text:
    Delaine C. REAVES v. Richard A. REAVES.
    Civ. 2544.
    Court of Civil Appeals of Alabama.
    May 27, 1981.

      Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    James E. Hill, Jr. of Hereford, Blair & Hill, Leeds, for appellee.
   HOLMES, Judge.

This is a child custody case.

When the parties were divorced, the mother was awarded custody of the parties’ minor child. About two years later, the parties agreed that the child should live with the father. After the child had lived with the father for about one year, the father petitioned the trial court for a modification of custody, which was granted. The mother appeals.

The dispositive issue on appeal is whether the trial court abused its discretion in modifying the child custody award. We find no abuse of discretion and affirm.

Viewing the record with the attendant presumptions, the following is revealed. The parties were divorced in February of 1977. They had entered into an agreement which gave the mother custody of the parties’ 2% year-old daughter. That agreement was incorporated into the divorce decree.

In the fall of 1977, the mother entered nursing school. She also worked part time while she was in school. During the spring of 1979 the mother was making unsatisfactory grades. The child had been ill with scarlet fever for about two weeks and the mother had to miss school and work during that time to care for the child. There was no evidence that the mother was anything but a good mother.

In April or May of 1979, the parties agreed that it would be better for the child to live with the father, who had remarried. After the father had kept the child for a couple of months, the mother began picking the child up for visits every other weekend.

The child had been living with the father for about one year when the father filed a petition for modification of custody. At the time of the order of modification, the child had been living with the father for about sixteen months.

The father and his present wife attend church regularly and take the child with them. The child is also enrolled in a community kindergarten program.

The father’s present wife testified that she shares in the responsibilities of caring for the child. She also testified that she loves the child and would like to keep the child.

As stated above, the dispositive issue in this case is whether the trial court abused its discretion in modifying the child custody award.

The child custody provisions of a divorce decree may be modified if evidence is presented showing a substantial change in conditions since the rendition of the original decree as those conditions pertain to the welfare of the child. Atkinson v. Atkinson, 45 Ala.App. 428, 231 So.2d 753 (1970). The paramount issue in determining child custody is the best interest of the child. Higgins v. Higgins, Ala.Civ.App., 336 So.2d 194 (1976).

It is well-settled that the determination of custody is a matter addressed to the discretion of the trial court. Dasinger v. Dasinger, Ala.Civ.App., 369 So.2d 813 (1979). The exercise of such discretion after oral hearing of evidence will not be set aside unless it is so contrary and unsupported by the evidence as to appear clearly adverse to the best interest and welfare of the child. Davis v. Davis, Ala.Civ.App., 365 So.2d 80 (1978).

As stated above, the mother was originally given custody of the parties’ child. Approximately two years after the divorce, the parties agreed that the child should go to live with her father. The mother relinquished custody of the child at that time.

The child had been living with her father for about sixteen months when the trial court modified the custody award. After an oral hearing, the court stated that the evidence showed that the child had become adjusted to a wholesome home environment with church, school, and neighborhood ties. The court found that the child’s adjustment to a new and wholesome environment constituted a material change in circumstances which materially affects the welfare and best interest of the child. The trial court went on to find that it is in the best interest of the child to remain in the custody of her father.

With the above in mind and with emphasis on the child’s adjustment to a new and wholesome environment, we cannot say that the trial court abused its discretion in this matter.

We note the mother’s contention that she relinquished custody only temporarily when the child went to live with her father and that the parties agreed she would take thé child back when she finished nursing school. The father denies that contention. If the trial court had found that the parties had agreed the father would take only temporary custody of the child, a different decision might have been mandated. The trial court, however, apparently was not persuaded by the mother’s argument.

Put another way, there was a conflict in the evidence, the mother contending that she gave temporary custody of the child to the father, with the understanding that she would regain custody at such time as she completed nursing school. The fa-' ther stated that there was no such understanding that he was to have only temporary custody. The trial court resolved the conflict and this court cannot substitute its judgment for that of the trial court. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The mother also contends that the court erred in modifying child custody in this case because the child is of tender years. We disagree with this contention, as the “tender years” doctrine is no longer a controlling factor in the determination of custody. As stated above, the primary concern in determining child custody is the best interest of the child. Higgins, supra. Although the sex and age of the child are matters to be considered in determining the best interest of the child, the weight to be given such facts in each case is for the discretion of the trial judge. Jenkins v. Jenkins, Ala.Civ.App., 376 So.2d 1099, cert. denied, Ala., 376 So.2d 1101 (1979).

■ This case is due to be and is hereby affirmed.

The appellant’s request for an attorney’s fee on appeal is denied.

AFFIRMED.

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

      . We note that on March 27, 1981, the Alabama Supreme Court in Devine v. Devine, Ala., 398 So.2d 684, stated the “tender years presumption represents an unconstitutional gender-based classification .... ” As we understand the supreme court’s opinion in Devine, the criterion in child custody cases is still the “best interest” of the child.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Charles W. BLACKWELL, Jr. v. Charlotte BLACKWELL.
    Civ. 2585.
    Court of Civil Appeals of Alabama.
    May 27, 1981.

      D. A1 Crowson of Bachus, Crowson, Harris & Prosch, Birmingham, for appellant.
    Roger M. Monroe of Jones & Monroe, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a petition to modify a divorce decree.

The husband requested a reduction or termination of periodic alimony payments. The wife cross-petitioned for an increase.

After an ore tenus hearing, the trial court increased the alimony payments from $200 per month to $300 per month and terminated the payment of $100 per month for the support and maintenance of the parties’ nineteen-year-old son. In effect, the husband’s obligation to pay the wife $300 a month was left unchanged.

The husband appeals from the denial of his petition to modify.

The dispositive issue is whether the trial court abused its discretion by refusing to reduce or terminate the alimony payments. We find no abuse of discretion and affirm.

The record reveals the following pertinent facts:

The parties were divorced in 1976. The decree incorporated an agreement between the parties. Pursuant to the decree the husband was to pay $100 per month as periodic alimony and $100 per month per child for the support of the parties’ two children. The amount of child support was to decrease by $100 per month as each child reached the age of twenty-one and correspondingly the amount of alimony was to increase by $100 per month. All of the children have now reached majority.

The husband’s income has decreased from $33,000 at the time of divorce to approximately $28,600. He has remarried. His present wife contributes substantially to their living expenses. The former wife is employed with a net income of $472 per month. She is forty-eight years of age with deteriorating vision and other physical problems.

The modification of a prior decree for support and alimony, based upon changed circumstances of the parties, is within the judicial discretion of the trial court. The exercise of such discretion is to be disturbed on appeal only if from a review of the evidence this court finds such an abuse of discretion as to be plainly and palpably wrong. Morrow v. Morrow, 351 So.2d 923 (Ala.Civ.App.1977); 8 Ala. Digest, Divorce, Key No. 245(3).

After review of the evidence and consideration of the presumption of correctness accompanying the judgment of the trial court after oral hearing, we do not find that judgment to be erroneous or unjust.

We would further note that the husband’s remarriage is not in and of itself a ground for modification. Lloyd v. Lloyd, 52 Ala.App. 374, 292 So.2d 668 (1974); Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902 (1972).

The wife has requested an attorney’s fee be awarded her for representation on this appeal. A fee of $300 is awarded.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Talmadge Edwin PALMER v. Betty Ann Lee PALMER.
    Civ. 2650.
    Court of Civil Appeals of Alabama.
    May 27, 1981.
    J. R. Herring, Dothan, for appellant.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellee.
   WRIGHT, Presiding Judge.

Husband appeals from a judgment increasing his child support obligation upon wife’s petition to modify a prior divorce decree. We affirm.

The parties were divorced in February 1976. The decree, by agreement, placed custody of the couple’s two minor children with the wife and required the husband to pay $25 per month per child ($50) in support. In July 1980 the wife filed a modification petition seeking increased child support. The petition alleged a material change in circumstances caused by: (1) the serious medical problems of the youngest child resulting in excessive medical expenses, (2) cost of living increases since the divorce decree and the need of the children resulting from their increasing ages.

After an ore tenus hearing, the trial court increased support for the youngest , child to $30 per week and ordered the husband to continue paying $25 per month support for the older child. The husband’s motion for new trial was denied and he appealed.

The issue is simply whether the trial court abused its discretion in finding a material change in circumstances and ordering modification.

The record reveals that the youngest child, for whom the increase in support was ordered, suffers from the congenital defect of “open spine.” Since the parties’ divorce in 1976, the child has been operated on seven or eight times due to complications arising from this condition. In the year prior to modification the wife incurred s.ome $4,000 in medical expenses for the child above available insurance coverage. The child’s condition is recurring and subject to the likelihood of future complications and surgery. Although the parties were aware of the child’s condition at the time of divorce, the evidence, particularly that regarding cost of daily necessities of the child and the cost and frequency of medical care and surgery since the divorce, reflects an increased need for support since that time. It is indicative of a material change in circumstances.

