108 is scheduled to begin during the present week. The trial of Case No. 25671 is scheduled to begin on or about January 28, 1974.
“4. For the reasons set forth below, Petitioner will be denied or can not enforce in the courts of the State of Alabama rights under laws providing for the equal civil rights of citizens of the United States, or of all persons of the jurisdictions thereof.
“5. Petitioner was indicted on, to-wit, August 10, 1972 for an alleged robbery. Thereafter the actual culprit, Mickey Taylor, entered a plea of guilty to the subject charge along with several drug charges and was placed upon probation. The subject Mickey Taylor actually committed said crime. The attorney representing said individual was Mr. Wilson Dinsmore and the prosecutor was Mr. Roger Brown. Upon the plea being entered, the subject Mickey Taylor was placed upon probation. During the period in which the alleged crime was committed by the said Mickey Taylor, the Petitioner was acting undercover from members of the Birmingham Police Department. Upon his arrest, the Petitioner retained the undersigned as his attorney.
“6. On, to-wit, October 6, 1972, the Petitioner was indicted by the Grand Jury of Jefferson County in Case Nos. 26107 and 26108 for allegedly selling, furnishing or giving away heroin to an undercover agent of the United Narcotics Detail Operation (UNDO). At said time, the Petitioner was acting undercover for members of the Birmingham Police Department. Upon being arrested, the Defendant obtained the services of Mr. Wilson Dinsmore as his attorney.
“7. Subsequent to his arrest and release on bail in case nos. 26107 and 26108, the Petitioner while visiting his mother in Atlanta during June, 1972, was contacted by Mr. Wilson Dinsmore, his attorney in the subject drug charges. Mr. Dinsmore by telephone advised the Petitioner that he had a method in which the Petitioner could ‘hit the streets’ and that said Petitioner should immediately return to Birmingham for a meeting. The Petitioner did return to Birmingham and attended a meeting in the office of Mr. Dinsmore in which Mr. Larry Waites and Mr. Roger Brown, members of the District Attorney’s Office of the Circuit Court of the Tenth Judicial Circuit, Jefferson County, were present. It was explained to the Petitioner that they (Mr. Waites and Mr. Brown) wanted to ‘get’ the undersigned attorney, Robert R. Bryan, on a criminal charge. They advised the Petitioner that if he could make arrangements for the arrest of the said Robert R. Bryan, they would see that he (Petitioner) would never go to prison.
“When it was learned during the late fall of 1972 that the aforementioned Robert R. Bryan, who was still/appearing as counsel in behalf of the Petitioner in the aforementioned robbery charge, was in no way violating the law and therefore could not be ligitamately [sic] arrested, the said Robert Brown and Larry Waites asked if the Petitioner could take a trip in the airplane of Robert R. Bryan and plant a quantity of narcotics therein. It was explained to the Petitioner that if he could make arrangements to plant narcotics both in the subject attorney’s airplane and residence, that a conviction could most likely be obtained for possession of narcotics. The Petitioner went along with the suggestions of the subject representative of the District Attorney’s Office and his attorney on the two drug cases, Mr. Wilson Dinsmore, leading them to believe that he was willing to cooperate.
“8. During the early portion of 1973, the Petitioner advised the undersigned attorney of the aforementioned illegal conspiracy, and that what had possibly begun as a ligitimate [sic] investigation evolved into a very concerted effort to frame said attorney. Evidentally [sic] Mr. Waites, Mr. Brown and Mr. Dinsmore became suspicious of the Petitioner’s willingness to cooperate in their improper plan. Thus, the Petitioner was subjected to a polograph examination in the law office of Mr. Dinsmore with Mr. Waites being present. Sometime thereafter Mr. Dinsmore went off the bonds previously posted in behalf of the Petitioner in Case Nos. 26107 and 26108, and the Petitioner was incarcerated in the Jefferson County Jail. On, to-wit, August 9,1973, bail was posted in behalf of the Petitioner through arrangements made by the undersigned attorney. Additionally, the undersigned attorney agreed to also represent the Petitioner on the subject cases.
“9. It is apparant [sic] that by the unwillingness of the Petitioner to cooperate with the illegal conspiracy of the Respondents, Mr. Roger Brown and Mr. Larry Waites, the subject individuals have instituted a person [sic] vendita [sic] against the Petitioner, thus depriving him the rights guaranteed by the Constitution and laws of the United States. As evidence of such, a recommendation was made by the Chief Investigating Officer that the robbery charge presently pending, (Case No. 25671) should be dismissed. Said recommendation has been rejected by the Respondent, Mr. Roger Brown.”

Bryan signed the petition as attorney and James Allen Brown signed a Verification.

The petition and the federal judge’s order were offered into evidence by plaintiffs as plaintiffs’ exhibit one. Defense counsel objected to that part of exhibit one which constituted the judge’s order on the grounds that it was irrelevant and prejudicial, which objection was overruled, and exhibit one was received in evidence. Suffice it to state here that the district court’s order found that the allegations of the petition “could not conceivably constitute a basis for removal pursuant to 28 U.S.C. 1443,” and remanded the cases to the Circuit Court of Jefferson County.

Bryan testified that he filed the petition under Title 28, § 1443 of the United States Code. That statute allows removal to a federal district court a criminal prosecution pending against “any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States . . . .” According to Bryan, the petition was filed under the Fourteenth Amendment. Bryan stated that he relied upon research he had done while assisting in preparing a similar removal petition in another state, and also upon his examination of the face of the removal statute itself, together with a book of criminal forms. He did not read any case law on the Fourteenth Amendment and did not have time to read the annotations contained in 28 United States Code, Section 1443. He identified Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, decided in 1966, as contained therein and available in 1973, and read into evidence a portion of the opinion, viz.:

“On the basic [sic] of the historical material that is available, we conclude that the phrase ‘any law providing for * * * equal civil rights’ must be construed to mean any law providing for specific civil rights stated in terms of racial equality.”

He read into evidence a further statement of the U.S. Supreme Court holding that removal under Section 1443 was not permissible under a claimed Fourteenth Amendment right, but necessitated “specific language of racial equality.” He added: “[b]ut they didn’t say you couldn’t try it.”

According to Bryan, he spent many sleepless nights before deciding what to do. He was not familiar with the cases of Miller v. Wade, 420 F.2d 489 and Peacock v. City of Greenwood, 347 F.2d 679, decided by the Fifth Circuit Court of Appeals in 1969 and 1965, respectively, which applied Rachei. He would have filed this petition if he had known of Rachel and Miller because Greenwood was a close case with four judges dissenting, and he was doing everything he could for his client. He had told his client in April, 1975 that he never heard of one of these petitions being granted and the order would probably be against him. He wanted this clearly understood by his client to be sure he would be willing to go forward because “I was putting myself out on a limb” and wasn’t “going to make any friends doing this.”

Bryan further testified that he had stated to plaintiffs’ counsel in April, 1975 that if he were convinced that the removal statute applied only to racially discriminating situations, then his filing (the petition) would be improper, but he added that “if there was a chance to change the law on appeal or a chance that a Court might grant relief” he would have filed the petition. Even so, he did not appeal Judge Allgood’s remanding order.

After the district attorney had referred to the petitioner’s charges as “a damnable, reprehensible, contemptible lie,” Bryan filed suit against Morgan (the district attorney), Waites and Roger Brown after they had sued him, and later allowed these suits to be dismissed. He first testified that he had been given the right to amend and deliberately did not do so, but later testified that he did file an amendment to the suit. Newspaper articles-containing recitals of the charges made in the petition were admitted into evidence, as were copies of the Rachel and Miller decisions, and a copy of Title 28, Section 1443 of the United States Code.

According to Bryan, Waites, Roger Brown and he tried cases against one another as adversaries.

He furnished a copy of the petition to David Rockwell, a newspaper reporter who wrote the article introduced as exhibit two. He testified that he did not make the initial overtures to Rockwell, but conceded that during the earlier proceedings in Judge Crowder’s Court he had made an erroneous statement concerning whether he had given the press any indication of the petition, maintaining that his client had contacted the newspaper and he, Bryan, had given the reporter the copy after the petition had been filed.

We do not find it necessary to consider all of the issues raised in their briefs by appel-. lants, because we have determined that the case must be reversed. Appellants urge us to hold erroneous the trial court’s charge on the presumption of malice and the recovery of punitive damages, contending that proof of actual injury is affirmatively required in defamation cases, absent actual malice. Their objections to the Court’s charge sufficiently preserved these questions for our review.

