text:
    PHENIX-GIRARD BANK v. Homer D. COBB, Jr., et al.
    81-401.
    Supreme Court of Alabama.
    July 2, 1982.
    Sydney S. Smith of Smith & Smith, Phe-nix City, for appellant.
    James E. Butler, Jr., of Butler & Black-wood, Columbus, Ga., for appellees.
   FAULKNER, Justice.

On June 12, 1979, Homer and Bernice Cobb, plaintiffs below, executed a mortgage on their house and surrounding property in favor of Phenix-Girard Bank. In exchange, Phenix-Girard Bank agreed to loan the Cobbs $38,000.00. The alleged purpose of the loan was to permit Mr. Cobb to consolidate other debts in order to avoid bankruptcy. The Bank never disbursed any of the loan funds to the Cobbs. On October 9, 1979, Homer Cobb filed a voluntary petition for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code.

In his bankruptcy petition, Mr. Cobb listed the above mortgage to Phenix-Girard Bank. On February 6, 1980, the Honorable Rodney R. Steele, Bankruptcy Judge for the Middle District of Alabama, entered an order establishing the priority and the validity of Phenix-Girard Bank’s mortgage that it held on Cobb’s property. Cobb did not protest the validity of the Bank’s mortgage at any time during the bankruptcy proceeding. The debts totalling $38,000.00 were discharged in bankruptcy.

The Cobbs brought an action against the Bank alleging breach of contract, conversion and fraud in the Bank’s failure to disburse the loan funds. Plaintiffs claim that the Bank’s failure to pay the loan caused Mr. Cobb to become insolvent. The Cobbs alleged that the Bank represented before, during and after the bankruptcy proceeding that it would disburse the loan funds to the Cobbs. The Cobbs also allege that the Bank has threatened to foreclose on the mortgage. The Bank made a motion for summary judgment. The trial judge granted the motion for summary judgment on the breach of contract count, finding that any promise to pay the funds by the Bank was not supported by consideration. The judge denied the motion for summary judgment on the fraud, conversion and punitive damages counts.

Phenix-Girard Bank seeks to appeal from the denial of the summary judgment, an interlocutory order, pursuant to ARAP 5. The trial judge made a statement that the appeal involved a controlling question of law as to which there is a substantial ground for difference of opinion and that an appeal would materially advance the litigation. This Court gave its permission to appeal on January 19, 1982.

The Bank’s major contention on appeal is that the Cobbs are precluded from raising the claims for fraud and conversion under the doctrine of claim preclusion, or res judi-cata. Since the Cobbs could have litigated these issues in the prior bankruptcy proceeding, the Bank argues that they are prevented from relitigating the issues again. The Cobbs do not contest the granting of a summary judgment against them on the breach of contract claim.

In Russell v. Russell, 404 So.2d 662 (Ala.1981), this Court set out the elements of claim preclusion, or under older terminology, res judicata. The elements of claim preclusion are:

(1) prior judgment rendered by a court of competent jurisdiction;
(2) prior judgment rendered on the merits;
(3) parties to both suits sustantially identical; and
(4) same cause of action present in both suits.

Id. at 664. If these elements are present, the “[pjlaintiff is prevented from relitigat-ing a matter that could have been litigated in the prior action, regardless of whether the matter was actually presented.” Owen v. Miller, 414 So.2d 889 (Ala.1981).

Nevertheless, the fraud and conversion claims are not barred by claim preclusion because they are both alleged events which occurred after the prior bankruptcy proceeding. The rules of claim preclusion or res judicata are not applicable to events which occur after a prior proceeding. See Skillman v. First State Bank of Altoona, 341 So.2d 691 (Ala.1977).

A summary judgment may be properly granted only when, after consideration of the evidence in favor of the non-moving party, it appears that there is no issue of material fact and that the non-moving party cannot prevail. Forester & Jerue, Inc. v. Daniels, 409 So.2d 830 (Ala.1982). The trial court obviously felt there was evidence in the record which presented an issue of fact. We agree.

The Cobbs allege that after the bankruptcy proceeding was terminated, the Bank continued to misrepresent that it would disburse the loan funds. This is substantiated by the testimony of one of the Bank’s officers in his deposition. Furthermore, conversion is a tort of a continuing nature. If the Bank is wrongfully exercising dominion over the Cobbs’ property, the wrong continues until the Bank relinquishes control. See Ott v. Fox, 362 So.2d 836 (Ala.1978). Thus, the causes of action for conversion and fraud, at least in part, allegedly continued after the bankruptcy proceeding and, to that extent, are not barred.

The judgment of the trial judge is affirmed.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth Gregory ROE, a minor over fifteen years of age, suing By and Through his father and next friend, Johnny M. ROE; and Johnny M. Roe suing on behalf of himself v. Ed LEWIS.
    80-884.
    Supreme Court of Alabama.
    June 30, 1982.

      Stephen D. Heninger, of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    Henry E. Simpson, of Lange, Simpson, Robinson & Sommerville, Birmingham, for appellee.
   PER CURIAM.

This appeal involves an action for personal injury that was tried before a jury in the Circuit Court for Jefferson County. Kenneth Gregory Roe (plaintiff), a minor brought suit through his father and next friend against Ed Lewis (defendant) for injuries sustained while he was riding in an automobile operated by defendant. Plaintiff alleged that defendant negligently or wantonly caused the vehicle to collide with a tree. The trial court found that plaintiff was a guest under the Alabama Guest Statute, Code 1975, § 32-1-2, and granted defendant’s motion for a directed verdict as to the issue of negligence. The issue of wantonness was submitted to the jury. A defendant’s verdict was returned. On this appeal, plaintiff seeks our review of the trial court’s actions granting the directed verdict on the issue of negligence, and refusing his requested jury charge defining wanton misconduct.

Two issues are presented for our resolution by this appeal. The first is: Was plaintiff a guest under Code 1975, § 32-1-2, thereby allowing the trial judge to grant defendant’s motion for a directed verdict on the issue of negligence? The second is: Did the trial court properly refuse plaintiff’s requested jury charge defining wanton misconduct? Our review of these issues leads us to conclude that the trial court is due to be reversed on the first issue and affirmed on the second.

The alleged facts pertinent to this appeal are as follows. On September 30, 1977, plaintiff and two others, Claire Holt and Tommy Floyd, were occupants of an automobile driven by defendant. All were high school students and friends. Defendant picked up the others about 6:30 p. m. They drove around for a while and then went to a party. Defendant drove throughout the entire evening. During the course of the evening he consumed four or five beers. Defendant acknowledged that he was “high” but not drunk. The other occupants of the automobile had been drinking mushroom tea. Tommy Floyd and Claire Holt had prepared it earlier that day at plaintiff’s home. Testimony related that when drunk it induced a hallucinogenic effect. Defendant did not drink any of the mushroom tea.

After the party, the group continued driving around. Defendant drove to an intersection and there drove onto the front lawn of a house. Defendant gave this explanation of his actions that followed:

Q. Okay. Why did you pull up into this yard we were talking about a few minutes ago? Now what I mean by pull up into the yard, can you pull up off the road into the yard itself?
A. Yeah.
Q. All right. And why?
A. Just raising hell.
Q. Well, what were you going to do in the yard?
A. I was going to trench it.
Q. Okay. Could you explain what trenching is?
A. Yeah, it is — you know, when you are in the yard, you punch it, and the tires spin and makes a trench.
Q. Okay. Did you do that to that yard?
A. No, I didn’t get a chance to.
Q. Why?
A. Because the owner of the house pulled up in front of me.
Q. Was he in an automobile?
A. Yeah.
Q. And, then, tell me what happened.
A. Then I swerved to the left, and I pulled out on the street, and then the chase was on.
Q. When you say the chase was on—
A. He started chasing me.
Q. Okay. Where did you go?
A. I went down this real windey road in Hoover, the same road that he lived on, and it keeps going straight, you know, and then it gets into like — gets real curvy. And I was in a real big car, so I guess I was going too fast for those curvy roads.
Q. How fast were you going, if you can recall?
A. I guess about 65, 60.
Q. Okay. Had you been on that road before that night?
A. No.
Q. But it is a very curvy road, as you describe it?
A. Yeah.

Plaintiff testified that prior to the accident, defendant’s driving scared him. He stated that he asked defendant to slow down, or to stop the car. According to plaintiff, the defendant did not respond to his requests. There was testimony from Claire Holt and Tommy Floyd that they also asked defendant to slow down or to stop and let them out.

The chase ended when the automobile defendant was driving skidded on some pine straw, left the road, and struck a tree. Claire Holt testified that defendant went into a curve at 40 to 50 miles per hour where the accident occurred.

In his brief, plaintiff concedes that he was a “guest” when first picked up by defendant. As a guest, plaintiff normally could not hold defendant liable for injuries or death unless they were the result of willful or wanton misconduct. Our guest statute, Code 1975, § 32-1-2, provides:

The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.

Previously, this court has commented on the purpose of our guest statute in Blair v. Greene, 247 Ala. 104 at 109, 22 So.2d 834 at 837 (1945):

The situation that this statute was apparently designed to prevent is well known. As the use of automobiles became almost universal, many cases arose where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly the legislature in adopting this act reflected a certain natural feeling as to the injustice of such a situation. The terms of the statute should be construed with their intent and purpose in view, and the purpose and object that the legislature had in mind sometimes throws light upon the meaning of the language used.