The father has not contributed to the payment of the child’s medical expenses, other than the $25 per month required by the decree, since the parties’ divorce. He currently earns a salary of almost $15,000 per year and is in the process of selling certain real estate in which he holds a $45,-000 equity. Though contending financial inability to aid in support of his child, the father found the means to remarry and assume the support of a wife and her two children. He submits that responsibility as defense against payment of increased support to his own invalid child.

The husband makes much of the fact that the wife earns a salary greatly in excess of his and argues that the previously mentioned medical expenses present no real burden to her. The record does reflect that the wife is a hard working woman whose occupation as an insurance agent provides her with a substantial income. However, comparing the parents’ income is not the proper criteria for determining the amount of child support required of the father. Young v. Young, 376 So.2d 737 (Ala.Civ.App. 1979). Neither does the income of the mother diminish the father’s legal and moral duty to support his minor children. Bill v. Bill, 370 So.2d 1023 (Ala.Civ.App. 1979). Even with the increase, the obligation of the father will continue to be minimal when compared to the undisputed contribution of the mother.

Finding evidence of a material change in circumstances, we find that the trial court did not abuse its discretion in increasing the father’s support obligations. The judgment of the trial court is due to be affirmed.

Upon the request of appellee, she is awarded an attorney’s fee of $300 for her representation on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Celia ROBERTS v. Clifton ROBERTS.
    Civ. 2701.
    Court of Civil Appeals of Alabama.
    May 27, 1981.

      Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellant.
    Rowan S. Bone and Edward Cunningham, Gadsden, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties and ordered a division of property. The wife appeals, contending the trial court abused its discretion by failing to award her any right, title, or interest in the parties’ home-place. We find no abuse of discretion and affirm.

The record, viewed with the attendant presumptions, reveals the following:

The parties were married approximately twelve years. At the time of trial the husband was seventy-seven years old and in poor health. The wife was fifty-nine years old. The parties have very few material things. They lived on the husband’s disability payments and the wife’s part time earnings.

The homeplace was the only asset of significance owned by the parties. It was purchased by the husband with his funds shortly before the marriage. The home cost $8,000. Title was vested solely in the husband. The parties lived in the home-place throughout the marriage.

As stated above, the wife contends the trial court abused its discretion by awarding' the homeplace in its entirety to the husband.

The division of property pursuant to a divorce is a matter within the sound discretion of the trial court and will not be disturbed on appeal except upon a showing of plain and palpable abuse. Hudson v. Hudson, Ala.Civ.App., 391 So.2d 664 (1980); Carter v. Carter, Ala.Civ.App., 390 So.2d 294 (1980). Further, it is not error under appropriate circumstances to award the homeplace to one party even though that asset is virtually the only asset the parties possess. Hudson, supra; Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974).

With these principles in mind, after considering the age of the husband, the state of his health, the length of the marriage, and the fact that the husband’s funds were used to purchase the homeplace, we cannot say the trial court abused its discretion in the division of property. To do so would be to substitute our own judgment for that of the trial court. This the law will not allow. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

This case is due to be affirmed.

AFFIRMED.

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


author: TYSON, Judge. JOSEPH A. COLQUITT, Circuit Judge.

text:
    Dudley Wayne KYZER, alias v. STATE.
    6 Div. 655.
    Court of Criminal Appeals of Alabama.
    Aug. 21, 1979.
    Rehearing Denied Oct. 2, 1979.

      Robert F. Prince, of McDuffie, Holcombe & Prince, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for State.
   TYSON, Judge.

Dudley Wayne Kyzer was charged in a six-count indictment under Alabama’s Death Penalty Statute, § 13-11-1 through § 13-11-9, Code of Alabama 1975 (Act No. 213, General Acts of Alabama 1975), for first degree murder “wherein two or more human beings [were] intentionally killed by the defendant by one or a series of acts.” & The jury found the defendant “guilty of first degree murder with aggravated circumstances as charged in the indictment,” and fixed the punishment at death. (R.p. 829) Thereafter, the trial court conducted a post conviction hearing on the aggravating and mitigating circumstances pursuant to § 13-11-3 et seq., Code of Alabama 1975. The trial judge then set punishment at death by electrocution after making specific findings on the aggravating and mitigating circumstances. (R.p. 833-837)

At arraignment the appellant entered a plea of not guilty and not guilty by reason of insanity. Pursuant to defense motion, appellant was ordered committed to Bryce Hospital for psychiatric evaluation and examination to determine whether he was competent to stand trial. (R.p. 766-767) Criminal proceedings against appellant were resumed upon the trial court’s receipt of the results of the lunacy commission’s study of the appellant’s mental condition pursuant to § 15-16-20, Code of Alabama 1975. (R.p. 768)

The issues on this appeal deal exclusively • with matters pertaining to the post-conviction hearing conducted by the trial judge on the aggravating and mitigating circumstances. Consequently, our description of the evidence adduced at trial appears in an abbreviated format.

On Sunday, October 31, 1976, Emily Diane Kyzer, Eunice Barringer and Richard Pyron were found dead by the police at the home of Mrs. Barringer at 1232 Thirteenth Avenue, East, Tuscaloosa, Alabama. All three victims had been shot to death. The first officers on the scene found ambulance personnel working over the body of Emily Diane Kyzer. Ms. Kyzer had received one gunshot wound to the chest cavity which penetrated the heart. Ms. Kyzer was lying in the driveway leading from the street in front of Mrs. Barringer’s house. Upon entering the house through the carport, which was situated on the end of the rectangular-shaped house, investigating officers found the body of Richard Pyron in front of a chair in a kneeling position in the den of the house. Mr. Pyron had been shot twice: a bullet entered his right shoulder exiting through his back and lodging in the den wall; a second bullet entered his skull from the top traveling downward through the brain and lodging in his neck. In one of the bedrooms in the house, officers found the body of Mrs. Eunice Barringer. Mrs. Bar-ringer had been shot once in the head just over her right eye from very close range as revealed by gun powder surrounding the entrance wound. Officers found the telephone in the den with the receiver removed from its cradle. No other persons were found in the house by the police. Investigation revealed that Eunice Barringer was the mother of Emily Diane Kyzer who had been twice divorced from the appellant.

Chief investigating officer Shirley Fields with the homicide unit of the Tuscaloosa Police Department interviewed six-year old Chris Kyzer shortly after the investigation at. the scene commenced. Officer Fields leartied, and young Chris later testified, that he was present at the home of Mrs. Barringer when his father, Dudley.Wayne Kyzer, arrived. The appellant forced his way into the kitchen from the carport area where young Chris was playing with some stray puppies. Chris followed his father into the kitchen and noted that his mother and appellant immediately began quarrell-ing. Chris recalled that Richard Pyron and Mrs. Barringer were in the den together. Chris stated under oath that he saw appellant, his father, draw a gun from his belt when Mrs. Barringer picked up the telephone receiver to make a call. Immediately, Emily Diane Kyzer told Chris to run out the door as she pushed him in that direction. As he was exiting, Chris saw his father fire one shot towards the den wall where Mrs. Barringer and Richard Pyron were located. Once outside, Chris heard one additional shot as he ran. Chris testified that he and his mother ran out the door together. Chris ran to a neighbor’s house and did not see where his mother went.

On the Sunday afternoon in question, several of Mrs. Barringer’s neighbors were outside playing with children, or performing household chores or duties, etc. Mr. Louis Holt, a nearby neighbor of Mrs. Bar-ringer, was inside his house when he heard what he thought were two gunshots. Looking from his front window, Mr. Holt then saw Emily Diane Kyzer and Chris Kyzer running from the Barringer house towards his house. Mr. Holt saw Chris’ mother fall in the driveway. Chris arrived at Mr. Holt’s door moments later. Upon learning what had happened, Mr. Holt immediately telephoned the police. Sometime later during the investigation by the police, Mr. Holt witnessed the taking of Chris’ statement by Officer Fields.

Soon after Chris had arrived at Mr. Holt’s house and the police had been summoned, Mr. Holt saw two other neighbors, Mr. Winston Owens and Mr. Charles Hester, slowly pass his house in a pick-up truck moving in the direction of the Barringer house. Mr. Holt went to his front door and motioned to the men in the truck instructing them to stay away from the Barringer house. Mr. Owens then backed his truck away from the Barringer house. Mr. Hester and Mr. Owens had been standing together talking when they both heard sounds that Mr. Hester thought were Halloween fireworks. The men exchanged comments about the noise as they observed Emily Diane Kyzer and Chris Kyzer run- from the Barringer house. When Ms. Kyzer fell in the driveway, the men focused their attention on her to attempt to see whether she was hurt. Another neighbor, Mrs. Margaret Warbing-ton, also heard the sounds and was discussing them with Mr. Owens and Mr. Hester when they all observed an unfamiliar maroon or burgundy colored automobile with a black vinyl top slowly pass by them at a normal rate of speed. None of the neighbors recalled the license plate numbers but Mr. Hester observed that the automobile was equipped with a trailer hitch. Mr. Hester described the driver as being a white male with light brown, long hair and a full beard. It was at this point that Mr. Hester and Mr. Owens drove in the pick-up truck towards the Barringer house to see what was wrong with the woman who had fallen in the driveway.

