text:
    STATE of Alabama ex rel. Wayne L. WILLIAMS as District Attorney of the Sixth Judicial Circuit of Alabama v. ONE GLASTRON BOAT, Etc.
    Civ. 2879.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.
    Rehearing Denied Feb. 10, 1982.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-437.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellant.
    Robert B. Harwood, Jr., and Thomas R. Jones, Jr., of Rosen, Wright, Harwood & Cook, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is an action by the State of Alabama upon relation of Wayne L. Williams, District Attorney of Tuscaloosa County, to condemn a Glastron Carlson Boat owned by Memnon Tierce, II. From an order denying the condemnation, the State appeals.

On September 20, 1980, law enforcement officers of the Tuscaloosa Police Department and of the West Alabama Narcotics Squad, pursuant to § 20-2-93, Code (1975), seized a boat belonging to Mr. Tierce. In an action to condemn the boat and have it forfeited to the City of Tuscaloosa, the State alleged that the boat had been used, or had been intended for use, to transport or in any manner facilitate the transportation of a controlled substance, to-wit: Methaqualone, which was contained in Quaalude, for the purpose of selling or receiving the same in violation of § 20-2-93, Code (1975). On May 11, 1981, forfeiture proceedings were held before a judge sitting without a jury. On May 27, 1981, the trial court entered a decree denying condemnation on the grounds that the State had failed to meet its burden of proving the allegations of its complaint. The court ordered that the boat be returned to its owner, Mr. Tierce.

Section 20-2-93, Code (1975) provides in pertinent part:

(a) The following are subject to forfeiture:
(4) All conveyances, including aircraft, vehicles or vessels, which are used or intended for use to transport [or] in any manner to facilitate the transportation for the purpose of sale or receipt of [controlled substances]. (Emphasis added.)

The dispositive issue on appeal is whether the trial court erred in finding that under the evidence presented, the State failed to prove a “purpose of sale or receipt.”

The record of the forfeiture proceedings shows that the following evidence was presented by the State for the trial court’s consideration: On July 27, 1980, Cathy Dwyer, an undercover narcotics agent, went with two other women to the Lake Tuscaloosa residence of Mem Tierce. When they arrived they joined Tierce and Tommy James on Tierce’s boat dock. A couple of hours later, at Tierce’s suggestion, these five persons boarded Tierce’s boat to go for a boatride. Tierce piloted the boat around the lake and then steered it up into a slough past a houseboat. He cut the motor and allowed the boat to drift. Then James asked if anyone would like a “Quaalude.” Agent Dwyer testified that everyone responded affirmatively and James distributed pills. He gave one to Dwyer, which she preserved for evidence. Dwyer saw at least “hand-to-hand” contact between James and Tierce, indicating that Tierce received a pill also. Tierce did not protest the distribution of the pills. Dwyer testified to circumstantial evidence indicating that Tierce handed a small vial to one of the other women on board who sniffed from it. Dwyer assumed the vial contained cocaine, but admitted her conclusion was based on speculation. Tierce drove the boat out of the slough and after driving around in the lake for a while, returned to his pier. Dwyer admitted on cross-examination that she observed nothing to indicate that Tierce had prior knowledge that James would offer the Quaaludes. There was no evidence that the pills were stored in or about the boat.

The State asserts that Tierce had the burden of proving his lack of knowledge or consent to the activities heretofore described. Indeed, § 20-2-93(a)(4)(b), Code (1975) provides: “No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent.” Air Shipping International v. State, 392 So.2d 828 (Ala.1981), relied on by the State, however, clearly shows that lack of knowledge or consent is an affirmative defense, available after the State has made a prima facie case for forfeiture by showing that the vehicle in question was used or intended for use in the transportation of a controlled substance for the purpose of sale or receipt. See also, Singleton v. State, 396 So.2d 1050 (Ala.1981). The issue of knowledge or consent is therefore irrelevant until the State proves a “purpose of sale or receipt.”

Citing Stinson v. Acme Propane Gas Company, 391 So.2d 659 (Ala.1980) and Deal v. Johnson, 362 So.2d 214 (Ala.1978), the State argues that the trial court erred in wholly ignoring the undisputed testimony of competent witnesses in reaching its conclusion. It is true that the evidence in the record before us is basically undisputed. It was necessary for the trial court to apply the law to the facts before it. Statutes authorizing condemnation and forfeiture of property, however, must be strictly construed. Jackson v. Evans, 379 So.2d 1236 (Ala.1979).

In determining the meaning of the phrase “for the purpose of sale or receipt,” the decision in Reeder v. State, 294 Ala. 260, 314 So.2d 853 (1975) appears to control. In Reeder the court noted that the previous transportation of narcotics act referred to both “receipt” and “possession.” See Tit. 22, § 255(1), Code (1940). The court then stated:

In attempting to ascertain the legislative intent of a particular statute or provision therein, it is permissible to look to the law as it existed prior to such statute’s enactment. (Citation omitted.) It follows that where the express inclusion of a specific act or acts, here “sale or receipt,” evidences an intent to exclude those acts not so carried over from a pre-existing statute, here “possession,” we should not attempt to read into the new statute such acts. (Citation omitted.)

314 So.2d at 857.

The State argues that the occupants of the boat “received” the Quaaludes. We find, however, as did the supreme court in Reeder, that “receipt” as used in the statute means receiving for the purpose of sale. It does not mean mere possession. The trial court apparently found that the distribution of the Quaaludes to the occupants of the boat was not for the purpose of a sale or receipt, but constituted mere possession. When a case is heard orally before the trial court sitting without a jury, the trial court’s findings are presumed correct and will not be disturbed on appeal unless plainly erroneous. Noel Smith Development Company v. National Filtronics, Inc., 360 So.2d 338 (Ala.1978); Eleven Automobiles v. State, 384 So.2d 1129 (Ala.Civ.App.1980). The evidence before us supports the trial court’s finding that the State failed to meet its burden of proving that the boat in question was used to transport a controlled substance for the purpose of a sale or receipt of that substance. Denial of condemnation and forfeiture of the boat was not error.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . That the substance here involved was Metha-qualone contained in Quaalude is apparently not at issue. Control of Methaqualone became effective on September 30, 1973. See, Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975).


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Dan HENRY v. Mildred Weaver HENRY.
    Civ. 2931.
    Court of Civil Appeals of Alabama.
    Jan. 13, 1982.
    Rehearing Denied Feb. 17, 1982.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-458.

      J. Thomas King of King & King, Birmingham, for appellant.
    Michael F. Bolin, Birmingham, for appel-lee.
   BRADLEY, Judge.

This is a divorce case.

Dan and Mildred Henry were married in 1955 and lived together as husband and wife until March 19, 1980. There were three children born of the marriage, namely, Reginald, Ronald, and Rachel. Reginald and Ronald both had reached their majority at the time this action was instituted. Rachel was age eighteen.

The final breakdown in the marriage resulted from the daughter, Rachel, giving birth to an illegitimate child. The evidence showed that neither the husband nor the wife knew of the daughter’s pregnancy until she went to the hospital. As a result of the child’s birth, several fights took place between the parties. The wife moved out of the marital home and filed for divorce.

In her petition she alleged numerous grounds for divorce. On September 29, 1980 a divorce was granted on the ground of incompatibility. A motion for new trial was later granted. A new trial was held, and a final decree was entered on April 24, 1981. The husband again moved for a new trial, but the motion was denied. As a result, the husband appeals to this court.

The only issue presented is whether the property settlement and alimony award constitute a palpable abuse of discretion. We find no abuse of discretion and affirm the judgment.

In the property settlement the wife was awarded the marital home valued at approximately $40,000. The husband was awarded savings bonds worth $37,000. He also received title to his car, as well as a substantial part of the household furnishings. The wife was to be beneficiary of the husband’s federal group life insurance with a value of $20,000. The husband had another policy of $10,000 over which he retained control. Finally, the wife was awarded periodic alimony of $150.00 bi-weekly ($3,900 per year).

The testimony showed that the husband is employed by the United States Postal Service and is also a sergeant in the Air National Guard. He earns approximately $22,000 a year. The wife has worked only three days during the marriage. Otherwise she has stayed home to care for her home and children.