This court has stated also, that “the guest statute is in derogation of the common law and as such [it] should be strictly construed.” Walker v. Garris, 368 So.2d 277 at 279 (Ala.1979) (citing Green v. Jones, 136 Colo. 512, 319 P.2d 1083 [1958]). Because the term “guest” is not defined in the statute, definition of that term falls upon the court. Harrison v. McCleary, 281 Ala. 87, 199 So.2d 165 (1967); Sullivan v. Davis, 263 Ala. 685, 83 So.2d 434 (1955). It is a question of fact whether one is a guest within the statute. Boggs v. Turner, 277 Ala. 157, 168 So.2d 1 (1964). A multitude of factual situations exists to which the statute must be applied:

The commercial and social relationships that can exist between the driver of an automobile and his passenger are almost as numerous and varied as human activity itself. At one extreme we have the “hitch-hiker” guest who clearly falls within the purview of the statute. At the other extreme we have the passenger who pays the driver to be transported to a particular place and who is unquestionably beyond the scope of the statute. Between these two extremes the dividing line may at times become illusory and shadowy. It is sometimes necessary to enter into a detailed examination of the present and former relations between driver and passenger; implied and expressed arrangements made between them as to the conduct of the particular trip; the purpose of the mission; the benefits accruing to the driver and passenger from the expedition; and any other factors that bring into proper focus the true status of the parties at the time of the accident which give rise to the legal action.

Sullivan v. Davis, 263 Ala. at 687-8, 83 So.2d at 436.

Plaintiff contends that his protests against defendant’s driving during the high speed chase changed his status so as to take him outside the operation of the statute. We agree. In Crovo v. Aetna Casualty and Surety Company, 336 So.2d 1083 at 1085 (Ala.1976) (Crovo), this court observed:

[T]he relationship between the host and guest is consensual in nature and involves some acceptance by the guest of the relationship and its attendant hazards; and . . . misrepresentations, express or by implication, which operate to induce one to become a rider in the automobile, can nullify the relationship. [Citation omitted.]

There, this court held that a driver’s misrepresentations may operate to negate the effect of the statute. Citing Crovo, this court has stated that “misrepresentations on the part of the driver may nullify the relationship, just as a ‘guest’s’ protests may convert him into a passenger.” Walker v. Garris, at 279. We are of the opinion that Walker v. Garris states the correct rule of law applicable to this appeal.

Defendant argues that the language employed in Walker v. Garris, “a ‘guest’s’ protests may convert him into a passenger,” is merely dictum without a theoretical foundation in precedent from Crovo. We agree that the statement may be dictum, but we disagree that it is without foundation in precedent. As noted above, this court has given strict construction to the statute and has noted the consensual nature of the guest-host relationship. It is consistent, then, that protests by a guest may vitiate that consent and change his status to that of a passenger.

Defendant argues that to allow the status of an occupant of a vehicle to change from guest to passenger during the trip would, in effect, void the statute. We disagree. The purpose of the statute is to prevent generous drivers, who offer rides to guests, from being sued in what often are close cases of negligence. Blair v. Greene, supra. That purpose is not served by application of the statute in the instant case. To apply the statute here would serve only to insulate the defendant from liability by making plaintiff a captive to defendant’s negligent acts despite protests to the contrary. That result cannot be sanctioned.

Defendant calls our attention to the fact that courts of other jurisdictions have held that protests by a guest to a driver’s reckless operation do not change the guest-host relationship. We are aware that other courts have held contrary to our decision on this point. Hayes v. Brower, 39 Wash.2d 372, 235 P.2d 482 (1951); Vance v. Grohe, 223 Iowa 1109, 274 N.W. 902 (1937). Other authorities notwithstanding, we are of the opinion that our decision is consistent with this court’s previous decisions and the better rule of law.

Next, defendant contends that the nature of plaintiff’s protests was unclear. Assuming that is the case, it does not change our decision. The trial court granted defendant’s request for a directed verdict. The following standard of review governs a request for a directed verdict.

Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party requesting the directed verdict, the directed verdict is properly refused.

Alabama Power Company v. Robinson, 404 So.2d 22 at 24 (Ala.1981); Alford v. City of Gadsden, 349 So.2d 1132 at 1135 (Ala.1979); Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

The granting of á directed verdict is proper only where:

[T]he facts are such that all reasonable men must draw the same conclusion from them. . . . Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594.
In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. ...

Alabama Power Company v. Robinson, at 25; Turner v. People’s Bank of Pell City, 378 So.2d 706 at 709 (Ala.1979); Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978).

Viewing the evidence in a light most favorable to plaintiff, there was testimony to support his contention that he asked defendant to slow down or stop, but that defendant ignored his request. That provides at least a scintilla of evidence that plaintiff’s protests terminated the guest-host relationship before the accident occurred. That being the case, the trial court erred by not submitting plaintiff’s negligence claim to the jury. Our decision, therefore, requires that we reverse and remand for a new trial.

Finally, we address plaintiff’s contention that the trial court erred by refusing his requested jury charge on the issue of wantonness. The trial court used Alabama Pattern Jury Instructions: Civil § 29.00 (1974) to formulate its definition of wantonness. The court gave the following instruction:

Wantonness [sic] misconduct is the conscious doing of some act or omission of some duty, under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty, an injury will likely or probably result. Before a party can be said to be guilty of wantonness [sic] misconduct, it must be shown that with reckless indifference to the consequences he either consciously and intentionally did some wrongful act or consciously omitted some known duty which produced the injury of [sic] the plaintiff. Wanton misconduct is [sic] charged against this defendant is the legal and moral equivalent of an intentional wrong doing. [Emphasis added.]

The trial court’s charge substantially incorporates the text of the above-cited pattern jury charge. Plaintiff contends that the part of the trial court’s charge where it states “he either consciously and intentionally did some wrongful act or consciously omitted some known duty which produced injury of [sic] the plaintiff,” is in error. Plaintiff insists that the charge should read “he either consciously or intentionally did some wrongful act. .. . ” The parties agree that wanton misconduct does not require an intention to injure. That rule of law is well established. Gunnells v. Dethrage, 366 So.2d 1104 (Ala.1979); Horn v. Davis, 285 Ala. 5, 228 So.2d 767 (1969); McNickle v. Stripling, 259 Ala. 576, 67 So.2d 832 (1953); Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 28 So.2d 193 (1946); Weatherly v. Nashville, Chattanooga & St. Louis Railway, 166 Ala. 575, 51 So. 959 (1909). Instead, plaintiff argues that the trial court’s use of the conjunctive “and” in the phrase “consciously and intentionally,” is misleading. He suggests that use of the conjunctive “and” operates so as to confuse wantonness with wilfulness. The latter term denotes an intention to cause an injury. English v. Jacobs, 263 Ala. 376, 82 So.2d 542 (1955); Sutherland v. Roth, 407 So.2d 139 (Ala.Civ.App.1981). Alabama Pattern Jury Instructions: Civil § 29.03 (1974). Plaintiff theorizes that the problem can be solved by use of the disjunctive “or,” instead of the conjunctive “and,” as well as by giving a charge stating that wantonness does not require an intention to injure. Plaintiff cites Maffett v. Roberts, 388 So.2d 972 at 976 (Ala.1980), where the trial court charged the jury on wantonness by using a charge based on the instruction found in the above-mentioned § 29.00, but in which “or” was substituted for “and.” In Maffett v. Roberts, the trial court, after its charge on wantonness, gave the following instruction: “Now, an intent to injure is not necessary to constitute wantonness.... ” Plaintiff argues that such a charge should follow the § 29.00 charge.

We disagree with plaintiff’s contentions. As the given jury charge reads, it states, in the positive, what wanton misconduct is. In pertinent part, the charge speaks to the nature of the act which is the wanton misconduct. The charge simply states that wanton misconduct is an act done consciously and intentionally. (It states also that consciously omitting a known duty may constitute wanton misconduct.) The charge does not state that the act must be done with a conscious intention to cause the injury. It merely states that to come within the definition of wanton misconduct the act must be done “consciously and intentionally.” Even if the charge employed the disjunctive “or” instead of the conjunctive “and,” we fail to see how that would yield the result that plaintiff desires. The adverbs “consciously” and “intentionally” would still modify the doing of an act. They would not modify the doing of an act that is stated to be an act that is done for the purpose of causing injury. Accordingly, we find no error in the trial court’s charge as given.

Lastly, we agree with plaintiff that the trial court’s additional charge in Maf-fett v. Roberts, stating that an intention to injure is not required for a showing of wantonness, may be helpful. The given charge states in the positive what wanton misconduct is. The additional charge quoted from Maffett v. Roberts is a negative definition, stating, in part, what wanton misconduct is not. Undoubtedly, a statement as to what something is not is always helpful in understanding the matter being defined. We note that a negative definition of wanton conduct is contained in Alabama Pattern Jury Instructions: Civil § 29.01 (1974). Nevertheless, we need not concern ourselves further with this point. Plaintiff requested no such additional charge and, therefore, his argument is not properly before this court.

The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

MADDOX, J., not sitting.


author: BRADLEY, Judge.

text:
    Martha B. LEWIS v. Stratton Ford LEWIS, Jr.
    Civ. 2992.
    Court of Civil Appeals of Alabama.
    June 28, 1982.

      Ronnie E. Keahey, Grove Hill, for appellant.
    William L. Utsey, Butler, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties in this case were married on June 22, 1974. There was one child born of the marriage, namely, Ford Lewis, III. The parties separated in March 1981.

The wife filed for divorce on March 27, 1981 alleging incompatibility of temperament and an irretrievable breakdown of the marriage. The wife requested custody of her son, alimony, a reasonable property settlement, and attorney’s fees. The husband filed a counterclaim seeking custody of the child.

A trial was held on August 15, 1981. A great deal of evidence was adduced at trial concerning the parties’ financial situation and concerning who was the best person to have custody of the minor child. Considering the length of the record, we will try to present the pertinent facts as concisely as possible.

