text:
    JEFFERSON COUNTY, Alabama, et al. v. James T. JOHNSON, Jr. and Betty B. Johnson.
    SC 1206.
    Supreme Court of Alabama.
    May 21, 1976.

      Edwin A. Strickland, Birmingham, for appellants.
    James M. Tingle, Birmingham, for ap-pellees.
    Robert R. Reid, Jr., Birmingham, for amicus curiae, friends of Jemison • Park.
   HEFLIN, Chief Justice.

This suit was begun in the equity division of Jefferson County Circuit Court as a declaratory judgment action which also sought affirmative relief in the form of an order to compel the Jefferson County Engineer to issue a building permit to plaintiffs. The complaint and proof at trial showed that plaintiffs James and Betty Johnson owned two lots in Shades Creek Parkway Estates, a subdivision in Jefferson County; that they had previously built a commercial building called the Johnson Building on the property; and that they were seeking a building permit to add an addition to the presently existing building. The evidence further showed that plaintiff James Johnson and his attorney, Charles Beavers, who is now deceased, discussed the proposed addition with defendant Hewitt A. Snow, the Jefferson County Engineer and Building Official, prior to taking any official action to acquire a permit. Snow, who is the county officer authorized to issue building permits, informed plaintiff that the proposed plans, which called for the placement of sixteen concrete support pillars in the area of the creek bed and the construction of the addition over the creek, were unacceptable because the pillars would interfere with maintenance of the creek bed, would cause blockage problems in that debris would be trapped on the pillars, and would preclude the enlarging of the creek bed in the future to prevent flooding. There was dispute at the trial as to whether an application for a permit was officially submitted to the County Engineer prior to initiation of this suit.

Subsequent to the filing of the suit, the trial court ordered plaintiffs to submit a partial permit application for the sole purpose of determining whether the County Engineer would deny the permit because of the proposed location of the addition. The defendant County Engineer did deny the permit in a letter which read in pertinent part:

“ * * * [I]n our opinion, which is based on flood experience in this area, it would be very unwise to construct any new facility which would tend to impede the flow of water within this creek or preclude the possibility of enlarging the creek channel to provide for future increases in run-off and make it difficult to clean the channel of silt and debris.”
“Therefore your application for a permit, on the plans submitted, for construction of a building over the confines of the creek area is denied.”

In the letter and also in a counter-claim included in defendant’s answer to the complaint, defendant Jefferson County asserted a right to a fifty-five foot wide drainage easement on plaintiffs’ property which was alleged to include portions of the property upon which the addition was to be built. Subsequent to the filing of defendant’s answer, plaintiffs amended their complaint to request a declaration by the court as to the validity of the asserted easement. Although the trial court’s later ruling, which found no easement, was assigned as error by appellants it has not been argued on this appeal. Thus this issue is not before this court.

The case was tried to the court with at least one expert testifying to the effect that the construction would not contribute to flood conditions in and around the creek. In its final judgment the court found: (1) that the plaintiffs were not precluded from bringing this action by the doctrine of exhaustion of administrative remedies because they did not have adequate remedies to pursue ; (2) that the denial of the building permit by the defendants did not involve zoning regulations nor did such denial stem from any regulation, method or mode of construction found in the applicable Jefferson County Building Code or adopted standards; (3) that the denial was based solely on the reasons specifically set forth in the letter of denial addressed to plaintiff James T. Johnson by defendant Hewitt A. Snow and that these reasons were not supported by the evidence and were not well taken; (4) that the plaintiffs had made a proper application for the building permit and (5) that the proposed location would not significantly impede the flow of Shades Creek or increase the likelihood of flooding in the area. The court then ordered the county to issue the building permit as soon as final plans meeting all technical building code requirements had been submitted.

This court interprets the trial judge’s final decree as holding that the Jefferson County Engineer had no legal authority to deny a building permit for the reasons set out in the letter addressed to plaintiff James T. Johnson. Therefore the issue presented to the court is whether this conclusion of the trial court is correct as a matter of law.

It is a well established proposition of law that, as a political subdivision of the state, a county can exercise only that authority conferred on it by law. Alexander v. State, 274 Ala. 441, 443, 150 So.2d 204, 206 (1962); Trailways Oil Co. v. City of Mobile, 271 Ala. 218, 222, 122 So.2d 757, 760 (1960). Therefore, in order to take action on the subject of flood control, the county must be so authorized by the legislature.

Appellants contend that there was ample legal authority for the denial of the building permit. The primary authority, they argue, is the Building Code of Jefferson County, adopted in 1970, under the authority of an act passed by the Alabama legislature in 1967, codified in the Appendix, § 1059(14 aaa)-14ddd), Code of Alabama 1940 (Recompiled (1958)). This statute provides that counties with populations greater than 600,-000 may adopt a building code which is not less restrictive than the Southern Building Code. The pertinent parts of the Jefferson County Building Code as set out by appellants are these:

(1) Section 101.2 — Code Remedial
“This code is hereby declared to be remedial, and shall be construed to secure the beneficial interests and purposes thereof — which are public safety, health, and general welfare — through structural strength, stability, sanitation, adequate light and ventilation, and safety to life and property from fire and other hazards incident to the construction, alteration, repair, removal, demolition, use and occupancy of buildings, structures, or premises.”
(2) Section 101.3 — Scope
“(a) The provisions' of this code shall apply in all unincorporated areas of Jefferson County and also in those parts of said County lying within the corporate limits of municipalities which have not adopted and are not enforcing municipal building codes, to the construction, alteration, repair, equipment, use and occupancy, location, maintenance removal and demolition of every building or structure or any appurtenances connected or attached to such building or structures.”
(3) Section 106.1 — Action on [Building Permit] Application
“(a) No person, firm or corporation shall erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish any building or structure in any area described in Section 101.3(a), or cause the same to be done, without first obtaining a separate building permit for such building or structures from the Building Official.
“(b) If the Building Official is satisfied that the work described in an application for permit and the drawings filed therewith conform to the requirements of this code and other pertinent laws and ordinances, he shall issue a permit therefor to the applicant.
“(c) If the application for a permit and the drawings filed therewith describe work which does not conform to the requirements of this code or other pertinent laws or ordinances, the Building Official shall not issue a permit, but shall return the drawings to the applicant with his refusal to issue such permit. Such refusal shall, when requested, be in writing and shall contain the reasons therefor.”
(4)Section 112.1 — Time Limit
“(a) Whenever the Building Official shall reject or refuse to approve the mode or manner of construction proposed to be followed or materials to be used in the erection or alteration of a building or structure, or when it is claimed that the provisions of this code do not apply, or that an equally good or more desirable form of construction can be employed in any specific case, or when it is claimed that the true intent and meaning of this code or any of the regulations thereunder have been misconstrued or wrongly interpreted, the owner of such building or structure, or his duly authorized agent, may appeal from the decision of the Building Official to the Board of Adjustments and Appeals. Notice of appeal shall be in writing and filed within 30 days after the decision is rendered by the Building Official. A fee of $10.00 shall accompany such notice of appeal.”

The Board of Adjustments and Appeals is created by section 111 of the Building Code. Section 113 authorizes the Board of Adjustments and Appeals to vary the application of the code provisions so as to prevent manifest injustice.

Appellants further contend that Title 12, Sections 341-364 of the Code, which is entitled “Comprehensive Land Management and Use Program in Flood-Prone Areas,” empowers Jefferson County to adopt ordinances, regulations and building codes for flood-prone areas. Section 344 of the act reads in pertinent part:

“Land-use and control measures shall provide land-use restrictions based on probable exposure to flooding. Measures provided in this section shall:
(a) Prohibit inappropriate new construction or substantial improvements in the flood-prone areas;
(b) Control land uses and elevations of all new construction within the flood-prone area;
(d) Be based on competent evaluation of the flood hazard as revealed by current authoritative flood-prone information;
(e) Be consistent with existing flood-prone management programs affecting adjacent areas and applicable to appropriate state standards; and
(f) Prescribe such additional standards as may be necessary to comply with federal requirements for making flood insurance coverage under the National Flood Insurance Act of 1968 available in this state.”

