author: MADDOX, Justice. TORBERT, Chief Justice

text:
    Ex parte John McGUGIN, et al. (Re BARRETT MOBILE HOME TRANSPORT, INC., et al. v. John McGUGIN, et al.)
    80-870.
    Supreme Court of Alabama.
    Feb. 19, 1982.
    Rehearing Denied April 9, 1982.
    Joseph C. McCorquodale, III of McCor-quodale & McCorquodale, Jackson, for petitioners.
    John W. Cooper, Mentone, for respondents.
   MADDOX, Justice.

The plaintiffs in this case received a jury verdict in the amount of $3,536.00 in the Circuit Court of Clarke County on claims of breach of contract and negligence. The Court of Civil Appeals reversed the judgment of the circuit court, because it determined that the Circuit Court of Clarke County lacked proper venue to decide the case. The plaintiffs then petitioned this Court for writ of certiorari, asking us to review the decision of the Court of Civil Appeals that the plaintiffs could not properly pursue this claim in Clarke County. They claim that the decision conflicts with our prior decisions.

The facts as set out in the opinion rendered by the Court of Civil Appeals are as follows:

“On August 22, 1975 Harry J. and Brenda K. Willis purchased a used Concord mobile home from Mustang Mobile Homes of Alabama and executed a ‘credit sale contract and security agreement’ granting Mustang a security interest in the home. That same day, Mustang assigned all of its rights in the secured collateral or proceeds thereof to Midland Guardian Company. Although the Willis-es had signed the contract and security agreement for the mobile home, John and Lois McGugin, Mrs. Willis’s parents, made all the payments on the mobile home and lived in it.
“In 1976 H.L. Williams was employed by Barrett Mobile Home Transport, a Minnesota corporation, as a mobile home mover. On the morning of August 23, 1976 Williams arrived in Jackson, Alabama to transport the McGugins’ mobile home to Irvington, Alabama. After placing the trailer on the carrying frame, Williams inspected the frame’s undercarriage, put air in its tires, and hitched the frame to his truck cab. Williams then attempted to move the mobile home from a small dirt road adjoining the McGugins’ trailer park lot onto a paved two lane highway which abutted the park. To reach the two lane highway, Williams had . to drive his truck and carrying frame up the dirt road, over a hump two feet in front of the paved highway, and onto the highway itself. The carrying frame was supported by a series of three axles. When the frame’s third axle attempted to traverse the hump, it rose approximately one foot off the dirt road and then returned to the ground. The frame’s ‘tongue’ simultaneously dug a hole in the asphalt of the highway and the roof, sides, and floor of the McGugins’ mobile home cracked. Williams moved the damaged mobile home back onto the dirt road leading from the trailer park to the paved highway but refused to return it to the McGugins’ lot within the park. Williams proceeded to contact Barrett’s district manager in Birmingham, Alabama, who subsequently appeared in Jackson. Neither Barrett nor Williams offered to repair the damaged trailer at Barrett’s expense or to move it back onto the McGug-ins’ trailer park lot.
“Almost immediately after the accident, Barrett’s district manager asked Mr. Sol Stewart, owner of a mobile home dealership in Jackson, Alabama, to remove the mobile home from the trailer park to his mobile home dealership lot until Barrett decided what it would ultimately do with the home. Stewart complied with this request and the home remained on his storage lot for three or four months thereafter until agents of Mustang Mobile Homes repossessed it in April 1977 for the benefit of Midland Guardian. Stewart charged Barrett ten dollars for moving the home but did not receive any money for storing it.
“On September [1], 1976 John and Lois McGugin filed a three count complaint in the Circuit Court of Clarke County against Barrett and Williams. Count one alleged that these defendants had breached their contract to move plaintiffs’ mobile home from Jackson to Mobile, Alabama by failing to move same. Count two charged defendants with negligence in moving the mobile home. Count three stated that defendants had converted the home to their use. Defendants moved the court to change the venue of the action from Clarke County to Jefferson County on the grounds that Barrett was a foreign corporation which did not do business by agent in Clarke County.
“After their venue motion was denied, defendants then filed an answer and counterclaim. Plaintiffs denied the counterclaim. The case was tried before a jury on the breach of contract and negligence counts of the complaint. A verdict was rendered for plaintiffs in the amount of $3,536. Defendants moved for a judgment n.o.v. or, in the alternative, for a new trial. These motions were denied. An appeal was perfected and several issues were raised, among them being the question of proper venue.”

The Court of Civil Appeals concluded:

“Article 12, § 232 of the Alabama Constitution and § 6-3-7, Code 1975, prohibit the maintenance of a lawsuit in a county against a foreign corporation qualified to do business in this state where the corporation was not doing business by agent in the county at the time the lawsuit was filed. Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510 (1940). Moreover, this rule obtains ‘regardless of whether it [i.e., the corporation] is sued jointly with someone as to whom venue is good in that county.’ Roland Pugh Mining Co. v. Smith, 388 So.2d 977 (Ala.1980). Thus, if Barrett, a Minnesota corporation licensed to do business in Alabama, was not doing business in Clarke County at the time plaintiffs instituted their lawsuit against Barrett and Williams, the circuit court erred in refusing to transfer the case to Jefferson County, where Barrett conceded that it was doing business on September 1, 1976.
* * * * * *
Barrett was not doing business by agent in Clarke County when this action was commenced in its circuit court and that court erred to reversal in refusing to transfer this case to Jefferson County.”
We disagree.

Article 12, § 232, Constitution of Alabama, 1901 states the following:

“Sec. 232. Foreign corporations doing business in state.
“No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association. Such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state.”

Section 6-3-7, Code of Alabama, 1975, states:

“§ 6-3-7. [Venue] — Against foreign and domestic corporations.
“A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff’s residence. (Code 1886, § 2642; Code 1896, § 4207; Code 1907, § 6112; Acts 1919, No. 254, p. 240; Code 1923, § 10471; Code 1940, T. 7, § 60.)”

In interpreting § 10471, Code of Alabama, 1923 (which was the predecessor of § 6-3-7, Code of Alabama, 1975), this Court stated:

“The Constitution is self-executing, mandatory and restrictive; limits the venue of an action against a foreign corporation which has qualified to do business in Alabama to a county where the corporation is doing business at the time of suit brought and service had. By its own force the Constitution strikes down the provision of the statute purporting to permit suits against a foreign corporation in a county where it was doing business at the time the cause of action arose. This clause of the statute is limited to actions against domestic corporations.
Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543; General Motors Acceptance Corporation v. Home Loan & Finance Co., 218 Ala. 681, 120 So. 165; May, Sheriff et al. v. Strickland, 235 Ala. 482, 180 So. 93; Ex parte Kemp et al., 232 Ala. 434, 168 So. 147.”

Bolton v. White Motor Co., 194 So. 510, 239 Ala. 168, 171 (1940).

We determine that Barrett was doing business in Clarke County on September 1, 1976, the date on which the plaintiffs brought their suit. Barrett was in the business of moving mobile homes and had contracted to move the mobile home of the plaintiffs. The mobile home which the parties had contracted to have moved and which Barrett had undertaken to move was still in Clarke County on September 1, being stored by Stewart at Barrett’s request. The contract was still in effect on September 1, 1976.

This Court cannot adopt a policy that would allow a foreign corporation qualified to do business in Alabama, upon the occurrence of any problem which might arise during the performance of a contract, to remove all of its agents from that county and thereby force a person injured or damaged to sue the corporation in the county of the corporation’s choosing. The traditional notions of fair play prevent a determination which would create such an injustice, especially when the claim of injury arises out of the business done in the county.

This finding is in no way dispositive of all of the issues raised by Barrett on his appeal to the Court of Civil Appeals. It is only to say that, under the facts presented, this action could have been, and was properly, brought in the Circuit Court of Clarke County. The Court of Civil Appeals erred in saying that it was not.

The judgment of the Court of Civil Appeals is hereby reversed and the cause remanded to the Court of Civil Appeals for disposition not inconsistent with this opinion.

REVERSED AND REMANDED.

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

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

The maintenance of a lawsuit against a foreign corporation that is qualified to do business in Alabama is prohibited by the Alabama Constitution in a county where that corporation is not doing business. The Alabama Constitution provides in pertinent part:

No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association. Such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state....

Ala.Const. art. XII, § 232.

For the plaintiff to maintain the suit in Clarke County, Barrett must have been doing business by agent in that county at the time the suit was filed. Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510 (1940).

We today hold that Barrett Mobile Home Transport, Inc. was, by virtue of an execu-tory contract, doing business in Clarke County. I concur in the Court’s judgment, but only because of the determination that, as a matter of fact, Barrett was doing business by agent in Clarke County at the time the suit was filed.