Division of property and the award of alimony are within the sound discretion of the trial court and will not be overturned on appeal except for palpable abuse of that discretion. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

The only major assets in this case were the house and savings bonds. The wife got the home and the husband got the savings bonds. They were fairly equal in value. The wife has never worked and obviously needs a place to live. The husband, on the other hand, has a good job. Clearly, awarding one the house and the other savings bonds was not an abuse of discretion.

The same holds true for the life insurance. The wife was made beneficiary of a $20,000 policy. The husband had another $10,000 policy. This again was within the discretion of the trial court and we can find no abuse.

Finally, the husband argues that the trial court abused its discretion in awarding the wife alimony. As noted above, the award of alimony is discretionary with the trial court and such an award will not be set aside on appeal except for a palpable abuse of that discretion. Mack v. Mack, supra. In determining whether to award alimony the trial court should consider the age, health, earning prospects, and length of marriage of the parties and their conduct relative to the cause of divorce. Boyd v. Boyd, 890 So.2d 644 (Ala.Civ.App.1980). In the present case the wife is forty-six years old and has never held a regular job. the husband is employed by the United States Postal Service and the Alabama Air National Guard; and, the parties were married for twenty-five years. Based on the evidence we find that the trial court did not abuse its discretion in awarding the wife periodic alimony.

The husband contends, however, that the wife’s conduct caused the divorce and she should not be awarded any periodic alimony. The conduct of the wife which caused the separation, says the husband, was her failure to discover and inform him of the pregnancy of their eighteen year old daughter who lived in the same house with them. We consider such argument to be without merit, especially in view of the fact that the husband lived in the same house with his daughter and had as much opportunity to discover her pregnancy as did the wife.

The wife has requested an award of attorney’s fees for this appeal. Her petition is granted and we award her $500.00 as a reasonable attorney’s fee.

AFFIRMED.

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


text:
    STATE of Alabama v. W. G. MACK, d/b/a Mack Amusement.
    Civ. 2968.
    Court of Civil Appeals of Alabama.
    Jan. 13, 1982.
    Rehearing Denied Feb. 10, 1982.
    Certiorari Denied April 2, 1982 Alabama Supreme Court 81-442.

      Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, and Asst. Atty. Gen., and John H. Burgess, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellant.
    Allen Edward Cook of Cook & Cook, Andalusia, for appellee.
   BRADLEY, Judge.

This is a tax case.

W. G. Mack is the owner of an amusement machine business. The present case arises out of an audit conducted by the State of Alabama Department of Revenue (hereafter Department). As a result of this audit, the Department concluded that Mack had failed to properly report his gross receipts, and thus he was assessed with additional sales taxes for the period September 1, 1976 through August 31, 1979. In addition, the Department found that Mack had failed to purchase the necessary number of state and county privilege licenses for the number of amusement machines which he was operating during the years 1976 through 1979.

On October 16, 1979 Mack executed a waiver of the statute of limitations for the month of September 1976. In November 1979 the Department began demanding additional taxes from Mack. Mack appealed the eleven final assessments of additional sales taxes and privilege licenses to the Circuit Court of Covington County.

The parties to this appeal filed briefs on all eleven cases in the trial court. The court sitting without a jury also heard oral testimony on the issues involved in these cases. On July 27, 1981 the trial court rendered a judgment in favor of Mack in all eleven cases, finding that he owed no additional sales tax, interest or penalty. The State filed its notice of appeal on September 8, 1981.

A substantial amount of evidence was adduced at trial. The first witness was Mr. Louis Butt, a revenue examiner. He was the one who conducted the Department’s audit of Mack.

The testimony indicated that Mack placed several different types of amusement machines including pool tables, electronic games, cigarette machines, and other vending machines at numerous locations throughout southern Alabama and also in Florida. Normally Mack would split the proceeds from these machines fifty-fifty with the person in whose store the machine was placed. Part of the dispute in the present case arises from these arrangements. The Department contends that Mack paid sales tax on only his half of the proceeds when he was required by law to pay sales tax on the total gross receipts regardless of what portion of these receipts went to the store owner. Mack says that in most instances he deducted the sales tax from the gross proceeds of each machine and then split the balance fifty-fifty with the owner of the premises.

Mr. Butt testified that in performing the audit, he used records which Mack called “spread sheets,” as well as check stubs and income tax records. Mack had not retained small slips of paper which were used to record each individual transaction. Mack stated that he recorded these amounts on his spread sheet and then threw the slips away.

In conducting the audit Butt used figures which were on both income tax records and spread sheets. He deducted from these amounts tobacco sales, certain commissions, and Florida receipts. He then stated that the amount thus obtained was only approximately one-half of the total gross receipts because Mack stated that he divided the gross proceeds fifty-fifty with the premises owner. As a result he doubled his final figure and then determined the amount of sales taxes based on the new figure.

Mack testified that he told Butt that the spread sheets had recorded one hundred percent of the gross receipts in all but a few cases. Butt, however, stated that based on his investigation the spread sheets had not recorded the correct amounts. Butt also stated that he had not determined what portion of money Mack had coming in in currency even though the machines took only coins.

Mack contested the Department’s method of determining his gross receipts. He testified that his spread sheets recorded one hundred percent of his gross receipts in all but a very few cases. In these other eases the store owner would pay the taxes on his half of the proceeds. The only testimony on this point was given by Mr. LeMay, who testified that he always filed a sales tax return for his half of the proceeds.

Mack had his bank deposit slips introduced into evidence. These slips separated the amount of coins, currency, and checks in each deposit. Mack stated that his machines took only coins. The currency and checks were income from other activities. The Department, however, based their sales tax figures on the total deposit. As a result, Mack testified that the Department’s figures misstated his actual receipts from the machines.

The other evidence presented at trial concerned the privilege licenses. We will consider that evidence separately when we address the issues raised concerning these licenses.

In its appeal from the sales tax cases, the Department raises three issues. First, the Department contends that Mack did not meet his burden of overcoming the prima facie correctness of the final assessment of sales taxes. Second, the Department argues that the owner of amusement machines is required to report his gross receipts without any deduction for commissions paid to a location owner, and that Mack failed to report the full amount. Finally, the Department contends that the trial court erred in allowing Mack an exemption for receipts from machine sales at Elba Work Release Center.

A payer of sales tax has a duty to keep suitable records from which his tax liability can be determined by the Department. § 40-23-9, Code 1975. However, no particular method of record keeping has been established by the courts. State v. Mims, 249 Ala. 217, 30 So.2d 673 (1947). But this does not mean that the Department is required to rely on the verbal assertions of the taxpayer. State v. Ludlam, 384 So.2d 1089 (Ala.Civ.App.1980).

The Department argues that because Mack’s records were so incomplete, he could not overcome the prima facie presumption of correctness of its final assessment. We disagree.

The adequacy of a taxpayer’s records to establish his tax liability is for the trial court to decide and its decision will not be set aside absent an abuse of discretion. See State v. Levey, 248 Ala. 656, 29 So.2d 129 (1946). In the instant case Mack’s records, although inartfully kept, were, as the trial court found, sufficient to permit the Department to establish his tax liability therefrom.

The record shows that Mack recorded the gross receipts from his machines on “spread sheets.” The amounts placed on the “spread sheets” came from slips of paper upon which he noted the amount of money taken from each machine. These slips of paper were destroyed after the amounts thereon were recorded on the “spread sheets.” The record also revealed that Mack retained bank deposit slips and income tax records, which were examined by the Department. Based on this aspect of the record we cannot say that the trial court erred in holding that Mack’s records were sufficient to permit a determination of his tax liability.

Notwithstanding the possible adequacy of his records, the Department says that Mack did not, nevertheless, overcome the prima facie correctness of its final assessment. § 40-2-22, Code 1975. The trial court found, however, that Mack had met his burden. Where the trial court hears the evidence ore tenus, a presumption of correctness attends its findings, and this court will not overturn the trial court’s judgment absent a showing that it is palpably wrong. Pinson v. Veach, 388 So.2d 964 (Ala.1980).