The husband is a partner with his father and uncle in a business known as the Sweetwater Gin Company. The company raises cattle, deals in cotton, and runs a general store. The company owns over eight hundred acres of land, including some timberland.

Although the husband is not paid a salary per se, it appears that money for living expenses is drawn out of the partnership. The partnership also supplies cars, oil and gas, insurance, and a credit card. All told, the husband earns at least $20,000 a year.

The husband owns no real property in his own name. However, the husband has stock in several banks worth about $10,000. He also has over $2,000 in savings accounts. The husband also testified that he had done some timber work for which he earned $7,000.

The parties lived in a home owned by the husband’s father. They paid no rent. The husband, however, spent approximately $30,000 to remodel the home. The husband borrowed the money for this remodeling from his father.

The wife owns a children’s clothing store. She borrowed money from the husband’s father to open the store. She still owes him approximately $31,000. The store has not shown a profit since she opened it in 1979.

Prior to the marriage, the wife inherited a large parcel of farmland. She holds the land as a cotenant with her sisters. The land is rented and used for soybean farming. After the taxes and mortgage are paid, each cotenant receives approximately $5,000 a year income.

The wife stated that the husband was dominated by his father, and this caused the marriage to break up. The husband stated that the wife opened her store against his wishes. He also presented evidence that the wife spent the night in a Birmingham hotel with a male friend occupying an adjoining room with connecting doors. The wife testified that this man was just a friend and that they were both there on business.

The only other evidence concerned the issue of child custody. Both parties presented numerous witnesses who testified on their behalf. It is obvious from all this testimony that both parties are fit parents.

On August 24, 1981 the circuit court granted the divorce on the grounds of irretrievable breakdown in the marriage relationship. Custody of the child was awarded to the husband for ten months of the year and to the wife for two months. The wife also was allowed to have the child every other weekend and on Tuesday and Thursday evenings. She was also given custody of the child for six days at Christmas and during spring holidays. The wife was awarded no alimony and the only property she received was a car and some furniture for which she stated that she had paid. From this judgment the wife has timely appealed to this court.

Three issues are raised in this appeal. The first issue is whether the trial court erred in granting custody of the minor child to the husband. The second issue is whether the court erred in failing to make a property division or to award any alimony. The third issue is whether the trial court erred in failing to award attorney’s fees to the wife’s attorney.

In addressing the issue of child custody, we must presume that the trial court’s judgment is correct. We will not reverse a trial judge who has heard the evidence unless the judgment is so unsupported by the evidence as to constitute an abuse of discretion. Williams v. Williams, 402 So.2d 1029 (Ala.Civ.App.1981).

In the present case the testimony is clear that both parties are capable, loving parents. The wife does not dispute this. She merely argues that she would be the better parent to have primary custody. The wife, however, is given extensive visitation rights during the time the husband has custody of the child. She is also given custody for two months during the summer. The award of primary custody of the child to the father is supported by the evidence.

As her second issue the wife contends that the trial court erred in failing to award her any property other than a car and some furniture and in failing to award either periodic alimony or alimony in gross. The trial court, in denying the wife’s request for alimony and a property division, stated that its decision was based on the fact that the wife had a sizeable separate estate and the fact that she had opened a business against her husband’s wishes.

The wife first argues that under § 30-2— 51, Code 1975, the trial court could not consider her separate property in this case. She bases this argument on the fact that her property was inherited prior to the marriage.

Section 30-2-51 provides as follows:

If either spouse has no separate estate or if it be insufficient for the maintenance of such spouse, the judge, upon granting a divorce, at his discretion, may order to such spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family; provided, however, that the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage.

The first portion of this provision indicates that alimony is to be awarded to one spouse out of the estate of the other spouse only if the spouse requesting alimony has no separate estate, or if that spouse’s separate estate is insufficient for his or her maintenance. Clearly, then, in order for the trial court to determine whether alimony is to be awarded in any given situation, the separate estate, if any, of the spouse requesting alimony must be taken into consideration. See Huggins v. Huggins, 57 Ala.App. 691, 331 So.2d 704 (1976) (interpreting the statute prior to the 1979 amendment, but indicating the intent of the initial language of the statute). The language of the statute providing that the trial court may not take into account a spouse’s separate property unless it “has been used regularly for the common benefit of the parties during their marriage,” relied upon by the wife in this case, applies only to the court’s consideration of the estate of the spouse who is expected to pay alimony. See Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980).

Thus, the separate estate of the spouse requesting alimony may, without exception, be taken into consideration in determining whether that spouse should receive an award of alimony, whereas the separate estate of the spouse who is being asked to pay alimony may be considered only if that separate estate has been commonly used by both spouses during the marriage. Under this interpretation of § 30-2-51, the trial court in the present case properly considered the separate estate of the wife in determining whether she was entitled to an award of alimony.

The wife next argues that the court erred in failing to grant her an award of alimony. In considering the wife’s contention, we would first note that the award of alimony and the division of property in a divorce action are matters within the trial court’s discretion. The exercise of this discretion is based on equitable principles and must not be arbitrary and unjust. Dees, supra.

Periodic alimony is to be awarded for the current and continuous support of the spouse. Dees, supra. Alimony in gross, on the other hand, is awarded to compensate a spouse for inchoate marital rights. Hawkins v. Hawkins, 346 So.2d 967 (Ala.Civ.App.1977). Factors to be considered in awarding alimony include both parties’ financial circumstances, their future prospects, their standard of living, ages and health, duration of the marriage, and in appropriate circumstances the conduct of each in regard to the cause of the divorce. Schwaiger v. Schwaiger, 392 So.2d 1213 (Ala.Civ.App.1981).

In the present case the marriage was relatively short, seven years. The husband is thirty-one years old and the wife is twenty-eight. Both have very good earning prospects. Although the wife’s business has not shown a profit since she opened it, the prospects for a profitable operation are good. Although the divorce was not granted on a fault basis, there is evidence that the wife left the husband. Also there is some evidence of misconduct on her part. Furthermore, the wife owns a one-third interest in some 1600 acres of farmland valued at $1,000 per acre. The house that the parties lived in belonged to the husband’s father, and the automobile that the husband drove belonged to the partnership. The only property owned by the husband other than a one-third interest in the partnership was $10,000 in bank stock and $2,000 in savings accounts. The husband is indebted to his father for loans used to purchase a one-third interest in the partnership and to a bank in the area for about $8,800 on the automobile awarded to the wife. Based on this evidence we cannot say that the decision not to award alimony is arbitrary or unjust. Neither do we believe that the failure to award additional property to the wife is erroneous.

Finally the wife contends that the trial court erred by failing to grant her attorney’s fees. The allowance of attorney’s fees is a matter within the sound discretion of the trial court. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). There was no evidence presented as to the value of legal services in this case. The trial court will not be reversed for failing to grant relief for which there has been no evidence presented. Parker, supra. This aspect of the judgment is affirmed.

The husband argues that the wife has placed in issue on appeal the sufficiency of the evidence to support the trial court’s judgment. And, since there were no findings of fact or a motion for a new trial or a vacation of judgment on the ground that the evidence failed to support the judgment, the trial court’s judgment must be affirmed as required by Securitronics of America, Inc. v. Bruno’s, Inc., 414 So.2d 950 (Ala.1982).

In Securitronics the supreme court said that in a nonjury case there must be a finding of fact by the trial judge or there must be a post-trial motion, one or more grounds of which questioned the sufficiency of the evidence to support the judgment, before the sufficiency of the evidence to support the trial court’s judgment can be raised as an issue on appeal.

On June 4, 1982 the supreme court withdrew its February 26, 1982 opinion in Secu-ritronics and issued a new opinion in which it held that a motion for a new trial or for findings of fact is not necessary in a non-jury case in order for the appellant to obtain review of the sufficiency of the evidence to support the trial court’s judgment. Likewise, in the case at bar, no such motion was necessary to permit this court to review the sufficiency of the evidence in support of the trial court’s judgment.

The wife’s request for attorney’s fees on this appeal is denied.

AFFIRMED.

WRIGHT, P. J., concurs.

HOLMES, J., not sitting.


author: TYSON, Judge.

text:
    Raymond Earl CHAPMAN v. STATE of Alabama.
    1 Div. 344.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Raymond Earl Chapman, pro se.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Raymond Earl Chapman appeals from the denial by the circuit court, without a hearing thereon, of his Petition for Writ of Error Coram Nobis. Chapman avers that he was originally convicted in the Circuit Court of Mobile County, Alabama, on January 10, 1978, for rape and sentenced to 45 years’ imprisonment.

In his Petition for Writ of Error Coram Nobis, Chapman asserts three grounds: one, that he was denied counsel or the opportunity to confer with counsel, prior to giving his written statement to officers pri- or to trial; two, that the State of Alabama knowingly used perjured testimony through the testimony of the victim; and three, that he, Chapman, was not advised of his right to appeal from the conviction in circuit court, nor was he informed of his right to have a transcript of the trial made for the purposes of appeal.

These allegations are matters which require an evidentiary hearing in circuit court, after the appointment of experienced counsel to assist the petitioner. See Ellison v. State, 406 So.2d 439 (Ala.Crim.App.1981); Kennedy v. State, 409 So.2d 1010 (Ala.Crim.App.1982); and Allen v. State, 412 So.2d 1284 (Ala.Crim.App.1982).

Following a hearing on the merits of these allegations, appropriate findings should be made by the trial court.

For the reasons stated, the judgment below is reversed and remanded for a hearing.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Oscar DANIELS v. STATE.
    1 Div. 378.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Roosevelt Simmons, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of Pentazocine, Alabama Code 1975, Section 20-2-70, and for possession of a pistol after having been convicted of a crime of violence. Code Section 13A-11-72 (Amended 1977). He was sentenced as an habitual offender to life imprisonment.