Prior to the decision of the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), it was the law of Alabama that a “libel per se,” that is, one charging a malicious imputation of crime or moral delinquency, was “actionable per se,” malice being implied and damage to the reputation being presumed without the necessity of proof. Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927); Tidmore v. Mills, 33 Ala.App. 243, 32 So.2d 769 (1947). The Sullivan decision, however, ingrafted a federal constitutional limitation on the presumption of malice in cases wherein a public officer charged a libel against him relating to his official conduct. Under it he cannot recover damages unless he proves that the statement was made with “actual malice,” i. e., “with knowledge that it was false or with reckless disregard of whether it was false or not.” Sullivan, supra, 376 U.S. at page 279, 84 S.Ct. at page 726. Following Sullivan the United States Supreme Court decided Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), a diversity libel action brought by a private individual against a magazine publisher. Because the magazine article in question was libel per se in Illinois, the trial court put the case to the jury only on the issue of damages which they awarded. Later the Court entered judgment N.O.V. for the publisher on the theory that the Sullivan doctrine protected discussion (and thus prevented recovery) “of any public issue without regard to the status of a person defamed therein.” In the appeal to the Court of Appeals, that Court held the Sullivan doctrine applicable to any publication about an issue of significant public interest, and further held that the position of the defamed person made no difference on the question of that application. The United States Supreme Court, after comparing the media’s First Amendment right with the states’ legitimate interest in compensating the private individual for the harm caused by defamation, held that:

“. . . [s]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. . But this countervailing state interest extends no further than compensation for actual injury. . . . [W]e hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.”

And further:

“. . . [t]he doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs . gratuitous awards of money damages far in excess of any actual injury.”

Although Gertz was a libel action brought by a private individual against a “publisher” in the narrow sense, nevertheless the holding in that case, so directly involving the breadth of the First Amendment to the United States Constitution, is applicable to the facts of the instant case insofar as it affects the right of our state to award damages in defamation actions. Here, there was entirely absent any proof of actual injury to these plaintiffs. Nor was the jury instructed upon the requirement of actual malice as a predicate to the award of punitive damages. The failure to instruct the jury on the requirement of proof of actual malice for an award of punitive damages and the instruction authorizing compensatory damages absent proof of actual injury, constituted reversible errors.

Appreciating the vital role which judicial restraint occupies in our legal processes, nevertheless we feel constrained to express our considered regret for the circumstarices which resulted in these proceedings. Certainly, we members of the legal profession can be esteemed by the public whom we serve no higher than we esteem ourselves. Beyond this expression of our regret we say no more.

For the errors we have noted the cases are due to be, and are

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    HARDY INSURANCE COMPANY v. BAUMHAUER-CROOM INSURANCE.
    Civ. 776.
    Court of Civil Appeals of Alabama.
    Dec. 1, 1976.

      J. Edward Thornton, Mobile, for appellant.
    Wilkins & Druhan and Michael A. Wer-muth, Mobile, for appellee.
   BRADLEY, Judge.

The appeal is from an order of the Circuit Court of Mobile County overruling consolidated motions for a new trial.

Baumhauer-Croom Insurance, the appel-lee, initiated this action by filing suit against appellant Hardy Insurance seeking a declaratory judgment that an oral agreement, previously entered into by the parties, for the sharing of premiums on marine insurance had been terminated. Hardy filed with its answer a counterclaim asking for $160,000 damages for wrongful interference with a business interest, alleging that Baumhauer-Croom had taken away from Hardy a valued business customer. A jury awarded Hardy $5,000 damages on the counterclaim. Dissatisfied with the amount of the verdict, Hardy filed several motions for new trial. These motions were consolidated and overruled and court costs were taxed against Hardy. It is from this order that Hardy perfected its appeal.

Hardy says the issues on appeal are as follows:

1. The $5,000 verdict is inadequate.
2. The imposition of court costs as punishment for filing a motion for new trial is wrong.
3. The trial court erred in excluding a letter from Hardy to Baumhauer-Croom, written after Hardy received notice that it no longer was the placing agent for a long-standing customer’s marine insurance coverage, setting out Hardy’s version of an oral agreement between the parties.
4. The court erred in excluding a letter, written by Hardy to a witness after the case was filed, which was received but not answered and which would have contradicted testimony of the witness.

The facts show that in early 1970 Hardy approached Mr. Baumhauer asking for assistance in placing the marine insurance of Simms Brothers Towing Company, a longtime insurance customer and personal friend of Hardy. Baumhauer agreed to place the insurance and split the commissions, an arrangement in the insurance trade known as a brokerage agreement. Baumhauer was able to find adequate coverage for Simms.

According to generally accepted practice in the insurance trade, normal procedure under a brokerage agreement is for the producing agent, here Hardy, to furnish necessary information about the customer being insured to the placing agent, here Baumhauer-Croom. The placing agent then provides the information to prospective insurers. Upon finding an insurer, the placing agent delivers the policy issued to the producing agent, who in turn delivers the policy to the customer and receives the premium. The producing agent then gives the placing agent the agreed share of the premium.

The procedure outlined above was not followed in the present case. Instead Baumhauer, when asked to place the insurance, requested of Hardy that he be allowed to deal directly with the client. Hardy agreed. From that point on Baumhauer dealt directly with Simms and in fact acted as its insurance agent. Baumhauer mailed the insurance policy directly to Simms and Simms paid the premiums directly to Baum-hauer. Hardy merely received its share of the premiums as they were paid; it performed no further services.

On April 24, 1973 Simms wrote Hardy a letter stating that in the future Baum-hauer-Croom would be the sole insurance agent for Simms. Hardy then wrote Baumhauer a letter attempting to establish the terms of their oral brokerage agreement made three years previously. Hardy also had a personal conversation with Mr. Baumhauer. As a result of either the letter or the conversation, or both, Baumhauer-Croom paid Hardy commissions due on policies for the period April 1, 1973 to March 31, 1974.

On March 4,1974 Baumhauer wrote Hardy that Baumhauer-Croom was no longer able to share the commissions on the Simms’ account. On June 18, 1974 Baum-hauer-Croom filed suit for a declaration of the status of the parties as to the brokerage agreement, seeking to have the agreement declared terminated. In response Hardy counterclaimed, alleging as ground therefor tortious interference with a business relationship and seeking $10,000 compensatory damages and $150,000 punitive damages.

The first issue raised by appellant Hardy is inadequacy of the damages award. Hardy claims he proved by undisputed and un-contradicted evidence that he was entitled to $17,728.75, representing benefits lost as a result of Baumhauer’s assuming the Simms’ account, and that the verdict of $5,000 is inadequate as a matter of law.

The proof of damages adduced by Hardy at trial indicates that there was some confusion as to the measure of damages. While his action was based in tort, his claim for damages was grounded on his contract with Baumhauer-Croom. The general rule is that compensatory damages are intended to reimburse the plaintiff for loss suffered by reason of the injury inflicted by the defendant, Matheny v. Petersen, 276 Ala. 478, 168 So.2d 635 (1964). The injury of which Hardy complains, and for which he recovered, is not that Baumhauer-Croom breached its contract with Hardy but rather that Baumhauer-Croom tortiously interfered with Hardy’s business relationship with Simms by taking away Simms’ business. Thus, Hardy is due to be compensated for whatever loss he sustained as a result of no longer having Simms as a customer. See Sparks v. McCrary, 156 Ala. 382, 47 So. 332 (1908).

After Hardy and Baumhauer-Croom entered into the brokerage agreement, the benefit to Hardy in keeping Simms as a customer was that Hardy shared the commissions paid by Simms to Baumhauer-Croom. Thus, a short discussion of the contentions of the parties as they relate to the brokerage agreement is necessary. Both parties admit that they initially agreed that Baumhauer-Croom would split the commissions it received from Simms with Hardy; they disagree, however, as to how the commissions would be split and the duration of the brokerage agreement.

Hardy’s position is that Baumhauer-Croom agreed to share the commissions on a fifty percent basis, which is the usual practice in the trade, and furthermore that Baumhauer-Croom would share the commissions for as long as it placed insurance for Simms, regardless of Simms’ relationship with Hardy. Under this theory, Hardy has suffered no loss and is therefore entitled to receive nothing, since Baumhauer-Croom must continue to split the commissions with Hardy even if Simms is no longer Hardy’s customer.

Baumhauer-Croom contends that it never agreed to an equal split of commissions with Hardy, and that any obligation to Hardy with regard to the commissions ceased when Simms terminated its business relationship with Hardy. Under this theory, Hardy’s measure of damages is the amount of commission payments he would have received had Simms remained his customer and had the contract remained in force.

The standard of review when adequacy of the damages is challenged is whether the record affirmatively reveals either an improper motive of, or improper influence on, the jury. If there is no such showing, then it must appear that the verdict fails to give substantial compensation for substantial injury. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Anderson, 52 Ala.App. 651, 296 So.2d 739 (1974).

The brokerage agreement was entered into in 1970. In April 1973 Simms replaced Hardy with Baumhauer-Croom as its exclusive insurance agent. Baumhauer-Croom ceased paying a percentage of the premiums it received from Simms to Hardy in April 1974, and filed suit for declaratory judgment in June 1974. Hardy claims he is entitled to receive $4,308.25, representing the difference between the share of commissions he received until April 1974 and the amount he would have received had the commission been equally divided; $5,670.50, representing fifty percent of the commissions Baumhauer-Croom received from Simms from April 1974 to April 1975; and $7,750.00, representing fifty percent of the commissions Hardy estimated that Simms paid to Baumhauer-Croom from April 1975 to April 1976, just before the trial. The last figure was not allowed into evidence.