An agency is determined by facts and not by how the parties characterize their relationship, and the real character of the relationship is not affected by an agreement that no agency exists or that some other •relationship does. Semo Aviation, Inc. v. Southeastern Airways Corp., 360 So.2d 936 (Ala.1978). The fundamental factor in determining whether an agency relationship exists is whether the principal has a right of control over his agent. It is not essential that the right of control be exercised, so long as that right actually exists. Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977). Here it has been determined that there was an agent of Barrett doing business in Clarke County.

In August, 1976, plaintiff McGugin entered into a contract with Barrett to move his mobile home from Clarke County to Mobile, Alabama. Williams, an agent of Barrett, was to inspect and move the mobile home pursuant to the contract. After being prepared for transit, the mobile home was attached to Williams’s truck and pulled onto the highway where the injury occurred. At this time, Williams contacted Barrett’s district manager in Birmingham, Alabama, who subsequently came to inspect the damage. While neither Barrett nor Williams offered to repair the damaged trailer or to move it back to its original location, Barrett did contact Sol Stewart, the owner of a local mobile home dealership, to look at the damage, to determine what caused the injury, and to move the damaged mobile home to his lot in Clarke County for storage until Barrett could determine what action should be taken. The damaged mobile home was still located on Stewart’s lot when this action was commenced.

There is no dispute that Williams was an agent of Barrett and that Barrett has yet to perform on the contract. Yet, neither of these facts as a matter of law leads to the conclusion that Barrett was doing business by agent in Clarke County. For Barrett to be doing business in Clarke County at the time the suit was filed, some agent must have been present within that county. The trial court has determined that this was the case. From the evidence presented, it can be surmised that when the mobile home became damaged and its possession was transferred from Williams to Stewart at Barrett’s direction, then the agency relationship was likewise transferred. Though no express agreement of an agency existed, by the actions of the parties the trial court could reasonably have found that Barrett either had control over or the right to control Stewart as a special agent in relation to the mobile home and as to any subsequent action taken on the original contract, and thus that Barrett was doing business by agent in Clarke County. For this reason I agree that the decision of the Court of Civil Appeals is due to be reversed and the cause remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BARRETT MOBILE HOME TRANSPORT, INC., a corporation, and H.L. Williams v. John McGUGIN and Lois McGugin; Harry J. Willis and Brenda Kay Willis.
    Civ. 2416.
    Court of Civil Appeals of Alabama.
    June 23, 1982.

      John W. Cooper, Mentone, for petitioners.
    Joseph C. McCorquodale, III, of McCor-quodale & McCorquodale, Jackson, for respondents.
   PER CURIAM.

This case has been returned to this court by the Alabama Supreme Court after deciding that proper venue was in Clarke County, Alabama. Consequently we will now address the other issues raised in this appeal. The main facts of this case are set out in our prior opinion and will not be repeated here.

There are three substantive issues raised in this appeal. The first issue is whether there is sufficient evidence to support the jury’s verdict in favor of the McGugins. The second issue is whether the court erred in failing to enter judgment against the Willises on the deficiency sought by Barrett after repossession of the mobile home. The third issue is whether the court erred in admitting evidence that Barrett paid $50.00 to Midland Guardian for an assignment of the security instrument.

In addressing the first issue, we state the general rule that jury verdicts are presumed correct and will not be reversed on appeal unless the preponderance of evidence is against the verdict and is so decided as to clearly convince the court that it is unjust. M.C. West, Inc. v. Battaglia, 386 So.2d 443 (Ala.Civ.App.), cert. denied, 386 So.2d 450 (Ala.1980).

Defendants, Barrett and Williams, first contend that the evidence is insufficient to support the jury verdict in favor of the McGugins because the McGugins are not the proper parties to maintain the action for damages to the mobile home. Under the circumstances of this case, we cannot agree.

The names of both the Willises and the McGugins were submitted to the jury for a determination of each party’s right to maintain the suit and the extent of injury, if any, to their respective interests in the property. No objection to the submission was raised by defendants at that time. The jury returned a verdict in favor of the McGugins.

From our review of the record, we find that there was ample evidence to support the jury’s finding that the McGugins were entitled to maintain the action for damages to the mobile home. Although legal title to the mobile home was taken in the name of the Willises, the evidence is undisputed that the McGugins made all of the payments. The McGugins were the sole residents of the mobile home, and were responsible for its upkeep. Further, the McGugins contracted with Barrett to move the trailer. It is a settled rule that a party to a contract, in the absence of an assignment, has a substantive right to enforce that contract. Gore v. Gore, 250 Ala. 417, 34 So.2d 580 (1948); U-Haul Co. v. Turner, 355 So.2d 384 (Ala.Civ.App.1978). The McGugins brought an action against Barrett for breach of the transportation contract and for negligently damaging the trailer during the attempt to transport it. The jury returned a general verdict in favor of the McGugins on the two count complaint. The jury’s verdict finding that the McGugins were the proper parties to maintain the action must be upheld.

Defendants also contend that the evidence is insufficient to support the verdict in favor of the McGugins and against defendants. Defendants argue that there was no evidence to show that they were negligent in moving the mobile home, and that under the contract defendants were not liable for defects in the frame or undercarriage which may have caused the damage. Again, however, we find sufficient evidence to support the verdict. Sol Stewart, a mobile home dealer, testified that his inspection of the mobile home revealed that the back bedroom contained too much weight. He further testified that this uneven weight distribution could cause the undercarriage of the mobile home to crack and break. Williams, the mover, testified that he did not look in the back bedroom to determine if the mobile home was loaded properly for the move. No evidence of a defect in the frame or undercarriage, existing prior to the attempted move, was presented at trial. Clearly the jury could have concluded that the damage to the mobile home was due to Williams’s negligence in failing to properly distribute the weight inside and in attempting to transport the mobile home without making such weight distribution.

Barrett’s second contention is that the trial court erred in failing to assess a deficiency judgment against the plaintiffs-Willises. Although the McGugins had made the payments on the mobile home, the Wil-lises were the debtors under the security agreement. Consequently, the Willises were owners of legal title to the mobile home. When the McGugins stopped making payments on the mobile home after the accident, Midland Guardian assigned the security interest to Barrett. Barrett filed a counterclaim against the Willises for a deficiency judgment. The trial court instructed the jury without objection that the counterclaim was made against the Willises only.

At trial Barrett introduced into evidence a copy of the security agreement which showed Barrett to be the assignee of Mustang Mobile Homes and Midland Guardian. There was testimony, as well as other evidence, that payments on the mobile home had ceased soon after the accident. The record reflects that Midland Guardian repossessed the mobile home. There was evidence that Mustang Mobile Homes incurred $2,873 in expenses repairing the mobile home. There was evidence that the mobile home was sold after repossession and repair. The record, however, is devoid of any evidence revealing the amount for which the mobile home was sold after repossession or whether it was sold in a commercially reasonable manner. Midland Guardian merely stated that its deficiency was $1,436.50, and Mustang said that its deficiency was $1,731.70. Barrett’s counterclaim for a deficiency judgment was for the total of these two amounts, $3,168.20.

In its instructions to the jury on the counterclaim the trial court stated:

It is also within your province on the Defendant, Barrett Mobile Homes Transport, [sic] claim against the Willises on the deficiency, it’s within your determination to determine what the deficiency amount is, if there is a breach of contract in that lawsuit. And it would be up to you to determine how much money the Willises owe to Barrett Mobile Homes under that count. And that is your sole discretion. It is your sole province to determine the amount of damages in these lawsuits and not for the Court to tell you anything, any figure to put in there.

There was no objection by anyone to the above stated charge to the jury. The jury, as indicated, returned a verdict against Barrett and for the Willises on the counterclaim.

We cannot agree with Barrett’s contention that the trial court erred in failing to assess a deficiency judgment against the Willises. In the instant action, there was no evidence of the amount received for the mobile home upon resale. The only testimony concerning the amount of the deficiency consisted of assertions made by agents of Mustang Mobile Homes and Midland Guardian as to their respective losses. This testimony was not supported by any evidence from Barrett as to how that amount had been determined. The conclu-sionary statements of Barrett’s witnesses as to the amount of the deficiency were not binding on the jury. The jury could have chosen not to believe Barrett’s witnesses.

The burden of proving the amount of the deficiency rested with Barrett. 69 Am. Jur.2d Secured Transactions § 638 (1973). On the evidence presented in the instant action, the jury could have concluded that Barrett’s failure to prove the amount of the deficiency precluded it from recovering a deficiency judgment.