In the instant case there is a serious discrepancy between the Department’s figures and Mack’s figures. The Department says that Mack’s figures on his “spread sheets” were only half of his gross receipts and gave this as the reason for doubling the amount deemed to be the gross proceeds of all the machines. Mack disputes the Department’s figures and shows that the Department used many incorrect figures in arriving at its final assessment.

The evidence shows that the Department relied on bank deposit slips but failed to separate currency and checks from coins. It is undisputed that Mack’s machines take only coins and that any portion of the bank deposit which came from checks and currency was income from sources other than the machines.

The doubling of the gross proceeds of the machines on the assumption that Mack had recorded only half of the gross receipts in every instance was mere conjecture on the part of the Department with no real evidence to support such a conclusion. State v. Mims, supra. On this aspect of the case the trial court could have found that the Department’s figures were based on erroneous assumptions. Moreover, the trial court also could have concluded that the evidence justified a finding that Mack had rebutted the presumption of correctness attending the Department’s final assessment.

The Department contends, and we agree, that Mack is required by § 40-23-2(2), Code 1975, to report the total gross receipts from his machines regardless of any commissions paid to location owners. See State v. Woods, 242 Ala. 184, 5 So.2d 732 (1942). Mack testified that he did report his gross receipts in all but a few cases. In these instances he would report his half of the receipts and the location owner was supposed to report the other half of the receipts for sales tax purposes.

Mr. George LeMay testified that he had such an arrangement with Mack and stated that he paid the sales tax on his share of the receipts from the machines on his premises. The Department does not deny receiving these payments. However, the Department does say that Mack presented no evidence to show that the Department received sales tax in the other instances where he had a fifty-fifty arrangement with the location owner. For example, Mack testified that he had a fifty-fifty arrangement with B & W Game Room in Georgiana, Alabama, but there is no evidence that B & W paid sales tax on its share of the receipts. Nor is there evidence that the sales tax was paid by any of the other location owners with whom Mack had an arrangement to split the receipts of the machines, except LeMay.

Section 40-2-22, Code 1975, authorizes the circuit court to fix the amount of the final assessment if it considers the Department’s figures to be either too high or too low. See Paramount-Richards Theatres v. State, 252 Ala. 54, 39 So.2d 380 (1949). In the case at bar Mack admitted that he did not report all of his gross receipts in several instances, and the evidence reveals only one instance where the location owner paid the sales taxes on his share of the receipts. Consequently, the evidence is insufficient to support a finding that the sales taxes had been paid in those instances where Mack split the receipts with the location owner, except in the LeMay instance. Accordingly, that aspect of the judgment holding that Mack owed no additional sales tax is reversed and the cause remanded for the trial court to determine if Mack is able to rebut by sufficient evidence the prima facie presumption of correctness of the final assessments in those instances where Mack claimed to have a fifty-fifty arrangement with the location owner.

In making the determination of whether Mack should pay additional sales tax to the Department, the trial court is also directed to consider the gross receipts from the machines located at the Elba Work Release Center. In its judgment the trial court allowed an exemption from sales tax for the machines Mack had placed in the Work Release Center. The Department contends such an exemption is erroneous. We agree.

Section 40-23-4, Code 1975, provides numerous exemptions from sales tax. Among those exemptions is one for the sale of tangible personal property to the State of Alabama and this is the one relied on by Mack. However, Mack was not selling tangible personal property to the State of Alabama; he was selling to the inmates in a state correctional facility. There is no exemption for sales made to inmates of the state penal system.

Exemptions from taxation are to be strictly construed against the exemption unless the intention to exempt clearly appears from the statute. Brundidge Milling Co. v. State, 45 Ala.App. 208, 228 So.2d 475 (1969). In this case the statute does not provide a specific exemption for sales to inmates in a state correctional facility, and the trial court’s judgment so holding is erroneous.

The Department has also appealed from the trial court’s findings in six privilege license cases. Two issues are presented for our review. The first issue is whether the trial court could waive the imposition of the statutory penalty and interest when it finds that additional license taxes are due. The second issue raised is whether § 40-12-2(e), Code 1975, requires a levy of an additional fifty percent license tax on machines licensed under § 40-12-176(p).

In addressing the first issue, § 40-12-10(e), Code 1975, provides:

(e) All license taxes levied by this title, except as otherwise provided, shall be due and payable as of October 1 of each year and shall be delinquent November 1 thereafter. Where any license issuable by the probate judge or commissioner of licenses shall be delinquent, the same shall be subject to a penalty of 15 percent of the amount of the license, which penalty must be collected by the probate judge or ■ commissioner of licenses when the license is taken out together with interest at six percent from the date of delinquency .... [Emphasis added.]

The Department contends that the penalty provision of § 40-12-10(e) is mandatory, and that the trial court had no authority to remit the penalty in this case. Mack, however, argues that in all cases he paid his license taxes on time, and that the errors in amount were the Department’s fault and not his. As a result, he contends that he was not delinquent in the payment of his license taxes.

It is undisputed that Mack paid his license taxes on time. He also attempted to pay the correct amounts. The errors in payments were caused by the Department and the Probate Court of Covington County using the wrong figures. None of the errors were the fault of Mack.

Frances Solomon was in charge of the collection of license taxes in Covington County. She stated that every year a problem arose as to the proper amount of license taxes to be paid by Mack. In at least two of the years in question, she called the Department in Montgomery to have them calculate the proper amount of license taxes. It was her testimony that once the Department gave her a figure, she was bound to follow the Department’s determination. As a result, in every year, Mack paid the total amount arrived at by the Department.

Mack agrees that these figures were incorrect and that he owes more license taxes. However, he argues that he should not be penalized for the Department’s error. We agree.

It is clear that the penalty provision of § 40-12-10(e) is mandatory. Such penalty, however, is for a breach of duty by the taxpayer. State v. Clarke, 240 Ala. 362, 199 So. 543 (1941); see 85 C.J.S. Taxation § 1024 (1954). It would certainly be unfair to penalize a taxpayer for the errors of the Department. Also, the term “delinquent” in the statute connotes a breach of duty by the taxpayer. There is no evidence that Mack in any way breached his duty. As a result, we find that the trial court properly disallowed the penalty.

The final issue in this case involves statutory construction. The Department contends that Mack’s vending machines should have been taxed at a rate of $12.00 per machine instead of $8.00 per machine. The Department argues that § 40-12-2(e), Code 1975, automatically increases the amount of the license tax by fifty percent.

That section provides:

(e) There is hereby levied for the use and benefit of and to be paid to the county in which the license is issued, in addition to all license taxes levied under the provisions of article 2 of this chapter, for state purposes and which are payable to the judge of probate or commissioner of licenses, a sum equal to 50 percent of the amount levied for state purposes, except as otherwise specificaiiy provided. [Emphasis added.]

Section 40-12-176, Code 1975, relating to vending machines was passed subsequently by the legislature. It is the Department’s argument that § 40-12-176(p) provides for a license fee of $8.00 on machines that do not vend tangible personal property. The Department contends that this amount must be increased by fifty percent because of the provisions of § 40-12-2(e).

Section 40 — 12-176(p) provides:

(p) On all other vending machines whereby tangible personal property is not sold but services or amusements are vended ... operators shall pay a license as follows: ... on all machines where over one cent is used, a fee of $8.00. The license is to be paid, collected and distributed as heretofore provided in this section. [Emphasis added.]

Mack cites us to § 40-12-176(b), which provides:

(b) The revenues produced by the license taxes levied in this section shall be divided equally between the state and the several counties in which it is collected. No separate county license shall be required. [Emphasis added.]

The Department argues that subsection (b) applies only to machines vending tangible personal property. Further the Department argues that subsection (p) is a separate and distinct provision which must be read in pari materia with § 40-12-2(e).

It has often been stated that tax laws are to be strictly construed against the taxing power and in favor of the taxpayer. State v. Kershaw Manufacturing Co., 372 So.2d 1325 (Ala.Civ.App.1979). In examining the three provisions in this case, it is clear to this court that the trial court was correct in finding that the Department could not assess an additional tax of fifty percent.

