text:
    RAGLAND BRICK COMPANY v. Dock CAMPBELL.
    Civ. 2929.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.

      James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellant.
    William E. Hereford and Jo Beth Martin of Hereford, Blair & Hill, Pell City, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

On March 3, 1980, Dock Campbell brought an action against Ragland Brick Company to recover benefits under Alabama’s Workmen’s Compensation Act. After an ore tenus hearing, the trial court concluded that the employee had suffered a compensable injury and awarded benefits accordingly. Ragland Brick Company appeals and we affirm.

The record reveals the following: Employee in this action is fifty-nine years old and is illiterate, having failed to complete the third grade. He has been employed primarily as a manual laborer at Ragland Brick Company since 1952 and has had practically no training for any other type of work.

On March 14, 1979, the employee was at his place of employment working in the unloading department as an unloader. His duties required him to take bricks off of a car and place them in a “bander.” While so engaged he stepped on a block which tilted or crumbled, causing him to lose his footing and fall. Employee testified that the fall resulted in injury to his right knee and his back.

The employee promptly reported the accident to his supervisor who instructed him to see a doctor. Within a few days employee visited Dr. Jariwala. Through deposition, Dr. Jariwala testified that employee’s only complaint was that he fell at work and hurt his right leg. After an examination, Dr. Jariwala diagnosed employee as having a right knee bursal sprain. Dr. Jariwala gave employee some medication for his injury, but apparently did not suggest that he take any time off from work.

Employee continued to work until August 10, 1979, although he did switch to a less strenuous job. During this time, however, his back problem grew progressively worse. After consulting various doctors, he was finally diagnosed as having a herniated disc. This condition was surgically treated and the employee was able to return to work on November 13, 1979, after being off the job approximately thirteen weeks.

Employee’s surgeon placed no restrictions upon the type of work employee could perform when he returned to work. The surgeon did testify, however, that, as a result of the surgery, employee had a permanent, partial impairment of approximately 15%. A rehabilitation specialist also examined employee and concluded that, considering employee’s age, he was 100% impaired from heavy lifting. Employee has, however, been able to satisfactorily perform his duties since returning to work although he now works in the top house which requires less exertion than his previous job in the unloading department.

A hearing regarding employee’s claim was held June 5, 1981. After considering the evidence before it, the trial court concluded that employee had suffered an injury which arose out of and in the course of his employment. The trial court further found that employee promptly reported the injury to his employer and that employer had actual notice of the injury within the statutory period. As a result of his injury, the trial court held that employee suffered a temporary, total disability for a period of eight weeks and that employee has a permanent, partial loss of ability to earn in the amount of 50%. The court’s finding of permanent, partial disability was based upon the medical testimony concerning impairment and employee’s years of service and lack of education.

On appeal, the employer, through able counsel, contends that the trial court erred in three instances. Initially, employer contends that it did not receive notice as required by the statute. Employer next contends that the evidence does not support the trial court’s finding that the accident caused the injury which resulted in the disability. Finally, employer contends that the evidence does not support the trial court’s finding regarding the disability of employee. For the reasons stated below, this court is of the opinion that all of employer’s contentions are without merit.

Though section 25-5-78, Code of Alabama 1975, requires that the employer be notified in writing within ninety days after the occurrence of an accident, judicial construction has, to a great extent, abrogated the statute’s literal application. Instead, numerous decisions have held that where the employer has actual knowledge of the accident, this is sufficient to satisfy the notice of requirement. E.g., Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756 (1925); B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 287 Ala. 726, 253 So.2d 45 (1971); Tripple M. Homes, Inc. v. Pickens, 46 Ala.App. 643, 248 So.2d 139 (1971). Oral notice is sufficient to give the employer actual knowledge of an accident. American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.), cert. denied, 378 So.2d 239 (Ala.1979); Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (1975).

In the case before us, it is undisputed that employee orally informed his supervisor that he had fallen and that he suffered an injury. Employer contends, however, that it was only informed of employee’s knee injury and was not informed of employee’s back injury until some five months later. In support of employer’s position the supervisor testified that employee informed him of a knee injury but did not inform him of a back injury. Employer also introduced insurance forms in which employee indicated that his back pain was not employment related. Employee testified, however, that he did inform his supervisor that his back hurt.

The foregoing discussion indicates that there was some evidence before the trial court that employee, within the time provided by statute, specifically informed his employer that he had suffered some type of back injury. Based upon this evidence the trial court concluded that employer had actual knowledge of the accident that was sufficient to comply with section 25-5-78 and subsequent judicial interpretations thereof.

