author: FAULKNER, Justice.

text:
    Mrs. Lewey B. STANTON et al. v. GOVERNMENT NATIONAL MORTGAGE ASSOCIATION, a corp.
    78-481.
    The Supreme Court of Alabama.
    Feb. 22, 1980.

      Frank J. Tipler, Jr., of Tipler, Fuller & Sikes, Andalusia, for appellants.
    John B. Givhan of Albrittons & Givhan, Andalusia, for appellee.
   FAULKNER, Justice.

This is an appeal from an order of the trial court granting plaintiff’s motion for summary judgment in an action in ejectment. We affirm.

Defendant Lewey B. Stanton and her husband, Albert Stanton, were record owners of the small parcel of property which is the subject of this ejectment action. On or about October 6, 1967, Lewey B. Stanton and Albert J. Stanton executed a mortgage on the said property to Dothan Federal Savings & Loan Association in consideration of a loan made to Albert J. Stanton. Government National Mortgage Association (GNMA) has shown its claim of title commencing with the mortgage of Stantons to Dothan Federal Savings & Loan Association, the assignment of that mortgage from Dothan Federal Savings & Loan Association to W. B. Leedy and Company, the assignment of that mortgage from W. B. Leedy and Company to Federal National Mortgage Association, the assignment of that mortgage from Federal National Mortgage Association to Government National Mortgage Association, and the subsequent foreclosure of that mortgage by Government National Mortgage Association with the resulting recordation of the mortgage foreclosure deed from Albert J. Stanton and wife, Lewey B. Stanton to Government National Mortgage Association.

Albert J. Stanton died on February 3, 1968, and his legal heirs came into partial possession of the property. His legal heirs, the defendants in this case, are Mrs. Lewey B. Stanton, Dorothy Ann Stanton, Margaret Stanton, and Betty Spivey. The defendants have lived on the property since Albert’s death.

Upon defendants’ inability to repay the loan made to Albert Stanton and the lack of mortgage protection insurance covering Albert’s life, the plaintiff, GNMA, instituted foreclosure proceedings on the property and bought the property at the foreclosure sale. This is the third suit brought against defendants by the plaintiff.

Appellants contend the matters involved have been twice adjudicated in favor of defendants as provided in Tit. 7, § 959, Code of Ala. as recompiled 1958. (Code 1975, § 6-6-298). Suit was filed in this case in June, 1973, and judgment rendered December 4, 1978. Ala.Code, Tit. 7, § 959, 1940 (Recompiled 1958) states:

“§ 959. (7474) (3858) (1554) (2714) (2969) (2620) (2219) Two judgments bar further suit. — Two judgments in favor of the defendant in an action of ejectment, or in an action in the nature of an action of ejectment, between the same parties, in which the same title is put in issue, are a bar to any action for the recovery of the land, or any part thereof, between the same parties or their privies, founded on the same title; provided, however, the two trials were had upon the issue of not guilty.” (Emphasis added.)

The first judgment in question is Case No. 4928 in the Circuit Court of Covington County, Alabama, decided in September of 1972. The judgment states, “. . . the Plaintiff takes a non-suit on account of the adverse ruling of the Court in sustaining objections of the Defendants to evidence sought to be adduced by the Plaintiff and the Plaintiff, in open Court on this date, gives notice of appeal of the cause to the Supreme Court of Alabama . . (Exhibit 2) This does not appear to be a judgment in favor of Mrs. Lewey B. Stanton and Dorothy Ann Stanton within the meaning of Tif. 7, § 959. Also, the issue of not guilty is not decided by the judgment as required by Tit. 7, § 959; therefore, the first judgment can not be counted as one of the two judgments required to bar the present suit.

The second judgment is Case No. 5377 in the Circuit Court of Covington County, Alabama, decided in 1973. The appellants’ exhibit 3 contains docket sheets of the case which appears to have been tried on a plea of abatement. The defendants Lewey B. Stanton, Margaret Stanton, and Dorothy Ann Stanton, prevailed in the case. Neither of the above judgments vested title to the property in the defendants or were had upon the issue of not guilty.

Appellants rely on Reynolds v. Henson, 277 Ala. 424, 171 So.2d 240 (1965), in saying the present action is barred by Tit. 7, § 959. That case said, “. . . for in our opinion, Code, § 959, Tit. 7, in modifying the common law, must have intended to limit two actions by an unsuccessful party in ejectment, rather than judgments in the same action, whereas the common law placed no limit upon such actions.” Appellants have not shown they come within Tit. 7, § 959 on which they try to rely because the previous cases do not meet the requirements of the statute. To bar an ejectment action under the statute the two previous unsuccessful actions must be of the kind described in the statute and in this case neither previous judgment qualifies.