Section 40-12-2(e) does assess an additional fifty percent county tax except as otherwise specifically provided. Section 40-12-176 does specifically provide that no additional county tax shall be levied. The title of § 40-12-176 is “vending machines.” The Department would have us hold that § 40 — 12-176(b) applies only to those machines which vend tangible personal property under subsection (a). However, no such distinction is made in the section.

Further, subsection (p) states that the license is to be paid as “heretofore provided in this section.” Clearly the .words “this section” indicate § 40-12-176 and not § 40-12-2. In reading all of these provisions, we find that § 40-12-176 has done away with an additional levy of county taxes for vending machines. The trial court was, therefore, correct in holding that Mack was required to pay only $8.00 per machine instead of $12.00.

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

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


author: HOLMES, Judge.

text:
    George Edward CHAPMAN v. Dories C. CHAPMAN.
    Civ. 3022.
    Court of Civil Appeals of Alabama.
    March 3, 1982.

      Joe M. Berry of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Aubrey 0. Lammons of Lammons, Bell & Sneed, Huntsville, for appellee.
   HOLMES, Judge.

This is a divorce case.

The parties were divorced on the grounds of incompatibility. The husband appeals and we affirm.

It is not necessary to detail the facts. Suffice it to say that, prior to the divorce, the parties had been married approximately twenty-eight years. No children were born of the marriage. The divorce proceeding was instituted by the wife who sought the divorce on the grounds of incompatibility. After an ore tenus hearing, the trial court granted the divorce due to incompatibility of temperament. The trial court also divided the property between the parties. The facts will be further developed as they relate to the specific contentions raised on appeal.

On appeal, the husband, through able and distinguished counsel, raises two issues. Initially, the husband contends that there was not sufficient evidence to support the trial court’s conclusion that the marriage should be dissolved due to incompatibility of temperament. We find no merit in this contention.

The wife was the only witness who presented evidence regarding incompatibility. She testified to long and frequent periods of separation due to the husband’s interest in hunting, fishing and riding in the mountains. The wife had no interest in such activities and, apparently, never participated in them. According to the wife, the husband expected her to confine her activities to the home and he resented her participating in activities outside the home. The couple had no mutual entertainment and they rarely socialized with friends and family. When it became apparent that there were some problems with the marriage, the husband refused to discuss the matter. The wife further testified that she felt that her husband no longer loved her and, when asked if she loved her husband, she said simply that she respected him. Finally, the wife was asked if the marriage could be reconciled. She said no and, furthermore, she had no desire to reconcile.

Based upon the evidence as summarized above, the trial court determined that incompatibility of temperament existed and granted the divorce. Reviewing the record with the attendant presumptions, this court cannot conclude that the trial court committed plain and palpable error in making that determination. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71, cert. denied, 290 Ala. 370, 274 So.2d 80 (1973).

Our conclusion is not altered because the husband presented evidence that incompatibility of temperament did not exist. Incompatibility necessarily involves both parties. It is inconceivable that the husband’s temperament could be compatible with his wife’s if hers is incompatible with his. Phillips v. Phillips, supra; Dyal v. Dyal, 54 Ala.App. 206, 307 So.2d 17 (1975).

The husband next contends that the trial court abused its discretion in dividing the property. We also find no merit in this contention.

The division of property is a matter within the sound discretion of the trial court and will not be reversed on appeal unless there is a manifest abuse of discretion. Hawkins v. Hawkins, 346 So.2d 967 (Ala.Civ.App.1977); Mullins v. Mullins, 344 So.2d 511 (Ala.Civ.App.), cert. denied, 344 So.2d 515 (Ala.1977).

Though the parties began the marriage with few assets, the record reveals that over the course of the marriage the parties accumulated substantial interests in real estate and rental housing. The husband, who was a schoolteacher, was involved in arranging purchases of property and building and maintaining the rental housing. The wife’s participation in the business included keeping the books, selecting appliances, cleaning houses and apartments, doing yard work, renting apartments and dealing with unhappy tenants. This work was in addition to her normal household duties and her employment with the Tennessee Valley Authority.

The property division allowed each party to retain his or her own personal items, including clothing, jewelry, hobby and sporting equipment. The remaining property was divided essentially equally between the parties. As a result of the property division, each party’s share of the assets amounted to roughly $200,000.

In making a division of property, the trial court may properly consider the contribution of the parties toward the accumulation of the asset. McLain v. McLain, 384 So.2d 114 (Ala.Civ.App.1980). Considering the wife’s contribution to the accumulation of the assets, this court cannot conclude that the trial court abused its discretion in making this property division.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Floyd Marvin McCULLOUGH v. Ann Magouirk McCULLOUGH.
    Civ. 3043.
    Court of Civil Appeals of Alabama.
    March 10, 1982.
    William C. Veal, Birmingham, for appellant.
    Thomas W. Harmon, Anniston, for appel-lee.
   BRADLEY, Judge.

This is an appeal from the trial court’s denial of appellant’s petition to modify the alimony provision of a divorce decree. We affirm.

Neither party has provided us with a statement of facts. From what we can glean from the meager record, it appears that Floyd M. McCullough, appellant, and Ann M. McCullough, appellee, were divorced on March 2, 1978. The original divorce decree incorporated an agreement of the parties, and provided that the husband was to pay the wife alimony in the sum of fifty dollars per week for a period of five years, or until the wife remarried. The parties have not included a copy of the original decree in the record.

On March 10, 1980 the parties by joint stipulation agreed to modify the original decree. The modified decree apparently provided that the husband was to pay the wife alimony in the sum of $100.00 per month for a set period of time. The parties disagree on whether the modified decree provided that the husband’s obligation to pay alimony terminated upon the wife’s remarriage. A copy of that modified decree is not contained in the record, nor have we been apprised of the exact contents of the pertinent provision.

The husband apparently attempted to comply with the 1980 decree until he learned of his ex-wife’s remarriage. On June 19,1981 the husband filed a petition to further modify the prior decree, alleging that the alimony provision of the 1980 decree was an award of periodic alimony and, under § 30-2-55, Code 1975, his obligation to pay terminated upon the wife’s remarriage. A hearing was held on August 20, 1981. The wife defended the 1980 decree, contending that the provision was an award of alimony in gross and was therefore non-modifiable.

The trial court, examining the contents of the 1980 decree, found that the provision contained no language providing for the termination of the husband’s alimony obligation before the expiration of the stated time period. The court denied the husband’s petition to modify the decree, and ordered him to comply with its provisions. From that judgment the husband appeals to this court.

The husband contends that the 1980 modification of the original divorce decree merely changed the amount of periodic alimony he was required to pay, and was not a conversion of periodic alimony into alimony in gross. While this contention may have some merit, we must point out the difficulty we have in reviewing the trial court’s decision in this case. Moreover, we are not to be understood as saying that periodic alimony can be converted into alimony in gross or vice versa after the parties have been finally divorced. As we have stated above, the record does not contain a copy of either the original 1978 divorce decree or the 1980 modification. The trial court, in its order, states that its decision is based upon an examination of the 1980 decree. In fact, we are asked to review a trial court’s construction of a provision of a divorce decree which we do not have before us. Without the benefit of those two documents, we cannot place the trial court in error for its decision. When it is apparent that the trial court had before it certain material documentary evidence which is not set out in the record, it will be conclusively presumed on appeal that the evidence omitted from the record but considered by the trial court will support the decision. Davis v. City Federal Savings & Loan Association, 288 Ala. 236, 259 So.2d 262 (1972).

For the foregoing reasons, the judgment of the trial court is affirmed.

Appellee’s request for attorney’s fee is granted in the amount of $350.00.

AFFIRMED.

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


author: PER CURIAM.

text:
    Alton SPARKS v. DELTA MASONRY CONTRACTORS, a partnership.
    Civ. 3112.
    Court of Civil Appeals of Alabama.
    March 10, 1982.

      Clyde D. Baker, Guntersville, for appellant.
    Louis B. Lusk of Lusk & Lusk, Gunters-ville, for appellee.
   PER CURIAM.

This is a workmen’s compensation case.