Section 345 provides:

“In addition to land-use restrictions commensurate with the degree of the flood hazards in various parts of the area, there shall be such subdivision regulations as may be necessary:
(a) To prevent the inappropriate development of flood-prone lands;
“(c) To provide for adequate drainage so as to minimize exposure to flood hazards and to prevent the aggravation of flood hazards; and
“(d) To require such minimum elevation of all new developments as required.”

Appellants also point to a resolution passed by the Jefferson County Commission on March 5, 1974, as further authority for the action of the County Engineer. This resolution charges the County Engineer as follows:

“1. That the (Urban Engineer-Inspection Services) shall review all building permit applications for new construction or substantial improvements to determine whether proposed building sites will be reasonably safe from flooding. If a proposed building site is in a location that has a flood hazard, any proposed new construction or substantial improvement (including prefabricated and mobile homes) must (i) be designed (or modified) and anchored to prevent flotation, collapse, or lateral movement of the structure, (ii) use construction materials and utility equipment that are resistant to flood damage, and (iii) use construction methods and practices that will minimize flood damage; and
“2. That the (Public Works Director-County Engineer) shall review subdivision proposal and other proposed new developments to assure that (i) all such proposals are consistent with the need to minimize flood damage, (ii) all public utilities and facilities, such as sewer, gas, electrical, and water systems are located, elevated, and constructed to minimize or eliminate flood damage, and (iii) adequate drainage is provided so as to reduce exposure to flood hazards; and
“3. That the (Public Works Director-County Engineer) shall require new or replacement water supply systems and/or sanitary sewage systems to be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters, and require on-sight waste disposal systems to be located so as to avoid impairment of them or contamination from them during flooding.”

Appellants maintain that all of these enactments provide the legal authority to support the denial of a building permit to plaintiff by the Jefferson County Engineer. After studying each of the enactments cited by appellant, this court concludes that none of them as presently enacted establish in the County Engineer the authority to deny a building permit for the reasons set out by defendant Snow in the letter of denial.

This court is unable to locate within the Building Code, and neither has there been pointed out to the court, any provision of the Code which deals with protecting streams from construction which might impede the flow of water within the stream, or prevent enlargement of the creek channel or interfere with clearing the channel of silt and debris. While section 101.2 mentions the words “other hazards,” nothing contained therein authorizes the County Engineer to take any action concerning flooding. The Building Code is largely directed to what is to be constructed rather than to the consequences that result to lands and streams.

It is contended that the resolution adopted by the County Commission of Jefferson County on March 5, 1974, provides the County Engineer with legal authority to deny the building permit; however, an inspection of the resolution fails to point up such authority. In order to be a valid exercise of county authority the resolution must be found to be within the scope of power conferred on the county by Title 12, Sections 341-64. It is not clear to this court that the resolution complies with the requisites set out in these Code sections. And, even if it were found to comply with the statutory requisites (a question this court need not reach), the provisions of the resolution do not authorize the denial of the building permit before the County Engineer in this case. The first section of the resolution sets out requirements which can be imposed to protect the building itself. See (1) (i) (ii) (iii). This section does not authorize the County Engineer to prohibit the building of a structure. It merely empowers him to require that certain protective measures to the building be taken prior to issuance of a permit. Only the builder’s refusal to comply with these provisions would justify denial of a permit.

Appellants argue that section (2) of the resolution gives the Engineer such authority. An inspection of this section, however, reveals that it deals only with the refusal of subdivision proposals and other proposed new developments. In this instance the construction is an addition to an existing building and cannot be classified as a subdivision proposal or other proposed new development.

The third section of the resolution is not applicable since it refers only to water supply systems and sanitary sewer systems.

The appellants contend that the County Engineer had authority under sections 344 and 345 of Title 12 to act as he did. These provisions of the “Comprehensive Land Management and Use Program in Flood-Prone Areas Act” do appear, on first review, to provide sufficient authority to deny the permit. However, further study reveals that the provisions of these sections are not controlling unless the county governing body has adopted or established comprehensive land-use and control measures or building codes for flood-prone areas. In this instance the Jefferson County Commission has not acted pursuant to these requirements. Until such action is taken, the provisions of the act are not binding. Thus this court concludes that the trial court was correct in finding that the authorities presented by appellants do not provide legal justification for the denial of the building permit by the County Engineer.

The court also concludes that the trial judge was under no duty to require that further administrative remedies be pursued prior to granting final equitable relief to plaintiff-appellees. Although appellants argue that the exhaustion of administrative remedies doctrine should be applied in this case, this court finds that the doctrine is not applicable under the exception that holds that administrative remedies are not required to be exhausted where there is a defect in the power of the agency to act in any respect. See Simpson v. Van Ryzin, 289 Ala. 22, 32, 265 So.2d 569, 577 (1972); State ex rel. Barbuto v. Ohio Edison Co., 16 Ohio App.2d 55, 45 Ohio Op.2d 159, 241 N.E.2d 783, affirmed 16 Ohio Misc.2d 54, 242 N.E.2d 562 (1968).

Because the Jefferson County Engineer was not authorized to deny a building permit for the reasons stated in his letter of denial to appellee, the findings of the trial court are correct and are hereby affirmed.

AFFIRMED.

MERRILL, MADDOX, FAULKNER and JONES, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Charles ALLISON and Viva Dean Allison v. Clarence LEE et al.
    Civ. 751.
    Court of Civil Appeals of Alabama.
    May 26, 1976.

      Robert C. Barnett, Birmingham, for appellants.
    No brief for appellees.
   HOLMES, Judge.

This is an appeal from the Circuit Court of St. Clair County. The trial court found the issues in favor of the defendant-appel-lees, the Lees and Goodgames, and against the plaintiff-appellants, Charles and Viva Dean Allison. The Allisons appeal from that decree of the trial court.

The issue for our determination is whether the learned trial court erred to reversal by its finding that plaintiff-appellants forfeited a deposit made by them. The deposit was made under the provisions of a real estate sales contract entered into between the parties. We are also called upon to determine whether the trial court committed error to reversal by failing to consider certain parol evidence. We find no such error, and affirm.

The following pertinent facts are revealed by the record:

On July 12, 1974, plaintiff-appellants entered into a contract whereby they were to buy and defendant-appellees were to sell certain real property. The purchase price of $150,000 was to be paid in the following manner: $2,000 was deposited with appel-lees by appellants as “earnest money,” when the parties entered into the land, sales contract; $48,000 was to be paid upon closing the sale; and the remainder was payable in.annual installments. The contract also contained the following provisions which are germane to this appeal:

“The sale shall be closed and the deed delivered on or before within 60 days or upon the sale of the purchasers’ home at 1040-50th Place, South, whichever shall occur last. .
“In the event the Purchaser fails to carry out and perform the terms of this agreement the earnest money, as shown herein shall be forfeited as liquidated damages at the option of the Seller,

On January 10, 1975, the appellees through their attorney informed appellants by letter that the contract was terminated and their $2,000 deposit forfeited.

Appellants on May 22, 1975, filed suit against appellees, seeking damages in the amount of their deposit, plus interest and attorney’s fees. After conducting a hearing in which oral testimony was taken, the learned trial judge entered a decree wherein he found that plaintiff-appellants were not entitled to the relief prayed for in their complaint. As noted earlier, plaintiff-appellants take this appeal from that decree. It is appropriate at this point to remark that appellees have not favored this court with a brief.

Able counsel for plaintiff-appellants initially contends in brief that the learned trial judge erred to reversal by not considering parol evidence as to the intent of the parties with respect to the contractual provision quoted above which required the sale to be closed “ . . . within 60 days or upon the sale of the purchasers’ home . . ., whichever shall occur last. . . ” It is appellants’ alleged failure to comply with this provision which provoked the termination of the contract and which is the basis of this lawsuit.

In this regard, we initially note that a substantial amount of oral testimony concerning the effect of this contractual provision was admitted into evidence by the learned trial judge. As such, we take appellants’ contention to be that this testimony was not considered by the trial judge in arriving at his final decree, although he did allow it into evidence. Certain language in the decree lends itself to this contention of appellants. However, assuming appellants’ argument to be correct, our examination of the record has revealed no parol evidence which would have required the learned trial judge to reach a different result had that evidence been in fact considered by him. Any error committed by the trial judge in not considering this evidence, if such was the case, was thus harmless under Rule 45, ARAP.