Freddie Sherrill, a life-long friend of the appellant, testified that on the afternoon in question between 5:15 and 5:30 p. m., the appellant arrived at his trailer on the east side of Tuscaloosa. The appellant drove around behind Mr. Sherrill’s trailer and parked his maroon and black Buick automobile in Mr. Sherrill’s garage despite the fact that numerous paint cans were in his path on the garage floor. Mr. Sherrill’s description of appellant’s appearance matched that given by Mr. Hester.

When Mr. Sherrill approached the appellant he was standing beside his car. Appellant mumbled something about “ending it all” and drew an automatic pistol from his belt, raised it to his head and attempted to pull the trigger but the pistol was apparently jammed. Appellant told Mr. Sherrill that he was in serious trouble and asked to borrow Mr. Sherrill’s motorcycle, a Kawasaki 900 model. Appellant then left on the motorcycle.

Appellant drove the motorcycle from Tuscaloosa to Selma, Alabama, where he telephoned his aunt, Nell Clausen, at approximately 7:00 p. m. At Ms. Clausen’s home, the appellant drove the motorcycle up some steps and into the living room of her apartment. Appellant said very little to his aunt other than that he was in trouble, needed her beige Volkswagen automobile and as much money as she could give him. Appellant also said “I’ve got to get away.” (Rp. 216) After five or ten minutes, appellant left in his aunt’s automobile with a small amount of money she had given him.

The following day appellant arrived at a used car lot in Pensacola, Florida, owned by Charles Tucker, who was a native of Tuscaloosa and an old friend of the appellant. The appellant entered Mr. Tucker’s office in the morning and after exchanging greetings asked to borrow an automobile and for a place to stay for a couple of days. Appellant said he was in some trouble. (R.p. 247). Mr. Tucker explained that he could not help him with either of his requests but offered-appellant twenty-five dollars in the form of a loan. Appellant took the money and left.

Mr. T. L. Sexton, a resident of Atlanta, Georgia, testified that he received a telephone call from the appellant between 12:00 and 2:00 p. m. on Tuesday, November 2, 1976. Appellant was lost in Atlanta and sought directions to Mr. Sexton’s place of - business. Mr. Sexton had known appellant’s mother from his childhood and, consequently, had known appellant most of his life. When the appellant arrived at Mr. Sexton’s office, Mr. Sexton asked him to wait because he was busy with business matters. Later, after the appellant had washed and.shaved his face, the appellant gave Mr. Sexton a very sketchy account of the incident at the Barringer house. According to Mr. Sexton, appellant said he had gone to the home of his former mother-in-law to pick up a jacket left there earlier. When he arrived, his mother-in-law attempted to call the police and then a gun was fired in the room. The appellant was not sure who had fired the gun.

Mr. Sexton then called Tuscaloosa to find out' exactly what had happened at the Bar-ringer house. Upon learning of the triple homicide, Mr. Sexton told the appellant that his wife, his mother-in-law and another mári. were dead. Appellant’s sobbing response was, “Three people, my wife, too?” (R.p. 230)

At this point, Mr. Sexton took appellant to his home where he showered, put on clean clothes and ate some food. Nothing further was said until Mr. Sexton decided to ^telephone appellant’s father about what action should be taken. The decision was made to return the appellant to Tuscaloosa. About midnight, appellant’s father and mother, aunt and uncle arrived at the Sexton, house in Atlanta. Together they drove the appellant back to Tuscaloosa where they turned him over to the authorities.

■ further evidence presented by the State on its case in chief showed that Mrs. Bar-ringer, Emily Diane Kyzer and Richard Py-roh were killed by projectiles fired from the same .380 caliber automatic pistol. The State presented testimony which tended to show that the appellant had owned a Browning .380 caliber automatic pistol and had acquired a permit, dated April 23,1974, for the weapon in the name of his wife, Emily Diane Kyzer. (R.p. 498) There was additional evidence showing that appellant had purchased .380 caliber ammunition as recently as June 4, 1976, from a sporting goods store in Tuscaloosa. A total of five spent .380 caliber automatic shell casings were found by the police in the Barringer houfee. The brand name on these shell casings was the same as that purchased by appellant.

Ms. Bootsie Birthright testified that she was invited by the appellant to attend a Halloween party sponsored by an organization known as Parents without Partners. Ms. Birthright and the appellant were together from approximately 8:00 p. m. until 2:00 a. m. the night of October 30, 31, 1976, the , night before the shooting at the Bar-ringer house. When asked to describe appellant’s behavior during the time they spent together, Ms. Birthright stated that appellant was very nice to her: the perfect gentleman. (R.p. 602) Ms. Birthright estimated that appellant drank anywhere from two to five beers during the evening.

The case for the defense began with the testimony of a life-long friend of the appellant, one Cecil Ethridge. Mr. Ethridge recalled an event involving the appellant which, in his view, had a profound impact on the appellant’s life. The appellant and the witness were playing baseball in a vacant lot one day in the year 1957, when they were about fifteen years old. A boy named Marty Turk, who was about ten or eleven years old, asked to join them in their play. Reluctantly, the older boys consented to let Marty Turk pitch the ball to them and chase the ball after it was hit. When Marty Turk pitched the ball to appellant, he unintentionally hit the ball directly back to Marty Turk. The ball struck Marty Turk in the head. The young boy seemed to have sustained nothing more than a bump on the head and walked home under his own power. However, some consequential complications developed that night and Marty Turk died in the hospital. Mr. Ethridge said appellant blamed himself for the boy’s death.

As appellant grew older, Mr. Ethridge observed appellant’s regular consumption of beer increase to the point that it became a serious problem. Appellant’s behavior during periods of intoxication was sometimes uncontrolled and potentially dangerous. Mr. Ethridge recounted one episode during one of appellant’s previous marriages when he discharged a double-barrel shotgun in his apartment, his target being a photograph of his mother-in-law at that time. This particular episode was central in the divorce proceedings that followed.

Several witnesses who had known appellant for many years, including his mother and father, related episodes of bizarre or highly inappropriate behavior on the part of the appellant. However, in each case the appellant was under the influence, to some extent, of alcohol. Some of these witnesses were allowed to testify that in their opinion appellant was insane. Others qualified their characterizations of appellant by saying, in effect, when he drinks, he is insane.

The defense offered the testimony of several expert witnesses who had examined appellant at Bryce Hospital during the time immediately after his arrest. Dr. Joe Wod-dail, a qualified psychiatrist, testified that he sat on the examining board on December 15, 1976, which met to determine appellant’s competency to stand trial. The board’s conclusion was that, at that point, appellant was not competent to stand trial. On April 8, 1977, appellant was declared competent to stand trial.

Dr. Woddail conducted a glucose tolerance test on the appellant on December 28, 1976. His interpretation of the results of that test was that the appellant was suffering from a condition known as hypoglycemia or low blood sugar. Dr. Woddail stated that a person with a hypoglycemic condition and under stress would be likely to experience an adverse reaction which might manifest itself in violent behavior. During such a reaction many people, in Dr. Wod-dail’s opinion, are unable to distinguish right from wrong.

Dr. Woddail described an interview with appellant conducted while appellant was in jail. Appellant seemed withdrawn and depressed which made the encounter relatively fruitless as an evaluation of his mental status. (R.p. 486) Dr. Woddail recalled that appellant cried profusely when he recounted the events surrounding the death of Marty Turk.

Nancy McCarter, a Substance Abuse Counselor at the Indian Rivers Mental Health Center, testified that she had interviewed appellant fifteen to twenty times while he was incarcerated following his arrest and discharge from Bryce Hospital. Ms. McCarter described appellant as “quite depressed” with expressions of suicidal ideations upon which he acted on one occasion. (R.p. 412) During her interviews, Ms. McCarter learned that appellant felt deep sadness and guilt when he spoke of the death of Marty Turk. On cross-examination, Ms. McCarter stated that it would not be unusual for anyone to become depressed when placed under the circumstances surrounding her interviews with the appellant. Ms. McCarter stated that appellant told her that he was under the combined influence of alcohol and amphetamines when the incident at the Barringer house occurred.

Mrs. Mary Tool testified that appellant was at her home on October 31, 1976, from about 9:30 a. m. until a few minutes after 4:00 p. m. During his visit, appellant continuously consumed beer. His behavior was loud and rowdy. Mrs. Tool stated that during her acquaintance with appellant, which stemmed from a common past employment, she had learned that appellant behaved entirely different when he did not drink: he was quiet, polite and softspoken. Mrs. Tool recounted a past event involving appellant wherein he drove his automobile into her front yard at 2:00 or 3:00 a. m. and awakened her by discharging a pistol several times. Mrs. Tool took the pistol from appellant, who was intoxicated, and put him to bed on her sofa. Two weeks later, when Mrs. Tool returned appellant’s pistol, he had no recollection of the episode. Mrs. Tool confirmed that appellant’s automobile was a maroon Buick and that when he left her house sometime after 4:00 p. m. on October 31, 1976, he was driving that automobile.