I

The defendant argues that remarks made by the trial judge to the jury encouraging them to reach a verdict were coercive and were made outside the presence of defendant’s counsel.

A.

The specific remarks the defendant finds objectionable are:

“THE COURT: I am going to instruct you to commence deliberating with one instruction. There is a word called contu-maciousness. How many of you know what that word means?
“(NO RESPONSES.)
“THE COURT: Well knowing what it means is not necessary, just don’t act that way. .. Contumaciousness means being stubborn, and practically to the extent that you are unreasonable.”

These remarks represent a portion of the judge’s instructions to the jury. These particular instructions were given after the jury had been deliberating for an unidentified portion of one day, had been allowed to separate for the night, and were ready to begin their deliberations the next morning.

Examining the judge’s supplemental charge in the “whole context of its setting”, we find that it is not coercive or threatening. Orr v. State, 40 Ala.App. 45, 54, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). “No error is committed in supplemental instructions, including the ‘Allen’ or ‘dynamite’ charge, unless it is threatening or coercive in the language used.” Lake v. State, 390 So.2d 1088, 1092 (Ala.Cr.App.), cert. denied, 390 So.2d 1093 (Ala.1980).

B.

After the jury had returned its verdict and been dismissed, defense counsel made the following objection:

“I also move for a mistrial on the grounds that certain statements were made to the jury outside of my presence. And it is my understanding that the jury was given the instruction not to be stubborn. They came back in less than 30 minutes and returned the guilty verdict to my client.”

The trial judge denied this motion.

In a written “motion for a mistrial” defense counsel alleged “(t)hat after the jury had deliberated for approximately three (3) hours, certain remarks were made to the jury outside the presence of defendant’s counsel and such remarks were prejudicial to the rights of the defendant.” This allegation of error was not presented in the defendant’s written motion for new trial. However, in arguing that motion defense counsel did “move for a new trial that certain remarks we(re) made to the jury outside, prejudicial to the rights of the defendant ...”

“No communication, whatever, should take place between the judge and the jury after the cause has been submitted to them, unless in open Court with all the parties and their attorneys present.” Donahoo v. State, 371 So.2d 75, 78-9 (Ala.Cr.App.), cert. denied, Ex parte Donahoo, 371 So.2d 79 (Ala.1979).

There is nothing in the record, apart from the objections and motions of defense counsel, to support the defendant’s allegation of error. “Assertions of counsel in an unverified motion for new trial are bare allegations and cannot be considered as evidence or proof of the facts alleged.” Smith v. State, 364 So.2d 1, 14 (Ala.Cr.App.1978). “A motion for a new trial must be heard and determined on the evidence submitted on that motion and on the evidence heard on the main trial, though not reintroduced.” Taylor v. State, 222 Ala. 140, 141, 131 So. 236 (1930). So far as this record discloses, no proof was offered in support of the motions for new trial or mistrial. Therefore, they were properly overruled. Crawford v. State, 48 Ala.App. 325, 264 So.2d 554, cert. denied, 288 Ala. 686, 264 So.2d 559 (1972); Walters v. State, 30 Ala.App. 547, 9 So.2d 32 (1942); Hart v. State, 28 Ala.App. 545,190 So. 95, cert. denied, 238 Ala. 188, 190 So. 98 (1939). See also White v. State, 33 Ala.App. 92, 30 So.2d 466, cert. denied, 249 Ala. 158, 30 So.2d 468; Summers v. State, 19 Ala.App. 556, 99 So. 48 (1924). Since there is nothing in the record to show that the trial judge abused his discretion in refusing to declare a mistrial or grant a new trial, the action of the judge must be upheld.

II

The defendant contends that he was subjected to an illegal arrest, search and seizure.

On the afternoon of March 22, 1981, Prichard Police Officer Perry Hollins stopped the defendant for driving with an expired license tag. He asked to see the defendant’s driver’s license and the defendant told him that he did not have a license. Officer Hollins then told the defendant that he “would have to place him under arrest for driving a vehicle without license, also, for having an expired tag on the car.” Hol-lins asked the defendant to get out of the car. As the defendant was opening the door, Officer Hollins noticed the handle of a pistol “sticking up out” of the console between the front seats of the automobile. The officer read the defendant a portion of his Miranda rights and had him get out of the car.

When Officer Hollins reached for the pistol he noticed an aspirin bottle on the floor under the driver’s seat of the automobile. Officer Hollins testified:

“I picked up the aspirin bottle as I was coming out of the vehicle. I was going to put it back into the car, but I noticed that when I opened the top, there was a cellophane inside of the aspirin bottle. At this point, I opened the cellophane and there was a blue tablet and a pink tablet.”
* * * jfc *
“Well, actually after I picked up the revolver, I saw the bottle on the floor, and I was going to throw it into the ash tray or something, and once I picked it up, I saw that it only had one aspirin or something in it other than aspirins, well, just out of curiosity, I opened the bottle.”

At trial Officer Hollins testified that, after the defendant told him that he did not have a permit for the pistol, he “opened the top of the bottle, and it was tin foil inside the bottle, which I opened the tin foil, which was a blue tablet and a beige tablet with a T-21 wrote on it. From my experience in the past, it looked like a Talwin tablet to me.” On cross examination of Hollins by defense counsel, the following occurred:

“Q. Mr. Hollins, what type of bottle was this?
“A. I believe it was a Dristan bottle.
“Q. Dristan?
“A. Yes, small bottle. I’m not really sure . . .
“Q. Could you see through the bottle?
“A. No, I couldn’t. That’s why I opened the top.
“Q. Did you know what was in the bottle?
“A. No, I didn’t. That’s why I opened the top.
“Q. Why did you open the bottle?
“A. Out of curiosity.
“Q. Out of curiosity?
“A. I opened the top. And then after I saw the tin foil, I really got curious.”

The trial judge found that there was a lawful search and seizure incident to a lawful arrest apparently relying on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

In New York v. Belton, the Supreme Court of the United States held:

“Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
“It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arres-tee, so also will containers in it be within his reach. United States v. Robinson, [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427] supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have ...
“It is true, of course, that these containers will sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested. However, in United States v. Robinson, supra, the Court rejected the argument that such a container — there a ‘crumpled up cigarette package’ — located during a search of Robinson incident to his arrest could not be searched: ‘The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that in-trusión being lawful, a search incident to the arrest requires no additional justification.’ Id., [414 U.S.] at 235, 94 S.Ct., at 476.” Belton, 101 S.Ct. at 2864.
In Belton, the court defined “container”: “ ‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.” Belton, 101 S.Ct. at 2864, n. 4.

Belton established a “bright line” to guide the actions of law enforcement officers. “The new rule provides that police may search the ‘passenger compartment’ of an automobile, and any containers found there, incident to an arrest of someone who occupied the automobile just prior to the arrest.” Comment, Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 and New York v. Belton: The Supreme Court Opens Car Doors To Container Searches, The American University Law Rev. 291, 310-11 (1982). “Belton does establish a ‘bright-line’ rule allowing the search of any container found within the passenger compartment of an automobile when the occupant of the automobile is lawfully arrested.” United States v. Rivera, 654 F.2d 1048, 1053, n. 7 (5th Cir. 1981).

The Belton rule extends the scope of searches incident to arrest to include any containers found during the search, regardless of the probability that the container would hold a weapon or evidence. Fourth Amendment — Of Cars, Containers And Confusion, 72 The Journal of Criminal Law and Criminology 1171, 1209 (1981). Belton authorizes “searches of everything within the passenger compartment even in the absence of independent probable cause, using the incident to arrest exception to the warrant requirement.” L. Katz, Automobile Searches And Diminished Expectations In The Warrant Clause, 19 American Criminal Law Rev. 557, 558 (1982). See also: Recent Decisions, Fourth Amendment: The Constitutional Scope Of Warrantless Automobile Searches, 57 Notre Dame Law. 435 (1981); W. LaFave, 2 Search And Seizure Section 7.1 at p. 136, 1982 Pocket Part (1978).

In conclusion, it should be noted that Belton, as is this case, is concerned with a search incident to arrest and not the “automobile exception” to the Fourth Amendment’s warrant requirement. Compare United States v. Ross,-U.S.-, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Ill

The defendant argues that he was illegally arrested for minor traffic violations. His argument is based upon Alabama Code 1975, Section 32-1 — 4 providing that a traffic violator may be allowed to sign his own bond and be released from custody. Mitchell v. State, 391 So.2d 1069 (Ala.Cr.App.1980); Gaskin v. State, 338 So.2d 1041 (Ala.Cr.App.1976).

The defendant admitted driving without a valid driver’s license and with an expired tag so the arrest was justified and legal. Apparently, what the defendant objects to is his “custodial” arrest and, specifically, the fact that he was requested to get out of his automobile so he could be taken to the police station where Officer Hollins had a ticket book and there charged. Officer Hollins testified that he “did not have a ticket book, so the only thing (he) could do was take him in to the station and place him on the docket.” In essence, what the defendant objects to is the procedure incident to, and following, his arrest for a motor vehicle law violation. Section 32-1-4 applies “(w)henever any person is arrested for a violation of any provisions of this title punishable as a misdemeanor

Except for the exceptions provided by Section 32-l-4(b), a person arrested for a misdemeanor traffic violation is not subject to further detention for that offense once the arresting officer has obtained the necessary information and given the motorist the “summons or notice” to appear.

Under the circumstances of this case, Section 32-1-4 was not violated. Before Officer Hollins saw the pistol in the defendant’s automobile, he was only going to detain the defendant long enough to charge him with the traffic violations. Because the officer did not have a “ticket book” it would have been necessary to take the defendant to the police station to be “docketed”. The defendant was stopped “almost directly in front of the police station.” In arguing that Officer Hollins should have obtained a search warrant, defense counsel stated: “He was right in front of the Prichard Municipal Complex, which is where the Police Building is located, and it would have only taken him five minutes to get a warrant to search that vehicle.”