In workmen’s compensation cases, if there is any legal evidence to support the trial court’s finding of fact, such finding is conclusive and will not be disturbed on appeal. Foy v. Vann, 386 So.2d 1141 (Ala.Civ.App.1979), cert. quashed as improvidently granted, 386 So.2d 1144 (Ala.1980); Barfield v. General Steel Tank Co., 370 So.2d 1005 (Ala.Civ.App.), cert. denied, 370 So.2d 1008 (1979). In light of the above standard of review, this court cannot say the trial court erred since there is legal evidence to support the trial court’s finding regarding notice.

We would also note this court’s opinion in Beatrice Food Co. v. Clemons, supra, wherein we indicated that once the employer has actual knowledge of an accident and injury, the statute does not require that the claimant provide further notice or continuing information except upon request. In light of Beatrice Foods, we are not convinced that it was absolutely necessary that the employer be informed of the back injury as long as there was a reasonable medical connection between the injury the employer was specifically informed of and the resulting injury. In this case, the medical testimony indicated that the circumstances surrounding employee’s knee injury were not incompatible with his subsequent back problems. Thus, here there was a reasonable medical connection between the knee injury and the back problem.

In order for an injury to be compensable under the Workmen’s Compensation Act, it must be the result of an accident that arises out of and in the course of employment. Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So.2d 39 (1965); Queen City Furniture Co. v. Hinds, 274 Ala. 584, 150 So.2d 756 (1963). It is undisputed that this accident occurred in the course of employment. The primary controversy concerns whether the accident and injury arose out of the employment.

The requirement that the accident arise out of the employment is essentially one of causation. Wooten v. Roden, 260 Ala. 606, 71 So.2d 802 (1954). Causation has two distinct components: legal causation and medical causation. City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975); 1B A. Larson, The Law of Workmen’s Compensation § 38.83 (1980). The legal test of causation has been described as follows:

If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to" which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and be an accident under the statute. ...

55 Ala.App. at 705, 318 So.2d at 732. Since there is no real dispute over the test of legal causation, suffice it to say that the evidence is sufficient to establish that the accident arose out of the employment.

Once legal, causation has been established, medical causation must be established through medical testimony. Stated differently, once the law has determined that an accident arose out of the employment, doctors must determine whether the accident caused the injury for which recovery is sought. It is employer’s contention that the accident did not cause employee’s back injury. This is simply a contention that medical causation was not established in this case.

If there is any evidence supporting the trial court’s finding that the accident caused the back injury, this court must accept that finding. A brief review of the testimony regarding medical causation reveals the following: Employee testified that at the time of the accident there was some pain in his back though the initial pain was primarily in his knee: Both employee’s surgeon and rehabilitation specialist stated that a back injury such as employee’s was compatible with the type of accident he had. Additionally, the rehabilitation specialist also testified . that the symptoms of a herniated disc may develop slowly over a period of time. The foregoing evidence supports the trial court’s decision. Consequently, this court cannot say the trial court erred.

Employer finally contends that there is no evidence that employee suffered any disability in his ability to earn because employee returned to the same job he had prior to the operation and has worked regularly and satisfactorily.

While there is evidence that the employee has in fact returned to work, there is also evidence that he can no longer perform duties which require strenuous physical labor without assistance from other employees.

Professor Larson, in his treatise on workmen’s compensation, stated that “[i]t is uniformly held .. . that a finding of disability may stand even when there is evidence of some actual post-injury earnings equaling or exceeding those received before the accident.” 2 A. Larson, The Law of Workmen’s Compensation § 57.21, at 10-79 (1981). This language was quoted with approval by our supreme court in Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957). The court in Goodyear, further stated that “[t]he statute does not prescribe comparative wages received before and after the injury as the test of the employee’s ability to earn. Instead, the test is the difference between the average weekly earnings at the time of the injury and the averagq weekly earnings the employee ‘is able to earn in his partially disabled condition’ .... ” 266 Ala. at 347, 96 So.2d at 280-81.

Employee has been a manual laborer practically all of his adult life. He cannot perform certain pertinent tasks without assistance. He has had no training for any other occupation and at his age and education level, any further training is doubtful. A consideration of the wage that would have been paid in the open labor market to this employee under these facts as a manual laborer at age fifty-nine, with a second grade education, and after having undergone disc surgery, led the trial judge to a finding of 50% permanent, partial disability. This finding is supported by the evidence and will not be disturbed on appeal.

This case is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Myrtle TAYLOR v. DEPARTMENT OF INDUSTRIAL RELATIONS.
    Civ. 2959.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.