Ms. Patricia Larkin, a qualified forensic psychologist at Bryce Hospital, testified that she administered certain recognized psychological tests to appellant while he was a patient at Bryce Hospital. Based on data gained from these tests and her training in the interpretation of same, Ms. Lar-kin entered the following report concerning appellant’s personality structure and functioning: (R.p. 545)

“Mr. Kyzer does not appear to have a major psychiatric disability. His MMPI profile remains essentially unchanged from his earlier results. He is an individual who is highly defended against admitting to personality problems. Instead, focusing on somatic complaints which may provide a legitimate reason for seeking .nurturing, protection, and caring from others. While sober, he is able to project ,a. ‘nice-guy’ image, but his underlying rage and frustration flood his ego and overcomes his control when he is drink.ing. At this time — these times, [sic] he becomes pugnacious, assaultive and dangerous. At this time, Mr. Kyzer is very depressed and making great effort to maintain ego control at a time when, in reality, he has little or no control over his future as his trial approaches in September. As stress continues and external pressures mount, Mr. Kyzer may seek suicide as his only avenue of escape.”

' Dr. Don Weston, a qualified psychiatrist, testified that he interviewed the appellant in jail on three occasions in May and June of 1977. Based on the information collected during these interviews, Dr. Weston diagnosed the existence of a disorder in the appellant known as manic-depressive syndrome. Dr. Weston estimated that this condition had existed in the appellant for approximately fifteen years. However, because of the unpredictability of the cycles involved with this disorder, Dr. Weston was unable to state whether appellant was in the mania or the depression stages when the shooting at the Barringer house occurred. Dr. Weston noted that characteristically the manic-depressive person, when crossed or blocked, tends to become abusive, assaultive or dangerous. Dr. Weston explained that the existence of hypoglycemia would aggravate the problems associated with a manic-depressive disorder. (R.p. 616) On cross-examination, Dr. Weston stated that the basis of his diagnosis of appellant’s condition was the appellant’s description of his own behavior over a period of years and information gained from a person who had known appellant all his life. Dr. .Weston did not use any of the standard, widely recognized psychiatric tests in his evaluation and diagnosis of the appellant.

Oh rebuttal, the State presented the testimony of Dr. Buris Boshell, Medical Director of the Diabetes Hospital at University Hospital in Birmingham, Alabama. Dr. Boshell testified that he is the Chief of the Division of Endocrinology and Metabolism and Director of the Diabetes Research and Training Center. Dr. Boshell stated that he had done extensive research in the past and had written numerous articles published in recognized medical journals on the condition known as hypoglycemia. After examining the results of appellant’s glucose tolerance test, Dr. Boshell concluded, based on his extensive training and experience, that the results were within the normal range i. e. the appellant’s test results showed no signs of hypoglycemia. Dr. Boshell explained that, generally speaking, a person experiencing the effects of hypoglycemia would feel relief from those effects after consumption of beer.

I

The sole statutory aggravating circumstance found to exist by the trial court in its written findings of fact (See Appendix B) was that “the capital felony was especially heinous, atrocious or cruel”. Appellant asserts that such finding by the trial court was erroneous because it is unsupported by the evidence. Collaterally, the appellant argues the State failed to prove the existence of said aggravating circumstance beyond a reasonable doubt.

This Court, in Jacobs v. State, Ala.Cr. App., 361 So.2d 607 (1977) affirmed, Ala., 361 So.2d 640 (1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979), adopted the interpretation of the Florida Supreme Court in State v. Dixon, 283 So.2d 1 (Fla.1973) with respect to the language of the statutory aggravating circumstances sub judice:

“ ‘The aggravating circumstance which has been most frequently attacked is the provision that commission of an especially heinous, atrocious or cruel capital felony constitutes an aggravated capital felony. Fla.Stat. § 921.141(6)(h), F.S.A. Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.’ ” Jacobs, supra at 633.

This court finds that the trial court properly applied the language of § 13-11-6(8), Ala.Code (1975) to the facts of the instant case. We further support each ground listed by the trial court in its findings of fact for justification of its application of said statutory language. In addition, this Court independently finds that the evidence in this case is sufficient to justify finding that the capital felony was especially heinous, atrocious or cruel. “The killing^], while not inflicting a ‘high degree of pain,’ or unusual suffering, could be deemed ‘extremely wicked’, or ‘vile’ under the peculiar circumstances of this case. Jacobs v. State, supra at 639 (Bookout, J., concurring specially).

A related issue raised by appellant concerns whether the prosecution met its burden of proof with respect to the statutory aggravating circumstance. In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the United States Supreme Court required the sentencing process to comply with the requirements of the Due Process Clause of the Fourteenth Amendment:

“[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel.... The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.” 430 U.S. at 358, 97 S.Ct. at 1204 (citations omitted)

In Evans v. Britton, No. 79-0200-H (S.D. Ala. June 12, 1979), the petitioner asserted that due process required the statutory aggravating circumstances, as elements of the punishment, to be proved beyond a reasonable doubt. Distinguishing substance from procedure, the Federal Court stated:

“Substantively, no defendant may be convicted under the Alabama death penalty statute without proof beyond a reasonable doubt of a violation of some provision of section 13-ll-2(a) of the Alabama Code. Due process entitles defendants to nothing more. Procedurally, a defendant who has been convicted of a capital crime is entitled to have the trial judge consider the statutorily prescribed aggravating and mitigating circumstances, and a trial judge imposing a death sentence is required to enter specific findings respecting such circumstances. During this process the defendant is entitled to put on evidence in favor of mitigating or in opposition to aggravation, but the petitioner here contends that the capital defendant has a fundamental right to have any aggravation present in his case to be proved beyond a reasonable doubt. If the question of aggravation in capital cases under the Alabama statute were submitted to the jury, then this Court would be inclined to follow the lead in Spinkellink v. Wainwright, 578 F.2d 582, 610 (5th Cir. 1978), and State v. Dixon, 283 So.2d 1, 9 (Fla.1973), and rule that the jury must be instructed that aggravating circumstances must be established by proof beyond a reasonable doubt before the jury could consider such circumstances in deliberating a death sentence case. Under Alabama law, however, the trial judge is the sentencing authority upon whom rests the burden of weighing the aggravating and/or mitigating circumstances. The defendant cannot, as far as the Court can ascertain, be convicted of a capital crime under Alabama statute without proof beyond a reasonable doubt of at least one of the statutorily prescribed aggravating circumstances, since a reading of the statute reveals that the aggravating circumstances set out in section 13-11-6 actually define the capital crimes set out in sections 13-ll-2(a)(l)-(14).” Evans, supra. (Footnotes omitted)

However, in the instant case, the sentencing judge set out an aggravating circumstance in his written findings of fact that is not definitional of the crime for which appellant stands convicted. In other words, proof that is sufficient to establish the appellant’s commission of the capital felony beyond a reasonable doubt in the mind of the jury, may not necessarily be sufficient to establish that “the capital felony was especially heinous, atrocious or cruel” beyond a reasonable doubt. Therefore, in order for the appellant’s death sentence to satisfy due process requirements, this Court must find that the State successfully carried its burden of proof at the post-conviction hearing.

In making our determination in this regard, this Court adheres to the standard of review applied when the propriety of a jury verdict is squarely presented for appellate review. Thus, the determination of the sentencing court with respect to its weighing of the aggravating and mitigating circumstances will not be reversed, unless after allowing all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the sentencing court’s determination is so decided as to clearly convince the appellate court that it is wrong and unjust. Cf. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969):

“It is apparent that the question for this Court is whether the review procedure adopted by the Alabama [Death Penalty] statute properly requires appellate courts in'capital cases to conduct their review in such a manner as will ensure that the death penalty is imposed only for the most serious crimes and only in circumstantially similar cases.
“The record is clear that the review scheme permitted by the Alabama death penalty [statute] is compatible with the teachings of Gregg, Proffitt, and Jurek, since the process ensures the adequacy of the trial and sentencing process and that the death sentence will be imposed uniformly for similar serious offenses, rather than freakishly or wantonly, as condemned by Furman.” Evans v. Britton, No. 79-0200-H (S.D.Ala. June 12, 1979)

At the post-conviction hearing, the State, through the testimony of Investigator Shirley Fields, successfully introduced police photographs of the bodies of Richard Pyron, Eunice Barringer and Emily Diane Kyzer. The State submitted the autopsy reports on each of the three victims. Finally, the State relied on the evidence presented at trial in support of its case for imposition of the death penalty.

It is our opinion that the sentencing court’s finding with respect to the existence of the aggravating circumstances enumerated in § 13-11-6(8) Ala.Code (1975) was, in all respects, proper.

II

Appellant asserts error in the sentencing court’s failure to find the existence of any mitigating circumstances in its findings of fact. (See Appendix B). Appellant asserts that the evidence at trial was sufficient for the application of three statutory mitigating circumstances e. g. § 13-11-7(1), § 13-11-7(2), and § 13-11-7(6), Ala.Code (1975).