Barrett lastly argues that it was error to allow evidence to be admitted showing that it had paid Midland Guardian the sum of $50 for an assignment of the security instrument. While it appears that such evidence would be not relevant and therefore inadmissible, in view of the above, any error would be harmless. See A.R.A.P. 45.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte BARRETT MOBILE HOME TRANSPORT, INC., A Corporation and H.L. Williams. (In re BARRETT MOBILE TRANSPORT, INC., A Corporation & H.L. Williams v. John McGUGIN and Lois McGugin; Harry J. Willis and Brenda Kay Willis).
    81-956.
    Supreme Court of Alabama.
    Dec. 22, 1982.
    John W. Cooper, Mentone, for petitioners.
    Joseph C. McCorquodale, III of McCor-quodale & McCorquodale, Jackson, for respondents.
   JONES, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED, Ala.Civ.App., 423 So.2d 1371.

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


author: WRIGHT, Presiding Judge.

text:
    Laurie Ann GAZAWAY v. Drew Ramey GAZAWAY.
    Civ. 3401.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1982.
    Robert W. Hanson, Albertville, for appellant.
    Rowan S. Bone, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The parties were married on July 11, 1980. A son was born on March 2, 1981. The father worked and responsibility for the care of the child was primarily that of the mother. The adequacy of that care is disputed.

The parents separated in November 1981. The mother had custody of the child during the separation with the father having weekend visits. The father filed for divorce on January 6, 1982. On January 8, during a weekend visit he admitted the child to the hospital. The evidence indicates the child was suffering from bronchial pneumonia. The father informed the mother of the hospitalization. The child was hospitalized for ten days, during which the father or his mother (the paternal grandmother) was constantly present; the child’s mother visited sparingly. She indicates the father’s attitude toward her made her visits unpleasant.

On January 15,1982, the court entered an order granting temporary custody of the child to the mother. He was discharged from the hospital into the mother’s custody on January 18. On January 20 the court, ex parte, set aside the earlier order and awarded temporary custody to the father. He immediately took custody of the child.

A final hearing on the merits was conducted on February 12, but no order was entered. On February 26 the mother filed a motion requesting the judge to recuse himself. The motion was granted. The parties agreed to submit the case to the newly assigned judge on the transcript of the testimony taken at the earlier hearings and all exhibits, without further testimony.

On July 12,1982, the court entered a final decree granting the divorce and awarding the care, custody and control of the minor child to the father. The mother was granted weekly visitation from Monday at 9:00 A.M. until Wednesday at 9:00 A.M. The mother appeals.

She contends that the trial court abused its discretion (1) in awarding custody of the child to the father, and (2) in granting her visitation rights on weekdays when that may conflict with her work. Because the evidence was not taken orally before the trial court, there is no presumption of correctness as to the findings of fact, and it is our duty to sit in judgment on the evidence. Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115 (1950). Where the evidence is taken orally upon original submission but the decree was rendered by a judge who did not hear the testimony, the ore tenus rule does not apply. McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974).

In Devine v. Devine, 398 So.2d 686 (Ala.1981), the court set out several very important considerations in awarding custody of minor children:

“The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; ... the effect on the child of disrupting or continuing an existing custodial status; . .. available alternatives; and any other relevant matter the evidence may disclose.”

398 So.2d at 696-697. The focus of all considerations is the best interest and welfare of the child. Lowery v. Lowery, 391 So.2d 120 (Ala.Civ.App.1980).

There is evidence, although contradictory, that the mother had not properly cared for the child. He was reportedly seen with unclean diapers and repeatedly developed rashes which required a doctor’s care. The evidence is uncontroverted that the child received proper care while in the custody of the father.

The mother offers the child a home with a roommate who has admittedly used drugs and who has no familial responsibilities of her own. The father offers the child a home with his grandmother who has testified to and demonstrated a willingness to help care for the child. No outside babysitter will be required.

Although neither parent has been shown to be unfit, the trial court determined that primary custody in the father will serve the best interest of the child. He has now had such custody for nearly one year. There is insufficient evidence to indicate an abuse of the discretion permitted the trial court in awarding custody of a minor child. Dasinger v. Dasinger, 369 So.2d 813 (Ala.Civ.App.1979). We therefore affirm the award of custody of the child to the father.

The complaint of the mother as to the impropriety of her visitation rights given in the judgment must also be viewed as a matter within the discretion of the court. The trial court is in a much better position to determine proper visitation than this court. We will not disturb its exercise of discretion in this case.

We affirm on all issues presented.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: DeCARLO, Judge. DeCARLO, Judge.

text:
    Raymond MILLER v. STATE.
    3 Div. 490.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.
    Certiorari Denied Nov. 19, 1982 Alabama Supreme Court 81-1025.
    On Return to Remand Dec. 28, 1982.

      Richard A. Lawrence, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Burglary, third degree; thirteen months.

After waiving a jury trial, the appellant was tried by a judge and found guilty of third degree burglary. Prior to trial an evidentiary hearing was conducted on appellant’s motion to suppress. The motion was denied and the testimony taken at the hearing was adopted in the non-jury trial on the stipulation of the parties.

At the suppression hearing, Montgomery Police Officer Michael Patterson testified that early on the morning of July 4, 1981, he and his partner were patrolling an area in Montgomery, Alabama, described by Patterson as a “high crime area.” At approximately 1:10 A.M. they saw a vehicle with a large air conditioner protruding from its open trunk proceeding ahead of them. The officers turned on their blue light and stopped the vehicle, which was occupied by the appellant, his sister, and one Curtis Lewis.

Patterson asked the three to step out of the vehicle and explained to Curtis Lewis, the driver of the vehicle, that he had stopped the car in order to inquire about the air conditioner protruding from the trunk. The appellant, Raymond Miller, at that time voluntarily stated that he got the air conditioner from his aunt and gave the officers his aunt’s telephone number so they could confirm this.

According to Patterson, he radioed the “Desk” and requested that the aunt be called. Subsequently, he received from the “Desk” the information that the only person answering at that number was a child who did not know anything about the air conditioner. Patterson relayed this information to the appellant and the appellant then volunteered to take the officers to his aunt’s residence. Appellant and his companions re-entered their vehicle and Officer Patterson and his partner followed the trio some four or five blocks to a residence at 2569 Lark Drive.

On their arrival, Patterson went to the house and knocked on the door while the appellant and his companions remained in their car. The only person at the house was a child. Patterson questioned the child about an air conditioner and the child stated that their air conditioner was kept in a storage area at the rear of the house. At Patterson’s request, the child showed him the storage area and Patterson observed an air conditioner in the storage area.

As Patterson was returning to the patrol car, he noticed that a window in the house next door was “standing open.” No lights were on in the house. Patterson inspected the area around the window and observed where air conditioner mounts had been. He also found, on the ground below, “cardboard fillers” that had been used between an air conditioner and the window. He then returned to the vehicle occupied by the appellant and his companions and informed them that they would be detained until a detective unit arrived. Patterson testified that their car was in a lighted area and that he observed cardboard filler attached to the air conditioner in the open trunk. This cardboard filler matched the filler found on the ground under the open window of the house next door to the house appellant identified as his aunt’s house.

The appellant testified at the hearing that he told the officers that he had obtained the air conditioner from his aunt. He admitted, however, that he later told the officers that he had purchased the air conditioner from “[a] black dude with a big truck with big tires on the back of it.” The appellant also testified that he took the officers to his aunt’s house at their request, rather than volunteering to do so. However, he admitted that the house to which he led the officers was not his aunt’s house, but instead was occupied by his girl friend, Antoinetta Johnson.

At the non-jury trial, the air conditioner was shown to be the property of the estate of Belinda Huett and to have a value of approximately $500.

Janet Miller, the sister of the appellant, was called as the court’s witness. She testified that the car stopped by Patterson and his partner belonged to her and was being driven by Lewis with her consent. She further testified that she had been with Curtis Lewis, Antoinetta Johnson, and the appellant on the evening of July 3, 1981, and that the four had gone to Johnson’s house at 2569 Lark Drive. Ms. Miller acknowledged that she had given a statement to the police in which she had stated that the air conditioner had been placed in the trunk while the four people were at Johnson’s house.

I

Appellant maintains that he was subjected to unreasonable seizure contrary to the Fourth Amendment of the United States Constitution when the vehicle in which he was a passenger was stopped by the Montgomery Police. He argues that the officers did not have a “reasonable suspicion” to justify the stopping or seizure of the vehicle and that the incriminating evidence developed as a result of this seizure was inadmissible.

Stopping an automobile and detaining its occupants is clearly a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Johnson v. State, 406 So.2d 446 (Ala.Cr.App.1981). It is well established, however, that all seizures are not contrary to the Fourth Amendment — only unreasonable seizures are prohibited. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).

Prior to Terry v. Ohio, supra, a warrant-less seizure was reasonable under the Fourth Amendment only if it was based upon probable cause. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Terry, the United States Supreme Court formulated the concept of the “investigatory stop” based on “reasonable suspicion.” In certain circumstances, a police officer may stop a person for “purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 at 22, 88 S.Ct. at 1880. While the officer making the stop is not required to possess a level of knowledge amounting to probable cause, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), he “must be able to point to specific and artic-ulable facts which, taken together with rational inferences from those facts reasonably warrant investigating.” Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880.