      Lawrence P. Gardella, Montgomery, for appellant.
    Frank D. Marsh, Asst. Gen. Counsel, Dept, of Indus. Relations, State of Alabama, Montgomery, for appellee.
   HOLMES, Judge.

This is an unemployment compensation case.

The Circuit Court of Montgomery County dismissed the claimant’s action on the ground that it was not timely filed. The claimant appeals and we reverse and remand.

The record reveals the following pertinent facts: The Department of Industrial Relations determined that the claimant had received an overpayment of unemployment compensation benefits and ordered her to refund the moneys. The claimant made a timely appeal to the Department’s board of appeals. On May 12, the board of appeals decided that the claimant was obligated to reimburse the Department for the overpayment. This decision became final on May 22. § 25-4-94(d), Code of Alabama 1975.

The claimant filed an appeal in the circuit court on June 2. Section 25-4-95, Code of Alabama 1975, governs the procedure for appealing a decision rendered by the board of appeals:

Within 10 days after the decision of the board of appeals has become final, any party to the proceeding ... who claims to be aggrieved by the decision may secure a judicial review thereof by filing a notice of appeal in the circuit court. . . .

The tenth day after the decision of the board of appeals became final was Monday, June 1, 1981. The Circuit Court of Montgomery County was closed on June 1 in observation of Jefferson Davis’s birthday, a legal holiday pursuant to section 1-3-8, Code of Alabama 1975. June 2, the day on which the claimant filed her appeal, was the first business day after this legal holiday.

The department moved to dismiss the claimant’s appeal as untimely. The claimant responded to the Department’s motion by contending that when computing the ten day time period under section 25-4-95, the last day should not be included when it is a legal holiday, and the period runs until the end of the next business day. Consequently, the claimant claimed her complaint was timely filed pursuant to section 1-1-4, Code of Alabama 1975, and rule 6(a), A.R.C.P.

The Department replied that the procedures under the Unemployment Compensation Act are exclusive. § 25-4-96, Code of Alabama 1975. Therefore, section 1-1-4 was inapplicable. The Department further contended that rule 6(a) could not be used to extend the time of filing due to an intervening holiday. The Department also urged that the claimant’s action was untimely because the complaint-appeal was not served on or received by the director of the Department within the above referenced ten day period.

The learned trial judge heard arguments on the motion to dismiss and determined the claimant’s action was not timely filed. In granting the Department’s motion to dismiss, the circuit court cited as authority for its decision Quick v. Utotem of Alabama, Inc., 365 So.2d 1245 (Ala.Civ.App.1979); and Mitchell v. State, 351 So.2d 599 (Ala.Civ.App.1977).

The claimant appeals from the trial court’s order granting the motion to dismiss.

The employee, as indicated, contends that 1) her appeal to circuit court was timely filed pursuant to section 1-1-4 and rule 6(a); and 2) she met all statutory requirements by submitting copies of her notice of appeal to the circuit clerk along with a postage paid envelope for service on the Department’s director by certified mail.

We first consider the claimant’s contention that when the last day for filing an appeal pursuant to section 25-4-95 is a holiday, that day should be excluded from the ten day period.

There is no language in the procedural sections of the Unemployment Compensation Act indicating the method by which to compute the ten day period. We note, however, we have two compatible provisions referencing the computation of time. Section 1-1-4 provides in pertinent part:

Time within which any act is provided by law to be done must be computed by excluding the first day and including the last. However, if the last day is a Sunday, or a legal holiday as defined in section 1-3-8, or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day must also be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done.

Very similarly, rule 6(a) states:

In computing any period of time prescribed ... by any applicable statute .. . [t]he last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday.

We find no cases where these provisions have been specifically applied to the Unemployment Compensation Act. These provisions have, however, been applied to statutes of limitations contained within other statutory schemes. See Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055 (Ala.1981) (Truth in Lending Act); Commerce Union Bank v. John Deere Industrial Equipment Co., 387 So.2d 787 (Ala.1980) (Uniform Commercial Code).

We find that the statutorily prescribed method of computing time under “any act,” section 1-1 — 4, or “any applicable statute,” rule 6(a), pertains to the Unemployment Compensation Act. We must, in construing the above quoted statutes, give the language its plain, ordinary and everyday meaning. State v. International Minerals & Chemical Corp., 381 So.2d 60 (Ala.Civ.App.1979), aff’d, 381 So.2d 62 (Ala.1980). This court construes the statutory language so that the procedural sections of the Unemployment Compensation Act are read in pari materia with the computation of time provisions. See State Department of Industrial Relations v. Thomas, 55 Ala.App. 712, 318 So.2d 739 (1975); Spillers v. Lafever, 39 Ala.App. 465, 103 So.2d 837 (1958). Section 25-4-95 requires an appeal to be filed within ten days, and section 1-1-4 and rule 6(a) provide a method for computing the ten days.