At the post conviction hearing, records on the appellant from the Tuscaloosa City Court, District Court and Circuit Court were admitted into evidence. These records showed fourteen misdemeanor charges and one conviction for malicious destruction of private property. The arrest warrant and complaint against appellant for assault and battery signed by Emily Diane Kyzer on October 26, 1976, as well as the divorce decree dissolving the marriage of Emily Diane and Dudley Wayne Kyzer were admitted into evidence. Our examination of the sentencing court’s findings of fact reveals nothing improper in the court’s determination reached with regard to appellant’s prior criminal activity as specified in the statute.

The appellant asserts that the sentencing court’s determination with respect to the statutory mitigating circumstances enumerated in § 13-11-7(2) and § 13-11-7(6) Ala. Code (1975), was based solely on the jury’s rejection of the appellant’s plea of not guilty by reason of insanity. Our reading of the sentencing court’s findings of fact leads us to a different conclusion.

Clearly, the sentencing court made an independent assessment of the evidence presented and determined, independently of the jury’s verdict, that the statutory mitigating circumstances were inapplicable to appellant. We quote with approval the Florida Supreme Court’s interpretation of the exact same statutory language as that contained in § 13-11-7(2) and § 13-11-7(6), Ala.Code (1975):

“Extreme mental or emotional disturbance is a second mitigating consideration, pursuant to Fla.Stat. § 921.141(7)(b), F.S.A., which is easily interpreted as less than insanity but more than the emotions of an average man, however inflamed.
“Mental disturbance which interferes with but does not obviate the defendant’s knowledge of right and wrong may also be considered as a mitigating circumstance. Fla.Stat. § 921.141(7)(f), F.S.A. Like subsection (b), this circumstance is provided to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.” State v. Dixon, 283 So.2d 1 (Fla.1973)

We note that the sentencing court heard evidence at the post-conviction hearing that was not specifically referable to any of the statutory mitigating circumstances. Thus, it is clear that the sentencing court considered evidence as to “any matter that the court deem[ed] relevant to sentence,” and was not restricted to those mitigating factors statutorily defined.

It is, therefore, our considered judgment that no error was committed in the failure of the sentencing court to find the existence of any mitigating circumstances in this case. We hold that the appellant has not presented sufficient grounds for this Court to reverse the sentencing court’s imposition of the death penalty in this case. The- conviction and sentence are, in all respects,

AFFIRMED.

All the Judges concur.

Appendix A

INDICTMENT

THE STATE OF ALABAMA! TUSCALOOSA COUNTY I CIRCUIT COURT JANUARY_Term, 19 77

I.The Grand Jury of said County charge that before the finding of this Indictment DUDLEY WAYNE KYZER, alias WAYNE KYZER, whose name is otherwise unknown to the Grand Jury, did unlawfully and with malige aforethought, intentionally kill Emily Diane Kyzer by shooting her with a pistol, and the Grand Jury further charge that the said killing was perpetrated by the said DUDLEY WAYNE KYZER, alias WAYNE KYZER by one act or a series of acts wherein two or more human beings, to-wit: Emily Diane Kyzer and Eunice Barringer, were unlawfully and with malice aforethought killed intentionally by the said DUDLEY WAYNE KYZER, alias WAYNE KYZER, by shooting each of them with a pistol,

II. The Grand Jury of said County further charge that before the finding of this Indictment, DUDLEY WAYNE KYZER, alias WAYNE KYZER, whose name is otherwise unknown to the Grand Jury, did unlawfully and with malice aforethought intentionally kill Emily Diane Kyzer by shooting her with a pistol, and the Grand Jury further charge that the said killing was perpetrated by the said DUDLEY WAYNE KYZER, alias WAYNE KYZER by one act or a series of acts wherein two or more human beings, to-wit: Emily Diane Kyzer and Richard Pyron, were unlawfully and with malice aforethought killed intentionally by the said DUDLEY WAYNE KYZER, alias WAYNE KYZER, by shooting each of them with a pistol,

III. The Grand Jury of said County further charge that before the finding of this Indictment, DUDLEY WAYNE KYZER, alias WAYNE KYZER, whose name is otherwise unknown to the Grand Jury, did unlawfully and with malice aforethought intentionally kill Emily Diane Kyzer by shooting her with a pistol, and the Grand Jury further charge that the said killing was perpetrated by the said DUDLEY WAYNE KYZER, alias WAYNE KYZER, by one act or a series of acts wherein two or more human beings, to-wit: Emily Diane Kyzer, Eunice Barringer and Richard Pyron, were unlawfully and with malice aforethought killed intentionally by the said DUDLEY WAYNE KYZER, alias WAYNE KYZER, by shooting each of them with a pistol,

IV. The Grand Jury of said County further chhrge that before the finding of this Indictment, DUDLEY WAYNE KYZER, alias WAYNE KYZER, whose name is otherwise unknown to the Grand Jury, did unlawfully and with malice aforethought kill two or more human beings, to-wit: Emily Diane Kyzer and Eunice Barringer, intentionally, by shooting each of them with a pistol, and the Grand Jury further charge that the said DUDLEY WAYNE KYZER, alias WAYNE KYZER, did kill both the said Emily Diane Kyzer and the said Eunice Barringer, by shooting each of them with a pistol, by one act or a series of acts wherein two or more human beings, to-wit: Emily Diane Kyzer and Eunie Barringer, were intentionally killed unlawfully and with malice aforethought,

V. The Grand Jury of said County further charge that before the finding of this Indictment, DUDLEY WAYNE KYZER, alias WAYNE KYZER, whose name is otherwise unknown to the Grand Jury, did unlawfully and with malice aforethought kill two or more human beings, to-wit: Emily Diane Kyzer and Richard Pyron, intentionally, by shooting each of them with a pistol, and the Grand Jury further charge that the said DUDLEY WAYNE KYZER, alias WAYNE KYZER, did kill both the said Emily Diane Kyzer and the said Richard Pyron by shooting each of them with a pistol, by one act or a series of acts wherein two or more human beings, to-wit: Emily Diane Kyzer and Richard Pyron, were intentionally killed unlawfully and with malice aforethought,

VI. The Grand Jury of said County further charge that before the finding of this Indictment, DUDLEY WAYNE KYZER, alias WAYNE KYZER, whose name is otherwise unknown to the Grand Jury, did unlawfully and with malice aforethought, kill two or more human beings, to-wit: Emily Diane Kyzer, Eunice Barringer, and Richard Pyron, intentionally, by shooting each of them with a pistol, and the Grand Jury further charge that the said DUDLEY WAYNE KYZER, alias WAYNE KYZER, did kill the said Emily Diane Kyzer, and the said Eunice Barringer, and the said Richard Pyron, by shooting each of them with a pistol, by one act or a series of acts wherein two or more human beings, to-wit: Emily Diane Kyzer, Eunice Barringer, and Richard Pyron, were intentionally killed unlawfully and with malice aforethought,

against the peace and dignity of the State of Alabama. WAYNE WILLIAMS

District Attorney

Sixth Judicial Circuit

Appendix B

STATE OP ALABAMA ) VS. ) DUDLEY WAYNE KYZER, ) DEFENDANT. ) ) IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF ALABAMA CASE NO. 6810-B

FINDINGS OF FACT FROM THE TRIAL AND THE SENTENCE HEARING AS REQUIRED BY TITLE 15, SEC. 842(6), OF THE CODE OF ALABAMA, AS AMENDED (1975)

JOSEPH A. COLQUITT, Circuit Judge.

The Defendant, Dudley Wayne Kyzer, was indicted, tried, and convicted of Murder in the First Degree Under Aggravated Circumstances. The jury, pursuant to law, fixed the punishment at death. Specifically, the Defendant was charged with the First Degree Murder of Emily Diane Kyzer, wherein two or more human beings, namely, Emily Diane Kyzer, Eunice Barringer, and Richard Pyron, were killed by the Defendant by one or a series of acts, an offense punishable as an aggravated offense for which the death penalty can be imposed. Title 15, § 342(4)(j), Code of Alabama, as amended (1975).

The Court after holding a hearing as provided by Title 15, § 342(5), Code of Alabama, as amended (1975), and after weighing the aggravating and mitigating circumstances is unable to find sufficient reason to refuse to accept the death penalty as fixed by the jury, and accordingly accepts the jury verdict and sentences the Defendant Dudley Wayne Kyzer to death. Title 15, § 342(6), Code of Alabama, as amended (1975).

The Court finds from the evidence presented at trial and the sentence hearing that the Defendant Dudley Wayne Kyzer did in fact commit the offense of Murder in the First Degree Under Aggravated Circumstances as defined by • Title 15, § 342(4)(j), Code of Alabama, as amended (1975). The Court further finds that this capital felony was especially heinous, atrocious and cruel, an aggravating circumstance set forth in Title 15, § 342(8)(h), Code of Alabama, as amended (1975).