Appellants contend the court erred in refusing to allow them to proceed in third party complaints against Dothan Federal Savings and Loan Association, because if they were successful, it would establish legal title to the property in them. The court struck all third party complaints since it was evident to the court that the third party complaints attempted to raise again the issue of mortgage term life insurance decided in Case No. 7429 in the Circuit Court of Covington County, Alabama in May, 1970. The court found in that case:

“Upon consideration of the evidence the Court finds that the Complainants bona fide believed that they had mortgage protection insurance to cover the mortgage loan described in the Bill of Complaint. The Court finds however that the Respondents or none of them acting by and through their agents attempted to secure or promised to secure mortgage protection insurance. The premium paid for insurance was paid as FHA mortgage insurance and was not mortgage protection or life insurance on the life of Albert J. Stanton.
“IT IS THEREFORE CONSIDERED, ORDER, ADJUDGED AND DECREED by the Court that the Complainants are not entitled to recover of the Respondents the remainder due under the mortgage described in the Bill of Complaint and that the temporary injunction heretofore issued in this cause should be dissolved and the Respondents allowed to proceed with their foreclosure proceedings if they see fit so to do.” (Exhibit 1)

Appellants contend they should be allowed to retry the issue of title in a second action and not be bound by the 1970 judgment. Appellants rely on Reynolds v. Henson, approving the holding in Morgan v. Lehman, Durr & Co., 92 Ala. 440, 9 So. 314 (1890), and interpreting it as saying, “we held that a defendant in ejectment against whom a judgment has been rendered has. a remedy by appeal for errors in the judgment and if dispossessed may retry the title in a second action.” But the judgment in Case No. 7429 was not in ejectment. It settled the mortgage insurance question and allowed foreclosure proceedings to proceed. This resulted finally in a mortgage foreclosure deed to GNMA being executed after GNMA was high bidder at the foreclosure sale. Such a judgment as was rendered in Case No. 7429 is res judicata as far as the issue of mortgage term life insurance is concerned and the trial court acted properly in dismissing defendants’ defenses based on it.

Appellants claim the court erred in failing to allow defendants to plead and prove adverse possession. The court struck the defendants’ plea of adverse possession and defendants expressly objected to this.

Appellants attempt to rely on Code 1975, § 6-6-286 in their adverse possession claim which deals with assessing the value of improvements made to the land by the defendants and using that to offset any charges for rents or damages for detention claimed by the plaintiff. On August 24, 1978, GNMA amended its complaint so as not to seek monetary damages for the detention of the tract of land the plaintiff seeks to recover possession of. After losing their claim about the mortgage term -life insurance and soon after that on August 3, 1970, giving a mortgage to GNMA, the appellants had ample notice not to make any permanent improvements to the property.

Code 1975, § 6-6-286 states:

“(a) When an action is commenced to recover land or the possession thereof, the defendant may, at any time before the trial, suggest upon the record that he, and those whose possession he has, have, for three years next before the commencement of the action, had adverse possession thereof, which must be construed to mean the same character of possession as will put in operation the statute of limitations.”

The statute requires “three years next before the commencement of the action.” The mortgage foreclosure sale deed was executed on August 3, 1970, and suit in this case was filed on June 29,1973. This is less than the three years required by statute and therefore appellants can not rely on this statute to support their adverse possession claim.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    STATE of Alabama v. SANDERSON EQUIPMENT CO., INC.
    Civ. 1924.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1979.
    Rehearing Denied Nov. 28, 1979.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue, and Asst. Atty. Gen., Ron J. Bowden, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for the State, appellant.
    Curtis 0. Liles, III, Markstein & Morris, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

The Montgomery County Circuit Court held an ordinance of the City of Muscle Shoals enacting a sales tax within the city and its police jurisdiction to be invalid. It ■directed a refund to plaintiff of $11,485.21 in taxes collected. We affirm.

This is another in a long series of cases arising from a challenge to the enactment of a city ordinance which levies a tax or a license upon businesses outside of the city limits but within its police jurisdiction. Those cases have clearly established that the purpose of such ordinances may not be for raising general revenue, but must be calculated to reasonably compensate the city for the expense of services provided. Van Hook v. City of Selma, 70 Ala. 361 (1881); Hawkins v. City of Prichard, 249 Ala. 234, 30 So.2d 659 (1947); Franks v. City of Jasper, 259 Ala. 641, 68 So.2d 306 (1953); Atlantic Oil Company v. Town of Steele, 283 Ala. 56, 214 So.2d 331 (1968); City of Hueytown v. Burge, 342 So.2d 339 (Ala.1977). It is upon the decision of the last cited case, City of Hueytown v. Burge, that the trial court based its judgment. The facts of that case and this case are so nearly the same as to be indistinguishable. The majority of the supreme court held in Burge that because it was affirmatively shown that the decision of the city to tax was not based upon any consideration of the relation of the tax to the reasonable cost of the services to be rendered, the ordinance was determined invalid. Evidently the view of the three-judge dissent, that a showing that the resulting revenue is less than the cost of the services being rendered should sustain the presumed validity of the ordinance, was rejected by the majority. The majority held that if the evidence shows no effort was made at the time of enactment to relate the fees imposed to the reasonable cost of supervision, it follows that the imposition was for impermissible general revenue purposes. We find the decision in Burge dispositive and affirm the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    Ex parte State of Alabama. In re STATE of Alabama v. SANDERSON EQUIPMENT COMPANY, INC.
    No. 79-209.
    Supreme Court of Alabama.
    Feb. 8, 1980.
    Charles A. Graddick, Atty. Gen., Herbert I.Burson, Jr., Ron J. Bowden, Asst. Attys. Gen., for petitioner.
    Curtis 0. Liles, III, of Markstein & Morris, Birmingham, for respondent.
   PER CURIAM.

WRIT DENIED. NO OPINION.

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

BLOODWORTH, MADDOX and SHORES, JJ., dissent.


author: HOLMES, Judge.

text:
    Sylvia Gilmore McALLISTER and Perry McAllister v. LANGFORD INVESTIGATORS, INC.
    Civ. 1970.
    Court of Civil Appeals of Alabama.
    Jan. 2, 1980.
    Rehearing Denied Jan. 30, 1980.
    Warren S. Reese, Jr., Montgomery, for appellants.
    Charles N. Parnell, III, and B. Blaine Brown, III, of Wood, Minor & Parnell, Montgomery, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant for wrongfully taking the plaintiff’s car. Additionally, the plaintiff alleged in her complaint that defendant had committed a trespass in taking the ear.