Certain other parol evidence bearing on the contractual provision in question was excluded by the trial judge, but this was done due to the objections of counsel for appellants. Appellants therefore cannot now be heard to complain that the evidence was wrongly excluded. The judicial system could not function effectively were a litigant allowed to predicate error on what is essentially his own action.

Appellants’ first contention is thus without merit.

Appellants also argue that the trial court erred to reversal by its finding that appellants were not entitled to recover their “earnest money.” Their reasoning is that the terms of the contract provide the sale is not to be closed until appellant’s home is sold. Since their home was never sold, they argue, they were never in breach, and appellees’ termination of the contract was thus wrongful as to them.

We disagree. While the contract purports to provide that the sale will be closed upon the disposition of the appellants’ home, the practical effect of such a provision would be to prevent consummation of the sale indefinitely were appellants unable to find a buyer for their house. In this context, it is not amiss to note that appellants stated during the hearing below the fact that they had, at that time, still not found a buyer for their house.

To give effect to such a provision would be manifestly unreasonable. In instances such as this, the law declares that performance must occur within a reasonable time, as reasonable results are favored in the construction of contracts. Williston on Contracts, 3d Ed. § 620; 17 Am.Jur.2d Contracts §§ 252, 339; Lowery v. May, 213 Ala. 66, 104 So. 5. Appellants thus had a reasonable time in which to effect a sale of their house and perform their part of the contract.

In our view, the sale of appellants’ home was not a condition precedent to closing the contract. Rather, sale of the home was merely an event set as a convenient time for closing to take place. Appellants had an absolute obligation to perform under the contract at that time, which obligation was not in any way made conditional. See 81 A.L.R.2d 1338.

Appellees did not terminate the contract for over six months after it was entered by the parties. To this court, in this instance, a reasonable time for appellants to dispose of their house and close the sale had expired when the contract was terminated. Appellants had thus failed to comply with the provisions of the contract, giving appellees the right to terminate it and to exercise their contractual right regarding forfeiture of the earnest money.

We consider it appropriate to note that the evidence shedding light on the provision in question is meager, with the result that we have in our construction of the contract been forced to rely in large part on the instrument alone.

Appellants appear to also contend that the contract is void due to the fact that it is evidently impossible for them to sell their home. We find no merit in this contention. It is answered by our discussion above.

We would finally remark that we have reviewed this case in accordance with the well-established principle of law that decrees of the trial court rendered after hearing witnesses ore tenus will be given every favorable presumption and will not be disturbed unless palpably wrong. See 2A Ala.Dig. Appeal and Error ®=’931(1).

All issues presented having been considered, and there being no error to reversal in the record, the case is due to be and is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Billy G. HALLMAN v. CITY OF NORTHPORT.
    Civ. 874.
    Court of Civil Appeals of Alabama.
    May 26, 1976.

      Thompson & Stilson, Tuscaloosa, for appellant.
    John A. Russell, III, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

Appellant Hallman appeals from judgment of the Circuit Court sustaining his dismissal as a policeman by the Personnel Board of the City of Northport. We reverse.

Because of the discharge of his pistol and near shooting of a fellow officer during “horse play” while on duty, Hallman was dismissed by the Council of the City of Northport. His dismissal was sustained at a hearing before the Personnel Board of the City. As provided by Act No. 1225, 1969 Regular Session of the Legislature, Hallman appealed to the Circuit Court.

The pertinent part of Section 19 of Act No. 1225 is as follows:

“The employee, . . . may, within ten (10) days after the decision of the board is rendered, appeal to the court from any decision of the board . by filing notice of such appeal with the court . . . . Upon the filing of such notice, the board shall file with the court a certified transcript of the proceeding had before it with respect to the appeal, and its decision in the matter. The appeal shall be heard at the earliest possible date by the court sitting without a jury on the issues made before the board and the trial in the court shall be de novo.”

At the trial on the appeal, counsel for Northport introduced into evidence, over the objection of Hallman, the transcript of the proceedings before the Board. Without producing further evidence North-port rested. Hallman moved for judgment. The motion was denied. Hallman rested. Judgment was entered sustaining the judgment of the Board.

Hallman submits on appeal that the court erred in admitting the transcript of the proceedings before the Board and in denying the motion for judgment after North-port presented no further evidence.

From a reading of the appeals section of Act No. 1225, the theory of Hallman becomes evident. That is, the trial in circuit court, though without a jury, is de novo and must be tried anew as if for the first time.

The answer of Northport to Hallman’s contention is based upon Section 6 of Act No. 1225. There it is stated:

“Sec. 6. Rules, Classification Plans, and Pay Plans. So long as the same are not inconsistent with this Act, the board shall have the power to recommend to the governing body the adoption of rules and regulations for the operation of the merit system established hereby, a job classification plan, a pay plan and a plan for the mandatory and/or permissive retirement of employees.”

Under the presumed authority of Section 6, the City adopted Rule X, Section 2 which provides in part as follows:

“Review by the court shall be without jury and be confined to the record, and to a determination of the questions of law presented; the Board’s findings of fact shall be final and conclusive.”

It is the contention of Northport that the adoption of Rule X, Section 2 represents the lawful exercise of authority granted to the City under Section 6 of the Act. We cannot agree.

Section 6 merely gave authority to the Board to recommend and the City to adopt certain rules, regulations and plans necessary to implement and administer the purposes broadly stated by the Act. Such would of necessity be largely administrative and procedural. They could not be inconsistent with the purpose and intent of the Act, nor remove or limit substantive rights granted therein. Rule X, Section 2 clearly is inconsistent with and removes substantive rights of a disciplined employee granted by Section 19.

Section 19 directed a de novo trial upon appeal to the Circuit Court. In the absence of terms of qualification, the meaning of trial de novo is well established by decisions of the appellate courts of this state. Smith v. Civil Service Board of City of Florence, 52 Ala.App. 44, 289 So.2d 614. In that case we said:

“A true de novo hearing of a matter decided by an inferior court or administrative agency is tried and determined as if no other proceedings had ever taken place. It is a trial anew; a brand new proceeding, as if such proceeding had been commenced in the reviewing court from the start. Ball v. Jones, 272 Ala. 305, 132 So.2d 120.”

There are no qualifying terms limiting the defined meaning of “de novo” in Section 19. It is noticed that it is provided that the Board shall file with the court a certified transcript of the proceeding had before it and its decision. It is also noticed that the court is directed to hear the appeal on the issues made before the Board. However, these provisions are followed with the command that “the trial in the court shall be de novo.” The directions of the rule effectively remove the right to a trial de novo.

The adopted rule clearly eliminates the accepted meaning of de novo. The rule turns “trial de novo” into a review by common law certiorari. Tarver v. Household Finance Corporation, 45 Ala.App. 344, 230 So.2d 534. It is therefore inconsistent with the Act and is void.

The rule being without effect, it follows that the acceptance, over objections, of the transcript of the proceedings before the Board, together with the Board’s decision was error. Such transcript could not supply evidence of a prima facie case in a trial de novo when objected to by Hall-man. Being illegally before the court, the transcript could not support a judgment.

We are unable to discern the purpose of the Act directing the filing of the transcript of the proceedings before the Board and its decision in the circuit court on appeal, unless it was intended to be used to determine the issues to be tried. The act does not contain directions as to how the transcript may be used as was done in the Act considered in Smith v. Civil Service Board of City of Florence, Supra. The uncertainty of the Act in respect to the purpose of filing the transcript on appeal does not affect the clearly stated right to a trial de novo.

The judgment below is reversed and the case is remanded for trial de novo as directed by the Act.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    In re LeNeta W. SEGARS v. D. W. SEGARS. Ex parte D. W. SEGARS.
    Civ. 832.
    Court of Civil Appeals of Alabama.
    May 26, 1976.
    Gary P. Smith, Birmingham, for petitioner.
    Robert E. Paden, Bessemer, for respondent.
   PER CURIAM.

This is an original petition for writ of mandamus for an order directing the Judge of the Circuit Court of Jefferson County to set aside the trial court’s order awarding temporary alimony pending an appeal.