Under Hardy’s action in tort, he is not entitled to recover sums claimed prior to April 1973, when Simms was still his customer, or April 1974, when Baumhauer-Croom continued to split the commissions even though Simms was no longer Hardy’s customer; such sums, if due, would be a debt, not damages. The amount of commissions made by Baumhauer-Croom after April 1975 is unknown, although Hardy estimated an amount without foundation in the evidence. Thus, according to the evidence introduced by Hardy at trial, he would have received $5,670.50, if the commissions were split equally, as his percentage of the premiums paid by Simms to Baumhauer-Croom from April 1974 to April 1975. Since Baumhauer-Croom introduced evidence indicating that the commissions were to be divided on less than a fifty percent basis, we cannot say that the $5,000 awarded by the jury is not substantial compensation for substantial injury.

Hardy’s second contention is that the trial court imposed costs on Baum-hauer-Croom for the main case, but when it denied Hardy’s motions for new trial changed its decision and imposed all costs on Hardy. Baumhauer-Croom answers this claim by saying that the court did not change its mind and impose all costs on Hardy. They suggest that under the trial court’s order Baumhauer-Croom must pay the costs of the main case and that Hardy must pay the costs incurred as a result of the proceedings on the motions for new trial.

Rule 54(d) ARCP provides:

“Except when express provision therefore is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs,

We are persuaded that the trial court taxed costs against the losing party, Baum-hauer-Croom, in the main case, and taxed costs against the losing party, Hardy, in the proceeding seeking a new trial. Both orders being in compliance with Rule 54(d), supra, this contention has no merit.

Hardy raises as his third issue the trial court’s refusal to admit into evidence a letter written by Hardy to Baumhauer-Croom after Hardy received a letter from Simms written by its vice president, John Kern. In Simms’ letter, dated April 24, 1973, Kern informed Hardy that Simms was terminating its insurance business with Hardy and giving it exclusively to Baum-hauer-Croom. Hardy’s letter to Baum-hauer, dated May 9,1973, sought to confirm in writing the oral agreement made some three or four years previously relating to the Simms marine insurance. Hardy stated in this letter that he and Baumhauer had agreed to split the commission on the wet marine insurance for as long as Baum-hauer-Croom had the business. Hardy then requested a check for fifty percent of the commissions on the 1973 renewal of the Simms’ account.

Hardy says in brief that Baumhauer, upon receipt of this letter, remitted to him commissions for the year ending March 31, 1974. Baumhauer denies that he assented to this letter or that he complied with it. He claims he paid Hardy some of the commissions for the 1973 renewal year only after Hardy came to his office and threatened him with bodily harm. On cross-examination Hardy admitted that he received the money after his visit with Baumhauer.

Relying mainly on the case of Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86 (1932), which was followed in Crawford v. Holmes & Waddell, Inc., 280 Ala. 89, 190 So.2d 282 (1966), Hardy suggests that the letter should have been admitted into evidence on the theory that it was part of the res gestae and therefore not a self-serving declaration. Baumhauer contends the letter was properly excluded on the ground that it was a self-serving declaration.

A thorough consideration of Denson is in order at this time. First, it should be pointed out that the letter involved in Denson did not appear to be a written confirmation of a previous oral agreement, as is Hardy’s letter to Baumhauer-Croom. Rather, its form was that of an original proposition which on its face evinces an intent that the writing be signed or otherwise accepted in order to become a binding obligation. The Denson letter was erroneously admitted into evidence and the question before the court was whether that error called for reversal of the trial court.

The Denson court then stated the general rule that written communications from one party to another party as to the character of dealings between them or the liability of the party to whom they are addressed are not admissible in the absence of any reply assenting to the communication. The court then said:

“There are, however, some exceptions to this general rule, and one of these is that unanswered letters are admitted in favor of the writer when they are of the res gestae of the transaction under investigation. Murray v. East End Imp. Co. (Ky.) 60 S.W. 648, 22 Ky. Law Rep. 1477; Thorndike v. City of Boston, 1 Metc. (Mass.) 242; Moses v. Katzenberger & Sons, 84 Ala. 95, 4 So. 237; Cleveland Woolen Mills v. Sibert, Ward & Co., 81 Ala. 140, 1 So. 773.
“Another statement of this exception to the rule is that such letters are admissible, though they contain self-serving declarations and are not a part of the mutual correspondence, when they relate to existing contracts between the parties. Peninsular Naval Stores Co. v. Parrish, 13 Ga.App. 779, 80 S.E. 28; Ross v. Reynolds, 112 Me. 223, 91 A. 952; Keeling-Easter Co. v. R. B. Dunning & Co., 113 Me. 34, 92 A. 929; Dennis v. Waterford Packing Co., 113 Me. 159, 93 A. 58, Ann. Cas. 1917D, 788; Sturtevant v. Wallack, 141 Mass. 119, 4 N.E. 615; Gore v. Hawsey, vol. 3 Foster & Finlason’s Rep. (Eng.) 509.
“The letter . . . was within the exception last above stated, and it was admissible as tending to show plaintiff’s conception of the contract, and its weight was for the trier or triers of fact.”

The Denson court thus concluded that admission of the letter in question was harmless error because it was admissible under a different rule of evidence. However, it is unclear precisely what that rule is as enunciated by the court. It is that rule on which Hardy relies.

Focusing on the language, “Another statement of this exception to the rule .,” the Denson decision could be taken to mean that an unanswered letter is admissible in favor of the writer if the letter is part of the res gestae of the transaction and additionally it relates to an existing contract between the parties. That is the interpretation given the Denson rule by this court in Cunningham v. Lowery, 45 Ala.App. 700, 236 So.2d 709, cert. den. 286 Ala. 734, 236 So.2d 718 (1970). We said there that the letter in question was not part of the res gestae of the transaction, because written and presented at a time remote from the oral agreement, and therefore was not admissible even though relating to an existing contract between the parties.

On the other hand, the Denson decision could be interpreted as stating two distinct exceptions to the general rule excluding unanswered letters, one admitting such letters when part of the res gestae and the other admitting unanswered letters when they relate to existing contracts between the parties. This interpretation is based on the introductory language at the beginning of the first paragraph of the quoted portion of the Denson opinion above; the language in the second paragraph stating the letter need not be part of the mutual correspondence between the parties; and the language in the last paragraph quoted that the Denson letter falls within “the exception last above stated.” Furthermore, a different line of cases is followed for each proposition.

It seems that our supreme court interprets Denson as stating two separate exceptions to the general rule, as evidenced by its decision in Crawford v. Holmes & Waddell, Inc., supra. According to Crawford, an unanswered letter which contains self-serving declarations and is not part of the mutual correspondence of the parties but which relates to an existing contract between the parties is admissible into evidence for the purpose of showing the writer’s conception of the contract. Its weight is for the jury.

The difficulty of grounding the rule enunciated above on Denson is that Denson is not sound authority for such a rule. An examination of the cases upon which Den-son relies indicates that they do not at all stand for the proposition for which cited in Denson as a separate exception.

The holding of the three Maine decisions can be summed up by quoting from Dennis v. Waterford Packing Co., 113 Me. 159, 93 A. 58 (1915):

“We have recently held that letters and telegrams sent in the general course of business, by one party to a suit to the other, and not specifically to manufacture evidence, which by the character of their contents are naturally calculated to elicit replies and denials, are admissible in evidence, although they are self-serving, and are not answered. Ross v. Reynolds, 112 Me. 223, 91 A. 952; Kelling-Easter Co. v. Dunning Co., 113 Me. 34, 92 A. 929. The ground of admissibility is, not that the writings themselves afford proof that the statements in them are true, but that silence when such statements are made may itself be an admission. We think the evidence offered and excluded falls within this rule, and that it should have been admitted. These observations will apply also to other instances of exclusion of oral statements made by the plaintiff to the representative officers of the defendant. The exceptions must be sustained.” 93 A. at 60.

Peninsular Naval Stores Co. v. Parrish, 13 Ga.App. 779, 80 S.E. 28 (1913), was decided under a Georgia statute and thus is not apposite.

Sturtevant v. Wallack, 141 Mass. 119, 4 N.E. 615 (1886), dealt with a series of items, including bills and letters, which had been received but unresponded to. The court said it was proper for those facts to be in evidence, since:

“. . . when a charge is of such a kind that, according to common experience, a man would naturally repudiate it if unfounded, the fact that it was made and not repudiated may be left to the jury.” 4 N.E. at 617.

It is readily apparent from examining these cases that all dealt with letters written in the general course of business and were admissible as tending to be an admission by the receiving party of the truth of the matter asserted in the letter. The rule as enunciated in Denson says that the letter need not be part of the mutual correspondence between the parties, and further that it is admissible only to show the offering party's conception of the contract.