At the close of the plaintiff’s case before a jury, the defendant moved for a directed verdict. The learned trial judge granted the defendant's motion for a directed verdict and the plaintiff appeals.

The dispositive issue on appeal is whether the trial court erred in granting the directed verdict in favor of defendant. We find no such error and affirm.

At the outset, we note two general principles of law applicable in this instance. In considering the propriety of a directed verdict, the tendencies of the evidence are viewed most favorably to the plaintiff. See, Winn-Dixie Montgomery, Inc. v. Holt, 57 Ala.App. 499, 329 So.2d 556 (1976); 18A Ala.Digest Trial <®=>178. However, it is the office of a directed verdict motion to test the sufficiency of the opponent’s evidence. When the strongest tendencies of all the evidence fail to make out a case for the plaintiff or the evidence without conflict makes out a case for the opposing side, the motion is due to be granted. Coburn v. American Liberty Ins. Co., Ala., 341 So.2d 717 (1977); Chandler v. Hunter, Ala.Civ.App., 340 So.2d 818 (1976); 18A Ala.Digest Trial <®=»168.

In this instance, the plaintiff’s evidence reveals the following:

In October of 1977, the plaintiff purchased an automobile with proceeds from a loan obtained from the Union Bank and Trust Company. The loan agreement called for monthly installment payments. The agreement contained provisions authorizing acceleration of the loan and repossession of the collateral in the event of default. In addition, the agreement contained the following provision:

No waiver by the Lender of any default shall be effective unless in writing nor operate as a waiver of any other default or of the same default on a future occasion.

There was evidence that some of the plaintiff’s payments were late. However, each of the late payments was accepted by the bank. A partial payment was made in May, 1978. No payments were made in June, 1978.

On July 6, 1978, the plaintiff went to the bank to ask permission to pay the remainder of the May, 1978, installment on the following Friday. The plaintiff testified that the bank’s employee told her that it would “be fine” to make such a late payment. On this same date, July 6, 1978, the defendant, on instructions from the bank, repossessed the automobile. ,

The plaintiff by her own testimony admitted that the repossession was effected without a breach of peace and that she was in default on that date. The plaintiff also concedes that the defendant was the duly authorized agent of the bank.

As we perceive the plaintiff’s brief, it is her contention that the bank did not have a right to possession in that the bank waived the late payments and was, in view of the facts as indicated above, estopped from repossessing the automobile. Put another way, the bank was not entitled to possession.

As we perceive the recent supreme court case of Hale v. Ford Motor Credit Co., Ala., 374 So.2d 849 (1979), we have no alternative but to affirm the decision of the trial court.

In Hale, supra, the supreme court held that a security agreement is effective according to its terms. Further, the late payments of a debtor cannot raise an estop-pel against the contractual interest of the creditor under the express terms of a security agreement such as we have in this instance.

In the instant case, as a matter of law, there could have been no waiver of late payments under the loan agreement because there was no written waiver and because no prior waiver could have excused the existing default. Thus, the repossession was lawful, and the directed verdict in favor of the defendant was not error.

We would be remiss in not commenting that were it not for the decision of Hale, supra, it would appear to this court that the reasoning in Ott v. Fox, Ala., 362 So.2d 836 (1978); and Bank of Huntsville v. Witcher, Ala.Civ.App., 336 So.2d 1384 (1976), would require an opposite result. Under the rationale of these two cases where there was evidence of conduct such as we have in this case and a bank accepting late payments, there would be a jury question of whether the bank was estopped from repossessing the collateral unless it gave prior notice and demanded payment.

In the instant case, the evidence could be interpreted to mean that the bank had created a situation whereby the plaintiff was justified in expecting the bank to continue accepting late payments without repossessing the automobile.

As noted above, however, Hale, supra, is dispositive of this appeal and the trial court is due to be affirmed.

AFFIRMED.

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


author: TYSON, Judge.

text:
    Henry ARDIS v. STATE.
    4 Div. 720.
    Court of Criminal Appeals of Alabama.
    July 17, 1979.
    Rehearing Denied Aug. 21, 1979.

      Brian W. Dowling, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Henry Ardis was charged with and convicted of the willful refusal to support his minor child and sentenced to twelve months hard labor in the Houston County Jail. From that conviction he now prosecutes this appeal.

The dispositive issue on this appeal is whether or not a prima facie case was proven by the State when tested by a timely motion to exclude.

We hold that insufficient evidence was presented to show that appellant had a duty to support the child named in the warrant of nonsupport and, therefore, reverse and render this case.

■ The case was heard by the court without a jury. The first witness for the State was the prosecutrix, Cinnetta Marsh. She testified that she is the mother of three children, ages five years, two years, and six months (R.p. 4, 11). She stated that beginning in May, 1977, she and appellant lived together for a period of some four months. In October, 1977, she discovered that she was pregnant (R.p. 5), and a child was born in June, 1978. Although she admitted that appellant never acknowledged paternity (R.p. 24), she nevertheless testified that he fathered the youngest child (R.p. 4, 15). Furthermore, she stated that while appellant had never supported the child (R.p. 4, 5, 24) he had bought some milk for the infant “a couple of times" (R.p. 6, 24).