The evidence is overwhelming, leading to a well-guarded and dispassionate judgment, that the Defendant Dudley Wayne Kyzer committed the crime charged. The evidence further shows that the Defendant commenced an assault upon three unarmed persons with a pistol in the private home of two of the victims. At that time he was under bond to appear in the County Court of Tuscaloosa County, Alabama, to answer to criminal charges pending against him. He had been charged with allegedly assaulting Diane Kyzer. He had also been charged with allegedly destroying some private property of Mrs. Eunice Barringer.

Further the attack on the three persons killed on this occasion was commenced in the presence of the minor son of the Defendant and Emily Diane Kyzer. The physical evidence in this ease points to a methodical execution of three people. The circumstances, testimony, and physical evidence amply indicates that Emily Diane Kyzer received a fatal wound while attempting to remove the child from the room. She suffered a penetrating gunshot wound of the right breast, which penetrated both lungs and both atria of the heart causing massive hemorrhage, shock and death. Richard Pyron suffered a non-fatal gunshot wound to the left should which entered from the front and exited the rear. This wound fractured the humeral head and acromion. He suffered a fatal gunshot wound of the vertex of the head, the route of which was essentially vertical from the top, right side of the head, and which penetrated the cerebrum and lodged in the temporal bone. That wound had all the earmarks of a coup de grace. Eunice Barring-er suffered a fatal gunshot wound over the right eye which traversed the brain, the route of which was downward at approximately 50 degrees from the horizontal. The wound was surrounded by gunpowder stippling covering an area approximately three inches in diameter. The gunshot was classified as “near contact” by the pathologist. The locations of the bodies and type of wounds indicate a brutal, savage, barbaric killing of three human beings, certainly meeting the criteria set forth in Title 15, § 342(8)(h), Code of Alabama, as amended (1975).

The Court has reviewed the facts of the case with the purpose of finding any mitigating circumstances as defined in Title 15, § 342(9), Code of Alabama, as amended (1975). Subsections (c), (d), (e) and (g) have no application to this case. Subsections (a), (b), and (f) were argued by the Defense to have application to this case, and therefore the Court specifically addresses those provisions.

The Court finds that the Defendant has no prior felony convictions. The Court further finds this fact insufficient to outweigh the aggravating circumstances of this case. The Court further finds from the evidence that while the Defendant has no prior felony convictions, the Defendant does have a history of prior conduct that could be considered criminal activity, and these prior activities are significant.

Defense Trial Exhibit 3, the records of Bryce Hospital, indicate a history reported by the Defendant of “lots of arrests ... for everything.” “You write it down and I’ve been arrested for it.” While perhaps boastful, the records of the County and City do show a number of arrests for mainly misdemeanors. But the testimony, most of which was admitted on the issue of insanity at the instance of the Defense, shows a number of episodes involving destruction of property by shooting, threats, fighting and other improper, illegal or criminal conduct, for which the Defendant apparently was either never arrested or simply deferred for alternate treatment.

The Court finds no sufficient evidence to show that the Defendant was under the influence of extreme mental or emotional disturbance. Further, the Court finds no sufficient evidence to show that the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The jury, by their verdict, found the Defendant sane. Defense exhibit 3 contains the records of Bryce Hospital, which includes several findings by the hospital staff that the Defendant was sane, including one finding that the Defendant was sane at the time of the commission of this crime.

Defense Exhibit 3, the Bryce records, reflect a number of findings by the professional staff of Bryce, including a finding and report of a Lunacy Commission that “Mr. Kyzer is not suffering from any mental disease or defect that would affect his present criminal responsibility or his criminal responsibility at the time of the commission of the alleged crime.” Other evaluations include “reactive depression without other significant psychiatric impairment.” The Defendant was found to be of “superi- or intellect.” “When drinking he is pugnacious, assaultive, and dangerous.” It was further observed that he had “no major psychiatric disability.”

Further, there is no sufficient evidence of intoxication to the degree required to substantially impair his ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

Having found no mitigating circumstances sufficient to overcome the aggravating circumstances previously discussed, the Court finds no useful purpose served by discussing the State’s argument that the aggravating circumstances set out in Title 15, § 342(8), subsections (c) and (d), Code of Alabama, as amended (1975), apply to this case.

This the 6th day of October, 1977.

      . See indictment attached hereinafter as Appendix A.

      . See 13-11-2(a)(10), Code of Alabama 1975.

      ., See trial court’s findings of fact attached "('■Hereinafter as Appendix B.

      . See Ellenburg v. State, Ala.Cr.App., 353 So.2d 810 (1977).

      . On page 328, Appendix B, the third and fourth paragraphs of the trial court’s findings, it is our understanding that the trial court was refuting the mitigating circumstance set out in § 13-11-7(1), “The defendant has no significant history of prior criminal activity.”
      We distinguish this finding from the one in Cook v. State, Ala., 369 So.2d 1251 (1978), wherein the trial court improperly qualified the above provision.
      In the instant cause, the trial judge did find the prior criminal activity to be significant and therefore could not operate as a mitigating circumstance in the appellant’s favor.
      This evidence of prior criminal activity was introduced by the appellant in support of his plea of insanity, and the trial court found that such was not sufficient to show that the appellant was acting under the influence of extreme mental and emotional disturbance.


author: MADDOX, Justice. JONES, Justice

text:
    Ex parte Dudley Wayne KYZER. (re Dudley Wayne Kyzer, alias v. State of Alabama).
    79-65.
    Supreme Court of Alabama.
    March 6, 1981.
    Rehearing Denied April 10, 1981.

      Robert F. Prince, of Prince & Land, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Sp. Asst. Atty. Gen., for respondent.
   MADDOX, Justice.

Prior to our decision in Beck v. State, 396 So.2d 645 (Ala.1980), we granted certiorari to review the judgment of the Court of Criminal Appeals in affirming the death sentence of the petitioner, Dudley Wayne Kyzer. We now review Kyzer's conviction in light of Beck and the decision of the Supreme Court of the United States in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), which was rendered after we granted the writ in this case.

Kyzer was tried and convicted under Alabama’s Death Penalty Statute, Code 1975, § 13-ll-2(a)(10), for first degree murder “wherein two or more human beings are intentionally killed by the defendant by one or a series of acts.” The facts surrounding the petitioner’s conviction are set forth in detail in the Court of Criminal Appeals’ opinion and need not be restated here. See, Kyzer v. State, 399 So. 2d 317 (Ala.Cr.App.1979). On the basis of those facts, a jury found the petitioner guilty of “First Degree Murder with aggravated circumstances as charged in the indictment.” The trial court subsequently conducted a post conviction hearing and, after considering the existence of any aggravating or mitigating circumstances, duly sentenced the petitioner to death. On appeal, the Court of Criminal Appeals affirmed.

As we opined in our decision in Beck v. State, a majority of the Supreme Court of the United States has determined that a death sentence may not be imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser included offense, when the evidence would have supported such a verdict. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Having carefully examined the record in the instant case, we conclude that there was an evidentiary basis for lesser included offense instructions in Kyzer’s case. We, therefore, hold that the petitioner’s cause is due to be reversed and remanded for a new trial to be conducted in conformity with the procedures we established in Beck, and as may otherwise be required by law or court rule promulgated by this Court. Because of the particular facts of this case, we determine that another pertinent issue needs to be addressed: Will the death penalty be an available option to the State if Kyzer is retried? We hold that it would.

On original submission of this case, petitioner argued that the Court of Criminal Appeals erred in affirming his sentence of death on several grounds; however, for purposes of the instant review we will address only one of those arguments, viz., whether the Court of Criminal Appeals erred in sustaining the trial court’s post conviction finding that the “capital felony was especially heinous, atrocious or cruel,” an aggravating circumstance found in Code 1975, § 13-11-6(8).

The court did err, because the aggravating circumstance found by the trial judge cannot be supported under the rule of law announced in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). It is now abundantly clear that the first degree murder of two or more victims is not, by definition, especially heinous, atrocious or cruel. In Godfrey, the court examined the operative scope of an aggravating circumstance enumerated in Georgia’s Death Penalty Statute which is quite similar to Code 1975, § 13-11-6(8). Georgia, like Alabama, has adopted a sentencing procedure in capital cases which conditions the imposition of a death sentence on a post conviction finding of one or more aggravating circumstances. The particular aggravating circumstance scrutinized in Godfrey is set forth in Georgia Code Ann. § 27.2534.-1(b)(7) and reads as follows:

The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

In Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979), the Georgia Supreme Court affirmed the trial court’s finding of this aggravating circumstance under facts strikingly similar to those in the instant case. The defendant, Robert Franklin Godfrey, rebuffed in his attempts at reconciliation with his estranged wife, went to the dwelling of his mother-in-law and murdered his mother-in-law and wife by shooting them with a shotgun. Under those facts, the jury found the offense to be “outrageously or wantonly vile, horrible or inhuman.” In the present case, on the basis of similar facts, the offense was found to be “especially heinous, atrocious or cruel.”

In reviewing Godfrey, the United States Supreme Court rejected the lower court’s construction and application of § (b)(7) and reasoned as follows:

In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was “outrageously or wantonly vile, horrible and inhuman” There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as “outrageously or wantonly vile, horrible and inhuman.” Such a view may, in fact, have been one to which the members of the jury in this case subscribed. If so, their preconceptions were not dispelled by the trial judge’s sentencing instructions. These gave the jury no guidance concerning the meaning of any of § (b)(7)’s terms. In fact, the jury’s interpretation of § (b)(7) can only be the subject of sheer speculation.