Although Terry was factually concerned with stops of pedestrians, the concept of the investigatory stop has been extended to stops of vehicles. Delaware v. Prouse, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Minnifield v. State, 390 So.2d 1146 (Ala.Cr.App.), cert. denied, 390 So.2d 1154 (Ala.1980). Therefore, we must ascertain whether “the facts available to the officer at the moment of the seizure or search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.’ ” Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. 1880.

The record shows that Officer Patterson was aware of the following facts when he stopped the vehicle in which appellant was riding: (1) the area was known as a high crime area, (2) the time was 1:10 A.M., (3) the trunk of the vehicle was fully open, (4) a large air conditioner was protruding from the trunk. The appellant contends that these facts are not sufficient to produce a reasonable suspicion for an investigatory stop of the vehicle in which he was a passenger.

The United States Supreme Court stated in United States v. Brignoni-Ponce, supra, that an officer “may consider the characteristics of the area in which they encounter a vehicle” in determining whether reasonable suspicion exists. 422 U.S. at 884, 95 S.Ct. at 2582. Although Brignoni involved a border area stop, we.think the statement is applicable in this case. Moreover, an officer may in all situations assess the facts in light of his experience. Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883. Officer Patterson testified at the suppression hearing that he had been patrolling this area some ten weeks, that “[w]e have a lot of burglaries out there,” and that only three days prior to the incident involved in this case he had “walked up on” a robbery in that area. He stated that “it did seem unusual to me that someone would be moving an air conditioner that size and that bulk in that area at that time of the morning.”

Officer Patterson did not stop the vehicle in which appellant was riding at random, but instead, pointed to “specific and articulable facts” on which he based his investigatory stop. Under the circumstances, we cannot say that it was unreasonable for Officer Patterson to stop this vehicle in order to inquire about the air conditioner in the open trunk. The fact that the trunk was fully open and the lid therefore obstructing the driver’s rear view vision alone may have provided a legitimate reason for a stop of the vehicle. See Delaware v. Prouse, 440 U.S. at 663, 99 S.Ct. at 1401.

II

The appellant asserts that if the initial stop of the vehicle in which he was riding was based on reasonable suspicion, the stop became unreasonable thereafter because it exceeded the brevity requirement of an investigatory stop.

The concept of the investigatory stop has been condonned because of its limited or brief intrusion upon the constitutional rights of citizens. Dunaway v. New York, 442 U.S. 210-12, 99 S.Ct. 2255-56 (and cases cited therein). However, the Supreme Court has recognized that the well established consent exception to warrantless searches and seizures may operate to extend the stop and investigation:

“[An officer] may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be ‘reasonably related in scope to the justification for their initiation.’ The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention must be based on consent or probable cause.” United States v. Brignoni-Ponce, 422 U.S. at 881-82, 95 S.Ct. at 2580. [Emphasis added and citations omitted].

In the instant case, the officer stopped a car and questioned the driver about a large air conditioner protruding from the open trunk. This was a permissible question under Brignoni. In response to the question put to the driver, the appellant stated that he had obtained the air conditioner from his aunt. Not only did the appellant volunteer this information, he gave the officer his aunt’s telephone number and suggested that the officer telephone his aunt and verify his story. When the officer informed him that his story could not be verified by telephone, the appellant offered to show the officer the house where he had obtained the air conditioner. These actions on the part of the appellant amounted to his consent to further detention and investigation.

To be effective, consent to a war-rantless search or seizure must be voluntarily given as determined from the “totality of all circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). Without belaboring a point not raised below, we think it worth noting that there was no “search” in the Fourth Amendment sense involved here. Appellant’s person was not searched and the air conditioner was in “plain view,” see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), obviating the need to search the trunk of the car. We are concerned only with appellant’s consent to the continued seizure of his person.

It is abundantly clear from the record that the information regarding the appellant’s aunt and the suggestion to telephone her were voluntarily given:

“THE COURT: Did you tell them after they stopped you and you said something about, well, you can call my aunt, here is the phone number and she’ll know about it? Did you tell them that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Why did you tell them that? What would she have known about the air conditioner you had in the trunk?
“THE DEFENDANT: Well, my aunt did see an air conditioner in the trunk of my car, my sister’s car.
“MR. HAWTHORNE: [District Attorney] But you did volunteer and tell the police that you—
“THE DEFENDANT: No. They said, take us to the house.
“MR. HAWTHORNE: I’m not talking about taking it. You said your aunt gave you that air conditioner.
“THE DEFENDANT: Yeah, I came right out and said that.”

According to Officer Patterson, the appellant similarly volunteered to take them to his aunt’s house. The appellant maintains that he did so at the officer’s request. If the officers did make this request of the appellant, it is analogous to a request to make a search of a suspect’s person or house and does not, without more, negate the voluntary nature of appellant’s actions. The surrounding circumstances must be considered. There were only two officers involved and neither displayed a weapon. It does not appear from the evidence that the officers used language or a tone of voice indicating that compliance with their request might be compelled or that they physically touched the person of the appellant. See United States v. Men- denhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Indeed, the appellant and his companions were not even placed in the police car, but were allowed to lead the officers to the appellant’s aunt’s residence in their own car. In view of these circumstances, we find that the appellant acted voluntarily in remaining with the officers.

III

The appellant complains that the State failed to prove a prima facie case of burglary in the third degree.

Our examination of the record and transcript of evidence shows that the appellant failed to make a motion to exclude the State’s evidence, that he failed to request the affirmative charge and that his motion for a new trial did not raise the sufficiency question. It is well established that one of these procedures must be followed in order to properly preserve the issue for appellate review. Lewis v. State, 372 So.2d 882 (Ala. Cr.App.), cert. denied, 372 So.2d 885 (Ala.1979).

IV

The record and transcript of evidence shows that the district attorney filed a timely motion to have the court consider this appellant as an habitual felony offender under § 13A-5-9, Code of Alabama 1975. It was shown that appellant had been convicted on a plea of guilty on September 25, 1981, for the felony offense of receiving stolen property in the second degree. Following this conviction he was found guilty in the instant case of burglary in the third degree and was given a sentence of thirteen months to run concurrent with the sentence in the previous conviction. This sentence was suspended on the condition that the appellant serve four months in jail.

Burglary in the third degree is a Class C felony. § 13A-7-7, Code of Alabama 1975. Where it is shown that a criminal defendant has been convicted of one prior felony offense, the sentence that must be imposed for a Class C felony is “not more than 20 years or less than 2 years.” §§ 13A-5-6, 13A-5-9, Code of Alabama 1975; Watson v. State, 392 So.2d 1274 (Ala.Cr.App.), cert. denied, 392 So.2d 1280 (Ala.1981).

We remand this cause to the trial court with directions to conduct another sentencing hearing applying the Habitual Felony Offender Act.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

DeCARLO, Judge.

On return to remand, the record shows that appellant was sentenced to two years imprisonment pursuant to the Habitual Felony Offender Act, § 13A-5-9, Code of Alabama 1975, in compliance with our opinion issued July 27, 1982.

The judgment of conviction by the Montgomery Circuit Court is hereby affirmed.

AFFIRMED


author: BOWEN, Judge.

text:
    Donald E. HINDS v. STATE.
    6 Div. 545.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982.

      L. Drew Redden and Gerald L. Miller of Redden, Mills & Clark and Gary Smith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for two separate cases of embezzlement in violation of Alabama Code Section 13-3-20 (1975). Sentence was two years’ imprisonment in each case. Six issues are presented on appeal.

I

Initially, the defendant argues that the evidence is insufficient to support his convictions because there is no evidence of fraudulent intent and nothing to connect him with any embezzlement conspiracy.

Embezzlement is a statutory crime defined by Section 13-3-20:

“Any officer, ... of any incorporated company, ... who embezzles or fraudulently converts to his own use or the use of another, or fraudulently secretes with intent to convert to his own use or the use of another, any money or property which has come into his possession by virtue of his office, agency, employment . . . shall be punished, on conviction, as if he had stolen it.”

In order to sustain the convictions as charged, it was essential that the prosecution establish (1) that the defendant was an officer, agent, clerk, employee or servant of the corporation Life Insurance Company of America; (2) that certain money or checks came into his possession by virtue of his employment; and (3) that he fraudulently converted to his own use or the use of another, or fraudulently secreted with the intent to convert to his own use or the use of another, certain money or checks which came into his possession. Pullam v. State, 78 Ala. 31, 33 (1884); Kramer v. State, 16 Ala.App. 456, 458, 78 So. 719, cert. denied, 201 Ala. 700, 78 So. 990 (1918). In substance, the first indictment charged that the defendant as an officer of Life Insurance Company of America embezzled a company check in the amount of $18,160.40 made payable to Alabama International Services, Incorporated. The second indictment charged that the defendant as an officer of the insurance company embezzled $62,283.92 in checks or money between April 1, 1978, and August 31, 1978.