Ms. Marsh testified that she had been unemployed since September, 1977, and that her only source of income was $148.00 she received each month from the Department of Pensions and Securities (R.p. 7). From that $148.00, she bought food stamps for herself and her children, paid her rent and utilities, and bought clothes for the child (R.p. 7-9).

Ms. Marsh further testified that during the four months’ cohabitation with appellant she never had sex with the father of her other two children although she saw him on several occasions (R.pp. 12, 16, 22), and she indicated that she never obtained a warrant for nonsupport against the father of her other two children even though he had never paid support (R.p. 12). During thé period that Ms. Marsh and appellant were living together, they took a premarital blood test (R.p.' 23), though they never subsequently married.

After Ms. Marsh concluded her testimony, the State rested and appellant thereafter made a motion to exclude for failure to establish a prima facie case (R.p. 25). The court indicated that the State had not shown that appellant had a duty to support the child (R.p. 26). Thereafter, the court, over objection, allowed the State to re-open its case (R.p. 28).

At this point there had been no judicial determination of paternity, nor did the evidence establish a voluntary assumption of parenthood by the appellant.

I

The State then called Elaine Brown, a secretary and a notary public in the District Attorney’s Office in Houston County (R.p. 29). She testified that she was present at the time appellant’s signature was placed on the affidavit marked State’s Exhibit One and that she notarized the affidavit (R.p. 29-30). Over objection of an improper predicate, the affidavit was admitted into evidence (R.p. 32). The affidavit, dated April 18, 1978, acknowledges paternity of the unborn child of Cinnetta Marsh and contains an agreement for payment of weekly child support (State’s Exhibit One).

On cross-examination, the following occurred (R.pp. 32-33):

“BY MR. DOWLING:
“Q. Mrs. Brown, have you ever seen before the signature of Henry Lee Ardis?
“A. No, I haven’t.
“Q. Have you ever seen it since?
“A. I don’t think so.
“Q. But, you are saying this man (Indicating) signed it in your presence?
“A. Yes, he did.
“MR. DOWLING: No further questions.
“EXAMINATION BY THE COURT:
“Q. Do you know Henry Lee Ardis?
“A. No, sir.
“Q. You don’t know him?
“A. No, sir.
“Q. Would you recognize him if you saw him again?
“A. Probably not.
“Q. Probably not?
“A. No.
“Q. But, whoever signed this 'signed it in your presence?
“A. Yes, he did.
“Q. Whether it was Henry Lee Ardis or not?
“A. Yes.
“Q. But you don’t know Henry Lee Ar-dis?
“A. No, sir.
“Q. So, when Mr. Dowling pointed to that man as the one that did it, you said yes?
“A. I can’t swear to that — that that is Henry Lee Ardis.”

Thereupon, the State again rested its case. The court placed in the record the fact that the notary had indicated someone other than the appellant as the person whose signature she had acknowledged on State’s Exhibit One (R.p. 34).

Appellant again insisted that the State had failed to establish a prima facie case, which contention the court denied (R.p. 34— 35).

Thereafter, the defense presented no evidence and rested. Appellant was then convicted and sentenced.

II

It is settled law in Alabama that the denial of a timely motion to exclude the State’s evidence presents the question of the sufficiency of that evidence before this court. See Kontos v. State, Ala.Cr.App., 363 So.2d 1025 (1978), and authorities cited. If the evidence .presented at trial by the State was insufficient as a matter of law to establish a necessary element in the State’s case against appellant for nonsupport, it is the duty of this court to reverse the denial of a timely motion to exclude. Ford v. State, Ala.Cr.App., 370 So.2d 352 (1979); Gamble, MeElroy’s Alabama Evidence (3d Ed. 1977), § 449.05.

In order to support a conviction for criminal nonsupport against the putative father of an illegitimate child, the State must prove a legal duty to support the child by showing that there has been either a judicial determination of paternity or a public acknowledgment of paternity sufficient to show a voluntary assumption of parenthood. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Law v. State, 238 Ala. 428, 191 So. 803 (1939). The State must also prove that the father deserted; or willfully neglected, or failed to support the child and that the child is in destitute or necessitous circumstances. § 30-4-51, Code of Alabama 1975; Rouse v. State, 43 Ala.App. 171, 184 So.2d 839 (1966); Turner v. State, Ala., 343 So.2d 591 (1977).

There was no evidence of a judicial determination of paternity presented at trial. The only evidence presented by the State to prove its case was the testimony of the prosecutrix and the notarized affidavit allegedly signed by appellant.

At the close of the testimony of the pros-ecutrix, the trial judge declared that the State had failed to show that appellant had a duty to support the child named in the warrant. Only after the State had reopened its case and introduced the affidavit did the trial judge find the appellant guilty of nonsupport. Thus, it appears from the record that this essential element of the State’s case, i. e., the duty of support, was proven to the satisfaction of the trial judge only by means of the affidavit.

Therefore, the dispositive issue on this appeal is whether the affidavit was sufficient as a matter of law to show that duty of support.

The statutes establishing the offices of notaries public in Alabama do not contain specific procedures for the notary to follow in attesting signatures. §§ 36-20-1 through 32, Code of Alabama 1975, as amended. Section 36 — 20—5, supra, empowers the notary to “administer oaths in all matters incident to the exercise of their office . . . ; take the acknowledgment or proof of instruments of writing relating to commerce . . . ; [and] exercise such other powers as, according to commercial usage or the laws, of this state, may belong to notaries public.”