Not only is the second exception to Den-son unsound because not grounded in authority, it is unnecessary as a rule of evidence and in effect permits a party to manufacture evidence. There is no reason to permit a party’s writings to be admitted into evidence in order to establish that party’s conception of a contract when the party is capable of testifying firsthand as to his or her conception of the contract. Nor is there any logical reason to distinguish between unanswered letters relating to an existing contract and other unanswered letters, as the rule seems to do. Finally, when it is not required that the unanswered letter be part of mutual correspondence between the parties or otherwise related in time to the transaction, a party is allowed, as in the case before us, to shore up evidence years after the transaction by writing a letter. The problem can be summed up in the words of the court below:

“. . . Now, throughout this trial I have been bombarded with letters and statements by Harry D. Hardy, and I am not going to let a party prove their case by their own letters or their own statements . . . .”

We find such a practice neither necessary or desirable.

However, if Crawford v. Holmes & Waddell, Inc. is the prevailing law in this state, then we must rule that the trial court erred .in refusing to allow Hardy’s letter dated May 9, 1973 to Baumhauer-Croom into evidence, even though not a part of a mutual correspondence and containing self-serving statements, for the reason that it referred to and was connected with an admittedly existing contract. We hold, however, that such error was harmless since Hardy testified fully regarding his conception of the contract and ample evidence concerning the existence and terms of the agreement according to Hardy was before the jury.

The final issue concerns the refusal of the trial court to admit into evidence a letter written by Hardy to Kern dated August 20, 1974. The letter from a party, i. e. Hardy, to a witness, i. e. Kern, was written just a few weeks prior to trial and purported to confirm a conversation which supposedly occurred between the two on August 20, 1974, wherein Kern is alleged to have said that he did not initiate any effort to eliminate the commission arrangement between Hardy and Baumhauer. The letter was offered to impeach the testimony of Kern given at trial that he did initiate the termination of the Simms insurance account with Hardy.

The trial court refused to admit the August 20, 1974 letter on the ground that it was a self-serving declaration. Hardy says the letter constitutes an admission on Kern’s part, since he did not answer it, and is therefore admissible on that basis. The trial court committed reversible error by not allowing its use for impeaching Kern’s oral testimony at trial. Baumhauer-Croom replies that Kern as president of Simms was a witness, not a party, and had no direct interest in the outcome of Hardy’s claim against Baumhauer-Croom. Thus Kern’s failure to respond is neither a party admission nor a declaration against interest, and the letter is self-serving. The letter is as follows:

“This letter is to confirm our conversation of August 20, 1974 at approximately 11:00 A.M., wherein you stated that you never initiated any action aimed at eliminating the commission agreement between Baumhauer and myself or had never made the statement that you ‘may not be getting full service if Baumhauer-Croom were only getting half the commission’ on the account.
“Actually, I knew from our long association that Baumhauer’s deposition was in error and that neither you nor Alton would have made the statements attributed to you by Baumhauer and my purpose in reading these statements to you was to keep the record as straight as possible.”

We do not see where Kern had any duty or interest in replying to Hardy’s letter, and therefore the failure to reply could not be taken as an admission of the truth of the statement allegedly made by him.

Hardy’s letter is like that involved in H. Curjel & Co. v. Hallett Mfg. Co., 198 Ala. 609, 73 So. 938 (1916), wherein one party to a contract wrote the other party:

“No delivery having been made by you we herewith have to ask you to consider delivery of the first installment . as canceled.”

The court characterized the letter as a declaration of cancellation, not a' request, which called for no reply. Therefore, failure to answer did not support an inference that the receiving party had assented to the sending party’s repudiation .of the contract.

We think the rule of Fidelity & Casualty Co. v. Beeland Bros. Mercantile Co., 242 Ala. 591, 7 So.2d 265 (1942), that self-serving statements in an unanswered letter cannot be treated as admitted merely because the letter was not answered, controls. Since this letter was written just prior to trial and obviously contains self-serving statements, we conclude that the trial court committed no error by excluding Hardy’s August 20, 1974 letter from the jury’s view.

No reversible error having been presented, the trial court’s judgment is affirmed.

AFFIRMED.

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


text:
    James F. CARTER v. STATE of Alabama.
    8 Div. 770.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.
   Appeal DISMISSED, without opinion.


author: PER CURIAM. FAULKNER, Justice

text:
    In re James F. CARTER v. STATE of Alabama. Ex parte James F. Carter.
    SC 1734.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    Jack Livingston and Ronald A. Drum-mond, Scottsboro, for petitioner.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   PER CURIAM.

James F. Carter, a farmer from Jackson County, pleaded guilty on October 10, 1974 to the offense of assaulting an officer with a deadly weapon while engaged in his lawful duties. He was sentenced to imprisonment in the county jail for a term of three months, and fined $100. The jail sentence was to be served as follows: 45 days — 10 days release — and, the remainder of the sentence. Carter paid his fine, and on December 2 surrendered himself to the sheriff to begin serving his jail sentence. The sheriff told Carter to go back home, and he did.

Thereafter, on September 19, 1975, almost a year after his sentence, Carter was arrested under authority of an alias writ of arrest, by order of the trial court, charging him with the same offense that he had already pleaded guilty to. He was placed in the county jail. On October 7, the trial court denied Carter’s petition of habeas corpus filed October 1. He appealed to the Court of Criminal Appeals, and that court ordered bail set. The attorney general filed a motion to dismiss the appeal, alleging that the record was filed beyond the 30-day period, i. e., November 20, and that the transcript was not certified by the circuit judge. The appellate court granted the motion to dismiss the appeal January 20, 1976, notwithstanding Carter’s motion for relief under Rule 2(b), Alabama Rules of Appellate Procedure, requesting suspension of Rule 22’s requirement. Carter asserted that the judgment entry date on the denial of habeas corpus was “back dated” from November 18 to October 7, 1975, and that the trial judge refused to certify the transcript.

After denial of his motion, Carter filed a writ of certiorari stating he had made a timely application for rehearing which was overruled. In his petition for writ of certio-rari, Carter alleges alternative grounds to correct the record to reflect the true date of the judgment entry, to reverse the order of dismissal, or to proceed to a decision on the merits of the case.

We suspend the rules, reverse the order of dismissal, and remand the case to the Court of Criminal Appeals for consideration of the merits.

RULES SUSPENDED.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, ALMON, SHORES and EM-BRY, JJ., concur.

FAULKNER, J., concurs specially.

FAULKNER, Justice

(concurring specially-)

I concur to reverse and remand, and in doing this, I add my comments on the merits of the case.

The judgment of the court sentencing Carter reads as follows:

“On this the 22nd day of August, 1974, in open court came the State of Alabama by its District Attorney and the defendant in his own proper person and with his attorney and the defendant being duly arraigned on the indictment in this case charging him with the offense of assaulting an officer with a deadly weapon while engaged in performance of lawful duty, plead not guilty.
“On this the 17th day of October, 1974, in open court, the defendant being present with his coulsel [sic] advises the court that he desires to withdraw his former plea of not guilty and to enter, in lieu thereof, a plea of guilty to the charge of assaulting an officer with a deadly weapon while engaged in performance of lawful duty as charged in the indictment and waives a jury trial. Whereupon the court examined the defendant and finds and determines that the defendant understands the effect of his plea of guilty and the possible sentence by the court predicated thereon; that he did commit the offense with which he is charged; that his plea of guilty has not been induced by an promises, assurances, inducements, threats, coercion or mistreatment by anyone; that he is not under the influence of any drugs or alcohol and is of sound mind; that he has discussed his plea of guilty fully with his attorney and is satisfied with his attorney’s services; that he makes his plea of guilty of his own free will and because he is guilty and for no other reason.
“And now, in open court, comes the defendant with his attorney, Honorable Morgan Weeks and makes known to the court that he desires to enter a plea of guilty to the offense of assaulting an officer with a deadly weapon while engaged in performance of lawful duty, and the court, having interrogated the defendant in open court in the presence of his attorney concerning his knowledge and understanding of his rights under the constitution of Alabama and of the United States and of the nature and consequences of his plea of guilty, and the court having considered the written declaration of the defendant and the certification of his attorney which has been filed in this cause and marked ‘Court’s Exhibit A’ and which is incorporated in this judgment of sentence by reference thereto in all respects as if the same were set forth herein in haec verba, the court finds and determines that the defendant’s plea of guilty is voluntarily and understanding^ made and is accepted by the court and, accordingly, the defendant is adjudged guilty of assaulting an officer with a deadly weapon while engaged in performance of lawful duty and the defendant, being asked if he has anything to say why the sentence of the law should not be pronounced upon him saith nothing, whereupon the defendant is sentenced to imprisonment in the County Jail for a term of three (3) months and fined one hundred dollars ($100). Jail sentence to be served forty-five (45) consecutive days of time with a ten (10) day period of release intervening.”

I

The Judgment

I am of the opinion this judgment does not conform to standards laid down by Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973).