After the State rested its case in chief, the defendant made a motion to exclude. It then became the duty of the trial court to determine if there was any evidence, even though entirely circumstantial, that the defendant was guilty. Parker v. State, 395 So.2d 1090, 1099 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1103 (Ala.1981). In determining whether the trial court correctly overruled this motion, this Court can only consider the evidence which was before that court at the time the motion to exclude was made. McCoy v. State, 397 So.2d 577, 585 (Ala.Cr.App.), cert. denied, 397 So.2d 589 (Ala.1981). In making such a consideration, this Court must accept as true the evidence introduced by the State, must consider that evidence in the light most favorable to the prosecution, and must accord the State all legitimate inferences arising therefrom. Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.), cert. quashed, 378 So.2d 1173 (Ala.1979).

By its very nature, the State’s evidence was confusing and complex, involving several corporations, numerous financial transactions and diverse commercial activities. At the risk of oversimplifying, we include in this opinion only a brief skeletal outline of the State’s evidence.

In January of 1976, the defendant was promoted by the Board of Directors to vice president and chief executive officer of Life Insurance Company of America. At this time the insurance company had no president. In February of 1978, the defendant became the president of the insurance company. The defendant had been in the accounting department of insurance companies since 1954 and had “a general or thorough understanding of insurance accounting principles.”

Although the insurance company received monthly premiums from the holders of its life insurance policies, its main assets were its holdings at Point Aquarius, a resort area near Gadsden. Due mainly to the poor financial condition of Point Aquarius, in 1975 the insurance company’s financial condition was in an “obvious mess” which became progressively worse as time passed. In 1977-78, the insurance company was “technically insolvent” and its financial condition was “very serious”. By December 31, 1977, its capital was impaired and its liabilities were $850,000.00 greater than its assets. In September of 1978, it was placed under the supervision of State Department of Insurance. On December 15, 1978, the Life Insurance Company was placed in receivership and the management and control of the corporation were taken over by the State Insurance Department.

The Life Insurance Company owned certain lot installment sales contracts at Point Aquarius. Under this type contract, the purchaser made monthly payments to the owner of the contract on the installment price of the lot or condominium and received title to the property only after the full purchase price had been paid. Royal American Corporation of Louisiana and Continental Security Life Insurance Company of Missouri owned other sales contracts. Birmingham Trust National Bank held a first mortgage or lien on some of the lots in order to secure a bond issue at Point Aquarius.

Mainly for practical reasons, an oral agreement was reached between the defendant and Royal whereby the Life Insurance Company would collect the monthly payments on both its own and Royal’s contracts. The Life Insurance Company would retain 15% of the monthly payments collected on Royal’s lot sales installment contracts and remit the remainder to Royal. Under this agreement, the Life Insurance Company actually made some collections and remittances to Royal.

On June 3,1977, the Life Insurance Company opened a special checking account for these monthly payments it was collecting by transferring $9,674.34 from its main account into the new L.I.C.A. Lot Collection Account. This account existed until August 23, 1977 — a total of almost three months.

At this time, the Life Insurance Company had six other checking accounts which had either ledger sheets or cash receipts and disbursements journals — recognized as standard methods of record keeping. However, the accounting for the L.I.C.A. Lot Collection Account was kept on a page of a “steno-type pad”.

In August of 1977, the defendant, Richard Prince and Joseph Aldio formed Alabama International Services, Incorporated (AIS), for the purpose of making the collections on the lot installment sales contracts. Although there was no legal relationship between AIS and the Life Insurance Company, the three incorporators of AIS were also officers or employees of the Life Insurance Company. The defendant, the vice president of the Life Insurance Company, became the president of AIS. Prince, the comptroller and office manager of the Life Insurance Company, became the secretary and treasurer of AIS. Aldio, a convicted felon employed by the Life Insurance Company as a “policy consultant”, became the vice president of AIS.

Royal had made its collection agreement with the Life Insurance Company and not with AIS. Royal never specifically authorized AIS to collect any money owed to Royal although Royal did receive payments from AIS and made no objection when the collection function was turned over to AIS.

On August 23, 1977, the defendant and Prince wrote a check on the Life Insurance Company’s Lot Collection Account for $18,-160.44. This check closed the Lot Collection Account. Of this total amount, $11,102.41 was owned by the Life Insurance Company. The remainder constituted proceeds from the collection of lot installment sales contracts owned by other corporations minus the Life Insurance Company’s 15% collection fee.

That same day and in the same bank, the defendant opened an account in the name of AIS and deposited $8,160.44. With the remaining $10,000.00, he purchased a certificate of deposit for AIS. The conversion of this $18,160.44 constitutes the basis of the first indictment.

In the following three months, the $10,-000.00 certificate of deposit was used to secure three loans, officially in the name of AIS, totaling $10,000.00. A cashier’s check resulting from the September loan was made payable to Aldio and was signed by the defendant and Aldio. The proceeds of the October and November loans were paid out in the form of cashier’s checks payable to AIS and endorsed by Aldio and Prince.

On August 31,1978, a little over one year after the AIS account had been opened, it was overdrawn in the amount of “six hundred and some odd dollars.” This account was examined by an examiner for the Alabama Securities Commission who testified that the total of all the funds deposited in the AIS account between August 23, 1977, and August 31, 1978, to which the Life Insurance Company was entitled and which it had not received amounted to $123,863.92. During this same period numerous checks totaling $171,818.91 were drawn against the AIS account and made payable to Aldio or to cash. Of the ones payable to cash, more than 90% were endorsed by Aldio. During this time (August 23, 1977 and August 31, 1978), only two checks were signed by the defendant: a check for $3,000.00 payable to Aldio, signed by Aldio and the defendant and dated September 27, 1977, and a $150.00 check payable to Aldio signed by Prince and the defendant and dated September 30, 1977.

The securities examiner also analyzed the AIS account for the period between April 1, 1977, and August 31, 1978 — the period covered by the second indictment. He testified that $76,130.51 represented the net Life Insurance Company funds deposited in the AIS account and not returned to the Life Insurance Company. During this same period, $97,378.21 was withdrawn from the AIS account by checks made payable to cash or to Aldio. The defendant’s signature or name only appears on the two checks mentioned above. This figure of $97,378.21 is greater than the $62,283.92 alleged in the second indictment because after the indictment was drawn the bank furnished additional documents which allowed the examiner to identify additional deposits belonging to the Life Insurance Company.

Some monthly payments on the lot installment sales contracts owned by Royal were deposited in the AIS account but never remitted to Royal. By the end of April of 1978, the whole lot collection situation had “deteriorated” to the point where Royal assumed the collection of its own contracts.

The only money the State could show that was actually received by the defendant was $4,200.00. This was a check from Al-dio, drawn on his personal bank account, which the defendant deposited in his personal bank account in April of 1978. With the exception of this deposit, an examination of the defendant’s bank account disclosed no unusually large deposits from August 23, 1977, to August 31, 1978. The securities examiner found nothing to indicate that the defendant was receiving large sums of cash during this period.

The State was unable to prove that any of the money diverted out of AIS went into the hands of the defendant. Aldio’s personal check of $4,200.00 to the defendant could not be traced directly to the AIS account. The securities examiner testified to five checks written on August 9 and 17, 1978, which would, as he stated, “tend to show that some checks went somewhere where Mr. Hinds had an interest to protect.” These checks were written to Georgia public utility companies and in connection with Peppers Fried Chicken. However, as noted in the Appellant’s Brief, p. 13-14, “The name of the defendant does not appear anywhere on any of these checks, and the witness did not explain how these checks related to the defendant or further identify them or their purpose.”

This constitutes the evidence presented by the State. Although entirely circumstantial, it constituted a prima facie case of embezzlement and was properly submitted to the jury.

“Embezzlement is said to be ‘a sort of statutory larceny, committed by servants * * * where there is a trust imposed.’ ” Knight v. State, 152 Ala. 56, 58, 44 So. 585 (1907). A fraudulent intent is an essential part and the essence of the offense of embezzlement. Ex parte Cowart, 201 Ala. 525, 526, 78 So. 879 (1918); Reeves v. State, 95 Ala. 31, 43, 11 So. 158 (1892); Esdale v. State, 37 Ala.App. 48, 54, 68 So.2d 512, affirmed, 260 Ala. 45, 68 So.2d 519 (1953); Wall v. State, 2 Ala.App. 157, 56 So. 57 (1911). That intent is to fraudulently or unlawfully convert the property of another to the actor’s own use or to deprive the owner of his property. Rogers v. State, 37 Ala.App. 8, 11, 65 So.2d 525, cert. denied, 259 Ala. 124, 65 So.2d 531 (1953); Wall, 2 Ala.App. at 173, 56 So. 57. The criminal intent involves the wrongful or fraudulent appropriation of another’s money, property or effects to the actor’s own use. Esdale, 37 Ala.App. at 54, 68 So.2d 512. “The fraudulent conversion denounced by the statute occurs when the use of the property is unlawfully appropriated; it is not dependent upon a converting or changing the property from its form.” Abbott v. State, 27 Ala.App. 87, 89, 167 So. 599, cert. denied, 232 Ala. 194, 167 So. 602 (1936).