100 S.Ct. at 1765. The Court determined that the language of § (b)(7) was intended to encompass only torturous homicides involving a serious physical abuse of the victim before death. The Court, therefore, held that the Georgia Supreme Court had adopted an overbroad and vague construction of the Georgia statute. At 446 U.S. 428-429, 100 S.Ct. 1765, the Court noted that to hold otherwise would permit the language of § (b)(7) to “become a ‘catch all’ for cases which do not fit within any other statutory aggravating circumstance.”

In applying the above reasoning to the present case, we are persuaded that, like the language of § (b)(7), there is nothing in the words “especially heinous, atrocious or cruel” which implies any inherent restraint on the arbitrary and capricious imposition of the death penalty. The homicides committed by the petitioner in the instant case were certainly atrocious in the sense that three innocent victims were murdered; however, in light of Godfrey, the question must be raised: Were the homicides materially more atrocious than any other intentional homicide? Applying the reasoning in Godfrey, we hold that they were not. The aggravating circumstance listed in § 13-11-6(8) was intended to apply to only those conscienceless or pitiless homicides which are unnecessarily torturous to the victim. See, State v. Dixon, 283 So.2d 1 (Fla.1973).

Since § 13-11-6(8) was the only aggravating circumstance found by the trial court, petitioner’s sentence of death cannot stand. The facts of this case conclusively show that the petitioner was convicted of an aggravated offense for which the legislature failed to provide a corresponding aggravating circumstance; therefore, no other aggravating circumstance could possibly apply, because petitioner was convicted of murder in the first degree wherein three victims were killed. Code 1975, § 13-11-2(a)(10). The murders were not especially heinous, atrocious or cruel under the God-frey rule. The evidence did not show that the murders were connected with a robbery, burglary or other felony, nor does the evidence show they were committed for pecuniary gain. The evidence does not show that the petitioner had any prior felony convictions.

This case presents in purest form an anomaly in Alabama’s Death Penalty Statute. The legislature, in delineating the fourteen offenses for which the death penalty could be imposed, included the offense for which Kyzer was charged and convicted, viz, “Murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts,” [§ 13-ll-2(a)(10)], but failed to provide a corresponding “aggravating circumstance” in § 13-11-6.

A comparison of § 13-ll-2(a) and § 13-11-6 shows that there is a corresponding aggravating circumstance for most, but not all, of the aggravated offenses [e. g., § 13-11-6(4) corresponds with §§ 13-11-2(a)(1) through 13-ll-2(a)(4); § 13-11-6(1) corresponds with § 13-ll-2(a)(6); § 13-11-6(6) corresponds with § 13-ll-2(a)(7); § 13-11-6(2) corresponds with § 13-11-2(a)(13); § 13-11-6(7) corresponds with § 13-ll-2(a)(14)].

The legislature specifically provided that: In all cases where no aggravated circumstances enumerated in section 13-11-2 are expressly averred in the indictment, the trial shall proceed as now provided by law, except that the death penalty or life imprisonment without parole shall not be given, and the indictment shall include all lesser offenses.

Code 1975, § 13-11-1. Likewise, the legislature provided that:

If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses.. .. [Emphasis added.]

Code 1975, § 13-ll-2(a). The legislature used the word “aggravating circumstances” in § 13-11-1. It is clear that the legislature intended for those words to mean the same thing, because § 13-11-1 specifically mentions cases where no “aggravated circumstances enumerated in § 13-11-2 are averred in the indictment,” and § 13-11-2(a) requires the “aggravation” to be averred in the indictment; however, it is not as clear what the legislature intended when it set forth the offenses in § 13-ll-2(a), because it did not specifically delineate between the offense and the “aggravation,” or “aggravated circumstances.” Because of this, the following question has plagued lawyers and judges alike: What is the offense or “capital felony” and what is the “aggravation” or “aggravated circumstances enumerated in § 13-11—2” under Alabama’s death penalty law?

The question has arisen in the context of the indictment [Evans v. State, 361 So.2d 666 (Ala.1978)], the trial court’s instructions to the jury [Clements v. State, 370 So.2d 723 (Ala.1979)], and now arises in this context where the judge, at the post conviction sentencing hearing, did not have an aggravating circumstance listed in § 13-11-6 to correspond with the “aggravation” averred in the indictment as required by § 13-11-2.

While there are disagreements among judges and lawyers on what constitutes the “offense” and what constitutes the “aggravation,” there is no disagreement in court decisions that the gravamen of the capital offense is the “intentional killing.” Without an “intentional killing” there could be no death penalty. The decisions of the Supreme Court of the United States are clear on this point. See, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

In Beck v. State, this Court held that each of the capital crimes specified by the legislature “requires an intentional killing with aggravation, and not some crime other than homicide under aggravated circumstances.”

When the statutory scheme is studied closely, it is apparent that the Alabama Legislature intended to make “murder” [§ 13-ll-2(a)(5), (6), (7), (13), and (14)], “murder in the first degree” [§ 13—11— 2(a)(10), (11), and (12)], and intentional killings [§ 13-ll-2(a)(l), (2), (3), (4), (8), and (9)], capital felonies; therefore, the “capital felony” referred to in §§ 13-11-6(1) through 13-11-6(8) refers to an intentional killing, not to “kidnapping,” “robbery,” “rape,” etc. [§§ 13-ll-2(a)(l) through 13-ll-2(a)(4)].

If “capital felony” referred to “robbery,” for example, § 13-11-6(4) would read:

The [robbery] was committed while the defendant was engaged in or was an accomplice in the commission or an attempt to commit . .. robbery....

That is nonsensical. On the other hand, if the words “intentional killing” are substituted for the words “capital felony” in § 13-11-6(4) above-quoted, the section is completely clear.

It is apparent that the legislature, when it drafted the Death Penalty Act, considered the text of the Model Penal Code as drafted by the American Law Institute. For example, when the legislature used the words “intentionally killed” in § 13—11— 2(a)(1), (2), (3), (4), (8) and (9), it obviously meant those killings which the Model Penal Code defined as “murder”:

(1) Except as provided in Section 210.-3(l)(b), criminal homicide constitutes murder when:
' (a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
(2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6].

Model Penal Code (U.L.A), § 210.2, p. 533 (1974).

Alabama’s new Criminal Code, which also follows substantially the Model Penal Code, defines murder in substantially similar language. Code 1975, § 13A-6-2, provides:

(a) A person commits the crime of murder if:
(1) With intent to cause the death of another person, he causes the death of that person or of another person; or
(2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person; or
(3) He commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person.
(b) A person does not commit murder under subdivisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof. This subsection does not apply to a prosecution for, or preclude a conviction of, manslaughter or other crime.
(c)Murder is punishable by imprisonment in the penitentiary for not less than 10 years to life; provided, that the punishment for murder or any offense committed under aggravated circumstances, as provided by article 2 of chapter 5 of this title, is death or life imprisonment without parole, which punishment shall be determined and fixed as provided by article 2 of chapter 5 of this title or any amendments thereto. (Acts 1977, No. 607, § 2005).

As is apparent, Alabama did not follow the format of the Model Penal Code in classifying how persons convicted of murder could be punished. Under § 210.2(2) of the Model Penal Code “a person convicted of murder may be sentenced to death.... ” The Model Penal Code suggests a procedure whereby aggravating circumstances are made a part of the sentencing stage instead of the guilt determining state.

The commentary to Code 1975, § 13A-6-1 indicates why the legislature may not have followed the Model Penal Code format. The commentary to § 13A-6-2 states:

Capital Punishment:
In the original draft no attempt was made to formulate provisions for the imposition of the death penalty for murder because, at that time, the law as to capital punishment was not clear. Furman v. Georgia, 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346] (1972) (“The court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments”).
Subsequently, in 1975, the Alabama Legislature enacted an act providing for a sentence of death or life imprisonment without parole for certain aggravated offenses, e. g., intentional killing during kidnapping, robbery, rape, night-time burglary of occupied dwelling, explosions, murder of peace officer on duty, murder for hire, murder of public official, murder by life convict, Act No. 213, H. 212, Acts of Alabama 1975, Regular Session, which statute has been incorporated by reference in § 13A-6-2(c) and is codified as Article 2 of Chapter 5 of the Criminal Code. See, also, §§ 13A-5-1 and 13A-5-2. (Emphasis added.)

As a policy choice, Alabama classified “murder” as a felony, and an “offense committed under aggravated circumstances” [§ 13A-6-2(c)], as a “capital felony.” See § 13-11-6. Under the Model Penal Code any person convicted of murder could be punished capitally, but all would not be so punished. Under the format of that model draft, if the sentencing authority wanted to impose a sentence of death, separate proceedings were required and the sentencing authority would weigh the aggravating and mitigating circumstances to determine whether to impose the sentence of death on the particular defendant. Model Penal Code (U.L.A.), § 210.6.