After a contested trial, the circuit court rendered a judgment on September 1, 1981, which, among other findings, ascertained that Mr. Sparks, the employee, had suffered a forty-five percent permanent partial disability to his body as a whole, that his earning capacity had been impaired permanently by the same percentage and that, in addition to payments which had been previously paid by the employer, the employee should further recover from the employer the sum of $96 per week for 260 weeks.

The parties entered into the following agreement which was dated on September 28, 1981:

The parties hereby stipulate and agree (a) that defendant has paid into the office of the Clerk of this Court the costs of this action and the sum of $2,016.00 as compensation for 21 weeks of the plaintiff’s permanent partial disability, (b) that defendant may fully and finally satisfy its remaining obligations under the Judgment herein of September 1, 1981, for compensation payable to plaintiff for his permanent partial disability for the remaining 249 of the 260 weeks specified in said judgment, by paying into the office of the Clerk of this Court the lump sum of $15,000.00, and (c) that said judgment of September 1, 1981, should be so modified and amended.

By its judgment of September 29, 1981, the trial court ascertained that it was to the best interest of the employee to settle his claim pursuant to the agreement. Therein, the trial court modified and amended the September 1 judgment by approving the agreement, and, accordingly, it rendered a judgment for the employee and against the employer for $15,000 in one lump sum as full and final payment for compensation for the remaining 249 weeks of his permanent partial disability. The court provided that, upon the payment of the $15,000 by the employer, it would be released and forever discharged from any and all further liability as to the matter in controversy except as to medical expenses.

The $15,000 was paid by the employer.

The employee filed a Rule 60(b) motion on December 29, 1981, which sought to recover $5,766 as additional compensation. He contended, in substance, that the computation of a lump sum payment under § 25-5-83 of the Code (1975) should amount to a sum equal to the present value of all further installments of compensation calculated on a six percent basis, while he assumed that twenty-one percent was here utilized. That motion was denied by the trial court, hence this appeal by the employee whose sole contention is that an error was made in calculating the lump sum settlement.

The employee would be correct if the sole agreement of the parties was only to provide for a lump sum in lieu of the periodic payments as ordered by the September 1 judgment. However, here the agreement involved other rights and liabilities of the parties. By the agreement and judgment, the parties were compromising a liability imposed upon the employer by the original judgment. They settled by agreeing that a lesser amount was due. The September 1 judgment was still within the breast of the trial court. The parties did not agree merely to commute the original weekly payments as provided by the September 1 judgment into one lump sum payment, but they agreed to modify the court’s judgment so as to reduce the total amount of compensation to be paid to the employee by his employer. The parties agreed to a lesser amount than was originally adjudged, and the trial court approved it as a lump sum. Thereby, in legal effect, the employee gave up some of his compensation, and the employer surrendered its right to seek a new trial and to appeal from an adverse ruling thereon. The consent judgment of the parties was substituted for the September 1 judgment of the court.

Rather than § 25-5-83, we deem § 25-5-56 to be the controlling code section as to the question here raised. It provides that parties have the right to settle all matters of compensation between themselves and that, if the settlement is for an amount which is less than the amount of benefits set by law, before the settlement is valid, a circuit judge shall approve such settlement provided that the court first determines that it is in the best interest of the employee to accept the lesser sum. That procedure was implicitly followed, and that determination was expressly made, in this case.

The original judgment was modified within thirty days of its entry. After the expiration of the thirty-day time period allowed by Rule 59(b, d or e), A.R.C.P., a trial court has no authority to correct, modify or amend its judgment, except as to clerical errors. Hallmark v. Hallmark, 381 So.2d 641 (Ala.Civ.App.1980). Conversely, the circuit court has authority to modify or vacate its workmen’s compensation judgment for thirty days after its original entry whenever, in that court’s discretion, the ends of justice require such action, which discretionary power is not reviewable on appeal except for an abuse thereof. Ex parte Ingalls Shipbuilding Corp., 32 Ala.App. 609, 28 So.2d 808 (1947).

The same circuit judge tried the initial case, rendered the initial judgment, approved the settlement and modified the original judgment within the thirty-day limitation, and, at a later date, overruled the employer’s motion for additional compensation. The trial court did not abuse its discretion in approving the settlement and in modifying its original judgment.

We must affirm since the agreement of the parties was not a mere commutation of periodic payments into a current lump sum and since it was, instead, a lump sum settlement of liability which was made and approved by the trial court within thirty days of the entry of the original judgment.

AFFIRMED.

All the Judges concur.


text:
    Harold Wayne WALLIS v. DIRECTOR OF The DEPARTMENT OF PUBLIC SAFETY of The State of Alabama.
    Civ. 2891.
    Court of Civil Appeals of Alabama.
    March 17, 1982.
    Thomas J. Spina of Daniel, Fawal & Spi-na, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appellee.
   HOLMES, Judge.

Harold W. Wallis (appellant) filed a petition for mandamus in the Montgomery Circuit Court seeking to compel the director of the Department of Public Safety (appellee) to rescind the director’s order revoking appellant’s driver’s license.

After an ore tenus hearing, the trial court denied the requested relief.

Wallis appeals from this order. We find no reversible error and affirm.

The record reveals the following: On two separate occasions in January of 1980 appellant was convicted of reckless driving. As a result of these two convictions appellant was notified on November 24, 1980 that his license would be suspended for sixty days under the point system as an habitual violator.

After receiving the notification of suspension the appellant requested a hearing concerning the suspension. On December 30,1980 a hearing was held before an agent of the director of public safety. During the hearing appellant informed the hearing officer that on November 19, 1980 he had again been convicted of reckless driving. It is undisputed, however, that this conviction had not, at the time of the hearing, become a part of appellant’s driving record.

After considering all the pertinent facts of appellant’s record, character and attitude, the hearing officer concluded that appellant’s driving privilege should be suspended for sixty days. Appellant surrendered his license on December 29, 1980 and, apparently, did not drive an automobile during the period of the suspension.

On April 6, 1981 the Department of Public Safety notified appellant that his driver’s license was being revoked for a period of six months with credit to be given for the sixty day suspension appellant had previously served. This action was based upon section 32-5A-195(j)(7), Code of Alabama 1975 (Cum.Supp.1981), and was taken after the November 19 reckless driving conviction had become a part of appellant’s driving record.

Section 32-5A-195(j)(7) requires the director of public safety to revoke the license of any driver upon receiving a record of such driver’s conviction of three charges of reckless driving committed within a twelve month period.

On May 14,1981 appellant filed a petition for mandamus seeking to have the six month revocation rescinded. This petition was based upon appellant’s contention that the sixty day suspension was bottomed upon the hearing officer’s knowledge and consideration of appellant’s three reckless driving convictions. Consequently, appellant argues that the doctrine of res judicata precludes the Department of Public Safety from subsequently revoking his license based upon the same three convictions which were the subject matter of the previous hearing.

The trial court, after considering the evidence before it, denied the requested relief. This court finds no error in the trial court’s action and affirms.

Under the doctrine of res judicata a former judgment will become an absolute bar to a subsequent suit only if, among other requirements, the subsequent suit is based upon the same cause of action that was litigated in the former suit. Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978); Byrd v. Fowler, 50 Ala.App. 596, 281 So.2d 647 (1973). In light of the foregoing, res judicata is not applicable in this case because the suspension and the revocation were not based upon the same cause of action. It is apparent, after reviewing the record, that the suspension was based solely upon appellant’s two January reckless driving convictions and the revocation was based upon appellant’s three convictions within twelve months.

This conclusion is based upon the chronology of events which led to the suspension and revocation. On November 19, 1980 appellant was convicted of reckless driving for the third time within a twelve month period. The department, however, did not receive any record of appellant’s November 19 conviction until November 26, two days after appellant had been notified that his license would be suspended for sixty days.

As indicated earlier, the appellant exercised his right to have a hearing regarding the suspension. Though, at the time of the December 30 hearing the department did have actual notice of the November 19 conviction, the conviction had not become a part of the appellant’s driving record. Consequently, the hearing officer had no record of the conviction at the time of the hearing. Admittedly, appellant did inform the hearing officer of the latest conviction. This information, however, did not change the basic nature of the hearing which was to contest the sixty day suspension which was based upon the two January convictions.