From this record I cannot determine that Carter was informed by the trial court before accepting the guilty plea, what the minimum and maximum sentence would be. It is true the judgment states, “the Court examined the defendant and finds and determines that the defendant understands the effect of his plea of guilty and the possible sentence by the court predicated thereon.” This is a broad general statement. I do not find a colloquy between the trial court and Carter to review, and determine what the examination consisted of. The judgment refers to “Court’s Exhibit A,” and maybe the colloquy is reported there. However, I find no “Court’s Exhibit A” in the record. This court said in Carter, “Subsequent to Boykin, ... it has become established that the defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to acceptance of a guilty plea.” Furthermore, Carter says, “The better practice is to elicit the maximum and minimum sentences from the defendant himself, so that his knowledge thereof appears on the face of the record.” From this record I am unable to say this judgment passed the Carter muster.

II

The Alias Writ of Arrest

The trial court had lost jurisdiction of the case when he ordered the alias writ of arrest. After 30 days, the circuit court loses all power over its judgments. Title 13, § 119, Code of Alabama 1940. Essex v. State, 45 Ala.App. 141, 227 So.2d 138 (1969). The judgment is dated August 22, 1974— the alias writ of arrest, September 19,1975. Therefore, 30 days after August 22, 1974, the court lost its power over the judgment. At that time Carter was the exclusive “guest” of the Executive Department — the sheriff. When the sheriff told Carter to “go back home,” he accommodated him by going.

Whether the sheriff was thwarting the court’s order, I do not say. However, an observation is, that all parties endeavored to accommodate each other — the court by giving Carter a split sentence — the sheriff by telling Carter to go home, and Carter by not arguing with the sheriff about his “right” to spend 90 days in jail.


author: TYSON, Judge.

text:
    James F. CARTER v. STATE.
    8 Div. 770.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      Jack Livingston and Ronald A. Drum-mond, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

In this case, the appellant, James F. Carter, plead guilty in the Circuit Court of Jackson County, Alabama, on October 17, 1974, to the charge of assaulting an officer while in the performance of his lawful duties and was sentenced in open court to a fine of $100.00 and a term of three months imprisonment in the county jail, the jail sentence to be served for forty-five days of time with a ten day release period intervening.

Without dispute the appellant paid the fine and reported on December 2, 1974, to the sheriff of Jackson County to commence serving his sentence. Without dispute the sheriff of Jackson County advised the appellant to return to his home in Jackson County, and appellant did not hear from the sheriff’s department at any future time until he was arrested on an alias warrant issued by the Circuit Court on September 19, 1975. Appellant then filed his petition for habeas corpus in the Circuit Court, which was heard on October 7, 1975, and denied, and the appellant was ordered remanded to the custody of the sheriff of Jackson County to complete serving his sentence.

I

The sole issue presented is whether or not, under the circumstances outlined above, the Circuit Court may order the appellant to complete a sentence. Title 15, Section 334, Code of Alabama 1940, is as follows:

“Punishment by imprisonment in county jail or at hard labor for county; sentence suspended or remitted.—When the court imposes additional punishment where a fine had been assessed by a jury, or in any case where the court is authorized to impose such punishment at imprisonment in the county jail or at hard labor for the county, the court may, in its discretion, suspend the execution of such sentence until a subsequent time to be then fixed by the court, and not to exceed six months, and may then order it to be executed or remit the same, or further suspend the execution of the sentence.”

Under the above section, the Circuit Court, through the trial judge, has the power in its discretion to suspend execution of a sentence until a subsequent time, in which event the court retains control over the sentence to and including the date named. Barrett v. State, 18 Ala.App. 246, 90 So. 13; Clark v. State, 20 Ala.App. 472, 102 So. 916. However, the trial court does not have the authority to suspend the execution of the sentence indefinitely, as such would be in violation of the provisions of Article 4, Section 43, Constitution of Alabama 1901. Vinson v. State, 16 Ala.App. 536, 79 So. 316.

II

This Court has determined, in construing Title 15, Section 334, supra, that where the Circuit Court is dealing with probation, the suspension of a sentence may be for a period longer than six months. Holman v. State, 43 Ala.App. 509, 193 So.2d 770, cert. denied 280 Ala. 714, 193 So.2d 773.

Holman, supra, also construes Title 42, Section 24, Code of Alabama 1940.

III

Clearly, habeas corpus is the appropriate remedy to examine the term of a sentence set within lawful limits. Williams v. State, 47 Ala.App. 388, 255 So.2d 58.

In the instant cause, the appellant paid his fine, as required by the judgment below, and reported to the sheriff, as directed, to commence serving his sentence. For reasons unknown, the sheriff directed the appellant to return to his home, which was on Highway 72, near Stevenson, in Jackson County, a farm.

Without dispute, the appellant was allowed to remain there and only left the county to visit a heart specialist in Chattanooga, Tennessee. Without dispute, the appellant’s whereabouts were known, and there was no effort made to rearrest him until the alias warrant was issued on September 19, 1975, some eleven months after the original sentence, and more than nine months after the appellant reported to the sheriff to serve the sentence in question.

We do not deem it necessary to here decide whether or not a sheriff may frustrate a lawful order of the Circuit Court “by allowing the prisoner to go to his home.” For it appears appropriate to here note that without question the appellant was allowed to remain at his home, and in fact make a crop in the year 1975 at his farm.

It is the opinion of this Court that when the appellant reported to complete serving his sentence on December 2, 1974, after paying his fine, he did all that was required of him. No action was taken without dispute by any of the officials of Jackson County, Alabama, from December 2, 1974, until September 19, 1975. We believe that this is an unreasonable period of time within which to seek to carry out a term of a sentence which had been previously lawfully determined within said limits. Title 15, Section 334, Code of Alabama 1940.

No action having been taken by the Circuit Court to secure the physical presence of the appellant until September 19, 1975, we hold that the Court was estopped to order the execution of the sentence at this point in time.

We hold the alias warrant in question is void, and this cause is due to be reversed and rendered, and the appellant discharged.

REVERSED AND RENDERED.

HARRIS, DeCARLO and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: BOOKOUT, Judge.

text:
    Walter Lee CHILDERS, Jr. v. STATE.
    6 Div. 130.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.

      J. Mark White, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years.

On the night of August 14, 1974, a lone bandit entered the Snak Shack in Bessemer. He brandished a pistol, demanded money and received $168.00. He then fled. Witnesses to the incident included the owner-manager, Howard Kelley, and two adolescent employees, Don Talley and Jeffery Kelley. The appellant presents three issues for review, all of which revolve around the witnesses’ ability to identify the appellant as the bandit.

According to the initial composite description given by the witnesses, the bandit exhibited the following characteristics. He was a black male, weighing approximately 150 lbs., six feet, one inch to six feet, two inches in height, with medium hair and a short mustache. He wore black pants, a black turtleneck and a flat black hat. After the initial police interview, the witnesses tentatively concluded that the bandit had been in the store earlier that day at which time he allegedly wore a red sleeveless shirt.

All three witnesses identified the appellant from a photographic display on the day following the robbery. They also identified the appellant a short time later at a lineup. All three witnesses positively and unequivocally identified the appellant at trial as the bandit. The appellant vigorously contends that all of the identifications were based on his trip to the Snak Shack in the capacity of a shopper and that he was not the bandit.

During the robbery, the bandit’s face was covered except for a few brief occasions when his turtleneck, which he used as a mask, slipped down. A search was made of the appellant’s home, no money was recovered, and no fingerprints of the appellant were found at the scene of the robbery. The appellant put on an alibi defense. He also attacked the witnesses’ identification by pointing to minor inconsistencies in their respective recollections as to the bandit’s appearance at the time of the robbery. The most notable inconsistencies were on the subject of height and the presence of or lack of sideburns.

When evaluating the likelihood of misidentification, whether in-court or out-of-court, there are certain factors which must be considered. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The factors include the opportunity of witnesses to view the criminal at the time of the crime, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description of the criminal, the level of certainty demonstrated by the witnesses at the confrontation, and the length of time between the confrontation and the crime. Following is a list of each witnesses’ opportunity to view the bandit at the time of the robbery:

(1) The bandit entered the store and then pulled the turtleneck over his mouth and nose. Jeffery Kelley observed the bandit’s entrance and had a clear view of his face.

(2) The bandit walked over to Howard Kelley and put a gun to Mr. Kelley’s head. He then demanded a pistol which was located in Mr. Kelley’s back pocket. When the bandit reached for the pistol, the turtleneck slipped from his face. Mr. Kelley had a clear view of the bandit’s face at arm’s length.

(3) The bandit then walked over to Don Talley, put a gun to Talley’s side and demanded money from the cash register. When the bandit reached for the money, the turtleneck again slipped from his face. Don Talley also had a clear view of the bandit’s face at arm’s length.

(4) Jeffery Kelley also viewed the bandit’s face when the bandit took Howard Kelley’s gun and when the bandit fled the premises.