Accordingly, since the last day on which the claimant could file her appeal (June 1) was a legal holiday, that day was excluded. Therefore, the claimant had until the next day (June 2) to file an appeal in circuit court. Claimant did so file her action on June 2, and consequently her appeal was timely.

Therefore, the Department’s motion to dismiss for failure to file an appeal in circuit court within ten days should have been denied.

In reversing, we find the learned trial court’s reliance on Quick v. Utotem of Alabama, Inc., supra, and Mitchell v. State, supra, to be misplaced.

In Quick, the claimant failed to meet the statute of limitations for appealing a determination from the Department of Industrial Relations’ board of appeals. Because there was no intervening holiday, no application of section 1-1-4 or rule 6(a) could have made Mrs. Quick’s appeal timely.

Mitchell involved a taxpayer who missed a statutory filing deadline by three days. This court held that a taxpayer could not use rule 6, A.R.C.P., to impermissibly extend jurisdiction under the Revenue Act.

Unlike the parties in Quick and Mitchell, the claimant in the instant action is not seeking to file after the time period. Rather, as discussed above, she is correctly contending that the ten day time period for filing appeals under section 25-4-95 should be computed by the method defined in section 1-1-4 and rule 6(a). Quick v. Utotem of Alabama, supra, and Mitchell v. State have no application to this issue.

We turn now to the claimant’s second contention. The claimant contends she met all jurisdictional requirements by timely filing her notice of appeal along with copies for the Department and an addressed, postage paid envelope for service on the director of the Department by certified mail. Under the facts of this case, we agree.

Judicial review may be obtained by the timely filing of a notice of appeal in the circuit court where the claimant resides. § 25-4-95. As stated above, the employee herein timely filed in the proper circuit court.

Section 25-4-95 also requires that there be service upon the director of the Department, and expressly recognizes that such service may be by registered or certified mail.

In brief, the Department argues that section 25-4-95 demands that the director be served with a notice of appeal within ten days after the decision of the board of appeals becomes final. In this instance, we find this narrow interpretation of section 25-4-95 to be contra to the benevolent purpose of the Unemployment Compensation Act and the accompanying mandate for liberal construction and application of its provisions. Crawley v. Carter, 378 So.2d 1139, 1141 (Ala.Civ.App.1979).

As indicated above, the employee timely filed a notice of appeal in circuit court. She provided a postage paid envelope and copies of the notice of appeal to the circuit clerk for service upon the director by certified mail. The Department appended to its brief a copy of the postage paid envelope bearing a June 3 postmark. Apparently, the Department received the notice on June 3 or shortly thereafter.

Generally, we find no requirement in section 25-4-95 that the director be served within the ten day period. It appears to this court that the timely filing in circuit court, providing a means of service of process upon the director by certified mail, and the actual mailing of the notice of appeal to the director and his apparent receipt thereof operated in this case to invoke the jurisdiction of the circuit court under section 25-4-95.

The trial court should not have, in this instance under these circumstances, dismissed the claimant’s action for failure to serve notice of appeal upon the director within ten days after the decision became final.

We should not be understood by our decision today to be requiring or not to be requiring the circuit court clerk to mail a notice of appeal to the director. In this instance, though, the circuit court clerk did send the notice to the director by certified mail, and under the circumstances as indicated above, the claimant satisfied the procedural requirements of section 25-4-95.

For the foregoing reasons, we reverse the order of the trial court.

REVERSED AND REMANDED.

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


text:
    Charles R. BRETT v. ZODIAC INDUSTRIES, INC.
    Civ. 2974.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.
    Jerry W. Jackson and James C. Cashion, Haleyville, for appellant.
    Samuel L. Masdon of Manasco & Masdon, Haleyville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves a fraudulent conveyance of personal property.

Mr. Hoyle Miller of Mississippi and Texas was the owner of a tractor-truck, and, in August 1980 he placed Mr. Tim Adams of Alabama in possession of it as collateral for a simple account owed by Miller to Adams. Adams retained possession of the vehicle until it was attached in February 1981 in an Alabama civil action of Zodiac Industries against Miller.

Zodiac’s evidence at the trial was that on October 3, 1980, it sold furniture to Miller for $9,362.65. In May 1981, a default judgment was rendered against Miller for said amount, interest and costs.