We find no Alabama cases that deal with the situation where a notary did not know the identity of the person whose signature he or she was attesting. A number of cases concerning mortgages, or other conveyances of realty, have ruled that a certificate of a notary in a document of conveyance is prima facie conclusive of the facts therein stated. The burden of impeaching the acknowledgment rests on the party attacking its validity and evidence of impeachment should be clear and convincing. See Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972), and cases cited therein; Jordan v. Conservation and Land Co., 273 Ala. 99, 134 So.2d 777 (1961), and cases cited therein.

Only in Jordan supra, was the knowledge of the notary even somewhat at issue. In Jordan, the complainant claimed that he had not signed the instrument of conveyance. The notary who acknowledged the instrument testified that she did not remember the particular circumstances when she signed the acknowledgment. The court indicated in dictum • that testimony of a notary that the acknowledgment of an instrument is in his handwriting is sufficient evidence of its execution even though he does not remember the particular transaction or circumstances. The court, in Jordan, however, never truly addressed this issue since there was no allegation in the bill of complaint impeaching the notary’s acknowledgment.

The forms by which “conveyances and instruments of every description admitted to record” are to be acknowledged are found in § 35 — 4-29, Code of Alabama 1975. The statute clearly requires the notary to certify that the person seeking the acknowledgment “is known to me.” (Emphasis supplied) Moreover, Alabama cases have held that, where the form of an acknowledgment did not state that the person who executed the conveyance was personally known or identified to the officer taking the acknowledgment, the conveyance was invalid as evidence. Thomas v. Davis, 241 Ala. 271, 2 So.2d 616 (1941); Davidson v. Alabama Iron & Steel Co., 109 Ala. 383, 19 So. 390 (1896); East Tennessee V. & G. Ry. Co. v. Davis, 91 Ala. 615, 8 So. 349 (1890). Cf. Butler v. Olshan, 280 Ala. 181, 191 So.2d 7 (1966) (Notary has duty not to negligently acknowledge).

It is obvious from the statute and cases discussed above that a duty is imposed upon notaries public to ascertain the identity of the person whose signature they attest.

Dean Wigmore, in his Treatise on Evidence, phrases the problem as follows:

“Certain kinds of official statements are clearly intended by the law to be based upon actual personal observation. The transaction which the officer is authorized to record or certify is, in its nature, a transaction done by him or done before him by another person. He cannot fulfill his duty to do or supervise the transaction except so far as it is done by or before him .
“That the notary ... is one of those officers who are required to certify on nothing less than personal knowledge seems clear ... He certifies under his oath of office that A. B., known to him to be the person therein mentioned, personally appeared before him and executed the writing. If this was not so, then he is neither a good witness nor an honest officer. Yet in professional practice in some of our communities, it is not uncommon for a notary to give the certificate without such knowledge or in the absence of the person. Such practices tend to destroy the credit which the law gives to the certificates and to overturn the whole basis of security for the recor-dation system. A specific penalty should be enforced for such violations of the oath of office. Courts should do what they can to insist on that faithful performance of official duty which alone is the justification for this branch of the Hearsay exception.” (Emphasis on original) 5 Wigmore, Evidence, § 1635 (Chadbourn rev. 1974).

It clearly appears from the record in the present case that the notary public whose testimony is relied upon did not have personal knowledge of the identity of the person who signed the affidavit at the time the signature was notarized (R.pp. 32-33). Moreover, there was no evidence presented regarding the notary’s usual practice of identifying those whose signatures she did attest. See Williams v. Riddlesperger, 227 Ala. 113, 148 So. 803 (1933); Meyers v. Meyers, 81 Wash.2d 533, 503 P.2d 59 (1972).

From the facts thus shown in this record, we cannot in good conscience conclude that the State met its strict burden of proof in this cause. Since the affidavit in this case was insufficient as a matter of law to prove this vital and essential element of the State’s case, it was error for the trial court to have denied appellant’s timely motion to exclude. Arnold v. State, 30 Ala.App. 115, 2 So.2d 316 (1941).

For the reasons shown, this case is reversed and rendered under Ford v. State, Ala.Cr.App., 370 So.2d 352 (1979); and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND RENDERED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. In re Henry ARDIS v. STATE of Alabama.
    78-829.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for the State.
    Brian W. Dowling, Dothan, for respondent.
   JONES, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Lois Marie WARREN v. STATE.
    1 Div. 927.
    Court of Criminal Appeals of Alabama.
    Sept. 4, 1979.
    Rehearing Denied Oct. 2, 1979.

      Donald E. Brutkiewicz, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The defendant was convicted of second degree murder and the jury fixed her punishment at ten years’ imprisonment. It is undisputed that the defendant shot Frazier Mack with a pistol and thereby caused his death.

I

At the conclusion of the court’s oral charge defense counsel took exception to that portion of the charge concerning the inference of malice from the use of a deadly weapon. The court charged:

“Sometimes it is hard to tell whether or not criminal malice exists. Therefore in the case of murder, the Jury can presume that malice is present from the use of a deadly weapon. Before malice can be presumed from the use of a deadly weapon, it must be shown to be a deadly weapon in contemplation of the law, and from the use of such a weapon that death would be the natural, reasonable and horrible consequence of its use. In the course of any presumption, it can be (unintelligible). Whether or not malice is present, the actual extent (unintelligible) may be considered.”
* * * * * *
“You can also presume malice from the use óf a deadly weapon in Murder in the Second Degree.”