Additionally and importantly, we note that the hearing officer had no authority to make any decision based upon appellant’s three convictions. The statutory authority for the suspension is found at section 32-5A-195(k)(2), Code of Alabama 1975 (Cum.Supp.1981). Section 32-5A-195(/), Code of Alabama 1975 (Cum. Supp.1981), gives a person whose license has been suspended a right to a hearing. Section 32-5A-195(i) contains no authorization for a hearing when a license is revoked. Under section 32-5A-195(j)(7), revocation is mandatory when, as here, the statutory requisites are met. The director of public safety has no discretion in the matter.

When the November 19 conviction became a part of appellant’s driving record in April of 1981, the director, as required by statute, revoked appellant’s license. This was the first time any action had been taken against appellant based upon his three reckless driving convictions. Furthermore, in light of the above, this was the only action that could have been taken. The revocation was punishment for an offense separate and distinct from the offense for which appellant’s license was suspended. Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895). Though based in part upon the two January convictions for which appellant’s license had been suspended, the revocation was the result of a new cause of action and, therefore, was not barred by the suspension or the suspension hearing.

This case is due to be affirmed.

AFFIRMED.

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


author: TYSON, Judge.

text:
    James BIGGS v. STATE of Alabama.
    1 Div. 224.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
    Certiorari Quashed, April 9, 1982 Alabama Supreme Court 80-802.
    William H. Sisson of Collins, Galloway & Smith, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The indictment charged James Biggs with the first degree murder of Earnest Boney, by shooting him with a pistol, contrary to the provisions of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of manslaughter” and after polling the jury and setting the cause for sentencing hearing, the trial court set sentence at five years’ imprisonment in the penitentiary.

Because reversible error appears from the exception to the trial court’s oral charge and in the refusal of certain requested written charges which are correct statements of law, we pretermit consideration of the evidence in this cause.

I

Defense counsel excepted to the trial court’s oral charge on several grounds (R. 109-112) among them the refusal of the trial court to charge that the “legal presumption of innocence was to be regarded as a matter of evidence in behalf of appellant”. The trial court also refused a written requested charge on this. (R. 10).

We have carefully reviewed the oral charge of the trial court and find that while the trial judge did discuss the matter of the presumption of innocence, and that the state was required to prove the guilt of the appellant beyond a reasonable doubt, no where in the oral charge does such oral charge point out that the legal presumption of innocence is a matter of evidence and should be regarded as such by the jury in the appellant’s behalf during their deliberations. By failing to charge the jury on this matter, the trial court committed reversible error. Bryant v. State, 348 So.2d 1136 (Ala.Cr.App.), cert. denied, 348 So.2d 1138 (Ala.1977) and cases therein cited and Brown v. State, 369 So.2d 56 (Ala.Cr.App.1979).

For the error shown, this case is reversed and remanded for new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: DeCARLO, Judge. DeCARLO, Judge.

text:
    Robert C. COLEMAN v. STATE
    3 Div. 370.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    On Return to Remand Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-403.
    Edwin L. Yates, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Possession of marijuana after a prior drug conviction; fifteen years and a fine of $15,000.

On June 13, 1980, Grady Gibson, while employed by the State of Alabama, Narcotics Division, executed a search warrant at appellant’s residence in Montgomery, Alabama. During the search of the residence, the officers found marijuana and drug paraphernalia. These items were seized and kept in a safe used only by Officer Gibson and one other officer. On June 17, 1980, plant material in seven clear plastic bags and six small envelopes was turned over to Mr. William Landrum of the State Department of Forensic Science in Montgomery, Alabama.

Mr. Alan Adair of the State Department of Forensic Science, testified that Mr. Land-rum received the plant material and, six days later, Landrum turned the evidence over to him, Mr. Adair. Adair analyzed the contents of the plastic bags and manila envelopes and found that they contained marijuana. Adair stated that when he received the items from Landrum they were in a sealed condition. On cross-examination, Adair acknowledged that he did not know where the marijuana had been kept when it was in the possession of Mr. Land-rum for six days.

At the end of Adair’s testimony, the State rested its case and the appellant took the stand in his own behalf and testified that he lived at the residence where the search warrant was executed. He stated that he did not know the marijuana was in his residence. He also testified that prior to the search he had been robbed and his house keys and car keys had been stolen. The appellant stated that he did not smoke or use marijuana.

I

The appellant contends that State’s Exhibit No. 3, an envelope containing marijuana, was improperly introduced into evidence because the State failed to establish chain of custody. He argues that because of the “missing link and its duration, there is no reasonable probability” that the marijuana was in the same condition at trial as when it was submitted to Landrum, or even that it was the same marijuana.

In Sexton v. State, Ala.Cr.App., 346 So.2d 1177, 1180, cert. denied, Ala., 346 So.2d 1180 (1977), this court stated:

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.”

See Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ala., 360 So.2d 367 (1978).

In Bell v. State, Ala.Cr.App., 339 So.2d 96 (1976), this court observed that the purpose for establishing chain of custody is to show a reasonable probability that there has been no tampering with the item of evidence.

In the present case, the trial court overruled the defense objection to admitting the marijuana on the basis of Oury v. State, 53 Ala.App. 240, 298 So.2d 661 (1974), and on the testimony of Adair that he received the exhibit in a sealed condition.

Appellant contends that the present case is distinguishable from Oury v. State, supra. In Oury, law enforcement officers delivered an envelope containing narcotics to the State toxicologist’s office for analysis. The envelope was turned over to Mr. Van Pruitt, who did not testify that the envelope was then delivered to a Mr. Kil-bourne for chemical analysis. The court in Oury observed that, although Pruitt did not testify that he turned the envelope over to Kilbourne, Kilbourne stated that he took possession of the envelope in the laboratory, opened it, and dictated its contents to his secretary. Kilbourne then re-sealed the envelope and kept it in his possession until it was presented at trial. This court held in Oury that the identification and continuity of possession were sufficiently shown, affording ample assurance of the authenticity of the items submitted into evidence.

In our judgment, the facts in this case parallel those in Oury v. State, supra. Here, Adair testified that after the items were delivered to him in a sealed condition by Landrum, Adair analyzed the contents. There is not an iota of evidence that would indicate there was any tampering with the envelope or its contents before it was given to Adair. Under these circumstances, we believe there is a reasonable probability that the material was in substantially the same condition as when it was first delivered to Landrum. If the six-day possession of the material by Landrum is perceived to be a “weak link” in the chain of custody, then a question of credit and weight exists rather than one of admissibility. McClary v. State, 51 Ala.App. 30, 282 So.2d 379 (1972) reversed on other grounds, 291 Ala. 481, 282 So.2d 384 (1973); King v. State, 45 Ala.App. 348, 230 So.2d 538 (1970). Therefore, it is our judgment that the items were properly admitted into evidence.

II

The appellant maintains that the trial court imposed an illegal sentence. He argues that prior to sentencing, he had, by written motion, requested a presentence report as per Rule (3)(a)(2) of the Alabama Rules of Criminal Procedure — Temporary Rules, which provides the following:

“Felony offenses. On motion of the court or written motion of either party, the court shall require a written report of a presentence investigation of a defendant convicted of a felony, and such defendant shall not be sentenced or otherwise disposed of before such report had been presented to and considered by the court.”

We have examined the record and have found that immediately after the jury returned with its verdict on February 12, 1981, the appellant was sentenced. The record reveals that appellant’s motion for presentence report was also filed and denied on February 12, 1981, but the record does not indicate whether the motion was filed before or after sentence was imposed. Therefore it is our judgment that the cause must be remanded to the Montgomery Circuit Court to determine when the motion requesting the presentence report was filed and considered by the court. We direct the trial court to prepare a record of the hearing at which this issue is determined and submit it to this court within a reasonable time.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

DeCARLO, Judge.

Pursuant to our request that the trial court determine the timing of appellant’s request for a pre-sentence report, the Montgomery Circuit Court found the following:

“[T]he court having examined the transcript in this case and having searched its independent recollection in this matter, the court is of the opinion that the request for pre-sentence report occurred subsequent to the sentencing in this case and was untimely.”