All three witnesses testified that their opportunity to view the bandit’s face was limited to a matter of seconds. All of the other factors mentioned in Neil v. Biggers, supra, are highly favorable to the State in the present case.

I

The pretrial identification is objected to by the appellant. There were eight photographs from which to choose, and the appellant’s picture appeared twice. The appellant contends that such a procedure was highly suggestive.

We have viewed the eight photographs in question. The two photographs of the appellant are very dissimilar. The difference in the appellant’s wearing apparel and the lighting used in the photographs is great. In addition there was a substantial difference in the amount of facial hair worn by the appellant in the two photographs. Two of the subjects of the other six photographs were brothers of the appellant. The three brothers looked very much alike. The final four photographs were of black males with facial features similar to the appellant’s. They were also of approximately the same age and complexion as the appellant.

All three witnesses selected both photographs of the appellant as being the same man who robbed the Snak Shack. Don Talley and Jeffery Kelley were positive as to both of the appellant’s photographs, while Howard Kelley was positive as to one photograph and fairly certain as to the other. The selections made by the witnesses are impressive indeed when one considers that all eight photographs were of men who looked very much alike.

The first step when dealing with an alleged misidentification is to determine if the procedure used was suggestive. Neii v. Biggers, supra. Ordinarily a photographic display which contained eight pictures with the defendant’s picture appearing twice might be alleged to be suggestive. But due to the peculiar makeup of the display in question, as discussed above, we hold that the procedure was fair and not in the least suggestive.

II

The pretrial lineup identification is also objected to as being suggestive. The lineup was composed of four persons. The appellant was from two to four inches taller than the other participants, and he was also the only participant wearing a red sleeveless shirt. The lineup was conducted shortly after the appellant had been identified from the photographs.

The procedure used in regard to the lineup was not as ideal as that used in the photographic display. It must be borne in mind that there was an initial conflict between the witnesses as to the bandit’s height. Howard Kelley stated to the investigating officers that the bandit was five feet, eight inches or five feet, ten inches. Arguably, the police were not in error because the other participants in the lineup happened to be shorter than the appellant. However, it could be argued that the lineup was suggestive by virtue of the fact that the appellant was the only participant to wear a red sleeveless shirt.

A.

Once it is determined that a pretrial identification process was suggestive, then its effect on the in-court identification must be gauged. The test is set forth in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) as follows:

“. . .we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermis-sibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification. . . ”

The test of Simmons may be applied to a pretrial lineup as well.

As pointed out in Simmons, the danger that a procedure will produce a misiden-tification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the potential for error.

The appellant’s counsel attempted to show that there was a great likelihood that the appellant had been identified on the basis of his earlier shopping trip to the Snak Shack. The State’s eyewitnesses were adamant and unequivocal in their belief that all of the identifications were based on their observation of the bandit. The jury chose to believe that Howard Kelley, Don Talley and Jeffery Kelley based their identifications of the appellant on his trip to the Snak Shack in the capacity of a robber and not of a shopper.

If there was a danger of misidentification in this case, it did not grow out of the lineup. The witnesses had the image of the appellant firmly planted in their minds pri- or to the lineup. Shortly before the lineup, they had selected the appellant’s photograph out of a complicated photographic display.

B.

The appellant also contends that the results of the out-of-court identifications should have been excluded at trial. The test for admissibility of testimony concerning an out-of-court identification is similar to the Simmons test regarding in-court identification. Under the test for out-of-court identification which is set out in Neil v. Biggers, supra, there must be a very substantial likelihood of misidentification. Floyd v. State, 56 Ala.App. 657, 324 So.2d 798 (1975). The only difference between the Simmons test and that set forth in Neil v. Biggers is the deletion of the word irreparable.

The photographic display was, as previously stated, not suggestive. While the lineup may have been somewhat suggestive and of less probative value than the photographic display, admission of testimony concerning it did not lead to a likelihood of misidentification. The suggestiveness of the lineup would only go to its weight in this case. The in-court identification and the pretrial photographic identification presented overwhelming evidence as to the bandit’s identity.

An illustration of a lineup identification which violates due process is provided by Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). The facts in Foster are so inapposite to those in the present case that they require no discussion here.

Ill

The appellant was arraigned on December 30, 1974. His attorney filed a motion on January 31, 1975, to suppress the out-of-court identifications. The trial commenced on November 17, 1975, at which time the trial judge ruled that the appellant could not have a hearing on his motion prior to trial. The trial judge stated, “We are going to proceed with the testimony in this trial and if I find the identification of the defendant is illegal, I will rule it out. I will hear the Motion at the same time of the trial.” The appellant contends that the trial judge erred in that ruling.

The appellant contends that the subsequent proceedings that were conducted outside the presence of the jury were a hodgepodge of events that could not suffice to replace the pretrial hearing to which the appellant was entitled. We do not agree.

The appellant was not deprived of his right to have the question of the admissibility of the out-of-court identifications determined outside the presence of the jury. Davis v. State, 46 Ala.App. 45, 237 So.2d 635 (1969), affirmed 286 Ala. 117, 237 So.2d 640 (1970); Brown v. State, 277 Ala. 108, 167 So.2d 291 (1964). While the better and more efficient procedure may be to hold a pretrial hearing on motions to suppress, we find no prejudicial effect upon the appellant so long as the matter is heard outside the presence of the jury.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., and BOWEN W. SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: JONES, Justice.

text:
    In re Walter Lee CHILDERS, Jr. v. STATE. Ex parte Walter Lee Childers, Jr.
    SC 2110.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    J. Mark White, Birmingham, for petitioner.
    None for the State.
   JONES, Justice.

Petition of Walter Lee Childers, Jr. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Childers, Jr. v. State, Ala.Cr.App., 339 So.2d 597.

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    Joe Ed HILL and William Pitchford, alias v. STATE.
    7 Div. 392.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.

      J. Wilson Dinsmore, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Assaulting a peace officer with a deadly instrument; ten years.

During the spring term of its 1975 session, the Shelby County grand jury returned separate indictments against the appellants, charging that each “. . did unlawfully assault a peace officer, or a law enforcement officer of this state or political subdivision thereof while in the active discharge of his lawful duty or duties with a deadly instrument to-wit: a shotgun

To these indictments, each pled not guilty at arraignment with their counsel present. Prior to trial, a stipulation was made that the defendants would be tried jointly. A trial was had and each was convicted as charged. After being adjudged guilty separately, each was sentenced to ten years and notice of appeal was given.

In support of these charges against the appellants, the State presented the following evidence:

It appears that the alleged offense occurred on a stretch of track held by the Louisville and Nashville Railroad, under an easement. The site was about one and one-half miles from Highway 52, on what is called the Helena and Blockton Branch Line in Shelby County.

On December 13,1974, at 1:30 P. M., G. T. Hollis, an L & N Railroad policeman, drove to Shelby County. Hollis was alone at the time and he parked his car on a road about one mile south of Highway 52. Dressed in green coveralls and carrying a loaded 12 gauge pump shotgun, Hollis walked down the old railway roadbed to an area where some rails had been cut and removed. He stated that about two weeks before the incident he had gone to the same area and discovered missing rails. As he approached the area he saw a yellow pick-up truck parked on the railroad roadbed.

Standing about one hundred feet behind the truck were three men. The first was the appellant, Hill, who was walking toward the truck, carrying what appeared to be a piece of rail. The second man was standing near the truck and was the man Hollis later learned to be Key. The third man was the appellant, Pitchford, who was standing over a rail, cutting it with an acetylene torch.

As Hollis walked to within thirty feet of the trio, he called out that they were under arrest and identified himself as a railroad policeman. He shouted for them to stand and place their hands on their heads. The command was repeated several times and Hill and Key responded. Pitchford continued to cut the rails. At that point, Key went over to Pitchford, touched him on the shoulder and said: “ ‘Bill, the man said, stop.’ ” Pitchford then got up and turned to Hollis and asked if he could “cut the tanks off.” When the torch was extinguished, Pitchford asked Hollis what department “he was with.” Again Hollis repeated his name and that he worked for L & N as a railway policeman. The trio then placed their hands over their heads. They were told to lie down and Hollis walked over to where Hill was lying. As Hollis tried to handcuff him with a plastic tape, Hill lurched and grabbed the barrel of the shotgun. They struggled and Hill called to Pitchford: “Hey, Bill, come help me, I got him.” Pitchford came around behind Hollis and grabbed the gun. At that time both of the men were standing over Hollis when the gun discharged, hitting Key in the leg. Hollis was momentarily knocked out and when he revived, Pitchford was standing on the other side of the tracks, pointing the gun at him. Appellant pulled the trigger four or five times, but the gun would not fire. Pitchford called to the others: “ ‘Do you all dare me to shoot him? ’ ”, and Hill, who was assisting Key, replied “ ‘Bill, I dare you to shoot . . . shoot the son-of-a-bitch.’ ”

Pitchford turned to Hollis and said, “ ‘Don’t move your hands from where they are and roll down (the) bank.’ ” As Hollis rolled down the bank he did not see Pitch-ford eject a shell but heard him pump the shotgun. Almost immediately, the gun fired and three pellets struck Hollis in the rear portion of his left arm. Hollis was stunned and subsequently, staggered to the edge of Helena dump road, where he was discovered. He was carried to Shelby County Hospital and later to St. Vincent’s in Birmingham.