The pertinent facts can be gleaned from the record and petition for the writ, and are as follows:

On October 2, 1975, the court below entered an order granting the prayer of the plaintiff, LeNeta W. Segars, for an absolute divorce from defendant, D. W. Segars (petitioner herein), on the ground of incompatibility. As a property settlement between the parties and as alimony in gross, the court divested the petitioner of all his right, title, and interest in a number of parcels of real estate and awarded said real estate to the plaintiff-appellee. No periodic alimony was awarded by the court.

The petitioner’s motion for a new trial was overruled by the court on November 26, 1975, and a notice of appeal to this court was filed on December 18, 1975.

The court below fixed the amount of the supersedeas bond at One Hundred Fifteen Thousand ($115,000) Dollars. The petitioner was unable to enter into a bond in that amount.

On February 5, 1976, the petitioner filed a motion for an extension of time for completion of the record. On February 9, 1976, the plaintiff-appellee filed a petition for rule nisi, alimony, and attorney’s fees pendente lite and a motion to reduce the time requested for an extension of time for completion of the record.

A hearing was held on both petitions before Judge Goodwyn on February 11, 1976. At the hearing the evidence showed that plaintiff-appellee’s living expenses were in excess of Eight Hundred ($800) Dollars per month. In addition, she was and is receiving Three Hundred Seventy-five ($375) Dollars per month representing rents from property awarded her by the court’s decree of October 2, 1975.

On February 12, 1976, Judge Goodwyn entered a decree ordering the following:

1. Granting the petitioner’s motion for an extension of the time for completion of the record.

2. Denying the plaintiff-appellee’s petition for rule nisi.

3. Ordering the petitioner to pay to the plaintiff-appellee the following:

(a) The sum of Eleven Hundred Fifty ($1,150) Dollars as alimony pendente lite forthwith.

(b) The sum of Six Hundred Fifty ($650) Dollars as alimony pendente lite on or before March 11, 1976, and a like sum on the 11th day of each succeeding month thereafter.

(c) The sum of Fifteen Hundred ($1,500) Dollars to plaintiff-appellee’s attorney of record as attorney’s fee pendente lite forthwith for his representation of the plaintiff-appellee on appeal of this cause.

This court granted the peremptory writ and thereafter this court had a hearing thereon. At the hearing it was conceded that the only issue was whether the amount awarded as temporary alimony pending appeal was an abuse of discretion. We find it was not, and quash the writ.

Able counsel for petitioner contends that the wife’s testimony shows that she only needs approximately Six Hundred Fifty ($650) Dollars per month for her support. He correctly points out that the wife receives some Three Hundred Seventy-five ($375) Dollars per month from rentals.

We have carefully reviewed the evidence and under one view, her needs are over Eight Hundred ($800) Dollars per month, plus other one-time expenses.

“In a mandamus proceeding, the appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment appealed from, and the appellant (petitioner) must overcome this presumption by satisfactorily countervailing evidence. Chestang v. Burns, 258 Ala. 587, 64 So.2d 65; Ex parte State ex rel. Denson, 248 Ala. 161, 26 So.2d 563; Ex parte Waldrop, 228 Ala. 38, 152 So. 44; Anderson v. Mullins, 281 Ala. 609, 206 So.2d 856.” (Georgia-Pacific Corporation v. Dyar, 49 Ala.App. 176, 177, 269 So.2d 883, 884)

Additionally, in order for this court to issue mandamus there must be credible allegations, ironclad in nature, showing that the trial judge or other official is by law bound to do no other than that which is sought to be commanded. Georgia-Pacific Corporation v. Dyar, supra.

So viewing, we cannot issue the writ and the peremptory writ is due to be quashed as having been improvidently granted.

In addition, while it is not argued by able counsel, we find the trial court does have the authority to grant temporary alimony pending appeal. This is so even though there was no original award of periodic alimony. We find Ex parte Taylor, 251 Ala. 387, 37 So.2d 656, to be authority for the trial court’s action. The basis for a trial court awarding temporary alimony pending appeal is to provide for a wife where she is not receiving support or other benefits as ordered under the original decree.

Here, in this instance, the wife’s basic award was that of certain real estate which produced rentals. While the rentals were apparently collectible pending appeal, any sale or other transaction concerning the property could not be accomplished by the wife because of the appeal. It is therefore clear that in view of the appeal the wife was not receiving certain benefits as ordered under the original decree and therefore the trial court had the authority to order temporary support pending appeal. The peremptory writ is therefore quashed and the petition for writ of mandamus is denied.

WRIT DENIED.

WRIGHT, P. J., not sitting.


text:
    Ex parte Charles Herbert GENTRY.
    3 Div. 569.
    Court of Criminal Appeals of Alabama.
    May 12, 1976.
    Rehearing Denied May 18, 1976.
    Certiorari Granted June 9, 1976.
    Frank L. Thiemonge, III, Montgomery, for petitioner.
    No appearance for the State.
   Charles Herbert Gentry was convicted of the offense of robbery and he applied for probation which was denied by the Circuit Court of Montgomery County, Thetford, J., whereupon he gave notice of appeal and requested suspension of sentence pending appeal and requested that reasonable bond be set. The Court declined to fix bond and a petition for writ of habeas corpus was filed in the Court of Criminal Appeals. The writ was denied.

PETITION TO SET BAIL DENIED.


author: BLOODWORTH, Justice.

text:
    In re Charles Herbert GENTRY, Petition for Writ of Habeas Corpus. Ex parte Charles Herbert Gentry.
    SC 1859.
    Supreme Court of Alabama.
    June 9, 1976.
    Frank L. Thiemonge, III, Montgomery, for petitioner.
    No brief from the State.
   BLOODWORTH, Justice.

Petition of Charles Herbert Gentry for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Ex parte Gentry, 57 Ala.App. -, 333 So.2d 157, wherein a petition for writ of habeas corpus to set bail was denied on May 12, 1976, and rehearing overruled on May 18, 1976.

It would appear that the order of the Court of Criminal Appeals denying bond was made without a consideration of the case of Ex parte Robinson, 44 Ala.App. 469, 213 So.2d 409 (1968), followed in Ex parte Pace, 45 Ala.App. 132, 226 So.2d 676 (1969).

Robinson, supra, held that one who, after conviction for burglary in the second degree and sentence to four years in the penitentiary, made application for probation which was refused, then appealed and requested suspension of sentence pending appeal and fixing of bond was entitled to have the court fix bond and suspend sentence pending appeal.

Therefore, the provisions of all applicable rules, and specifically Rule 39(f) and (g), ARAP (permitting briefs to be filed and oral argument to be had after petitions for writs of certiorari are granted), are suspended under the provisions of Rule 2(b), ARAP. Pendleton v. State, 295 Ala. 327, 329 So.2d 144 (1976).

The petition for the writ of certiorari is granted and this cause remanded to the Court of Criminal Appeals for a consideration on the merits in accordance with the cases heretofore cited.

WRIT GRANTED.

RULES SUSPENDED.

CAUSE REMANDED TO COURT OF CRIMINAL APPEALS.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    Jimmy Dwight JOHNSON v. STATE.
    1 Div. 680.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Rehearing Denied June 1, 1976.
    Ronnie E. Keahey, Grove Hill, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., Montgomery, for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent, appeals from a judgment of conviction on a plea of guilty for grand larceny. The court sentenced him to three years in the penitentiary. This case is No. 4S83-A. This indictment charges defendant with the theft of an automobile tire of the value of $104.00.

On appeal is Case No. 4584—A, 57 Ala.App. -, 333 So.2d 160 wherein, also on a plea of guilty, is a judgment of conviction for grand larceny, the subject being a .38 caliber pistol of the value of $125.00. The same punishment of three years imprisonment was imposed. The sentences run concurrently.

The pleas were accepted at the same hearing, but are here by separate transcript. However, appellant in the trial court and here is represented in both appeals by the same appointed attorney. It appears that the proceedings in both below and here are essentially the same and only one brief is filed and addressed to both appeals which embrace the same points. The opinion in this Court has application to both appeals.