Because intent is inherently difficult to prove by direct evidence, its existence may be evidenced by the words and actions of the accused and may be inferred from all the facts and circumstances in the case. Reeves, 95 Ala. at 43, 51, 11 So. 158; Enzor v. State, 27 Ala.App. 60, 63, 167 So. 336, cert. denied, 232 Ala. 256, 167 So. 340 (1936). Intent may be proved by circumstantial evidence and the reasonable inferences arising therefrom. “Fraud is rarely susceptible, in any case, of direct, positive proof for the reason that its ways are dark and sinuous, and its tracks carefully concealed.” Reeves, 95 Ala. at 43, 11 So. 158; Hollis v. State, 51 Ala.App. 181, 183, 283 So.2d 632 (1973).

“In embezzlement generally, . .. the very confidence and trust reposed furnish the most potent means for its accomplishment and effectual concealment, so that guilt can generally be established only by reasonable inferences drawn from the general course of conduct of such officer, agent, clerk or servant, with respect to the subject — matter of his trust, and from all the facts and circumstances surrounding his acts, which tend to throw light upon or illustrate their nature.”

Reeves, 95 Ala. at 43, 11 So. 158.

The fact that the State did not trace any of the embezzled funds as having been received directly by the defendant is immaterial and without significance. “(I)t is wholly unimportant as to whether the defendant was the recipient of the benefits of the crime, or whether a third person reaped the benefits thereof.” Lacy v. State, 13 Ala. App. 212, 225-26, 68 So. 706 (1915). “If the money was embezzled by others, with the assistance and connivance of the defendant, the mere fact that he did not receive the fruits of the crime would not exculpate him.” Kramer v. State, 16 Ala.App. 456, 457, 78 So. 719, cert. denied, 201 Ala. 700, 78 So. 990 (1918).

“Fraudulent or criminal intent constituting a necessary element of embezzlement is the intent to embezzle or otherwise willfully and corruptly use or misapply property of the principal or employer for purposes other than those for which the property is held, and it is not essential that the accused shall intend to appropriate the property for his own personal use.”

29 A C.J.S. Embezzlement § 12a (1965).

It was not necessary to show what became of the embezzled property or that any disposition of it had been made. Knight, 152 Ala. at 59, 44 So. 585; Abbott, 27 Ala. App. at 89, 167 So. 599; Hurst v. State, 21 Ala.App. 361 at 363, 108 So. 398. “(F)ew convictions could ever be had if the State was required to prove what an embezzler has done with the money or property converted by him or where he had fraudulently secreted it with the intent to convert it. It is utterly immaterial what became of the money after a fraudulent conversion of it or a fraudulent secretion of it with intent to convert it.” Eggleston v. State, 129 Ala. 80, 84, 30 So. 582 (1900).

“Embezzlement is an offense that may be consummated in any manner capable of effecting it.” Reeves, 95 Ala. at 51, 11 So. 158. “In order to justify the submission of the case to the jury, it is necessary that there should be proof of at least some act from which the jury can infer that the offense was committed.” Benefield v. State, 286 Ala. 722, 724, 246 So.2d 483 (1971).

“While the elements of the offense are clear, it is sometimes difficult to determine just what evidence is necessary to establish the fact of embezzlement. There must, at least, be some act indicating an intent to segregate the property from that held by the defendant as agent and hold it for himself, or deprive the owner of the same, or to convert it to his own use. He must assume personal dominion of the property.” Knight, 152 Ala. at 58, 44 So. 585.

See also Hurst, 21 Ala.App. at 362-63, 108 So. 398.

In determining whether a defendant should have been given the general affirmative charge or a directed verdict, the State’s evidence must be considered “in its most favorable light.” Esdale v. State, 260 Ala. at 49, 68 So.2d 519. A general charge on the evidence “is always of doubtful propriety in a criminal case, and certainly should never be given, unless the evidence is conclusive in its character, and there is no fact to be drawn as matter of inference from the facts proved.” Perkins v. State, 50 Ala. 154, 158 (1874). “The general charge should never be given, when there is any evidence, however weak and inconclusive it may be, tending to make a case against the party who asks it.” Pellum v. State, 89 Ala. 28, 32, 8 So. 83 (1889). A directed verdict should not be given if there are “two theories of the case, one consistent with the guilt of the defendant, and the other equally consistent with his innocence, and both supported by the evidence in the case.” Lee v. State, 18 Ala.App. 566, 567, 93 So. 59 (1922).

We have no difficulty in concluding that the State presented a prima facie case of embezzlement against the defendant. The corpus delicti was unquestionably established. Circumstantial evidence of the defendant’s knowledge and intent constituted substantial evidence of his guilty participation in the embezzlement.

At a time when the Life Insurance Company was technically insolvent and in desperate financial condition, the defendant deprived the company of its main source of income by turning over the lot collections to AIS. At the very minimum this deprived the Life Insurance Company of the 15% collection fee on the lots owned by Royal. As in Reeves, this could not have occurred without the defendant’s knowledge and participation. The methods employed in accounting for the Life Insurance Company’s Lot Collection Account and in the financial dealings of AIS are highly suspicious in and of themselves. They must be considered in determining the defendant’s actual intent. The defendant’s own extensive knowledge and experience in both accounting and insurance are factors which indict and incriminate rather than furnishing any source of exculpation or exoneration. The amount of money collected by AIS and paid to Aldio or dispersed to cash and the relatively short period of time in which this money disappeared are highly significant factors in light of the Life Insurance Company’s failing financial condition. The only reasonable conclusion afforded by the evidence before the jury when the State rested its case was that the defendant had knowledge of and was at the very least assisting in an embezzlement conspiracy.

The defendant’s defense was that, although the embezzlement was occurring, he had no knowledge and was not aware of it at the time of the conspiracy. He contended that during the periods covered by the indictments he was not involved in the day-to-day affairs of AIS because he was totally involved as president of the Life Insurance Company in trying to sell that company’s assets and make it financially sound. We will not lengthen this opinion by reporting the details of the defense. We only state in conclusion that if the State’s case was strong when the State rested, it was made even stronger by the defendant’s testimony. The more the defendant tried to explain his conduct, the tighter he wove the web of circumstantial evidence spun by the State. The strength of the evidence against the defendant is demonstrated by the comments of the trial judge after the jury had returned its verdict and had been dismissed.

“I want to say one thing, though, for the record. Mr. Smith (defense counsel), I know you feel bad about this verdict. Of course, I know Mr. Hinds does, but he was the one that was there. But trying this case from your angle was almost an impossible job. All that’s involved in this case and — All that’s involved in this case I really don’t see how you could hope to win it. It just was an impossible job. Just no way, no way. I know Mr. Hinds doesn’t think so, but the jury obviously thought so. And there was no doubt in my mind about his guilt of my own self just listening to it.

“I know it’s most disappointing, but this case is just — With all that went on in that business there would not be a soul who would go untouched in a case like this with any kind of a jury. It wouldn’t matter what type of jury. No way. And you did a mighty good job. You tried hard and did fine, but you can’t overcome impossible odds, and that’s what this was.”

We have reviewed the sufficiency of the circumstantial evidence presented in this case in light of the governing principles found in Dolvin v. State, 391 So.2d 133 (Ala.1980), and Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). We find that the issue of the defendant’s guilt or innocence was properly submitted to the jury and the verdict of guilty is supported by substantial evidence.

II

The trial court properly refused to allow the defendant to introduce into evidence a number of documents concerning various offers to purchase Point Aquarius. These documents “were often quite lengthy and complicated.” Their purpose was to prove that the extent of the defendant’s daily involvement in the operation of the Life Insurance Company made it impossible as a practical matter for him to oversee or have any knowledge of how Aldio and Prince were managing AIS.

Contrary to the defendant’s contention, it can just as easily be argued that the fact that the defendant was so involved in the management of the Life Insurance Company must have made him aware that the only source of the company’s investment income was being rapidly dissipated. For this reason, and because the documents were “quite complicated” and would only lend confusion to a trial already filled with numerous and complicated documents, we find that the trial judge did not abuse his discretion in excluding the exhibits. See C. Gamble, McElroy’s Alabama Evidence, Section 21.01(1) and (3) on relevancy (3rd ed. 1977).