We have searched the record and have found no error. Appellant’s conviction and sentence for possession of marijuana after a prior drug conviction are hereby affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Robert Davis JORDAN v. STATE.
    6 Div. 617.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-359.

      Gary L. Smith of Elledge & Smith, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Indecent molestation of a child; five years.

The appellant was indicted for violation of Ala. Code § 13-1-113 (1975) in two separate counts by the July, 1979 term of the Tuscaloosa Grand Jury. Both counts of the indictment follow substantially the language in Ala. Code § 13-1-113 (1975). The jury found appellant “guilty of indecent molestation of a child as charged in the indictment” and assessed a fine of “none” for the offense. At the conclusion of the appellant’s sentence hearing, the trial court fixed his punishment at five years imprisonment in the State penitentiary and assessed a fine against him of $5,000. Appellant gave oral notice of appeal.

The facts in this case are not in dispute. The trial court initially ascertained the competency to testify of the eleven-year-old and the eight-year-old eyewitness to the offense.

The victim testified that she and her parents went to her sister’s apartment on Har-grove Road in Tuscaloosa County on the afternoon of September 1, 1979. The victim’s sister and her family were planning a cookout, and the victim and her eight-year-old friend were to spend the night together afterwards.

Around 7:30 or 8:00 p.m., after everyone had eaten, and while the adults were watching television, the two young girls went outside to play near the back door of the apartment. The two girls played for awhile and then put out the fire that had been used for the cookout. At this time the appellant, who lived next door in apartment number thirteen, asked the girls to come to his apartment.

As requested, the children entered the back door of appellant’s apartment into his kitchen. They walked into the living room and from there the appellant took the girls into the bathroom. In the bathroom the appellant exposed his penis to the girls and, on the pretext of having caught it in the zipper of his pants, told the eleven-year-old victim to help him “get this thing out of his zipper.” She complied by jiggling the zipper for a “couple of minutes” with appellant urging her “to keep on trying.” After she stopped trying to jiggle his zipper the appellant put his penis “back inside his pants.” Appellant then told the girls not to tell their parents what had happened and they left his apartment.

They then returned to apartment number fourteen and “went upstairs to clean up the room.” The eight-year-old witness then told her mother what had happened. The victim stated, “I was going to tell my mother and daddy, but they had already gone home.” The older child’s mother was notified and she returned to the apartment; the police were called and they came to investigate.

I

Appellant maintains that Ala. Code § 13-1-113 (1975) is unconstitutional under the Fourteenth Amendment for vagueness in that it fails to give fair notice of the conduct which it prohibits. There is no merit to this contention. This exact issue has been previously answered by this court in Poe v. State, 389 So.2d 154 (Ala.Cr.App.1980).

As this court stated in Chambers v. State, 364 So.2d 416 (Ala.Cr.App.), cert. denied, 364 So.2d 420 (Ala.1978) quoting from Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951).

“We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzback, 1930, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508. Impossible standards of specificity are not required. United States v. Petrillo, 1947, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 1926, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322.”

Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); Chambers, supra. Applying these principles to the statute and facts before us, we have no difficulty in upholding the constitutionality of Section 13-1-113. The appellant’s conduct was revoltingly blatant and in no sense “borderline.”

II

The State properly proved venue as being in Tuscaloosa County. Sandy Neville testified without objection that her sister’s apartment on Hargrove Road and “the apartment next door” was in Tuscaloosa County. In addition, Sherrill Brown, Sandy’s sister, testified that in September of 1979 she lived in the Hargrove Road Apartments “here in Tuscaloosa County.” Thus, venue was sufficiently proved from persons having personal knowledge of the locus of the crime. There is no basis in fact for appellant’s contention.

Whether leading questions will be allowed is within the discretion of the trial court. Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974). A witness’ testimony becomes legal evidence if it is received without objection. Wilson v. State, 52 Ala.App. 680, 296 So.2d 774, cert. denied, 292 Ala. 759, 296 So.2d 778 (1974).

III

Appellant’s final contention is that the trial court erred in assessing a fine of $5,000 against him after the jury returned its verdict assessing “a fine of none.” We agree. Alabama Code §§ 15-18-40 and 15-18-41 (1975) were repealed by Acts 1977, No. 607, p. 812, § 9901, as amended, effective January 1, 1980. However, because appellant’s prosecution was begun before .the effective date, those sections are applicable here by virtue of the Saving Section: Acts 1977, No. 607, § 9905.

Under §§ 15-18-40 and 15-18-41, if the jury fails to impose a fine, the trial judge is without authority to do so. Osner v. State, 54 Ala.App. 520, 310 So.2d 241 (1974), cert. denied, 293 Ala. 769, 310 So.2d 247 (1975); Winn v. State, 38 Ala.App. 156, 79 So.2d 75 (1954). The judgment of the court below to the extent that it imposed a fine of $5,000 in addition to the sentence of five years in the penitentiary must be treated as surplus-age. Allen v. State, 382 So.2d 1147, 1157 (Ala.Cr.App.), cert. denied, 382 So.2d 1158 (Ala.1980).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ronnie SLAUGHTER v. STATE.
    1 Div. 288.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-414.

      James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Sale of marijuana, fifteen years.

William Gibson testified that on October 31, 1980, he and Larry “Hollywood” McRey-nolds talked with appellant at the residence of appellant’s mother, located in the Old Dump Road area, north of Fulton in Clarke County. Gibson, working as an undercover agent for the Clarke County Sheriff’s Department, asked appellant if he had any marijuana. Appellant responded he did and Gibson asked for an ounce. Appellant said he had it available and that it would cost forty-five cents (street talk for forty-five dollars). They proceeded to appellant’s house trailer, where Gibson made the purchase in the presence of “Hollywood” and six black males. Gibson gave appellant forty-five dollars in cash. Gibson left appellant’s trailer and took the marijuana to Sheriff Ray Sheffield at the Clarke County Courthouse. The marijuana was delivered by Gibson to the Sheriff in the same plastic bag, and in the same condition in which he received it from appellant.

Ray Sheffield, Sheriff of Clarke County, testified that undercover agent William Gibson brought a quantity of marijuana in a plastic sandwich bag to his office on October 31, 1980. He placed it in a manila envelope, sealed it with tape and put his initials, appellant’s name, the date, and possibly the time of day on the envelope. The marijuana was kept in a locked safe until January 22, when it was taken to the toxicologist’s office in Mobile. Dr. Jim Small and Debbie Sennett were present at the toxicologist’s office when Sheffield delivered the marijuana. A girl in the office actually received and opened the envelope. Dr. Small was standing in the office and Deborah Sennett was walking in and out of the office. Sheffield stated the marijuana was in the same condition and same envelope when he delivered it to Dr. Small as when he received it from Gibson. Sheffield and the deputy sheriff were the only ones with keys and access to the safe. The sheriff testified he delivered packages for approximately sixteen cases the day he delivered the substance in question.

Deborah Sennett, a drug analyst with the Department of Forensic Sciences, testified she received a package from Sheriff Sheffield in her office on January 22, 1981. She was shown the package by the prosecution and identified it as the package delivered for this case on January 22, 1981. She stated the normal office procedure was to place the case number on the evidence and on a file folder. If the evidence is not in a manila envelope, it is placed in one and a piece of tape is placed across the back with the officer’s initials. If she is not personally present, one of the people in the lab signs for the evidence. She stated she examined the contents by normal routine analysis for marijuana and concluded the substance was marijuana. After she analyzed the substance, she sealed the sample, and retained it in her custody until the time of the trial. She stated the substance was in the same condition as when it was received at the lab. The State offered the package at that point, and it was received into evidence over appellant’s objection and assertion that no proper predicate or chain of custody had been proved.