Appellant filed a motion for a new trial wherein ground seven asserts that the plea (of guilt) of defendant was not a voluntary plea and was made without defendant’s knowledge of the consequences of the same.

Appellant contends that when the motion was prepared, the court reporter had not transcribed the proceedings obtaining in the trial court when the plea was entered; that he was prejudicially handicapped in preparing his motion to challenge entry of his guilty plea. We treat the ground as sufficient and address our observations accordingly to the merits.

The Supreme Court in Twyman v. State, 293 Ala. 75, 300 So.2d 124, in reviewing a decision of this Court, quoted Justice Douglas, writing for the majority of the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, as follows:

“ ‘Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.
“ ‘What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (Garner v. Louisiana, 368 U.S. 157, 173, 82 S.Ct. 248, 256, 7 L.Ed.2d 207; Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326), and forestalls the spin-off of collateral proceedings that seek to probe murky memories.’ ”

It appears in the instant case (also in Case No. 4584-A) that the trial judge informed the defendant of his rights and in our judgment, the colloquy met the demands of Boykin. The colloquy was sufficient to give the defendant a full understanding of what the plea connotes. The colloquy was in the presence of defendant’s attorney who was capable and sincere in representing his client.

The court first told him that in both cases he was charged with grand larceny. He then proceeded to advise defendant the nature of the charges and explained to him what grand larceny meant.

He next informed him: (1) that the punishment was one to ten years for the offense; (2) that in each case he was entitled to a trial by jury; (3) that he was entitled to be confronted by his accusers as well as other State witnesses; (4) that he was not required to give testimony against himself; (5) that any plea he made must be strictly voluntary; and (6) that what he had said applied to both cases.

It appears that defendant’s counsel thereupon waived reading of the indictment in both cases.

Thereupon the court asked defendant how he plead in Case No. 4583-A, to which defendant answered, “Guilty.” The court asked, “In Case- 4584-A, how do you plead?” Defendant answered, “Guilty.” Then the court asked, “That this is a voluntary plea on your part, isn’t it?” Defendant answered, “Yes, sir.” Also the court asked, “And you thoroughly understand everything the Court has said to you?” Defendant answered, “Yes, sir.” Then follows, “Is that a voluntary plea in each case?” Defendant answered, “Yes, sir.”

It appears further in the record that on arraignment in both cases at a prior session of the court, defendant entered a plea of not guilty. At that time, the indictments were both read to defendant. Prior to entry of the plea, the court told him what the penalty was (one to ten years) and also informed him in almost the same words as later, supra, what his rights were. So defendant was informed twice at different times what his rights were. This prior time, defendant was informed in both cases as to his rights.

We hold that under Boykin, defendant, in both cases, was fully informed of his rights and that he entered his guilty pleas fully informed of the consequences.

We find no errors in the record prejudicial to defendant. He entered the pleas without any deception or concealment and belongs to suffer the penalties imposed for the crimes.

The judgment in Case No. 4S83-A is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

TYSON, HARRIS, DeCARLO, and BOOKOUT, JJ., concur.


text:
    Jimmy Dwight JOHNSON v. STATE.
    1 Div. 681.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Rehearing Denied June 1, 1976.
    Ronnie E. Keahey, Grove Hill, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., Montgomery, for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant was convicted of grand larceny, on his plea of guilty, sentenced to three years imprisonment, followed by appropriate judgment. The case number is 4584-A.

The judgment is affirmed on authority of Johnson v. State, 57 Ala.App. -, 333 So.2d 158, Case No. 4583-A, which contains an extended opinion that is disposi-tive of the issues in this case.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


author: HARRIS, Judge.

text:
    Jerry TOSTON and Andrew Clayton v. STATE.
    1 Div. 665.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.
    W. Mark Anderson, III, Montgomery, for appellants.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellants were separately indicted for murder in the first degree involving the death of James Daniel Broughton, Jr. The families of both appellants employed the same lawyer to represent them.' By agreement of defense counsel and the District Attorney, with the approval of the trial court, appellants were tried jointly. Both appellants individually consented to be tried jointly. When they were separately arraigned, each entered a plea of not guilty. The jury returned separate verdicts finding appellants guilty of murder in the first degree and fixed their punishment at life imprisonment in the penitentiary. The trial judge separately adjudged appellants guilty in accordance with the verdicts of the jury and separately sentenced each appellant to life imprisonment.

After the sentences were imposed, appellants gave notice of appeal and the Court found them to be indigent, and ordered a free transcript for them. Trial counsel was appointed to represent the appellants on appeal, but no brief was filed in this Court in their behalf. This Court appointed counsel to represent appellants on this appeal and he filed a brief.

This case is in large measure circumstantial and was submitted to the jury on the State’s evidence only. Appellants did not testify and offered no testimony in their behalf. We will recite so much of the State’s evidence which we deem sufficient to dispose of the issues presented by the record.

Wilson Beasley, Jr., testified that his father owned and operated Beasley’s Food Store located in Bay Minette, Alabama, and that he worked in the store for his father on July 11, 1975. He said the deceased also worked in the store and that he sent the deceased to .the bank to cash checks totaling $2,971.68 so that they could operate the store that afternoon. That the deceased left the store with the checks at approximately 2:15 p. m. and that he did not see him again after he left the store.

On cross-examination he was asked if he had ever seen either of the defendants then on trial and he stated that they were the first two people in the store on the morning of July 11, 1975.

Thelma Robinson testified that on July 11, 1975, she was employed by the Baldwin County Bank which was about two blocks from Beasley’s Grocery Store. That the bank closed at 2:30 p. m. and at approximately ten minutes before closing time, she cashed a number of checks for the deceased. She could not give the exact amount but thought the total amount was $2,963.00 and that the denominations of the bills she gave him were all twenties except $3.00.

Kenneth E. Hall, a policeman for the City of Bay Minette, stated that he took part in the search for James Daniel Broughton, Jr., and found him at 8:31 o’clock on the night of July 11, 1975, in the rear seat of a 1969 yellow Ford station wagon on the dirt section of Newport Parkway east of Brownwood Avenue. He said the car was just outside the City limits but within the police jurisdiction of Bay Minette and that he was the first officer to reach the scene. That the Ford station wagon belonged to Mr. Beasley, the owner of the grocery store where the deceased worked, and it was partially in the ditch on the wrong side of the road.

He further testified that the deceased was slumped down in the back seat on the driver’s side and he could see blood coming from the back area of his head. That he felt his neck and there was no sign of life. That he had his backup Deputy help him secure the scene and he stayed at the scene, while the other officer went to call the Toxicologist. The Toxicologist, James L. Small, who was stationed in Mobile, arrived at the scene between 9 and 10 o’clock that same night. Officer Hall did not let anyone, including other officers, go near the station wagon until Mr. Small arrived. Mr. Small directed Officer Hall to take plaster casts of footprints around the vehicle. He found two footprints and made plaster casts of both of them. One was approximately two feet from the rear bumper of the car and the other print was about ten feet from the vehicle in a sandy area pointing in a southerly direction.

After the Toxicologist finished his work in and around the station wagon, Officer Hall called for a wrecker and followed the vehicle as it was towed to Still Motor Company in Bay Minette and it was put in the body shop to secure it and both the vehicle and shop were locked. This witness identified two casts introduced in evidence as the casts he made at the scene.

Mr. Small performed an autopsy on the body of the deceased and formed a medical opinion that the cause of death was the result of shock and hemorrhage from multiple gunshot wounds to the body and head caused by .22 caliber and larger caliber bullets. Two .45 caliber hulls were found in the station wagon and a spent .45 caliber bullet was found beneath the vehicle. A .45 caliber bullet was found imbedded in the rear seat where the body was found. He identified a .45 caliber automatic which was later delivered to him by Officer Robert Stewart, Chief Investigator of the Sheriff’s Department of Baldwin County, and testified that he ran a ballistics test on the pistol, the hulls and bullets and determined they had been fired from the same .45 automatic pistol. He also identified a pair of shoes which made the print testified to by Officer Hall. The hulls and spent rounds were introduced into evidence as State’s Exhibits 6, 7, and 9.