In order to charge the defendant for the traffic violations, Officer Hollins had to use the uniform traffic ticket and complaint. Alabama Code 1975, Section 12-12-53. Since Officer Hollins did not have a “ticket book”, he had to detain the defendant and take him into “actual” custody. This detention was reasonable. There is nothing to indicate that this was done as a ruse or subterfuge in order to justify the removal of the defendant from the automobile and excuse a subsequent search.

Although Section 32-1-4 generally forbids police officers from taking persons into custody for violation of minor traffic laws, “(a)s a matter of constitutional law, however, any person lawfully arrested for the pettiest misdemeanor may be temporarily placed in custody.” Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), Justice Stevens dissenting. See also Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 492, 38 L.Ed.2d 456 (1973).

Additionally, we question whether this specific issue presented on appeal was properly and sufficiently raised in the trial court. There, the only objection on this issue was: “My first contention is that in the issuing of a traffic citation, you would not necessarily have to place the person that you — place him under arrest to issue a traffic citation, therefore, the arrest was illegal and the search and the seizure was illegal.”

We have answered the arguments advanced by the defendant on appeal, and affirm the judgment of the circuit court.

AFFIRMED.

All Judges concur.

      . “Section 32-1-4. Appearance upon arrest for misdemeanor.
      “(a) Whenever any person is arrested for a violation of any provisions of this title punishable as a misdemeanor, the arresting officer shall, unless otherwise provided in this section, take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice, and such person shall, if he so desire, have a right to an immediate hearing or a hearing within 24 hours at a convenient hour and such hearing to be before a magistrate within the county or city where such offense was committed. Such officer shall thereupon and upon the giving by such person of a sufficient written bond, approved by the arresting officer, to appear at such time and place, forthwith release him from custody. “Any person refusing to give such bond to appear shall be taken immediately by the arresting officer before the nearest or most accessible magistrate.
      “Any person who willfully violates his written bond to appear, given in accordance with this section, shall be guilty of a misdemeanor regardless of the disposition of the charge upon which he was originally arrested.
      “(b) The provisions of this section shall not apply to any person arrested and charged with an offense causing or contributing to an accident resulting in injury or death to any person nor to any person charged with driving while under the influence of intoxicating liquor or of narcotic or other drugs nor to any person whom the arresting officer shall have good cause to believe has committed any felony, and the arresting officer shall take such person forthwith before the nearest or most accessible magistrate.”


author: BARRON, Judge.

text:
    Larry Wade PHELPS v. STATE.
    4 Div. 960.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Larry Wade Phelps, pro se.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Larry Wade Phelps was indicted by a Coffee County Grand Jury during its Spring 1979 term for escape. He was tried and convicted by a jury on September 21, 1981, and was sentenced to seven years.

The escape occurred on March 2, 1979, from the holding room of the Coffee County Courthouse in Enterprise, shortly after appellant had been taken into custody by the Coffee County Sheriff’s Department on a fugitive warrant from the Alabama Board of Corrections.

Appellant had previously, in 1977, been convicted of a marijuana possession charge and had been sentenced to five years. He was paroled from that sentence in July, 1978, and the fugitive warrant in the present case was for violation of that parole. He was arrested in Milton, Florida, and was extradicted to Coffee County on June 17, 1981.

I

Appellant was prosecuted under Ala. Code § 13-5-65 (1975), which provides:

- “Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction, be imprisoned for an additional term of not less than one year.”

The charging part of the indictment is as follows:

“Larry Wayne Phelps ... a convict, did escape from B. F. Whigham, Deputy Sheriff of Coffee County, Alabama, who had him in charge under authority of law before the expiration of the term of which he was sentenced. .. . ”

Appellant contends that the indictment is defective in that it failed to allege (1) that appellant had been sentenced to the penitentiary, (2) an escape from a penitentiary or penitentiary guard, and (3) whether the escape was from within or without the walls of the penitentiary. He relies on Behel v. State, 397 So.2d 163 (Ala.1981).

The material portions of the indictment in Behel, which were held to be defective, were as follows:

“Curtis Gene Behel ... did escape from Billy Townsend, Sheriff of Lauderdale County, Alabama, the person having Curtis Gene Behel in charge under authority of law before the expiration of the term for which he was sentenced. ...”

The court in Behel held the indictment to be defective in that “it did not allege that Behel had been convicted of any criminal offense, i.e., burglary, and sentenced to the penitentiary.”

Behel is distinguished from the ease at bar in that the indictment here identified appellant as “a convict.” The term “convict” as used in the statute and the indictment necessarily implies that one has been convicted of a felony and is serving a term in the penitentiary for that conviction.

In Ex parte Gayles, 108 Ala. 514, 19 So. 12 (1895), the court held that “state convicts embrace all that class of persons convicted of crime and sentenced to hard labor for the State in the penitentiary.”

One who has been sentenced and is serving the sentence in a State prison is a “convict” within the meaning of the statute relating to forcibly attempting to escape. Duncan v. State, 158 Me. 265, 183 A.2d 209 (1962).

The indictment sufficiently alleges the lawfulness of the custody in the allegation that appellant escaped from a deputy sheriff “who had him in charge under authority of law.”

In Black v. State, 401 So.2d 320 (Ala.Crim.App.1981), this court held that an indictment charging first degree escape from a “penal facility” sufficiently alleged the lawfulness of the custody.

The phraseology of the statute “either within or without the walls of the penitentiary” is mere surplusage which is not necessary in an indictment if it is otherwise made clear that the accused is the one charged with escape from the custody of the penitentiary or one of its lawful agents.

The due process requirements for a sufficient indictment are outlined in Summers v. State, 348 So.2d 1126 (Ala.Crim.App.), cert. denied, 348 So.2d 1136 (Ala.), cert. denied, 435 U.S. 981, 98 S.Ct. 1633, 56 L.Ed.2d 75 (1977), as follows:

“An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense; and (d) to enable the Court, after conviction, to pronounce judgment on the record.”

Based on the above, we find that the indictment in this case was clearly sufficient.

II

Appellant complains that he was not represented by court appointed counsel, contrary to his rights as an indigent defendant. The record reveals that an attorney was appointed for appellant, and that he requested that the court dismiss his court appointed attorney during a hearing on August 17, 1981. Appellant further requested that he be allowed to represent himself and, in fact, did represent himself at his trial. The trial court again gave appellant notice of his rights to be represented by a court appointed attorney on this appeal of his conviction. He responded, “I would rather represent myself” (R. 50). We find that appellant’s rights to appointed counsel were preserved for him at every stage of these proceedings, and we find no error in the trial court’s rulings in this regard.

III

Appellant alleges that he was not furnished a transcript of the proceedings at the trial level, contrary to his rights as an indigent defendant. The record by which we are bound on appeal, reveals (R. 44) that a copy of the transcript was timely served on appellant. Thus, we find no error.

The judgment of the circuit court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willie TOLES v. STATE.
    4 Div. 982.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Allen Edward Cook, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BARRON, Judge.

Appellant was indicted on five counts of violating §§ 20-2-70 and 20-2-75, Code 1975. They were three identically worded counts of possession of marijuana, one count of possession of dextropropoxyphene, and one count of possession of paraphernalia. The court sustained a demurrer to the paraphernalia possession count. Appellant was convicted and sentenced to four years in the penitentiary.

Appellant was living with Lily Edwards in a rented house on May 28, 1981. Miss Edwards testified that on that date she observed a tray with some seeds on it in the house. She further observed appellant rolling some marijuana cigarettes. She told the appellant “to get that stuff out of here.” She then went to get Chief Jackson of the Lockhart Police Department. Miss Edwards returned to the house with Chief Jackson. As he approached the house, Jackson observed appellant run out the back door with a tray in his hand. Appellant dropped the tray and ran into some nearby woods. Chief Jackson retrieved the tray, which contained 15 marijuana cigarettes.

The following day, Miss Edwards signed a “consent to search” form, which authorized Chief Jackson to search the house. She was present during the search. During the search, Chief Jackson found two pipes, some marijuana residue, some marijuana seeds, and a marijuana cigarette butt, or “roach.” He seized these items, plus an assortment of 81 pills in a peanut butter jar. Miss Edwards testified that the pills and the marijuana belonged to appellant. Among the pills tested by the State Department of Forensic Sciences were pills containing dex-tropropoxyphene, a controlled substance.

Appellant was indicted based on this evidence.

I

Appellant claims the identical language of Counts I, III, and V made the indictment defective, either because it misjoined three separate offenses or because it did not apprise Toles of what he was called upon to defend against.

Appellant cites Collins v. State, 361 So.2d 383, (Ala.Crim.App.), cert. denied, 361 So.2d 385 (Ala.Crim.App.1978), for the rule that separate and distinct offenses, unrelated to each other, may not be joined as separate counts in the same indictment. Appellant states that it was not clear from the face of the indictment whether Counts I, III, and V were separate and distinct offenses and, therefore, misjoined in one indictment. Due to the identical wording in the allegations of those three counts, appellant implies that he was not sure whether there was one or three offenses of possession. He argues that there should be one count in the indictment, as there was no evidence that there was more than one offense of marijuana possession.

The correct legal term for this practice of charging a single offense in several counts is “multiplicity.” United States v. Chrane, 529 F.2d 1236 (5th Cir. 1976).

Whether appellant committed one offense or several offenses is a question of legislative intent. To determine whether separate offenses may be carved out of a single incident, the offenses should be examined to see whether each requires a proof of fact that the other does not. Chrane, supra, p. 1238.