Likewise, Alabama, as a policy choice, did not follow the model format, but elected to have the aggravating circumstances made a part of the offense, rather than a matter to be presented at a sentencing hearing. In doing so, the legislature created some confusion, but it was responding to a very confusing decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

In any event, it is clear that the legislature intended to punish capitally persons convicted of the aggravated offenses set forth in § 13-11-2, unless, of course, at the sentencing hearing the trial judge, after weighing the aggravating and mitigating circumstances, decided to refuse to accept the jury’s sentence of death.

In Beck v. State, this Court mandated the guidelines which must be followed before the sentence of death can be imposed under the Death Penalty Act. If these guidelines are followed, the procedure for imposition of the death sentence meets all present procedural safeguards required by the Supreme Court of the United States.

One of the problems which was obviously faced by the trial judge in this case is that the legislature did not include an “aggravating circumstance” in § 13-11-6 to correspond to the offense section, § 13-11-2(a)(10). The question is then posed: What if the trial judge cannot find the existence of an aggravating circumstance other than the “aggravation” averred in the indictment? Must the trial judge “refuse to accept the death penalty as fixed by the jury?” A literal and technical reading of the statute would answer this inquiry in the affirmative, but to so hold would be completely illogical and would mean the legislature did a completely useless act by creating a capital offense for which the defendant could not ultimately receive the death penalty. Why would the legislature require that “aggravation” be averred in the indictment and authorize the jury to fix the punishment at death, and then not provide a corresponding “aggravating circumstance” for the judge to find, and thereby force the judge at the post conviction hearing to refuse to accept the death penalty fixed by the jury? We can think of no reason why the legislature would intend such a result.

We are aware, of course, that there could be cases where a statutory “aggravating circumstance” other than the one “averred in the indictment” could be present in a particular case, but we hold that the legislature, by requiring the aggravating circumstance to be averred in the indictment, necessarily meant that the trial judge must find that particular aggravating circumstance was present in the case. If the trial judge does not find that the aggravating circumstance averred in the indictment is present, there can be no death sentence imposed, although there might be several other statutory aggravating circumstances present.

Code 1975, § 13-11-4, provides:

Determination of sentence by court; court not bound by punishment fixed by My.
Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death. If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentence hearing, which shall at least include the following:
(1) One or more of the aggravating circumstances enumerated in section 13-11-6, which it finds exists in the case and which it finds sufficient to support the sentence of death; and
(2) Any of the mitigating circumstances enumerated in section 13-11-7 which it finds insufficient to outweigh the aggravating circumstances. (Acts 1975, No. 213, § 4.)

What did the legislature intend when it provided in § 13-11-4 that the trial judge must weigh the “aggravating and mitigating circumstances”? Did the legislature intend to limit the trial judge to a consideration only of the “aggravating circumstances enumerated in § 13-11-6”? We think not, although that is a possible interpretation of legislative intent. (See, Jones, J., specially concurring, infra).

The whole purpose of §§ 13-11-4 through 13-11-7 [procedure for sentencing hearing before the judge] is to allow for judicial review of a sentence of death fixed by the jury. By providing for a sentencing hearing and by requiring the trial judge to find at least one aggravating circumstance, the legislature obviously intended to give to the trial judge authority to review the finding of the jury and the fixation of punishment at death by the jury to check any arbitrary or capricious exercise of the power of the jury in fixing the penalty.

If, on review, the trial judge could not “weigh the aggravating . . . circumstance” which was averred in the indictment, and which was a part of the substantive offense, but which aggravating circumstance was not included in § 13-11-6, the sentencing hearing would be a complete and useless endeavor. We cannot assume that the legislature did a useless act. It is apparent that the legislature intended to permit the trial judge to find the same “aggravated circumstances enumerated in § 13-11-2.” Code 1975, § 13-11-1. We so hold.

If a defendant is convicted of “murder in the first degree wherein two or more human beings are intentionally killed,” and if the jury, after a hearing conducted in accordance with the principles set out in Beck, fixes the penalty at death, the trial judge, if convinced that the “aggravation” averred in the indictment “that two or more human beings were intentionally killed by the defendant by one or a series of acts” outweighs the mitigating circumstances, may impose a sentence of death by setting forth in writing, as required by § 13-11-4, his findings, even though the “aggravating circumstance” is not “enumerated in § 13-11-6.” The jury could make the same finding at its sentence hearing mandated by Beck.

The sole purpose of requiring that the trial judge, as the sentencing authority, make a written finding of the aggravating circumstance is to provide for appellate review of the sentence of death.

Applying traditional rules of statutory construction, we are convinced that the legislature intended to punish capitally defendants found guilty of offenses listed in § 13-11-2. In Beck, this Court upheld the constitutionality of the statute and undertook to discuss the procedural safeguards to which a defendant is entitled under United States Supreme Court decisions. If a defendant is convicted of a capital offense, and the trial judge is authorized to find the same “aggravation” which was averred in the indictment and which was proved beyond a reasonable doubt before a jury, there can be no violation of any of defendant’s rights.

Courts are not powerless to write standards and requirements which can be engrafted onto statutes to make the procedures comport with legislative intent and due process of law.

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Texas legislature had not adopted a list of aggravating circumstances. The Supreme Court, commenting on this fact, stated:

While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. See McGautha v. California, 402 U.S. 183, 206 n. 16, 91 S.Ct. 1454, 1466, 28 L.Ed.2d 711 (1971); Model Penal Code § 201.6, Comment 3, pp. 71-72 (Tent. Draft No. 9, 1959). In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating circumstances. For example, the Texas statute requires the jury at the guilt-determining stage to consider whether the crime was committed in the course of a particular felony, whether it was committed for hire, or whether the defendant was an inmate of a penal institution at the time of its commission. Cf. Gregg v. Georgia, 428 U.S. at 165-166, n. 9, 96 S.Ct., at 2921 n. 9; Proffitt v. Florida, 428 U.S. [242] at 248-249, n. 6, 96 S.Ct. [2690] at 2965, n. 6 [49 L.Ed.2d 913]. Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two states is that the death penalty is an available sentencing option — even potentially — for a smaller class of murders in Texas. Otherwise the statutes are similar. Each requires the sentencing authority to focus on the particularized nature of the crime.

As we have already indicated, the Alabama statute, especially as construed by us in Beck v. State, “requires the sentencing authority to focus on the particularized nature of the crime.” Jurek, supra. The crime is particularized by the requirement that “aggravation” be averred and proved beyond a reasonable doubt. To hold that the failure of the legislature to include the particular “aggravation” as an “aggravating circumstance” under § 13-11-6 would fail to carry out legislative intent.

Based on the foregoing, we hold that Kyzer is entitled to a new trial, under procedures as outlined in Beck v. State. If Kyzer is convicted of the capital offense, the jury and the trial judge at the sentencing hearing may find the “aggravation” averred in the indictment as the “aggravating circumstance,” even though the “aggravation” is not listed in § 13-11-6 as an “aggravating circumstance.” The jury or trial judge, as applicable, will weigh the “aggravation” or “aggravating circumstance” against any mitigating circumstances in determining whether to impose a sentence of death.

REVERSED AND REMANDED WITH DIRECTIONS.

FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

BEATTY, J., concurs in the result.

JONES, J., concurs in the result with opinion, with which TORBERT, C. J., and ADAMS, J., concur.

JONES, Justice

(Concurring in the result):

I concur in the result of the opinion to reverse and remand. I acknowledge its scholarly effort to deal with the aggravating circumstance issue at the sentencing hearing on remand to the trial court; but I strongly disagree with both its premise and its conclusion on this issue.

The concluding portion of the sentencing provision (§ 13-11-4) states:

“If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentence hearing, which shall at least include the following:
“(1) One or more of the aggravating circumstances enumerated in section 13-11-6, which it finds exists in the case and which it finds sufficient to support the sentence of death; and
“(2) Any of the mitigating circumstances enumerated in section 13-11-7 which it finds insufficient to outweigh the aggravating circumstances.”

By failing to heed the plain, clear meaning of these words, the majority opinion either ignores them or superimposes its policy judgment upon the exclusive legislative prerogative. To judicially modify the Death Penalty Act to uphold its constitutionality and effectuate its express purpose is one thing; to alter its clearly defined statutory scheme, in absence of constitutional restraints, is entirely another.

Personally, I thought Beck brought us dangerously close to the “cliff’s edge” in the separation of power dichotomy. Surely, the constitutional underpinning supportive of the judicial weight of Beck is lacking here; and without it, we have just cast ourselves over the brink.

TORBERT, C.J., and ADAMS, J., concur.


author: PER CURIAM.

text:
    Dudley Wayne KYZER, alias v. STATE.
    6 Div. 655.
    Alabama Court of Criminal Appeals.
    April 21, 1981.
   PER CURIAM.

REVERSED AND REMANDED FOR A NEW TRIAL ON AUTHORITY OF Kyzer v. State, 399 So.2d 330 (Ala.1981) and cases cited therein.

All the Judges concur.