In performing the autopsy Mr. Small recovered three .22 caliber bullets from the head of the deceased. He found another wound which was made by a larger caliber weapon but in looking at the hole, he could not tell exactly what caliber weapon it was.

Chief Investigator Robert Stewart stated that he went to Wilmington, Delaware, where he picked up the automatic pistol and shoes from the Wilmington, Delaware Police Department along with $1,300.00 in $20.00 bills. This money was introduced into evidence as State’s Exhibit 12A. Stewart also picked up a Beasley’s Food Mart grocery bag and this bag was introduced into evidence as State’s Exhibit 13.

Lieutenant Simon Edwards of the Wilmington, Delaware Police Department testified that on Sunday, July 13, 1975, he went to Jerry Toston’s home at 826 East 28th Street in Wilmington with a fugitive warrant and Toston’s house was surrounded and he was arrested.

On voir dire out of the presence and hearing of the jury Lieutenant Edwards stated that he first went to Andrew Clayton’s home with a search warrant and arrested him. When he was placing Toston under arrest, he saw an adult at the top of the stairs. He went upstairs and found Mrs. Toston had run in a bedroom with two children. He saw a pistol lying in plain view next to a pillow at the head of the bed and it was the .45 caliber automatic heretofore mentioned. After being advised of her constitutional rights Edwards asked her if she would sign a consent to search the house and she agreed and did sign a consent to search saying she did not have anything to hide. Edwards asked Toston about consenting to the search and he said to go ahead and conduct a search as he had nothing to hide.

When the jury returned to the jury box, Edwards identified the automatic pistol. He also found a black bag under the mattress containing various articles and the money in $20.00 bills. Several pairs of shoes were confiscated. The container for the money was introduced as State’s Exhibit 15. All of these items were turned over to Investigator Stewart including the tennis shoes and other items found at defendant Andrew Clayton’s house.

Preston Moorer testified that on July 11, 1975, he saw both appellants on Brown-wood Avenue between 3:00 and 3:30 p. m. and took them to the old Mattie Rhodes Hospital and let them out of his car. They were both sweating at the time he picked them up on July 11, 1975. Debbie Reynolds testified that she was with Preston Moorer when she saw the defendants but she did not get in the car with Moorer and the defendants.

Alex McDowell, a Bay Minette Police Officer, testified that he saw the defendants in Bay Minette the day before the murder and the Cadillac car they were in was black and had a Delaware tag. He checked the tag with the N.C.I.C. and found that it was not stolen.

James Hinote testified that he owned a Gulf Station near Beasley’s Grocery Store and that on July 11, 1975, around 4:00 p. m., he saw a black Cadillac come out of the Beasley Grocery Store parking lot with squealing tires. It had a Delaware tag and he had seen the same car at his station that morning around 8:00 a. m.

Ed McMillan was a mechanic and his place of business was on Blackburn Street and on the afternoon of July 11, 1975, he heard gun fire near the scene of the shooting.

Phyllis Jackson testified that she was staying at the Southern Host Motel with Andrew Clayton in Bay Minette the evening before the murder. That she came with the defendant from Delaware to Bay Minette on July 4, 1975. That between 7:30 and 8:00 a. m., on Friday, July 11, 1975, the defendants picked her up at the motel and dropped her at 900 McGee Street. That at about 1:30 p. m., she saw them again at Beasley’s Store. Around 3:30 or 4:00 p. m., Toston and Clayton came back to McGee Street and told her they were ready to leave. She was surprised as they had told her they were going to spend the weekend, but they got in the Cadillac and headed for Delaware. They got as far as Charlotte, North Carolina, and spent the night. The next morning they arrived in Wilmington. That night she went to Toston’s house. Phyllis saw a pistol in Clayton’s car on the morning they left the motel in Bay Minette, similar to the pistol admitted into evidence. Tpston had the gun.

There were no eye witnesses to this murder but a strong web of circumstantial evidence enshrouds these appellants. In cases where the State relies to a great extent on circumstantial evidence for a conviction very wide latitude is allowed in making proof. Creel v. State, 53 Ala.App. 504, 301 So.2d 267; Hollenquest v. State, 53 Ala.App. 501, 301 So.2d 264; Tanner v. State, 291 Ala. 70, 277 So.2d 885.

The State’s evidence is undisputed that these appellants lived in Delaware and they arrived in Bay Minette, Alabama, on July 4, 1975. On the morning of the day of the murder they were the first two people to enter Beasley’s Store in that city. They were driving a black Cadillac with a Delaware tag and were seen leaving the parking lot at Beasley’s Store at such a rapid rate of speed at 4:00 p. m., that the tires were squealing. They were seen walking along the road a short distance from where the body was found and gave Preston Moorer a dollar to carry them in his car to the old Mattie Rhodes Hospital located further away from the murder scene. Spent hulls and a live bullet were found in and around the station wagon where the body • was found and a ballistics test showed the spent hulls and the bullet found embedded in the station wagon were fired from the same .45 automatic pistol found on Sunday, July 13, 1975, in the home of one of the appellants in Wilmington, Delaware. This pistol was seen in the hands of Toston on the morning of the day of the murder. The plaster cast of one of the footprints at the scene fit a shoe worn by one of the appellants. $1,300.00 in $20.00 bills were found in the home of one of the appellants in Wilmington along with a large grocery shopping bag that had the name “Beasley’s Fine Foods Since 1937, Bay Minette, Ala.” printed on the outside of the bag. Three .22 caliber bullets were removed from the head of the deceased during the autopsy but a .22 caliber pistol was not found.

We do not know which one of the appellants fired the .45 automatic or the .22 caliber pistol that resulted in the death of the deceased. The controlling law on cases of this kind has been many times expressed by this Court and the Supreme Court of Alabama. We quote the following from Stokley v. State, 254 Ala. 534, 49 So.2d 284:

“It is well established that when, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is-, a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Such community of purpose or conspiracy need not be proved by positive testimony. It rarely is so proved. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Morris v. State, 146 Ala. 66, 41 So. 274, and cases cited; Jones v. State, 174 Ala. 53, 57 So. 31; Teague v. State, 245 Ala. 339, 16 So.2d 877.
“When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not. Jones v. State, supra; Jolly v. State [94 Ala. 19, 10 So. 606], supra; Tanner v. State, 92 Ala. 1, 9 So. 613.”

Lieutenant Simon Edwards of the Wilmington, Delaware Police Department testified that he searched the appellant Clayton’s home pursuant to a search warrant, and that he obtained the written consent of appellant Toston’s wife and the oral consent of Toston to search their home.

Courts throughout the country have consistently held that searches without warrants are constitutionally permissible when executed with the owner’s consent. Securing a search warrant is wholly unnecessary when consent to search has been freely given. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854.

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

The judgments of convictions in these cases are affirmed.

AFFIRMED.

TYSON, DcCARLO, and BOOKOUT, JJ., concur.


text:
    Edward Lee MOORE v. STATE.
    8 Div. 718.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Robert M. Shipman, Huntsville, for appellant.
    No appearance for appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment for ten years. At the time of trial he was eighteen years of age. He had made an application for pretrial examination and investigation in order for the court to determine whether he should be arraigned as a youthful offender. The record does not clearly show the action finally taken on said motion, but appellant’s brief states that after investigation, defendant’s “arraignment as a youthful offender was denied.” In view of the disposition of this appeal as hereafter shown, we see no occasion for summarizing the evidence on the trial, or making any reference to it other than that there was sufficient evidence to present a jury issue as to defendant’s guilt but that there was some evidence, including the testimony of defendant, that he was not guilty.

Appellant grounds his argument for a reversal upon the action of the trial court, in several particulars, in allowing the prosecution to show, after defendant had taken the stand as a witness, that he had been previously adjudicated a juvenile delinquent under the provisions of Code of Alabama 1940, (Recomp.1958), Title 13, Sections 350-383.

Defendant was asked whether on March 11, 1970, he was charged in juvenile court with burglary and found guilty on April 10, 1970, and placed on two years probation. The court overruled defendant’s objection, and defendant answered he was placed on probation for two years, that it wasn’t for burglary but that he was charged with being with others in the commission of a burglary. Defendant was asked by the prosecution whether he was found guilty in juvenile court of grand larceny on January 24, 1975, and declared to be an incorrigible. The court overruled defendant’s objection to that question. He answered, “No, sir.”