During cross-examination, Hollis denied hitting Hill with the shotgun or using profanity at any time during the incident. He admitted that he did not have a badge exhibited but countered he was working as a detective. Further, Hollis maintained his shout had been heard because the trio responded.

Hollis stated the track had not been used by the L & N for eight years other than for maintaining a right-of-way. He said the line was useable, but this was not possible now because rails had been stolen.

Hollis also testified that trees six to eight inches around were growing between the tracks, and debris covered the bed area. He stated that ninety percent of the ties needed to be replaced. According to Hollis, on the north end of the line, the railroad had given the State permission to pave over the rails crossing Highway 52. Further, he explained, a bridge had been destroyed by fire, and the south end of the line ran to a dead end.

Hollis identified the indenture passing Birmingham Mineral Railroad Company’s interest in this section of track to the L & N Railroad Company. The Eureka Company originally passed title to the Birmingham Mineral Railroad Company with the following condition:

“To have and to hold the above conveyed easement unto the said party of the second part its successor and assigns, so long as the same is used for its railroad and no longer.”

He explained he was not aware that his railroad policeman’s commission was required by law to be filed with Shelby County, but said he carried the commission card in his pocket. Although he was not a member of a police department, Hollis said he considered himself a detective, salaried by the L & N.

Larry Edmunson, a former deputy sheriff for Shelby County, was operating a construction and excavating company on December 13, 1974. That afternoon while on his way to the Helena dump in Shelby County, he saw Hollis staggering in the woods just off the road. Hollis said “he was hurt” and Edmunson observed blood on his arm. He laid Hollis down and later carried him to the Shelby County Hospital.

Dr. Thomas McGruder, a licensed physician, specializing in general surgery, testified that on December 13, 1974, he saw Hollis in the emergency room of St. Vincent’s Hospital. He stated the upper portion of Hollis’ left arm had two wounds in the rear with a larger wound in the front. Some nerves to Hollis’ hand were damaged and according to Dr. McGruder, they were surgically repaired by Dr. Sweeney.

J. P. Vaughan, the division engineer for the L & N, was in charge of maintenance of tracks, buildings, bridges, signals and communications. He testified that the Wednesday before Thanksgiving of 1974, he walked from Gurney Junction to the vicinity of Milepost 411, on the line in question. A quarter of a mile beyond the mile post, he found the rail missing for one or one and one-half miles.

Vaughan, on cross-examination, admitted that the crossing on Highway 52 had been paved over for five or six years, but explained estimates had been made on the cost for placing the line in operation. Vaughan went on to say that the company was using the line for a railroad and was maintaining a right-of-way for future use.

James Howell, an evidence technician with the Jefferson County Sheriff’s Department, met a representative of the L & N Railroad on December 13, 1974, at the Alabaster Police Department. From there they drove to very near an area where he saw “layers” of rails had been cut. He made photographs of the area and retrieved acetylene torches, cigarette packs, coveralls, goggles and a pair of eye glasses. These items were dusted for prints but the comparisons were negative.

Bill Davenport, a Shelby County Deputy Sheriff, was called to the Shelby County Memorial Hospital on December 13, 1974, where he saw Hollis in the emergency room.

Later he was directed by the attorneys for the defendants to the area where the shotgun belonging to Hollis was located. There were three unfired shells and one fired hull in the gun. The shells were removed and the gun was subsequently returned to Hollis.

Davenport stated that several days after the incident, the two defendants were surrendered to the authorities by their attorney, J. Wilson Dinsmore.

Wallace Tidmore, the Secretary of the Public Service Commission, since March 1, 1968, testified that as secretary, he was also custodian of records kept in the course of the commission’s business. Tidmore produced a copy of a certificate dated October 2, 1967, commissioning G. T. Hollis as a railroad policeman. He also showed a copy of an oath of office and bond executed by Hollis.

Appearing on the certificate of commission was a statement signed by the Secretary of the Commission, Orvill P. Large, stating a copy of the certificate had been sent to the counties where the railroad operated.

Thomas Snowden, Tax Assessor of Shelby County, testified that the public utility assessment records for 1974-75, indicated 9.96 miles of L & N’s track designated the Helena and Blockton Roads were assessed at $29,900. He stated the taxes would be about $900. and that L & N had paid the taxes on the track.

At the end of Snowden’s testimony, the State’s case was completed. After a motion to exclude was overruled, the defendants called Louis J. Harris. He had lived in Siluria, Alabama, for forty years and was familiar with the railroad running from Gurney Junction to Highway 52.

Harris testified that “Boothtern mine” was located at the Gurney Junction end of the line and the stretch of tracks was a “coal mine spur” belonging to L & N. He stated the mine had closed in 1949, and had moved its equipment in 1950. He recalled picking blackberries along the line in the “fifties” and that the area was “growed up.”

Tommy Watts, Bill Pitchford’s son-in-law and neighbor, testified that he had seen the appellant handle a pump shotgun on many occasions and that he was a “pretty good shot.”

Rufus Green also testified to Bill Pitch-ford’s accuracy with a shotgun.

Conrad M. Fowler, the Shelby County Probate Judge, was called by the defense and testified that copies of railway policemen commissions are filed in the probate judge’s office but not recorded. He explained that when the commissions are received, they are stamped with the date and placed in a file, labeled “Railway Policemen.” Judge Fowler stated a search had been made and no commission belonging to G. T. Hollis was found. On further questioning, he said there had been many changes in the probate judge’s office since 1967, and remarked: “We don’t say it is not there, we just haven’t found it.”

Thomas Snowden, the tax assessor, was recalled by the defense and testified that the record in the assessor’s office showed that the Helena and Blockton track was not in operation. Further, he said that the 9.96 miles of track designated, Helena and Blockton road, was assessed and the taxes paid by the L & N. Snowden explained if the taxes had not been paid, the tax assessor’s office would not prepare an assessment for the property.

William Pitchford testified that on December 13, 1974, he rode with Joe Ed Hill and Charles Key to the area where the shooting occurred. Hill drove the truck along the roadbed and they had to cut trees for about six hours in order to get to the scene. After the trees were cleared, they began cutting the rails into four-foot sections. About twenty-five or thirty “cuts” were made before Hill tapped him on the shoulder. When he stood up, he saw Hollis with a shotgun pointed at him. Hollis said: “ ‘. . . line up and don’t move or I’ll blow your damn head off.’ ” Pitchford said they were told to lie down and he did.

When Hill attempted to lie down, Hollis hit him in the head with the gun barrel, and when Hollis attempted to tie Hill’s hands with what appeared to be a roll of adhesive tape, Hill grabbed the gun and the two began to struggle over it. Someone hollered and Charles Key got up and moved in the direction where Hill and Hollis were struggling. At that point, the gun fired, striking Key in the leg. Key began to holler and Pitchford went over to where the two men were struggling. He testified: “I went over then . . talked . I didn’t know who the man was, whatsoever, I went to try to defend myself, because he already told me, he was going to blow my head off. ... to try to get the gun.”

After taking the gun from Hollis, Pitch-ford told him: “ ‘just go on’ . . . ‘just go on down that bank, we don’t want no problems here.’ ” Pitchford remarked he had to tell Hollis two or three times to go down the bank. He denied pointing the gun at Hollis and trying to pull the trigger. Pitchford explained he knew how to eject shells and that he was holding the gun down by his side. He added that when he tried to eject the shell, the “gun went off,” “. . .1 fired the gun but I didn’t go to it went off.” Pitchford stated that Hollis ran down the bank into the bushes, and: “I didn’t know I shot him.”

After the shooting, Hill and Pitchford placed Key in the truck and they drove out of the area. While driving out, Hill said the “man” told him that he was a railway agent. Pitchford said he was frightened and they threw the tanks, torches and shotgun on the side of the road.

About five weeks after the shooting, Pitchford surrendered to the authorities.

Bobby Nell Hardin, Bill Pitchford’s sister, was the last defense witness. She testified that on several occasions railroad detectives came to her house in search of her brother.

I

When the appellants made their motion to exclude the State’s evidence, they assigned the following grounds:

First, the prosecution had failed to prove Hollis was a railroad policeman, or had complied with § 216 of T. 48, Code of Alabama 1940, Recompiled 1958;

Second, it was not shown that the shooting occurred on premises belonging to the railroad; and

Third, Hollis was not a peace officer within the meaning of T. 14, § 374(20), Code of Alabama 1940, Recompiled 1958, 1973 Cum.Supp. to Vol. Five, which is the statute upon which the indictments were based.