The State claims that because the appellant could have been found to possess marijuana in three forms, namely “joint,” “roach,” or “residue,” there were three counts. However, all of these are forms of marijuana prohibited under our statute. The facts to be proved do not differ and one count on the indictment would have more clearly notified appellant of the charges against him.

Multiplicity of counts for one offense is to be discouraged. The Federal Rales of Criminal Procedure have been drafted to discourage the practice. United States v. Allied Chemical Corp., 420 F.Supp. 122, 123 (1976). In the case at bar, however, the appellant did not properly interpose his objection to the alleged misjoinder. No objection to the indictment for a mis-joinder can be made by a demurrer. The appellant should have made a motion to the court to compel an election by the State as to the counts on which a conviction would be sought. Wooster v. State, 55 Ala. 217 (Ala.1876).

In fact, there was no misjoinder, as the evidence indicates this was one offense mul-tiplicitously divided into three counts. Any one of the marijuana counts, I, III, or V, or the count for possession of dextropropoxy-phene would have been sufficient to support the guilty verdict rendered. Thus, there is no error preserved for review, and we find the indictment sufficient for the verdict rendered.

II

Appellant contends that the court’s charge to the jury that “Any person who possesses a controlled substance violates the law,” was reversible error. He cites § 20-2-51, Code 1975, as proof that certain persons may be authorized and registered to possess controlled substances.

There was no inference from the evidence that appellant claimed to be among that specially screened body that is allowed to possess certain controlled substances. For that reason, we find the overbreadth of the charge to be harmless error when applied to the facts in evidence.

III

Appellant alleges error in the admission of exhibit six, which consists of a document titled “Alabama Controlled Substances List.” The document was signed and certified by State Health Officer, Dr. Ira Myers, and dated November 1981. The list contains the names of two substances which appellant was alleged to have had in his possession — marijuana and dextropro-poxyphene.

Appellant contends that to have established the proper predicate for the admission of the list, the State should have proffered additional evidence.

He cites Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975), wherein minutes of the meeting of the State Committee of Public Health and press reports of the meeting were introduced to prove adoption of a certain substance as being controlled.

While evidence of the meeting of the State committee would be appropriate here as it was in Cassell, such evidence is in excess of that required by Alabama statute. Our law requires the following:

“The certificate of the head of any bureau or department of the general government is sufficient authentication of any paper or document appertaining to his office.” § 12-21-72, Code 1975.

We find no error in the admission of this evidence.

AFFIRMED.

All the Judges concur.


text:
    Donald Eugene MOORE v. STATE.
    5 Div. 634.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      John Ben Jones, Lanett, for appellant.
    Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Donald Eugene Moore was indicted in Chambers County for theft in the first degree. He waived a jury trial, was convicted, and was sentenced to five years.

Appellant contends that the trial court erred to reversal in denying appellant’s motion to suppress the evidence seized in a search of appellant’s premises. We disagree, and hold that the motion to suppress was properly denied.

The only issue involved is the validity of the search of appellant’s premises.

I

Appellant first attacks the validity of the search warrant on the ground of staleness.

The search warrant was issued on August 5, 1981, by Chambers County District Court Judge Joel G. Holley on the basis of an affidavit by Detective Jim Foster of the Valley Police Department. The affidavit recited that Detective Foster had information from a confidential and reliable informant that five identified items of stolen property were located at appellant’s residence. Two items had last been seen by the informant on May 21, 1981, and others had been seen on June 1, 1981, June 17, 1981, and June 18, 1981, respectively. The affidavit further identified the dates, and places from which, the various items were stolen. Evidence was adduced at the hearing on the motion to suppress that the informant was a participant with appellant in the various thefts described, and that the informant related the information to the magistrate concerning informant’s participation and the basis of his knowledge.

It was established by the testimony at the hearing that when the search warrant was issued, the time lag from which the informant had last observed the stolen items at appellant’s premises varied on the several items from two and one-half months down to eighteen days.

Our courts have consistently held that the information received from an informant, as shown by the affidavit, must be “fresh as opposed to being remote in time.” Keller v. State, 54 Ala.App. 127, 305 So.2d 402 (1974).

What is “fresh” and how is it distinguished from “remote?” We do not perceive of any magical formula by which a precise computation of the time period may be made. Rather, the underlying circumstances—including such matters as the basis of the informant’s knowledge, the ease or difficulty in moving the items since they were last observed, the use or probable use to which the items are put, and the mobile nature or degree of permanence of the place of concealment—must be examined by a neutral and detached magistrate to reach a determination as to the probability of whether the proof speaks as of the time of the issuance of the search warrant.

The question for determination is whether the issuing magistrate could have reasonably concluded that probable cause existed at the time the warrant was issued. In reviewing the issue, this court is not necessarily limited to examining the four corners of the affidavit which forms the written basis for the issuance of the search warrant.

The informant in this case was also a participant with appellant in stealing the items enumerated in the affidavit and search warrant. He conferred with the magistrate when application was made for the search warrant. The magistrate was made aware that the informant had furnished information to the LaGrange, Georgia, authorities which led to the recovery of stolen property and to the arrest of appellant in that city. The informant revealed that the items described in the affidavit and search warrant were stolen and that he knew this from his “firsthand knowledge,” further specifying the places of the thefts, and the exact dates of the thefts in some instances and the approximate dates in others. In two instances, the owners of the stolen property were identified.

In instances of an isolated violation, probable cause would tend to dwindle rather quickly with the passage of time. However, a pattern of protracted and continuous illegal conduct, as is evident in this case, would cause the time lag to be less significant.

All of the authorities relied on by appellant are distinguished from the case at bar in that the facts in his authorities do not tend to establish this kind of protracted and continuous activity combined with an accomplice as informant.

We hold, in this case, that because of the underlying circumstances and the evidence of protracted and continuous illegal activity, the issuing magistrate could have reasonably concluded that probable cause existed at the time the search warrant was issued.

II

Appellant argues that the reliability of the informant was not established. We disagree. It is well established that probable cause for the issuance of a search warrant can be established by hearsay information provided by an unidentified informant. In the instant case, the informant was identified to, and conferred with the magistrate.

Justice White’s concurrence in Spinelli v. United States, 393 U.S. 410, 425, 89 S.Ct. 584, 593, 21 L.Ed.2d 637 (1969), discusses the requirements imposed by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as follows:

“. . . if the informer’s hearsay comes from one of the actors in the crime in the nature of admission against interest, the affidavit giving this information should be held sufficient.”

See also Yielding v. State, 371 So.2d 951, 957 (Ala.Crim.App.1979).

In this case, the informant personally appeared before the magistrate and related his own participation in the theft of items listed in the search warrant and his personal knowledge of the location of the items on the premises to be searched. McCreary v. State, 406 F.2d 1264 (8th Cir.1969). Furthermore, the informant’s statement had been corroborated by the results of investigations by another local law enforcement agency, and his credibility had been established through another police agency on similar cases.

Certainly, the magistrate was armed with sufficient information from which to decide, in a commonsense and realistic fashion, there was probable cause to allow the search requested. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

Ill

The appellant further contends that the search conducted exceeded the scope of the search warrant.

Appellant relies on Peavy v. State, 336 So.2d 199, (Ala.Crim.App.), cert. denied, 336 So.2d 202 (Ala.1976). The warrant in Peavy authorized a search of every person and every automobile on the premises. The Peavy warrant was condemned as a “dragnet” instrument.

In the case at bar, the warrant authorized a search of a limited list of items in specific locations around the property. Officers obtained appellant’s written consent to extend their search to the interior of the residence. The search warrant had listed five items that were either outside the residence in designated places or in a designated storage house. Four of the five items, all tools or auto parts, were recovered, in addition to some other tools and auto parts not listed in the warrant. The unrecovered item on the search warrant was furnished to police by appellant’s father following the search. The items seized were of such a nature that the officers, at the time of seizure, had a reasonable basis to draw a connection between those items and the crimes which furnished the reason for the search warrant. This was a good-faith search conducted within authorized perimeters of the search warrant. Satterwhite v. State, 364 So.2d 345 (Ala.Crim.App.), rev’d on other grounds, 364 So.2d 359 (Ala.), on remand, 364 So.2d 362 (Ala.Crim.App.1977).

For the reasons stated, we hold the motion to exclude was properly denied. The judgment of the trial court is due to be, and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    R. B. (Pete) POTTER v. STATE of Alabama.
    5 Div. 657.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Larry W. Morris of Radney & Morris, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Pete Potter was indicted for the ax murder of Mary Lois Pearson. He was found guilty as charged and sentenced to life imprisonment.

Shortly after 6:30 a. m. on January 21, 1981, Mary Lois Pearson’s body was found in her bed by her daughter, Stephanie. The deceased had been cut through the neck with one blow from an ax or an ax-like object. (R.111, R.122). This blow which severed the left carotid artery and the left jugular vein caused death within minutes.

There was no evidence of a struggle of any kind and no evidence of movement by the deceased after the fatal blow was delivered. The deceased was apparently sleeping when she was killed.

The appellant, Mr. Potter, had lived with the deceased and her four children for three years prior to this incident.

On the evening of January 20, 1981, the appellant and the deceased visited friends at the home of Annie Foster. Rozelle Parker testified that during that visit she and the deceased overheard the appellant tell some other men that he was tired of the deceased going to parties with her friends and never wanting to do anything with him and that he intended to do something “crazy” to make the “white folks” (the authorities) “give [him] a thousand years.” (R.149).

In her testimony, Annie Foster made no reference to this statement made on the night before the murder. In fact, she testified that the appellant had called the deceased “honey” that night. However, Ms. Foster did describe an earlier incident in December, 1980, when the appellant had an argument with the deceased and the deceased exclaimed “I’m tired of you, go ahead then, kill me.” (R.83).