III

The defendant offered the testimony of a bank president to show the defendant’s bad financial condition as “an indication that he did not in fact receive the amounts of cash as alleged in the indictment.” The trial court properly excluded such testimony as “irrelevant and immaterial”.

The State never contended and was not required to prove that the defendant profited by his crime. Lacy v. State, 13 Ala.App. 225-26, 68 So. 706; Kramer v. State, 16 Ala.App. at 457, 78 So. 719. Thus, the evidence was immaterial. McElroy, Section 21.01(1).

The defendant argues that, if the State may use the improvement in a defendant’s financial condition to prove his guilt, “both logic and fundamental fairness dictate that a defendant be allowed to prove that he did not receive the fruits of the crime as tending to prove he did not participate in the crime.” The properly stated rule is that “the fact of a person’s possession of money, without some fairly reasonable indication that the money was acquired from the particular source of the now-charged crime, is not provable for the purpose of showing that the accused acquired it from such particular source” because the inference to be drawn from mere possession is too weak. McElroy, Section 50.01, citing Leath v. State, 132 Ala. 26, 31 So. 108 (1901); Turner v. State, 124 Ala. 59, 27 So. 272 (1900).

Here, the offered evidence of the defendant’s indebtedness was properly excluded as having “no legitimate tendency” to prove that the defendant did not participate in the embezzlement. Leath, 132 Ala. at 29, 31 So. 108.

While the State may prove the accused’s “impecuniousness before the crime and his sudden affluence after-wards”, McElroy, Section 50.21, the accused is not always entitled to prove his financial worth in order to show an absence of motive. Parsons v. State, 251 Ala. 467, 478, 38 So.2d 209 (1948). Whether a defendant’s strong financial condition is material in “pe-culative cases” to show the absence of motive, depends upon the circumstances and incidents of the occurrence, and the probability of it being influential under the circumstances. Parsons, 251 Ala. at 478-79, 38 So.2d 209. Thus, it has been held that the wages the accused was receiving at the time of the larceny is irrelevant. Dorsey v. State, 110 Ala. 38, 20 So. 450 (1895). Here, we find no abuse of the trial judge’s discretion.

IV

On rebuttal, the State was allowed to prove that the defendant received a $1,500.00 kickback in the public restroom of a motel incident to the defendant’s signing a rental guarantee for Spicer’s Fried Chicken, a matter which the defendant had denied. This did not constitute impeachment on an immaterial matter because it contradicts the defendant’s testimony that he had no knowledge that AIS was draining the assets of the Life Insurance Company. As argued by the Attorney General, the defendant’s “whole defense consisted of a claim that he was an honest, if ill-advised perhaps even negligent corporate official, who tried desperately to save his beleaguered company. This evidence showing the defendant taking a bribe in a public restroom in return for imposing additional obligations on his foundering company contradicts the false image the defense sought to project.” The evidence was properly admitted.

Additionally, the defendant’s objection came after most of the testimony concerning the kickback had been given and was not accompanied by a motion to strike. Embrey v. State, 283 Ala. 110, 116, 214 So.2d 567 (1968). Furthermore, the specific ground of objection raised on appeal (impeachment on an immaterial matter) was not presented to the trial court (objection “unless it is tied in some way with” the Life Insurance Company). Cook v. State, 384 So.2d 1158 (Ala.Cr.App.), cert. denied, 384 So.2d 1161 (Ala.1980).

V

Also not properly preserved is the defendant’s argument that by allowing the prosecutor to ask if the defendant knew that Aldio had been convicted on “five charges of fraudulent conversion of other people’s money and one charge of obtaining property by false pretense” the trial judge violated the rule of improperly assuming facts not in evidence. The objection at trial was that the facts solicited “would be more prejudicial than they would have probative value.” “Only those grounds of objection presented to the trial court can serve as a basis for a reversal of its action.” Cook, 384 So.2d at 1160.

VI

The defendant argues that the trial court erred in admitting the State’s evidence with reference to the $4,200.00 personal cheek that Aldio gave the defendant on April 14, 1978. This contention was answered in Snodgrass v. Branch Bank at Decatur, 25 Ala. 161 (1854). See also Reeves, 95 Ala. at 43, 11 So. 158.

“As a general rule, great latitude is allowed in the range of the evidence, when the question of fraud is involved. It is indispensable to truth and justice that it should be so; for it is hardly ever possible to prove fraud, except by a comprehensive and comparative view of the actions of the party to whom the fraud is imputed, and his relative position a reasonable time before, at, and a reasonable time after, the time at which the act of fraud is alleged to have been committed. No more precise general rule can be laid down in such cases.” Snodgrass, 25 Ala. at 174.

Questions of the materiality, relevancy and remoteness of evidence in a fraud case rest largely within the discretion of the trial judge. His rulings on these questions will not be disturbed on appeal unless that discretion has been grossly abused. Dorcal, Inc. v. Xerox Corp., 398 So.2d 665, 671 (Ala.1981).

We have reviewed and written to each argument presented by the defendant on this appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Murry BESTER, Jr. v. STATE.
    6 Div. 619.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982.
    John H. England, Jr., of England & Bivens, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appeal is from a denial of appellant’s petition for writ of error corum nobis. The appellant had been convicted of murder in the first degree and sentenced to imprisonment for life. On February 3, 1981, the judgment of conviction and sentence were affirmed by this court without the rendition of an opinion.

The petition for writ of error coram no-bis, a pro se petition, was filed on March 6, 1981, and it was set for hearing on April 9. In the meantime, upon a showing of petitioner’s indigency, an attorney was appointed to represent him, which he faithfully did and continues to do so on appeal, in a well prepared brief, in which he presents the following issues:

“I. WHETHER THE COURT AT THE CORAM NOBIS HEARING ERRED TO REVERSAL IN SUSTAINING THE STATE OF ALABAMA’S OBJECTION TO APPELLANT INTRODUCING EVIDENCE REGARDING THE FAILURE OF APPELLANT’S TRIAL COUNSEL TO MOVE FOR A SPEEDY TRIAL, and “II. WHETHER APPELLANT INTRODUCED SUFFICIENT EVIDENCE AT THE CORAM NOBIS HEARING TO PROVE THE CONTENTION THAT APPELLANT HAD INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT’S FEDERAL SIXTH AMENDMENT RIGHTS.”

As to Issue I, appellant urges that he was erroneously denied by the trial court an opportunity to pursue the ground of the petition for writ of error coram nobis to the effect that his trial counsel, to the injury of appellant, had failed to take action to obtain a speedy trial of defendant. There is apparent disagreement as to the basis for the court’s ruling in sustention of the State’s objection, on the hearing of the cor-am nobis petition, to an inquiry by petitioner’s counsel as to whether his counsel on the trial of the case had made efforts to obtain a speedy trial, but the transcript shows that petitioner was permitted “to make a showing for the record” on the point. The transcript fails to reveal any facts or circumstances to the effect that defendant should have been tried any sooner than he was tried. Furthermore, it is stated in appellant’s brief:

“... It was not Appellant’s intention to raise the speedy trial issue in and of itself as a ground for Coram Nobis relief. Appellant was trying to show that the failure of his trial counsel to move for a speedy trial was an indication of his ineffectiveness.”

A review of the entire transcript and the record compels a different conclusion. It was a very difficult, if not impossible, case to defend successfully. According to the undisputed evidence, defendant was tried in about seven months after the homicide of which he was convicted. During a large part of that time, he was under treatment of a psychologist employed by defendant’s counsel, who testified in his behalf on the trial. The petitioner testified on the hearing of the coram nobis petition that “at the time this crime was committed” the petitioner “had suffered alcohol blackout or something.” He further testified that at the time of the homicide his “condition was such” that he was “rendered insane by the alcohol.” We turn now to a consideration of the only other issue raised by appellant.

As to Issue II, we have the benefit of lengthy testimony by petitioner and by his attorney on the trial and on his appeal from a judgment of conviction and sentence. His counsel on this appeal summarizes his contention as to the “combination of factors” that indicate that defendant “had constitutionally ineffective assistance of counsel,” as follows:

“(1) He only saw his trial counsel on three occasions for less than 30 minutes, prior to going to trial;
“(2) That his attorney did not move for a speedy trial despite Appellant’s request for same;
“(3) That his trial counsel did not enter a special plea of not guilty by reason of insanity nor cause the Appellant to be examined to determine his sanity at the time the incident occurred;
“(4) That his trial counsel did not raise the issue of intoxication to the extent that Appellant could not have the requisite intent to commit the crime of Murder;
“(5) And that his counsel withdrew from his case on appeal [Parentheses and enclosed numerals supplied.]”