Defense counsel objected:

“I know you didn’t intend to say this, but you did say it and I have to make an objection that malice is presumed by the use of a deadly weapon, which is true, but unless the circumstances of the killing refute malice, it should be so stated. Malice can be inferred by the use of a deadly weapon unless the circumstances of the killing is such that it refutes the existence of malice.”

The rule is that, where a jury could legally infer from the testimony that the defendant killed in self-defense or that the homicide was the result of sudden passion engendered by sufficient provocation and without malice, a charge to the jury as to the presumption of malice raised by the use of a deadly weapon must be accompanied by the further statement, “unless the evidence which proves the killing rebuts the presumption”. McDowell v. State, 238 Ala. 482, 191 So. 894 (1939); Hornsby v. State, 94 Ala. 55, 66, 10 So. 522 (1891).

The State maintains that the defendant did riot act in self-defense and relies on Williams v. State, 291 Ala. 505, 282 So.2d 905 (1973), for the proposition:

“Where no inference was deducible from the evidence that Williams (the defendant) acted in self-defense or that his stabbing the decedent was the result of sudden passion engendered by sufficient provocation, and without'malice, the trial court was not required to add to his charge that malice is presumed from the use of a deadly weapon the qualifying words ‘unless the circumstances of the killing disprove malice’.” 291 Ala. at 506, 282 So.2d at 906.

In Williams there was no evidence that the defendant acted in self-defense. In Stidwell v. State, 107 Ala. 16, 19 So. 322 (1894), the court found that the use of a deadly weapon, under the circumstances, was not simply the result of passion but also of revenge or malice.

Here there is evidence that the defendant did act in self-defense or in sudden passion. The inferences of self-defense and sudden passion supplied by the evidence presented by the defendant are clear and apparent.

While the State’s evidence would show that the defendant shot the deceased without justification and while he was leaving her home as she had directed, the evidence presented by the defendant would tend to indicate that the defendant acted in self-defense or sudden provocation. That self-defense was in issue is reflected by the fact that the trial court charged the jury on the law of self-defense. Thus, it was error for the trial court not to correct his oral charge as requested by defense counsel. Anders v. State, 255 Ala. 319, 51 So.2d 711 (1951); Wright v. State, 252 Ala. 46, 39 So.2d 395 (1949); Berry v. State, 209 Ala. 120, 95 So. 453 (1923). In so ruling we recognize that the credibility of self-defense evidence is for the jury. Wall v. State, 49 Ala.App. 285, 270 So.2d 831 (1972). It does not matter that the jury, in their discretion, rejected such evidence. Wall, supra.

The judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. In re Lois Marie WARREN v. STATE of Alabama.
    79-60.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    Charles A. Graddick, Atty. Gen., Thomas A. Allison, Asst. Atty. Gen., for the State.
    Donald E. Brutkiewicz, Mobile, for respondent.
   BEATTY, Justice.

The petition for writ of certiorari to the Court of Criminal Appeals, 380 So.2d 305 is quashed as improvidently granted.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Johnny Lee SCRUGGS, alias v. STATE.
    2 Div. 246.
    Court of Criminal Appeals of Alabama.
    Oct. 16, 1979.
    Rehearing Denied Dec. 4, 1979.
    John A. Lockett, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Sara Kathryn Farnell, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant wás convicted of murder in the first degree of his father, Anthony Scruggs, otherwise known as Otney Scruggs, by shooting him with a gun.

During the night of January 2-3, 1979, the house in which the defendant and his father lived, a rural residence in Dallas County known as Route 1, Box 395, Selma, was burned to the ground. An intensive investigation was commenced early the next morning, and it was scientifically determined that a body found in the ashes was that of Anthony Scruggs and that his death was caused by No. 4 shot fired from two shells of a twelve gauge shotgun.

A large number of witnesses for the State testified in detail as to activities, before and after the crime, of defendant and Sam Sanders, a co-defendant who was with appellant a large part of the night. When the State rested, defendant rested without the presentation of any evidence.

Prior to the burning of the house, appellant and Sam Sanders borrowed a twelve gauge shotgun from Sam’s father for the ostensible purpose of shooting rabbits. There was testimony that prior to the fire, Sam Sanders, while accompanied by another whom the witness could not identify, bought some twelve gauge No. 4 shot shotgun shells at the Selma Curb Market.

Louis Blackmon, an older brother of Anthony Scruggs, testified that about 12:00 o’clock the night of the fire Johnny Lee came to his house and said:

“ . . .He wanted to see was his dad over there. Said he went to Montgomery and when he got back the house was burned down into ashes.”

He said he did not open the door for Johnny Lee to come in but that he noticed him as he left the house and that he was with Sam Sanders in an automobile as they rode away.

A witness, who was a wife of a first cousin of Anthony, testified that about 10:00 or 11:00 o’clock, after the fire, Sam Sanders and Johnny Lee came to her house and at that time there was a conversation between her and Johnny Lee in part as follows:

“And then Johnny Lee say, ‘You seen Dad? Y’all seen Dad? and I said, T ain’t seen him all day today.’ So Johnny Lee says, T left home this morning about 4:00 and went to town and I’m just getting back.’ He said, ‘The house done burned down. Lord, I hope they’re not in that house.’ Then Sam said, ‘Let’s go. Us has got to find Ootney [also spelled Otney].’ ”

There were other witnesses that testified that during the night of the fire the appellant and Sam Sanders were in the neighborhood of the residence of the victim and his son and that appellant made inquiry of them as to whether they had seen his father.