Stephanie Pearson testified that her mother (the deceased) and the appellant had an argument that same night before she was murdered. She stated that she and her three brothers last saw their mother alive just before midnight when they went to bed. She further stated that at that time the appellant, her mother, and the four children were the only people in the house, that the doors leading into the house were usually locked by then, and that her mother and the appellant had the only keys.

She also testified that the appellant chopped their firewood with an ax that he kept in his truck.

Stephanie found her mother’s body the next morning on her mother’s bed, but did not know exactly when her mother was killed.

Fitzgerald Pearson, the deceased’s oldest son, testified that the appellant, about a week before this incident, told him that he had lost his ax. However, Fitzgerald saw him chopping wood with another ax after that and before this incident.

The appellant did not present any evidence in his behalf. His alibi evidence was elicited from state’s witnesses.

In a statement made by the appellant to Sheriff Moore, the appellant admitted that he was with the deceased on the night before the murder until she and her four children went to bed. Around midnight he left and went to spend the night with Gladys Slaughter. At approximately 5:00 a. m. the next morning he left Gladys’ home, picked up his son, Ralph Potter, and his friend, Johnny Ware, and headed for the woods to cut pulpwood. He denied any knowledge of Mrs. Pearson’s death before returning from work that afternoon.

Ms. Slaughter testified that the appellant spent two or three nights a month with her. On the night in question she noticed nothing unusual about the appellant’s appearance or demeanor. She verified the fact that he was with her from around 12:30 a. m. until about 5:00 a. m.

Mr. Ware, and appellant’s son, Ralph, each testified that on the morning of the murder they went to work with the appellant at the usual time, just after 5:00 a.m., and that they noticed nothing unusual in appellant’s behavior the entire day. Ralph stated that they did not learn of Mrs. Pearson’s death until they returned from work that afternoon and went to pick her up, as they normally did, at Ms. Foster’s residence.

Ms. Foster testified that when the appellant was told that Mrs. Pearson had been killed, he exclaimed, “Oh, my God,” and “slumped over” onto the hood of his car.

The murder weapon was never found. However, Lonnie Hardin, a “toolmarks” expert with the Alabama Department of Forensic Science determined that the blow which killed Mrs. Pearson was from the same “cutting instrument” that had been used to chop the firewood in the woodpile behind her house.

I

Initially, appellant argues that the trial court erred in failing to grant his peremptory challenge of a prospective juror for cause pursuant to § 12 — 16—150(7), Code of Alabama 1975.

The pertinent part of the record (R.3-5) is as follows:

“COURT ...
“Do any of you know anything about this case, other than what I just told you? (NO RESPONSE)
“Have any of you heard anything about this case, other than what I have just told you?
“DEBRA RACHAEL (Juror) I heard about it and I don’t think I should serve because I have my mind made up.
“COURT — Do you have a fixed opinion as to whether or not he is guilty, and would you be able to listen to the evidence and forget what you heard about this case, and forget what you may think about this case, and base your verdict solely on the evidence?
“DEBRA RACHAEL — Yes.
“LARRY MORRIS — Judge, I would challenge her for cause because she said she already had her mind made up.
“COURT — Let’s go into this a little deeper. There’s going to be evidence here during the trial of this case, that is, people are going to testify, there will be physical and tangible evidence, can you put out of your mind what you know about this case, what you may have heard about this case and base your verdict solely on the evidence?
“DEBRA RACHAEL — Well, I don’t know anything about it, I just know what I heard.
“COURT — So, you don’t really know anything about it, you don’t know what happened, you just heard rumors about it?
“DEBRA RACHAEL — That’s right.
“COURT — Can you put those rumors out of your mind and base your verdict solely on the evidence that comes to you from the witness stand?
“DEBRA RACHAEL— Yes.
“MITCH GAVIN — We’re satisfied, Your Honor.
“LARRY MORRIS — Did I understand you correct to say that you have already reached a verdict in your mind?
“DEBRA RACHAEL — Yes.
“LARRY MORRIS — Well, wouldn’t that play a part in your mind? I mean, could you sit over there and be completely unbiased, or would that play a part in your decision?
“DEBRA RACHAEL — No, because I figure when they get up here they will tell the truth.
“MITCH GAVIN — Could you totally disregard everything you may have heard about this case, completely put it out of your mind, and base your verdict solely on the evidence as it comes to you from the witness stand?
“DEBRA RACHAEL — Yes, I can.
“COURT — She is qualified.
“LARRY MORRIS — Challenge her for cause and reserve an exception.” (Emphasis added).

Prospective juror Rachael indicated that she had heard rumors about this case, but, as the record demonstrates, she responded that she could disregard those rumors and base her verdict solely on the evidence. In such an instance, a challenge of Ms. Rachael for cause need not have been granted. Mathis v. State, 52 Ala.App. 674, 296 So.2d 760, cert. denied, 292 Ala. 732, 296 So.2d 764 (1973), cert. denied, 419 U.S. 1106, 95 S.Ct. 777, 42 L.Ed.2d 802 (1975), and cases therein cited; McCorvey v. State, 339 So.2d 1053 (Ala.Cr.App.), cert. denied, 339 So.2d 1058 (Ala.1976). Qualifying this prospective juror was within the sound discretion of the trial court and we have found no abuse thereof. Collins v. State, 385 So.2d 993 (Ala.Cr.App.1979), rev’d on other grounds, 385 So.2d 1005 (Ala.1980); Glenn v. State, 395 So.2d 102 (Ala.Cr.App.1980), cert. denied, 395 So.2d 110 (Ala.1981), and cases cited therein.

II

Appellant also cites as error the trial court’s denial of his motion to exclude the evidence at the close of the state’s case. Appellant contends that the circumstantial evidence presented by the state was insufficient to support a conviction.

As appellant explains there was no evidence which directly connected him with the murder. There were no eyewitnesses. The murder weapon was not found. There was no fingerprint evidence at the scene. There were no traces of the deceased’s blood on the appellant or his belongings.

The state’s case was based solely on circumstantial evidence. The appellant and the deceased had several heated arguments, and the appellant had told others just a few hours before the murder that he was angry with the deceased and intended to “do something crazy” for which the authorities would “give [him] a thousand years.”

The appellant, Potter, was the last person with the deceased while she was still alive. The Pearson children testified that the appellant was there when they went to bed just before midnight, that the doors to the house were usually locked by bedtime, and that only the deceased and the appellant had keys. They did not hear any disturbance that night while they slept, but found their mother’s slain body early the next morning in her own bed. The appellant was gone. There was no evidence that anyone else had been in the Pearson home that night.

The children further testified that the appellant chopped their firewood with his ax. A “toolmarks” expert testified that the “cutting instrument” (presumably an ax) which made the “chop” marks on two pieces of this firewood was the same instrument that inflicted the nearly decapitating wound on the deceased’s body.

A

This circumstantial evidence was sufficient to present the state’s case to the jury because, as the trial court correctly concluded, the jury might have reasonably determined that such evidence excluded every reasonable hypothesis except that of the defendant’s guilt. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1978), and cases therein cited. Whether or not it in fact excluded, to a moral certainty, every other reasonable hypothesis than that of defendant’s guilt was a question for the jury and not the court. Cumbo v. State, supra; Franklin v. State, 405 So.2d 963 (Ala.Cr.App.), cert. denied, 405 So.2d 966 (Ala.1981); Williams v. State, 412 So.2d 1271 (Ala.Cr.App.1982). In this instance the jury’s determination of guilt will not be disturbed. Franklin v. State, supra, and cases therein cited.

B

Appellant contends, however, that the evidence connecting “toolmarks” on the deceased’s body with “toolmarks” on the firewood was inadmissible because the state failed to prove an adequate “chain of custody” for the deceased’s body or for the firewood. We disagree.

There was no evidence whatsoever that either the body or the wood had been tampered with in the interval between the discovery of the body and the time the “tool-mark” examinations were made.

The Pearson children testified that no one moved their mother’s body before the ambulance arrived. Pictures of the body were taken before it was ever moved. Testimony from the ambulance driver, the hospital emergency room personnel, the Randolph County coroner and the doctor who performed the autopsy sufficiently traced the body from the scene of the murder to the place where parts were removed for the “toolmarks” comparison. Moreover, Dr. Gilchrist testified that from a review of the pictures taken at the scene and an examination of the wound on the body, he could tell that the body had not been altered. He concluded that the wound which caused Mrs. Pearson’s death was inflicted with an ax.

Dr. Gilchrist removed certain body parts from the chin and neck area and delivered them to Lonnie Hardin for the “toolmarks” comparison.

Likewise, the two pieces of firewood were sufficiently traced from the woodpile behind the Pearson residence to the Department of Forensic Science in Montgomery where Hardin performed his “toolmark” examinations.

Therefore, there was nothing improper in admitting the results of Hardin’s “tool-marks” comparison. The weight and credibility of this evidence were, of course, for the jury to determine. Williams v. State, 375 So.2d 1257 (Ala.Cr.App.), cert. denied, 375 So.2d 1271 (Ala.1979).

Ill

Appellant’s final contention addresses an alleged prejudicial error by the trial court in admitting testimony with reference the death of Mrs. Pearson’s brother-in-law.

Mrs. Pearson’s (the deceased’s) brother-in-law was initially mentioned by Ann Foster in her testimony with reference an argument between the deceased and the appellant a month before the murder. Ms. Foster, at the end of a long narrative answer during which she described the prior argument, quoted the appellant as having said to Mrs. Pearson: “You want me to kill you, you want the same treatment that your brother-in-law had.” (R.83).