The State called the chief probation officer in the Madison County Family Court, who testified over the objection of defendants, which the court overruled, giving defendant a continuing objection, that defendant had been charged with burglary and found to be delinquent and placed on probation for two years; that he had been charged in juvenile court with grand larceny and found guilty in January 1975 and declared to be an incorrigible. During the argument of counsel for the State, defendant objected to his “mentioning this man’s prior record, his prior juvenile record. We will have to object to that. Mr. Miller stated that this man has a prior record. It being a juvenile record, we still maintain that it is inadmissible and we object.” The objection was overruled. In the court’s oral charge, it was stated:

“There is also evidence in this case that Defendant has a prior conviction of a crime involving moral turpitude. The law says that any witness who has been convicted of a crime which involves moral turpitude, that as to that witness, you are authorized to take into consideration that prior conviction in weighing that witness’ testimony. You may disregard it entirely. It is within your discretion what weight you shall give the testimony, because of the fact that there has been a prior conviction of a crime involving moral turpitude.”

The following then occurred:

“MR. SHIPMAN: Excuse me, Your Honor. I believe to protect the Defendant’s record I have to object here to The Court charging on a prior conviction.
“THE COURT: You have an objection to every word I say. You have that automatically.
“MR. SHIPMAN: Do you overrule my objection, Your Honor?
“THE COURT: Yes.
“MR. SHIPMEN: We except.”

Code of Alabama 1940 (Recomp.1958), Title 13, Chapter 7, provides as follows: cy under this chapter nor any admission or confession of such child or of such parent, or parents, to the probation officer, or court; nor any report of a probation officer, made or given in pursuance of any rule or order of such courts; nor any statement by any parent, or parents, of such child, in such proceeding, shall be given or heard in any civil, criminal, or other cause or proceeding whatever, or in any other court, be lawful or proper evidence against such child or parent, or parents, for any purpose; but such matters may be received and heard in subsequent proceedings in such cause in said juvenile court.

“§ 377 . . . No disposition of the case of a child dealt with for delinquen-
“§ 378 . . . No adjudication nor judgment under the provisions of this chapter shall operate to disqualify any child for any office in any state, county, or municipality, or from employment in any civil service under any branch of the government. No child shall be denominated nor held to be a criminal by reason of any such adjudication, nor shall such adjudication be held to be or denominated a conviction.”

We must hold that the rulings of the court as stated were in conflict with the statutory law quoted. Directly on the point is the following:

“Title 13, secs. 377, and 378, provide that no disposition of the case of a child dealt with for delinquency under the provisions of the juvenile court laws shall be given or heard in any other cause or proceeding whatever; that no child shall be denominated or held to be a criminal by reason of any adjudication of delinquency; and that an adjudication of delinquency shall not be held or denominated a conviction. By reason of these provisions, the fact that a witness had been committed by a juvenile court to a reform school for burglary, is not admissible to impeach him. Love v. State, 36 Ala.App. 693, 63 So.2d 285.” McElroy, Law of Evidence in Alabama, § 145.-01(4)

The proposition stated has been upheld, though not determined to be applicable to the facts in the particular cases, in Hammac v. State, 44 Ala.App. 459, 212 So.2d 849 and Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 252 So.2d 33. In Ham-mac, it was said, “If the witness’ sentence was from an adjudication as a delinquent child ... it would not be proper evidence against him . . . ”; in Crenshaw, it was stated:

“If it were shown that the conviction of plaintiff was under Chapter 7 of Title 13, Code of 1940, then it would appear that plaintiff’s objection should have been sustained; but, it does not appear that plaintiff’s conviction or the adjudication against him was under Chapter 7. The record does not disclose the court or the state in which the proceedings referred to were had. §§ 377 and 378 forbid use of evidence of adjudications which were had ‘under the provisions of this chapter.’ ”

In the case before us now there can be no doubt that the adjudications to which repeated references were made were in a juvenile court in Alabama in proceedings under Chapter 7 of Title 13, Code of 1940.

For the errors discussed, the judgment appealed from should be reversed and the case remanded for another trial.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Julian DAVIS, alias v. STATE.
    3 Div. 523.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Solomon S. Seay, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at imprisonment in the penitentiary for life. He was sentenced in accordance with the verdict of the jury. At arraignment, with his counsel present, he pleaded not guilty and not guilty by reason of insantiy. After sentence was imposed, he gave notice of appeal. He was found to be indigent and a free transcript was furnished him. Trial counsel was appointed to represent him on appeal.

The State’s evidence is not disputed. Appellant did not testify nor was any evidence offered in his behalf.

This case arose out of the robbery of Delchamps store on South Court Street in Montgomery Alabama, on the night of October 9, 1974, in which Crawford Herring, the grocery manager, was killed by a shotgun blast. He died instantly.

According to the testimony of Mrs. Daisy Johnson, who was operating a cash register on the night of the robbery, several men wearing ski masks and long overcoats entered the store at about twenty minutes to 9 o’clock. Several of the men had sawed-off shotguns and one had a pistol. She stated there were at least four men of various sizes. The tall man came to the cash register she was operating and said, “This is a robbery. Everyone lay on the floor.” There were seven employees in the store at this time including the deceased and there were two or three customers in the store also. The tall man was giving orders and the other men took up different positions in the store. The tall man ordered Mrs. Johnson to open the cash register and she did. The man with the pistol took the money from the cash register while the tall man held the gun on her. She was then ordered to lie on the floor and not to look at the men. The deceased was on the floor and the tall man told him to get up and open the other cash registers. The deceased got up and went to the number three cash register and opened it, but this register had been checked up and was empty. He then went to register number two and Mrs. Johnson heard someone say, “This white man thinks I am playing,” and she heard a shotgun blast. She heard one of the men say, “Let’s go,” and all the robbers ran out the front door.

After the robbers left, Mrs. Johnson got up and found the deceased lying on the floor in a puddle of blood near the number two cash register. The City police were called and arrived at the store within ten minutes. The deceased was still on the floor when the officers arrived, and a photograph of him was made. Mrs. Johnson identified the photograph of the deceased and it was introduced into evidence over the objection of appellant.

Mickey Hodge testified that he was employed by Delchamps on October 9, 1974, when the store was robbed and Mr. Herring was killed. He stated that at that time the store closed at 9 o'clock. That shortly before closing time he was in the wareroom located in the rear of the store behind swinging doors. He identified a photograph of the area of the store where he was working and this photograph was introduced into evidence without objection. He further testified that another employee of the store, Harold Henderson, was with him in the wareroom which was the stock room. He stated he was standing just opposite the door of the wareroom when a man came through the door and pointed a shotgun at him and Harold Henderson.

He said the man was wearing an overcoat that came down to his knees and had on a mask over his head that was blue or gray. That the man had a shotgun and the barrel had been sawed off and had a strap hanging from it. That the man just stood there and stared for a few minutes and then he walked back out the door and looked up front. He then came back through the door and asked if anyone was in the office and Hodge told him he didn’t think so, and Harold Henderson told him no one was up front. The man then pointed the shotgun at both of them and ordered them to lie on the floor and they complied with this order. The man then went back through the door and at this time they heard a loud noise which sounded like a shot. They stayed on the floor until they heard the shot and saw four or five men running from the store and they were all wearing ski masks, and they saw guns hanging off the back of their shoulders. These two employees then got up and locked the back door and walked to the front of the store. Mrs. Johnson told them they had been robbed and Mr. Herring had been shot and she picked up the telephone to call the police. Hodge got the keys from a cash register and locked the doors and started looking for Mr. Herring. He found him on the floor near the number two cash register and he was bleeding from his neck.

The testimony of Harold Henderson corroborated the testimony of Mickey Hodge. He also testified that the ski mask worn by the robber who came in the stock room was blue with a white trim. He said he saw this man’s hands and they were black. He further stated the robber was wearing a long dark trench coat that came down to his knees.

Mr. Wayne Bullard, the Assistant Store Manager of Delchamps, testified that he was at home when the store was robbed. That he received a call from Mrs. Johnson and went to the store immediately and saw Crawford Herring lying on the floor by the number two cash register and he was dead. He inventoried the cash registers and determined that $630.00 was missing.