Howard Gray, an investigator with the Dallas County Sheriff’s Department, testified that on January 4, 1979, after he had received official information as to the results of the scientific investigation of the fire and the death of Anthony Scruggs, he “picked up” Johnny Lee and Sam Sanders and brought them both to the County Jail and booked them, as prime suspects. No contention is made that he did not have probable cause for making the arrest. He further testified that at 3:55 that afternoon, after he had fully explained to appellant his constitutional rights, in accordance particularly with Miranda requirements, appellant voluntarily and understandingly made a recorded statement, in question and answer form, which was in part as follows:

“O. k., Johnny what I want you to do I want you to tell me what happened leading up to the time that the house burned down with your father in it.
“Well, I went on the outside to get the night pot and after I went on the side to the get the night pot, Sam was on the outside and so when I went outside to get the night pot he stepped on inside the door and I heard something ‘pop-pop’, but what it was I don’t know and I asked him and I say well what is that? He say nothing but Otney drunk and throw two shells in the fire.’
“Did it shound like a gun firing to you?
“Well it sound like it was.
“It sound like a gun being shot to you?
“Yes, sir.
“And ah now when you said Sam, who are you talking about?
“Sam Sanders.
“Sam Sanders. Is that the man that was with you today when we picked you up?
“Yes sir.
“O.K., ah, prior to the time you went outside to the get the pot what happened? Had you been with anybody that day?
“Yes sir.
“Who had you been with?
“Me, Sam Sanders and my father.
“Did you’ll come to Selma?
“Yes sir.
“What did you buy?
“A nine (9) volt transister radio.
“Did you buy anything else?
“Yes sir.
“What was that?
“Two (2) pints of whiskey.
“And did you’ll drink any of this whiskey?
“Yes sir.
“How much of it did you drink?
“All of it.
“Drank it all. Was that the three of you drinking it or what?
“Just the three (3) of us drinking it.
“You and your daddy and Sam.”

After the above quoted portion, the statement shows that Sam and Anthony engaged in a heated argument, that the three returned to the house that was afterwards burned and that the argument between Sam and Anthony continued until Sam left the house but returned soon thereafter, just before defendant said he was in the process of putting the “pot out” and Sam’s going into the house and defendant’s hearing the “pop-pop.”

Defendant’s recorded statement continues as’follows:

“0. k. what happened then?
“So he left by the door, he say man say let’s go and after he got out by the cattle gap, he say keep your damn mouth.
“He told you this?
“Yes sir.
“Did he say anything else?
“No sir.
“What did he, what did he say when you asked him about the noise?
“Oh, he say he say well, daddy had throwed two (2) shells in the fire and that bought daddy drinking he said daddy had throwed two (2) shells in the fire.
“0. k., when you all was there at the house did you see any fire then?
“No sir.
“Did you ever see any fire?
“Its a fire in the fire place.
“I’m talking about ah look like the house was on fire?
“No sir.
“How about when you was leaving, did you see any then?
“Yes sir.
“Well what did you see then?
“I seen a blaze.
“O.K., when you saw this fire did it look like a pretty good size fire? Did it look like the house was on fire or did it just look like a fire in the fire place?
“It was a big light, like the house was on fire.”

The recorded statement included questions and answers showing that defendant and Sam traveled around all night, that they were both drinking, and that defendant was “scared” to tell anyone about what Sam had done, that he “was scared after he had said other people done said he had killed his wife.” Defendant also said in the rest of the statement that he thought soon after the “pop-pop” in the fire that Sam had killed defendant’s father.

According to Inspector Gray’s testimony, defendant made another statement on January 8, 1979, under circumstances similar to the former one that met all requirements as to the admissibility in evidence of a confession or incriminating statement, in which defendant said that on the afternoon or evening before the fire and the death of his father, he had been with Sam when Sam bought four twelve gauge shotgun shells at the curb market, picked up a gasoline can from the house of Sam’s father, went downtown and bought some gasoline and put the can with the gasoline in it in the back of his automobile.

Appellant’s counsel makes a valiant plea for his client in charging that there is no substantial evidence of the guilt of defendant and that defendant’s motion to ex-elude the evidence should have been granted at the close of the State’s case and that the affirmative charge in favor of defendant requested in writing at the proper time should have been given. We thoroughly agree that the absence of any proof of motive leaves much to be desired in appel-lee’s side of the issue. Is it true, today, when human life has become so cheap in the minds of so many, that the presence of a motive for murder is not as important as it once was? We certainly cannot explain why defendant would have been ah accomplice to the murder of his own father by Sam Sanders, but equally, if not more, inexplicable is the conduct of defendant, as stated by him and as corroborated by witnesses, including his relatives, that after believing that Sanders had killed defendant’s father, set fire to the home of defendant and his father, and left his father’s body to the ravages of the fire, defendant made no effort to so inform the authorities or anyone else, but with Sanders went through the repeated pretense of looking for Anthony, knowing that his body was in the ashes of the fire. Such a conclusion is so contrary to reason that a jury is not to be blamed for finding to the contrary. On more than one occasion on the night after the crime, he was in a place and position where he could have informed others of what he knew without danger of violence on the part of Sanders. Furthermore, it would seem that he should have known that the sooner Sanders was taken into custody the less opportunity Sanders would have for destroying or injuring defendant. We realize, as appellant argues, that defendant’s education was minimal, but the only plea in the case was not guilty. There was no plea of not guilty by reason of insanity, no evidence of insanity and no contention that defendant was insane. There is nothing to indicate that the verdict was influenced by any prejudice. The verdict should not be disturbed by those who are not in as good position as the jury to determine the issue of defendant’s guilt vel non.