The state followed this testimony with other questions about the deceased’s brother-in-law. It is the court’s allowance of this further inquiry with reference the deceased’s brother-in-law that appellant cites as error on appeal.

This additional questioning revealed only that Mrs. Pearson indeed had a brother-in-law who had died approximately two weeks before the argument witnessed by Ms. Foster. The state made no attempt to elicit and there is nothing in the record to indicate the cause of this man’s death or appellant’s involvement therein, if any. The state’s additional questions appear to be a logical follow-up to Ms. Foster’s testimony which brought the brother-in-law into focus.

Appellant argues on appeal that this evidence, which revealed that the deceased indeed had a brother-in-law who died two weeks before appellant’s alleged threat, was an inadmissible reference to a possible prior offense. We need not reach the merits of this argument, however, because it was not specified as a ground of objection at trial. The general objection made during the trial, that the additional facts were irrelevant (R.84), was not sufficient to preserve this issue for our review. Ellis v. State, 38 Ala.App. 379, 86 So.2d 842 (1955), cert. denied, 264 Ala. 695, 86 So.2d 846 (1956); Lee v. State, 52 Ala.App. 275, 291 So.2d 367 (1974); Manson v. State, 349 So.2d 67 (Ala.Cr.App.), cert. denied, 349 So.2d 86 (Ala.1977); Stringer v. State, 372 So.2d 378 (Ala.Cr.App.), cert. denied, 372 So.2d 384 (Ala.1979); Cook v. State, 384 So.2d 1158 (Ala.Cr.App.), cert. denied, 384 So.2d 1161 (Ala.1980); Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980).

For these reasons stated, the judgment and sentence of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Gerald DAVID v. STATE of Alabama.
    5 Div. 661.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Gerald David, pro se.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for State of Ala.
   TYSON, Judge.

Gerald David appeals from the denial of two postconviction petitions, both filed in the Circuit Court of Lee County, Alabama, each seeking to attack a conviction for robbery, which conviction took place, it is alleged, on April 29, 1981. The circuit court denied both petitions without conducting a hearing on either of them.

I

The first petition in this record was a Petition for Writ of Habeas Corpus, which sought to challenge in state court the alleged “ineffective assistance of counsel” rendered at the time of the trial in the aforesaid robbery case. In denying the ha-beas corpus petition without conducting a hearing, the trial court was correct as the Alabama Appellate Courts have many times determined that a Petition for Writ of Ha-beas Corpus, which seeks to impeach a judgment valid on its face by parol testimony, may not be allowed in a habeas corpus proceeding. Vernon v. State, 240 Ala. 577, 200 So. 560 (1941). Moreover, a state habe-as corpus petition may not impeach the validity of proceedings which are from a court of competent jurisdiction and which proceedings are regular on their face. In order to impeach such proceedings by parol testimony, the invalidity must appear on the face of the proceedings. Griffin v. State, 258 Ala. 557, 63 So.2d 682 (1953); Lewter v. State, 401 So.2d 328 (Ala.Crim.App.1981). We therefore affirm.

II

The second petition contained on this appeal was, however, a petition for Writ of Error Coram Nobis, which petition also sought to set aside the robbery conviction on the basis of the “ineffective assistance of trial counsel.” This petition alleges that such counsel did fail to present “alibi witnesses” and did also “fail to subpoena witnesses” on behalf of the appellant. The petition also avers that the trial court did not allow the appellant to “contest” the statement of appellant given to police authorities, following his arrest, as being taken after denying him food or the advice of counsel.

This court recently in Ellison v. State, 406 So.2d 439 (Ala.Crim.App.1981) and Kennedy v. State, 409 So.2d 1010 (Ala.Crim.App.1982) has determined that, where the effective assistance of counsel is challenged in a petition for error coram nobis, and such is denied by the circuit court without conducting an evidentiary hearing, that such must be reversed and remanded for an appropriate evidentiary hearing held in circuit court.

Accordingly, we have no alternative but to reverse and remand the denial of the coram nobis petition for a hearing in circuit court. See also Mylar v. State, 671 F.2d 1299 (U.S. 11th Cir. 1982).

AFFIRMED IN PART; REVERSED AND REMANDED IN PART WITH DIRECTIONS.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Andre MORNING v. STATE.
    6 Div. 799.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment convicting the defendant of theft in the second degree and sentencing him to imprisonment for ten years. The trial was without a jury and, according to the judgment entry, consisted of a “hearing on stipulation of facts as to the testimony of the State’s witnesses,” which stipulation was to the effect that if the witnesses were to appear there would be sufficient evidence to present a prima facie case of defendant’s guilt. No point is raised as to the sufficiency of the stipulation.

Appellant’s only insistence on a reversal is that the court erred in overruling defendant’s motion to the effect that the case be dismissed and defendant discharged therein by reason of the failure of the State to bring the defendant to trial within 90 days after receipt of a written request of defendant for a “final disposition of any untried indictment . . . pending against him in this State,” as set forth in Code of Alabama 1975, § 15-9-82 (1981 Cum.Supp.). Appellant argues that a dismissal of the instant case is mandated by Code § 15-9-84 (1981 Cum.Supp.), which provides in pertinent part:

“Within 90 days after the receipt of the request and certificate by the court and district attorney or within such additional time as the court for good cause shown in open court may grant, the prisoner or his counsel being present, the indictment, information or complaint shall be brought to trial .... If, after such a request, the indictment, information or complaint is not brought to trial within that period, no court of this State shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall dismiss it with prejudice.”

Appellant’s contention constitutes an effort on his part to require compliance with Code §§ 15-9-82 and 15-9-84, Code of Ala. 1975 (1981 Cum.Supp.), even though no other section nor any part of Chapter 9 of the Code of Alabama of 1975 is applicable to the facts in the instant case. The chapter deals with the overall subject of Fugitives From Justice. The sections of the Code relied upon by appellant constitute a codification of Acts 1978, No. 590, §§ 3 and 5, Acts 1978, No. 590, is the Uniform Mandatory Disposition of Detainers Act, and it. relates exclusively to problems pertaining to interstate extradition. The sections of the Code relied upon are utterly irrelevant to a prisoner in Alabama unless a territory or a state of the United States other than Alabama has lodged in Alabama a detainer against the prisoner. There is nothing in the record proper or the transcript to the effect that defendant has been charged with a crime in any other jurisdiction or that a detainer from any other jurisdiction had been lodged against him. The inapplicability of the statutory law relied upon by appellant is explained in McAlpin v. State, Ala.Cr.App., 397 So.2d 209, 210 (1981), cert. denied, 397 So.2d 211.

In his brief, appellant says: “Appellant asserts the Detainer Act provisions apply to any intra state incarcerated person who is in lawful custody.” The quoted statement seems to constitute the crux of appellant’s brief. He seems to argue that the rationale of the limitation of ninety days within which to dispose of a criminal charge against a prisoner after his request for a trial as set forth in the Uniform mandatory Disposition of Detainers Act is applicable even though none of the language of the Act is applicable. It should be readily seen that the Act involves important factors in addition to that of whether a prisoner is afforded a speedy trial. It is based upon “an agreement on detainers ... entered into by the state of Alabama with any and all jurisdictions legally joining therein” for the purpose of promoting harmony, as well as justice, among two or more states or territories of the United States that have a legitimate interest in the presence of a prisoner in a criminal case for the purpose of trying him or for the purpose of enforcing a sentence that has been imposed upon him.

The trial court was correct in denying defendant’s motion for a dismissal of the case and a discharge of the defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


text:
    Ronald Lee KERR, alias v. STATE of Alabama.
    7 Div. 852.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.

      Donald W. Stewart and Mac Downs, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Ronald Lee Kerr was indicted by the Etowah County Grand Jury for trafficking in cannabis in violation of § 20-2-80, Code of Alabama 1975. He was found guilty “as charged in the indictment” and fined $25,-0001 In addition, the trial court sentenced appellant to six years’ imprisonment.

I

The record on appeal reveals that the appellant was never arraigned on this charge, he never entered a plea, and no plea was entered by the trial court on his behalf. The “Case Action Summary” (R. 307) displays neither a “date of arraignment” nor a “date of plea.” The minute entry of the trial shows the verdict, judgment and sentence (R. 347), but there is no mention of an arraignment of appellant or a plea by, or on behalf of, this appellant.

Because of the absence of any evidence of an “arraignment and plea” or a showing of a satisfactory substitute therefor [see cases cited in Town of Gulf Shores v. Jones, 412 So.2d 1259, 1261 (Ala.Crim.App.1982)], the judgment and sentence of the trial court below must be reversed and this cause must be remanded to the trial court for a new trial. Fisher v. State, 46 Ala. 717 (1871); Hamilton v. State, 147 Ala. 110, 41 So. 940 (1906); Thomas v. State, 255 Ala. 632, 53 So.2d 340 (1951); Presley v. State, 22 Ala.App. 167, 113 So. 485 (1927); Ludlum v. State, 52 Ala.App. 631, 296 So.2d 254 (1974); McMurray v. State, 373 So.2d 872 (Ala.Crim.App.1979); Town of Gulf Shores v. Jones, 412 So.2d 1259 (Ala.Crim.App.1982) and cases cited therein.

II

Appellant further contends that the marijuana found in a duffle bag in the trunk of his car was illegally seized.

Because we must reverse and remand this cause for a new trial for the reasons stated above, we pretermit discussion of this issue and the evidence pertaining thereto. At this time we need only call to the trial court’s attention the recent pronouncements by the United States Supreme Court in United States v. Ross, No. 80-2209, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (U.S.Sup.Ct., June 1, 1982) which on retrial might indeed be applicable to this “illegal seizure” issue. See also New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

For those reasons stated above, this cause is due to be reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.