Mr. Richard A. Roper testified that he was employed by the State Department of Toxicology and Criminal Investigation and was stationed in Montgomery. Mr. Roper’s qualifications were admitted by defense counsel. He testified that he examined the body of Crawford Herring and gave his opinion as to the cause of death as follows:

“From my examination, I concluded that death resulted from central nervous system trauma and hemorrhage, associated with a single shotgun wound to the neck; within which the spinal cord, a major artery and a major vein were severed.”

Mr. Roper was shown State’s Exhibit Number 3, a photograph, and stated the photograph accurately depicted the scene of the shooting and the body of Crawford Herring. This photograph was introduced into evidence over appellant’s objection that it tended to inflame the minds of the jury.

Mr. Cecil H. Humphrey, a Detective with the Montgomery Police Department, testified that he made a search of the grounds in front of the store where the robbery and killing occurred and found four live twelve gauge shotgun shells and one twenty gauge spent shell. He stated that he put these items in a plastic bag, sealed the bag and turned it over to Mr. Charles Smith, a State Toxicologist. This witness further stated that he was downtown on October 12, 1974, and saw three men emerge from the WAPX radio station. He was shown a photograph of the three men emerging from the radio station and identified appellant as one of the three men and pointed to him in the courtroom. This photograph was admitted into evidence over appellant’s objections.

This Detective further testified that he went in the radio station and found three sawed-off shotguns. One was a twenty gauge gun and two were twelve guage guns. These guns were introduced into evidence over appellant’s objections. He delivered these guns to Mr. Charles Smith.

Mr. Smith testified as to his education, experience and qualifications. He stated that on October 9, 1974, he received a spent twenty gauge shell from Detective Humphrey and that later he received from Humphrey a twenty gauge pump shotgun. He test fired the gun and conducted a microscopic examination and comparison and rendered an opinion that the twenty gauge pump gun fired the spent twenty gauge shell that was found in front of Delchamps the night of the robbery and killing.

Mr. Roy Holton, Chief of Detectives of the Montgomery Police Department, testified that on Saturday, October 12, 1974, he saw three black males get out of an automobile that had been wrecked by a Montgomery policeman on his orders. He identified appellant as one of the three black males who came out of the automobile firing shotguns; He later saw the same trio emerge from the radio station. A photograph was taken of the men as they came out of the radio station and Chief Holton identified appellant in the photograph which was admitted into evidence over appellant’s objections.

Detective J. D. Foster testified that he obtained a search warrant to search the automobile in question. He stated that Chief Holton gave him the information which served as the basis for the affidavit leading to the issuance of the search warrant. Foster testified that he told Judge Piel who gave him the information.

Detective Humphrey was recalled and he testified that he searched the automobile in question which was registered to one Arthur Lewis. He said his search revealed a blue and white ski mask in the automobile. Over appellant’s objection this ski mask was admitted into evidence as the State’s Exhibit 11.

Mrs. Ruby Berry testified on October 9, 1974, around 6:00 p. m. she went to the apartment of “Peter Rabbit” on Smiley Court to tell him that she had received a call from her son in New York and that he was in jail. “Peter Rabbit” was Arthur Lewis. She went to this apartment just to deliver a message from her son to Arthur Lewis. She stated that appellant was present during this conversation. Arthur Lewis told her to come back at 9 o’clock that night. She returned at 9 o’clock and appellant was again present. Mrs. Berry identified appellant from the photograph of the three black males taken downtown on October 12, 1974. Arthur Lewis gave her $250.00 and she was carried to the airport and went to New York where she saw her son. She returned the next day. She stated that she saw one sawed-off shotgun in the apartment on Smiley Court on the night of October 9,1974.

Alfonso Davis, a co-defendant, after being advised of his rights not to testify elected to do so. He testified that on October 9, 1974, on direct orders from Arthur Lewis, he and Charles Williams went to Conway Lumber Company and purchased six ski masks. He identified the ski mask marked State’s Exhibit 11 as one of the type they purchased. They returned to Arthur Lewis’ apartment with the six ski masks and appellant was present. Lewis told them the ski masks would be worn in the Delchamps robbery. Appellant had a sawed-off twelve gauge shotgun. Alfonso Davis and Charles Williams went in one car. Reginald Robinson, Julian Davis, Arthur Lewis and Amos Williams went in Lewis’ car. They parked their cars on Sayre Street behind Delchamps. Alfonso Davis and Charles Williams were posted as look-out men with orders from Lewis to kill any policeman who might come to the store. The others, including appellant, entered Delchamps store. Alfonso Davis stated he heard a shot and saw the four men run out the store.

Charles Williams, another co-defendant, after being advised of his rights also elected to testify. He stated he went with Alfonso Davis to buy the ski masks. He said State’s Exhibit 11 was one of those purchased. He also testified about the commission of the Delchamps robbery and murder and positively identified appellant as one of the participants.

The affidavit and search warrant were brought to Court and read by the trial judge and the attorneys involved in the trial of the case. The Court ruled that the affidavit and search warrant were constitutionally valid but he held that the affidavit and search warrant would not be submitted to the jury. This action of the trial court was proper as there was some language in the affidavit that referred to the killing of a retired police officer on Dexter Avenue on October 12, 1974, by one of the trio who took refuge in the WAPX radio station.

The search warrant lead to the discovery of a ski mask precisely as described by one of the employees of Delchamps and fully corroborated the testimony of Alfonso Davis and Charles Williams, co-defendants, who purchased the ski masks on direct orders of Arthur Lewis which were to be used in the robbery of Delchamps. This ski mask definitely connected appellant and the other five men to the robbery of Del-champs and the murder that was committed during the robbery.

In the case of Brooks v. United States, 416 F.2d 1044, the Fifth Circuit Court of Appeals held that local law enforcement officers participating in a common investigation are reliable informants. The ski mask was properly admitted into evidence. Thus, the affidavit in the present case more than met the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and related cases.

Appellant complains that the trial court erred in admitting into evidence the photographs of the deceased as they tended to inflame the minds of the jury. We do not agree with this contention.

In Snow v. State, 50 Ala.App. 381, 279 So.2d 552, this Court held:

“There was no error in admitting photographs of the deceased and of the locus in quo where the proper predicate was laid. It has been held many times that gruesomeness is not ground for excluding evidence consisting of photographs if it has a reasonable tendency to prove some material fact in issue or shed some light upon some material inquiry, and if it illuminates the issues in any way, even though possessing a tendency to inflame the minds of the jury. McKee v. State, 33 Ala.App. 171, 31 So.2d 656; Grissett v. State, 241 Ala. 343, 2 So.2d 399; Rowe v. State, 243 Ala. 618, 11 So.2d 749. Such photographs are admissible as shedding light upon the character and location of the wounds on the body of the deceased though they constitute cumulative evidence upon a matter not disputed. Wilson v. State, 31 Ala.App. 21, 11 So.2d 563; Weems v. State, 222 Ala. 346, 132 So. 711; Hyche v. State, 22 Ala.App. 176, 113 So. 644; Pierce v. State, 28 Ala.App. 40, 178 So. 248.”

To the same effect are the holdings in the cases of Douglas v. State, 50 Ala.App. 602, 281 So.2d 652; Stowe v. State, 53 Ala.App. 118, 298 So.2d 48, and Hardy v. State, 53 Ala.App. 75, 297 So.2d 399.

In Stokley v. State, 254 Ala. 534, 49 So.2d 284, the Supreme Court said:

“It is well established that when, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Such community of purpose or conspiracy need not be proved by positive testimony. It rarely is so proved. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Morris v. State, 146 Ala. 66, 41 So. 274, and cases cited; Jones v. State, 174 Ala. 53, 37 So. 31; Teague v. State, 245 Ala. 339, 16 So.2d 877.
“When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not. Jones v. State, supra; Jolly v. State, supra [94 Ala. 19, 10 So. 606]; Tanner v. State, 92 Ala. 1, 9 So. 613.”

A careful search of the record fails to reveal any errors injuriously affecting the substantial rights of appellant. Accordingly the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.