Appellant raises an interesting question as to the admission in evidence of the second statement made by defendant to Officer Gray. The record shows that such statement made on January 8, 1972, was given by defendant after Officer Gray stated to him:

“You understand all your rights? O.K., Johnny Lee, what I have got I have got a little conflict in the statements that I got from you and from Sam Sanders. What I wanted to ask you about was ah, what you remember led up to going and buying some shotgun shells?”

Appellant argues that this statement by Officer Gray constituted an improper inducement that would vitiate a confession. We see nothing improper about the statement of Officer Gray, nothing in the nature of “a threat or promise, expressed or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor,” which is the “true test.” Guenther v. State, 282 Ala. 620, 213 So.2d 679, cert. denied, 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803; Sullivan v. State, Ala.Cr.App., 340 So.2d 878, 879, cert. denied, Ala., 340 So.2d 881 (1976).

During the testimony of R. G. Gades, a witness for the State, in testifying as to the purchase by Sam Sanders of four twelve gauge shotgun shells as mentioned above, that two men were present, one of whom he recognized as Sanders but the other he could not identify, objections were interposed by defendant as shown by the record as follows:

“Q Twelve gauge. What was said to you by these men?
“MR. LOCKETT: Objection to any statement made out of the presence of this Defendant.
“THE COURT: Overruled.
“Q (Continuing:) What was said to you?
“A He asked for some shells there and I told him I had these and showed him what I had.
“Q All right. What else was said to you, if anything?
“MR. LOCKETT: We object to any statements made out of the presence of this Defendant.'
“THE COURT: Overruled.’
“Q (Continuing:) What else was said to you by these men, if anything?
“A That was all except when they got ready to leave I asked if that was all they needed and they said yes. They said if they needed any more, they could get them.
“Q Then if they needed any more—
“A If that didn’t do the job, they could get some more.
“Q That’s the best you can remember?
“A Yes, sir.
“Q If that didn’t do the job they could get some more? Did they leave then?
“A Yes, sir.”

Appellant urges that the court was in error in overruling his objections to the questions as noted above. He says that the testimony of the witness was “not a part of the res gestae” and did not come within any exception to the hearsay rule. The point is not well taken for two reasons. In the first place, the objections made by defendant were as to statements purportedly made by Sam Sanders out of the presence of defendant, but there was evidence in the case, at the time the questions were asked, that defendant was in fact present at the time the statements were made. In addition, there was evidence at the time the particular witness testified sufficient to justify an inference of a conspiracy between defendant and Sam Sanders to do violence to defendant’s father. What is done and said by each conspirator in furtherance of their common design is admissible in evidence against each other conspirator, whether done or said in the presence of the other or not. Cox v. State, 240 Ala. 368, 199 So. 806 (1941); Goodman v. State, 52 Ala.App. 265, 291 So.2d 358 (1974); Pope v. State, Ala.Cr.App., 365 So.2d 369 (1978).

Early cases have reversed for the refusal to give charges such as defendant’s requested written charge No. 12:

“I charge you that one should not be convicted on largely circumstantial evidence, however strong, if reconcilable with the theory that another may have done the act.”

However, in noting the confusion in variously worded charges on the subject in previous cases, Pitman v. State, 148 Ala. 612, 618, 42 So. 993, 995 (1907), held:

In view of this conflict of opinion in our own decisions, we remark, first, that such a charge is not proper at all, except in those cases where there is evidence pointing to one or more persons other than the defendant; second, it is not proper if the nature of the offense is such that both may have been guilty; third, if allowed at all, a ‘theory’ hypothesized should be a reasonable theory. . . . ”

In accordance therewith and with Owens v. State, 215 Ala. 42, 47, 109 So. 109 (1926), defendant’s written requested charge No. 12 was properly refused.

Appellant complains specifically of the refusal of several other requested written charges. In support of his position that the refusal in each instance constitutes reversible error, he cites a case in which the language of the charge is found in the opinion of the court on appeal. He draws the conclusion that the charge contains a correct statement of law and should have been given. He is clearly justified in concluding that a statement of law in an opinion of an appellate court of Alabama, unless subsequently' modified, is correct, but it does not necessarily follow that it should be given by the trial court in its instructions to the jury. In Wear v. Wear, 200 Ala. 345, 348, 76 So. 111, 114 (1916), it was said:

“ . . . It is a mistake to suppose that expressions in judicial opinions, properly there used, can be made to serve as clear, succinct statements of the law in special charges to the jury. K.C. & M.B.R.R. Co. v. Matthews, 142 Ala. 298, 39 So. 207.”

Appellant cites no case in which it was held that any of such several charges should have been given. In general, the excerpts from the cited cases were as to the sufficiency of circumstantial evidence to uphold the verdict and judgment of guilt, not as to instructions a trial court should give a jury on the subject. We find no authority that would justify the conclusion that the trial court was in error in its refusal of any of such charges.

In addition to what we have said as to the refusal of defendant’s requested written charges, we should note that the trial court fully covered in its oral charge the subject of circumstantial evidence.

We find no error in the record prejudicial to 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 New Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Johnny Lee SCRUGGS. In re Johnny Lee Scruggs, alias v. State.
    79-212.
    Supreme Court of Alabama.
    Feb. 22, 1980.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.