On cross-examination, Ms. Sennett testified the manila envelope contained two plastic bags, one plastic bag containing the marijuana within another plastic bag. Also, on cross-examination, she stated she did not personally receive the envelope from Sheriff Sheffield nor was she present when it was delivered. She also did not know if it arrived at the office in the same envelope in which she received it. Although the initials “R.S.” were present on the envelope, she stated there was no date or name written on the package. She further testified the package contained flower tops, leaves and fragments, along with fiber from the stem and stalks of the mature cannabis sativa L. plant.

The State rested following the close of Ms. Sennett’s testimony. The appellant’s motion to exclude the State’s evidence was denied, and appellant rested without presenting any testimony.

I

Appellant contends the State failed to establish the proper chain of custody necessary to identify and authenticate the marijuana. This issue is complicated by conflicting testimony by the witnesses on direct and cross-examination.

Undercover agent William Gibson testified he received the marijuana in a plastic bag from appellant on October 31, 1980. He proceeded from the appellant’s trailer to Sheriff Sheffield’s office and delivered it to the sheriff in the same condition as he had received it from appellant. Sheriff Sheffield stated he received a plastic bag containing marijuana from undercover agent Gibson at his office on October 31, 1980. He placed the plastic bag in an envelope, sealed it with tape, put his initials on it, and then placed it in a locked vault at the sheriff’s office. The only other person who had access to the locked vault was the deputy sheriff, and the vault was only unlocked in his or the deputy sheriff’s presence. On January 22, Sheriff Sheffield took the package to the toxicologist’s office and delivered it to Dr. Jim Small and Debbie Sennett, in the same condition as when he received it from agent Gibson.

On cross-examination, the sheriff testified he also wrote the appellant’s name and the date he received the marijuana on the manila envelope at the time agent Gibson brought the substance to his office. He stated there was only one plastic sandwich “baggie” containing the marijuana which Gibson delivered to him. Also, he testified on cross-examination that he actually physically handed the marijuana envelope to a clerk in the toxicologist’s office who routinely gave his office receipts for substances brought to the lab. She opened the envelope in his presence, as well as in the presence of Dr. Small and Deborah Sennett.

Deborah Sennett testified she received a package from Sheriff Sheffield at the forensic sciences office on January 22, 1981. She identified State’s Exhibit I as the same package that was delivered on January 22, 1981. She examined the contents of the package, and found it contained marijuana. After she analyzed the substance she resealed the package and retained it in her custody until the time of the trial. She stated the package was in the same condition as when it was received at the lab, other than for the removal of a small amount for analysis in the laboratory tests.

The State then offered the item into evidence at the close of Ms. Sennett’s direct examination. The court admitted the item into evidence over an objection by appellant based upon a failure to prove a proper predicate and chain of custody.

On cross-examination, Ms. Sennett testified in conflict to Sheriff Sheffield’s testimony, that the envelope contained two plastic bags, one inside the other, and that the envelope did not have a date or appellant’s name written upon it. She further stated, in direct conflict to her previous testimony, that she did not receive the envelope from Sheriff Sheffield, was not present when the envelope was delivered at the office, and did not know if it was the same envelope as the one Sheriff Sheffield delivered. She did not have any first-hand knowledge of the origin of the green plant material.

The appellant made no objection to the introduction of the evidence at the close of Ms. Sennett’s testimony, and stated to the trial court that he had no further objections.

At the time the State offered the item, the testimony had proved a satisfactory and proper identification and chain of custody of the marijuana. The evidence sufficiently established that there was no break in the chain of custody and identified the substance as the same as that which was purchased from the appellant. The evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from, the object as it existed at the beginning of the chain. Mauldin v. State, Ala.Cr.App., 402 So.2d 1106 (1981). The trial court did not err in overruling appellant's objection.

The testimony of Ms. Sennett on cross-examination does indicate a possible break in the chain of custody which could put the identity and sameness of the item in question. Johnson v. State, Ala.Cr.App., 378 So.2d 1164, cert. denied, Ala., 378 So.2d 1173 (1979). Yet, the record clearly shows that not only did the appellant subsequently fail to object to the prior introduction of the item, or move to exclude the item from the jury’s consideration, he stated to the court that he had no further objections.

In Oates v. State, Ala.Cr.App., 375 So.2d 1285 (1979), we stated:

“[Wjhen evidence is admitted on direct examination, and later, during cross-examination, it appears that such evidence was not admissible, and the complaining party does not make a proper motion to exclude such evidence from the jury, the trial court cannot be put in error for permitting that evidence to remain before the jury.” [Citations omitted]

Because the appellant did not object or move to exclude the specific evidence, there is no error preserved for our review. Price v. State, 52 Ala.App. 21, 288 So.2d 803 (1974).

We point out further that this court is required to take that evidence which is most favorable to the State as true. Johnson v. State, supra. Hence, the conflict in Ms. Sennett’s and Sheriff Sheffield’s testimony may be regarded as affecting the credibility but not the admissibility of the evidence.

II

Appellant alleges the court erred in failing to grant his motion to exclude the State’s evidence because the State failed to prove that the substance sold by appellant was marijuana as defined by Alabama Code Section 20-2-2(15) (1975), which defines marihuana as follows:

“All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Such term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination.”

Deborah Sennett, a drug analyst with the Department of Forensic Sciences with six years experience with the department testified she examined the substance and determined it to be marijuana. Ms. Sennett’s expert testimony that the substance was marijuana established a prima facie case for the State in and of itself. Bickerstaff v. State, Ala.Cr.App., 369 So.2d 315 (1979). Though Ms. Sennett did testify upon cross-examination that the substance contained fibers and stems from a mature stalk of the cannabis sativa L., she testified as well that the substance also contained flower tops, leaves, and fragments. Where some or all of the substance sold is shown to be marijuana, the State has met its burden in proving its case. Peppers v. State, 53 Ala.App. 695, 304 So.2d 39, cert. denied, 293 Ala. 770, 304 So.2d 43 (1974). It is not necessary for the State to prove the presence of tetrahydrocannabinol, where, as here, the toxicologist by employing her testing procedure determines the substance to be marijuana. Radney v. State, Ala.Cr.App., 342 So.2d 942, cert. denied, Ala., 342 So.2d 947 (1977). As we stated herein-above, this court takes that evidence which is most favorable to the State as true and correct, according the prosecution all legitimate inferences therefrom. Johnson, supra.

Ill

Appellant argues the court erred in refusing his requested written charge number 15. The charge appears in the record as follows:

“I charge you, members of the jury, that the burden is upon the prosecution to prove beyond a reasonable doubt that the substance alleged to have been sold by the defendant was, from the evidence, marijuana as defined by law. I charge you, then, that the burden is upon the prosecution to prove beyond a reasonable doubt that the substance alleged to have been sold was as follows:
“Marijuana means all parts of the plant Cannabis Sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”

In the absence of evidence which affirmatively shows that the substance in question consists of the material listed in the description contained in the charge above, it is not error to refuse such a charge. Reed v. State, Ala.Cr.App., 401 So.2d 131, cert. denied, Ala., 401 So.2d 139 (1981). In the immediate case, there was non-conflicting evidence presented by the State toxicologist which indicated the substance consisted of both listed and non-listed vegetable matter from the cannabis sati-va L. plant. Ms. Sennett testified, however, that the substance tested was in fact marijuana. Ms. Sennett’s testimony that the substance was marijuana was uncontra-dicted. Neither the State nor appellant produced any evidence to the contrary.

The first part of appellant’s requested charge was substantially and fully covered by the court’s oral charge to the jury and its refusal will not work reversal. Reed, supra. Though the second part of the charge is a correct statement of the definition of marihuana at law, the court’s refusal to define the term, under the testimony presented during the trial, was not reversible error. “The giving or refusing to give mere definitions of words will not work a reversal, unless the meaning of the word is so obscure as to need explanation in order that the jury may arrive at its correct meaning as applied to the facts in the particular case.” Locklear v. State, 17 Ala.App. 597, 87 So. 708, cert. denied, 205 Ala. 236, 87 So. 712 (1920). [Emphasis added] Under the facts of the case, the State proved without dispute the substance was marijuana. The refusal of the charge did not prejudice the substantial rights of the appellant.

We have reviewed the entire record and find no error harmful to the substantial rights of appellant; therefore the judgment of conviction by the Clarke Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.