The statutes pertaining to the issue raised by the first ground assigned in support of defendants’ motion to exclude are T. 48, §§ 214, 215, 216 and 217, Code of Alabama 1940, Recompiled 1958, which read:

“§ 214. Application for appointment.— Any company or corporation operating a railway or street railway may apply through one of its executive officers to the governor to commission such number of its agents, servants or employees as said corporation shall designate to act as policemen for said corporation.
“§ 215. Governor appoints. — The governor, upon such application, may appoint such person, if he sees proper, in his discretion, to make any appointment, or so many of them as he may deem proper to be such policemen, and shall issue to such person or persons so appointed a commission to act as such policemen.
“§ 216. Bond and oath of policemen.— Every policeman so appointed shall, before entering upon the duties of his office, take and subscribe the usual oath, and enter into bond in the sum of five hundred dollars, payable to the State of Alabama, conditioned for the faithful performance of the duties of his said office, with good and sufficient surety to be approved by the public service commission. Such oath of office and such bond, with a copy of the commission, shall be filed with the public service commission, and a certificate by the secretary of such commission of such appointment and compliance with the foregoing provisions of this section, shall be filed with the probate judge of each county in Alabama in, into or through which the railroad for which such policeman is appointed may run, and of such other counties in Alabama, if shown in the aforesaid application of such company or corporation, in which the company may be engaged in work and in which it is intended that said policeman may act.
“§ 217. Powers of. — Such policemen, while acting for and in the capacity of agent, servant or employee of said company or corporation, shall severally possess within the limits of the county all the powers of a policeman in the several towns, cities and villages in which he shall be authorized to act as aforesaid; but such railway policeman shall have no authority to make any arrest except for an offense committed on the cars or premises of the corporation, upon whose petition he was appointed.”

In particular, appellants insist it was not shown that Hollis had filed the Public Service Commission’s certificate, showing his appointment as a railway policeman, with the probate judge of Shelby County.

The factual situation involving this question shows:

1) That the Secretary of the Public Service Commission testified he was the custodian of the Commission’s records. He produced a certificate of commission as a railway policeman for Hollis, issued October 1, 1967, and signed by the Secretary of the Commission, at that time, Orvill Large. At the bottom of the certificate, a statement by the Secretary of the Commission indicated a copy of this certificate was filed with the probate judge of counties where the railroad operated.

2) Conrad Fowler, Probate Judge of Shelby County, stated he had made a search for the certificate of commission and was unable to find it, but added he could not say it was not there.

Under § 216, T. 48, supra, once Hollis was appointed by the governor, he entered upon his duties as a railway policeman by taking and subscribing the usual oath and entering into a bond in the sum of five hundred dollars, payable to the State of Alabama. At that point he was a legally constituted railway policeman, empowered to act in all counties where the railroad operated. The filing of the certificates by the Secretary of the Public Service Commission of such appointment, indicating a compliance with the foregoing provisions as to the oath and bond, is ministerial, and not a condition precedent to his assumption of office.

The second ground assigned in support of defendants’ motion to exclude involves the question whether the site of the shooting was in fact the premises of the railroad.

It was contended that the right-of-way had been abandoned and title thereto had reverted. The contention was based on the fact the L & N’s right-of-way was subject to the condition it be used as a railroad. Appellants’ elicited testimony concerning the track being paved over at one end and the roadbed having fallen into disuse. It was also pointed out that trees, five to eight inches in diameter, had grown between the rails.

While the facts indicated the line had not been used in some twenty years, the testimony of the Shelby County Tax Assessor showed the land was assessed and the railroad was paying taxes on it as part of their holdings in Shelby County. There was also testimony concerning a study made to determine the cost of putting the line back in operation. Further, Vaughn and Hollis stating they walked the line, indicated the railroad’s interest in protecting its right-of-way.

The law is clear in Alabama that the mere nonuse of an easement, for whatever period, will not of itself effect an abandonment or terminate the interest. The question is for the jury and the essence of the inquiry is the owner’s intentions. Lapse of time and nonuse are evidentiary of the owner’s intentions, but must be considered with other evidence of such intentions. Alabama Power Company v. Daily, 31 Ala.App. 441, 18 So.2d 142.

The facts outlined above presented a question for the jury.

Defendant’s final insistence in support of the motion to exclude was that Hollis was not a peace officer within the purview of T. 14, § 374(20), supra, which reads:

“Assault with a deadly instrument upon peace officer in performance of his duties. — Whenever any peace officer or other law-enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to commit any assault with a deadly instrument upon such officer, and any person guilty of such assault with a deadly instrument shall be guilty of a felony, and upon conviction shall be imprisoned in the penitentiary for not less than two years nor more than twenty years.”

The Supreme Court stated in NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947):

“It is a common practice in this country for private watchmen or guards to be vested with the powers of policemen, sheriffs or peace officers to protect the private property of their private employers. And when they are performing their police functions, they are acting as public officers and assume all the powers and liabilities attaching thereto.” (Citations omitted.)

In accordance with this view we believe that while on duty and in his prescribed area of authority, a railway policeman is a peace officer within the meaning of T. 14, § 374(20), supra.

The court’s action in overruling the motion to exclude was correct.

Further, we find there was evidence the appellants aided and encouraged each other in this offense. Stokley v. State, 254 Ala. 534, 49 So.2d 284; Ray v. State, 32 Ala.App. 556, 28 So.2d 116. The evidence was properly submitted for the jury’s consideration.

II

Appellants complain that the court abused its discretion when it allowed Vaughn to give his opinion regarding: “. . . why are rails left in the roadbed?”

Vaughan, the Division Engineer for the L & N, was in charge of maintenance of tracks, buildings, bridges, signals and communications. He stated he was familiar with the branch-line where the incident occurred and that he had walked it on a few occasions. The last occasion was on the Wednesday before Thanksgiving of 1974.

During the trial he identified an “evaluation map” of the area and stated it showed the right-of-way and a brief description of its ownership. Further, Vaughn testified he was familiar with the legal description of the area in question.

Based upon his knowledge as the division engineer and his experience in that capacity for seventeen years, we believe Vaughn could give his opinion of why the rails were left in the roadbed.

III

We find no error in allowing Hollis to answer the question: “Do you hold an appointment as a policeman or a law enforcement officer for the L & N Railroad Company?” During the trial, Hollis identified a certificate of commission, indicating his appointment as a railway policeman for the L & N, and stated he had a card showing his commission.

Under these circumstances we believe the testimony was admissible.

IV

The exhibiting of wounds and allowing medical testimony concerning them were not error. In Haney v. State, 20 Ala.App. 236, 101 So. 533, it was said the extent of injuries was proper subject of inquiry bearing on the issue of whether or not there was intent to kill. Bone v. State, 25 Ala.App. 96, 142 So. 437; Elmore v. State, 26 Ala.App. 290, 158 So. 771.

V

Appellants maintain the court invaded the province of the jury when in the oral charge the judge stated it was the judgment of the court, that as a matter of law, Hollis was acting as a law enforcement officer at the time the incident occurred.

In view of the evidence recited above concerning Hollis’ appointment as a railway policeman, we believe the court was correct in making such a finding.

VI

Counsel for appellants complains the court erred in allowing parol evidence by Hollis as to the ownership of the property where the incident occurred.

Our review of the record indicates that Hollis had been on this property several times over the past eight years. During the trial he identified maps showing this area and stated the railroad had been paying taxes on this particular land.

Based on his personal knowledge and familiarity with the area, we believe his testimony was permissible.

VII

Appellants claim they were denied a public trial when the court allowed the prosecution to subpoena most of Pitchford s family and have them excluded under the rule of sequestration.

The choice of witnesses to be subpoenaed by the prosecution cannot be limited, just as it cannot be limited to appellant. Once the witnesses are chosen, their exclusion from the courtroom is within the trial court’s discretion. Patterson v. State, 53 Ala.App. 567, 302 So.2d 540.

VIII

It is insisted appellants’ sixth amendment right to be informed of the nature and cause of the accusations against them was impaired. Counsel argues that the indictment encompassing the charges against the appellants did not name the officer alleged to have been assaulted.

This point was not raised by demurrer to the indictment and is presented for the first time on appeal.

We are satisfied that no injury resulted to the defendants from the omission of the assaulted officer’s name. The evidence without dispute, showed G. T. Hollis was the one shot and that he was a duly commissioned railway policeman. See: Gaines v. State, 146 Ala. 16, 41 So. 865.

IX

Counsel for appellants alleged the court erred in allowing the jury to separate during recess and overnight without an agreement by the defendant. This point of alleged error was not established by an objection, motion for mistrial, or by a motion for new trial. Without some adverse ruling regarding this issue, this court has nothing before it for consideration. Turner v. State, 54 Ala.App. 467, 309 So.2d 503.

X

We examined each of the fifty-one written charges refused the defendants and have found they were either covered by the oral charge, were abstract, confusing, misleading, invasive, not predicated on the evidence, or not supported by the law. In our judgment, the refusal of these charges was correct.

We have searched the record and did not find any error.

AFFIRMED.

TYSON, HARRIS and BOOKOUT, JJ., concur.