Although appellant does not contend that any single one of his asserted factors is sufficient of itself to show that defendant did not have effective assistance of counsel, we now examine each of them separately, in the light of the only testimony on the coram nobis hearing, that of petitioner and that of his appointed counsel, Tuscaloosa County Public Defender Ralph Burroughs.

As to appellant’s contention (1), there was testimony by appellant on the coram nobis hearing to the effect that his trial counsel only saw him on three occasions for less than 30 minutes. He testified that it was on “each occasion ... less than 30 minutes.” By the testimony of Mr. Burroughs, we are informed that, although some of the legal work on behalf of appellant, including his representation on the preliminary hearing, was conducted by one or more of Mr. Burroughs’ assistants, Mr. Burroughs was “personally involved in the preparation ... and the trial of the case.” A tape recording was made of the preliminary trial; this was reproduced in type which was studied by Mr. Burroughs. An assistant public defender, who represented defendant on the preliminary hearing had talked with defendant prior to the hearing, and an investigator for the office had previously talked with defendant for “2 hours.” In answer to a question as to how many times Mr. Burroughs talked with the defendant before trial, Mr. Burroughs replied:

“I really can’t say, Mr. Tipton. Several times. I was satisfied that I had the facts from what I could determine and from what my people had determined. I felt that it was a serious enough case that perhaps I should enter into the case and bring in a psychologist whom I hired to try to, as Mr. Bester said, to try to bring back his memory of the action at the scene where the lady was killed.
“Q. All right, sir. That was Dr. Brad Adams?
“A. It was, sir.
“Q. And do your records indicate when and how long Dr. Adams — the periods of time Dr. Adams talked to and tested defendant?
“A. Let me see when he started. He first saw him on March the 8th and he saw him at least one or two times per week up until the trial. He also sat in the trial and was permitted to do that on occasions to try to help — further help make a determination and he also testified in the trial.”

We are convinced by Mr. Burroughs’ testimony, as well as the testimony of the petitioner, that no just complaint can be made by petitioner as to the amount of time spent by Mr. Burroughs in talking with petitioner prior to the trial.

As to (2), relative to the absence of any motion by Mr. Burroughs for a speedy trial, we conclude, as indicated above, that for approximately the first half of the seven months intervening between the indictment and the trial, the professional advisability of any effort by his attorney to obtain a speedy trial would have been contraindicated, that any such effort made thereafter would have been at cross-purpose to the commendable effort by Mr. Burroughs to prepare properly for the trial, largely through the service of the psychologist, Dr. Adams, as an expert witness for the defendant.

As to appellant’s contention (3), by which effective assistance of counsel on his trial is challenged by reason of his failure to enter a plea of not guilty by reason of insanity and his failure to have appellant “examined to determine his sanity at the time the incident occurred,” we find no reasonable basis in the transcript for a plea of not guilty by reason of insanity. The petitioner testified on the coram nobis hearing:

“Q. Mr. Bester, is it not true that your contention is that because of your loss of memory and your failure to recollect the incidences [sic] surrounding the shooting that you were not able to effectively participate in the trial, isn’t that actually the allegation?
“A. Yes, it is.
“Q. It is not that you were insane generally but at the time of the incident that your condition was such that you were rendered insane by the alcohol?
“A. That’s correct.
“Q. That is your contention?
“A. Yes.”

There is nothing in the transcript to indicate that defendant had a history of any mental illness. His attorney wisely concluded that by reason of the circumstances of the homicide and the state of mind of defendant at the time he committed the homicide, he would have had some chance, without a special plea of not guilty by reason of insanity, of a verdict of a lesser included homicide than the homicide expressly charged in the indictment, murder in the first degree. Instead of his being criticized for his handling of the case in this respect, his counsel is to be commended for his apparent soundness of judgment and his obvious devotion of duty to his client. By utilization of the testimony of Dr. Adams, defendant’s counsel fought hard, and with some chance of success, for a verdict more favorable to defendant than the verdict returned by the jury. Under the undisputed evidence on the coram nobis hearing, except some testimony by petitioner as to an alcohol problem, “blackouts, grand mal seizures, things to this effect,” nothing has been presented to indicate that at the time of the commission of the alleged crime defendant was not legally sane, that is, that he was “so affected by disease of the brain ... as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; and the crime must have been the product of such diseased mind.” Streeter v. State, 278 Ala. 272, 177 So.2d 826 (1965); Parsons v. State, 81 Ala. 577, 2 So. 854 (1886). We cannot say with certainty that some expert witness could not have been found who would have supported a plea of insanity, but, if so, we are reasonably certain that the testimony of an expert in favor of defendant on the issue would have been met by testimony of an expert to the contrary. In any event, we believe that a plea of insanity would probably have fallen flat on its face and would not have helped the defendant.

The evidence on behalf of each party on the coram nobis hearing pertinent to appellant’s contention (4) is sparce. However, we are convinced that defendant’s trial counsel did not fail in his duty to render effective assistance to defendant in not raising “the issue of intoxication to the extent that Appellant could not have the requisite intent to commit the crime of Murder,” as contended by appellant. In a difficult first-degree murder case, as the basic ease here unquestionably was, prior to the effective date of Alabama Criminal Code, defendant’s counsel could reasonably expect the court to so charge the jury as to permit a legal finding by the jury that defendant was guilty of murder in the second degree, which would have been an acquittal of the charge of murder in the first degree. Harrison v. State, Ala.Cr.App., 340 So.2d 849, cert. denied, 340 So.2d 854 (1976). It could also be reasonably expected that, unless “it is perfectly clear that there is no evidence tending to bring the alleged homicide within some particular degree,” the trial court would charge on all degrees of homicide, including manslaughter in the first degree and manslaughter in the second degree. Strong v. State, 52 Ala.App. 237, 291 So.2d 325 (1974). It appears that defendant’s trial counsel carefully analyzed the circumstances pertaining to the homicide and exercised his best judgment as to what extent the issue of defendant’s intoxication should have been emphasized. We cannot say that his judgment was faulty. We are convinced that if his judgment had been different, action thereon would not have changed the result in the case. In his testimony on cross-examination on the coram nobis hearing, Mr. Burroughs said:

“... And, as you know, if you proceed on a temporary insanity due to overdrinking of alcohol or something that may have affected his mind, you’ve got to face the charge by the judge to the jury that voluntary drunkenness is no excuse and so forth weighed against the further charge that unless he was so far intoxicated that he was unable to form the intent, one of the essential elements of the crime, and since it was a jury trial and they set the punishment, I didn’t feel that I would pursue that too far. However, we did use Dr. Adams in the case to show that part of it, you know, of the situation.”

As to appellant’s contention (5), which pertains to the withdrawal of Public Defender Burroughs from his representation of Mr. Bester on appeal, the transcript and the record proper are clear as to the details of what occurred. After perfecting the appeal from the judgment of conviction and sentence and obtaining a transcript of the proceedings, at no cost to defendant, Mr. Burroughs could find no basis for reversal. In his testimony on cross-examination on the coram nobis hearing, he said:

“Q. Okay. Now, you did file notice of appeal?
“A. I did.
“Q. When you filed the notice of appeal, you did feel at the time that you had a basis?
“A. Well, you always do at that time.
“Q. All right, sir. Now, at some point—
“A. Well, in fact, it’s your duty, I feel, if your client wants you to file a notice of appeal and get the transcript and then you have got it down in black and white and you can read it and see and pick all the things you want to and just pick at it.
“Q. Okay. Now, but at some point, then, you determined that there was nothing appealable in the trial?
“A. I could find no material issues that I felt.
“Q. At that time, you withdrew?
“A. Mr. Cornwell [Assistant Public Defender] also read the transcript and did some work and we had other people read it.
“Q. And then you then submitted a brief—
“A. Yes.”

His testimony further shows that his brief contained an acknowledgement of his inability to find any error in the action of the trial court that he could in good faith advance in favor of the appellant, set forth a list of the rulings adverse to defendant on the trial, requested the court on appeal to examine the record, requested permission to withdraw as counsel in the case and let other counsel be appointed for appellant, and notified Mr. Bester accordingly. During this time Mr. Bester had been removed from imprisonment in Tuscaloosa County and communication between them was not as expeditious as Mr. Burroughs desired, but he arranged, when he learned that Mr. Bester desired to file a pro se brief, for Mr. Bester to receive a copy of the record proper and a transcript of the proceedings. His action was in full compliance with his duty to Mr. Bester. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Atwell v. State, 49 Ala.App. 207, 269 So.2d 920 (1972).

The judgment of the trial court should be affirmed. We are convinced that representation of Mr. Bester by the Tuscaloosa County Public Defender and the representation of Mr. Bester by his present counsel have measured up to all legal requirements and to the high standards of the legal profession.

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

AFFIRMED.

All the Judges concur.