In March 1981 Mr. Charles R. Brett intervened in Zodiac’s case, claiming ownership of the vehicle. Zodiac affirmatively pled in response to Brett’s intervention complaint that the transfer of the vehicle from Miller to Brett was void as to Zodiac since it was made with the intent to hinder, delay or defraud Zodiac of its lawful debt.

Brett had practiced law in Mississippi for five years, and Miller had been his client for the last four years. They still maintain an attorney-client relationship. Brett testified that prior to December 1980, he had performed legal services for Miller on numerous occasions. As of December 1980, Miller owed him between seven and eight thousand dollars, when Miller came to his attorney with the request that he represent him in an Alabama case brought against Miller by Adams. Brett informed his client that before he continued working on the pending cases or rendered any further professional services, Miller needed to make some payment upon the fees. Since Miller had no cash, he agreed to, and did, transfer title of the tractor-truck to Brett on December 29, 1980, for the attorney’s fees owed.

The attorney further testified that in October 1980 he had represented Miller in a Mississippi felony trial wherein Miller was adjudged guilty and that the transfer of the vehicle was made so as to include future fees for representing Miller upon the appeal from that conviction as well as the unpaid prior fees.

Adams was personally sued by Brett in Mississippi to recover the vehicle. While an order of court as to the replevy proceedings bore a December 30, 1980 date, those legal instruments were not filed in the clerk’s office until April 10, 1981. Those proceedings were never served upon or processed with regard to Adams for the vehicle was not there levied upon.

Before the transfer of the vehicle to him, Brett was familiar with the fact that Adams had sued Miller for $25,000 upon the account. He was further aware of several other claims against that client. At the time of the transfer, Brett knew that Miller had no cash, that he had suffered financial difficulties for two years, that he had recently closed his business, that Miller “was broke and out of work” and that the vehicle was the only property of value which Miller owned. When title was transferred, Miller informed Brett that the tractor-truck (and a trailer which Miller did not own) was worth $15,000.

On February 15, 1981, Miller signed an agreement with Adams whereby, among other matters, it was therein indicated that Miller still owned the tractor-truck.

After a non-jury trial, the trial court held the vehicle transfer to Brett to be void. The pivotal question is whether, under the evidence, the vehicle transaction between Brett and Miller could have been set aside as being a constructive fraud upon Zodiac as an existing creditor of Miller. We affirm.

In the recent case of J. C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981); 15 A.B.R. 2483, the case of Smith v. Wilder, 270 Ala. 637, 120 So.2d 871 (1960) was aptly designated as the leading Alabama opinion which summarizes the law governing fraudulent conveyances. The Campbell case overruled Smith v. Wilder in one limited aspect which is not here pertinent. In Smith v. Wilder the following still applicable legal principles appear:

In regard to the so-called burden of proof, we think the following are correct rules.
The burden is upon an existing creditor alleging actual fraud to prove it. Birmingham Trust & Savings Co. v. Shelton, 231 Ala. 62, 163 So. 593.
Where a conveyance is sought to be vacated on the ground that it was voluntary, the burden is upon the complainant to show thát his debt antedated the conveyance attacked.
When such proof is made the burden shifts to the grantee to go forward with the evidence.
If the evidence shows that the consideration paid by the grantee was an existing debt due to him from the grantor, the grantee must show not only the existence of the debt, but must also show that the value of the property was no more than a fair equivalent for the amount of the debt.
If the evidence shows that the alleged .fraudulent grantor was insolvent, failing or financially embarrassed when he made the conveyance, even though the consideration paid by the grantee was a new one, the burden is upon the grantee of showing a consideration both valuable and adequate.
However, if it does not appear that the grantor was insolvent, failing or financially embarrassed when he made the conveyance and the evidence shows that the consideration paid by the grantee was a new one, not resting on prior indebtedness, the only burden upon the grantee is to show that he paid a valuable consideration — substantial and not merely nominal.
When a conveyance is attacked by a creditor on the ground that it is voluntary, without consideration, and it appears that a part of the consideration for the conveyance is the payment of an antecedent debt and a part is money or its equivalent, then or thereafter paid, the same principles are applicable as when the purchase is entirely on a new consideration. Stidham v. Downs, 223 Ala. 519, 137 So. 305.
Inadequacy of consideration is a circumstance which, with other facts, may justify a conclusion that there was an actual intent to hinder, delay or defraud creditors. Bibb v. Freeman, 59 Ala. 612; London v. G. L. Anderson Brass Works, 197 Ala. 16, 72 So. 359.

270 Ala. at 650, 120 So.2d 871.

We will attempt to apply those rules to the present controversy.

Here, it is undisputed that Zodiac was owed a debt by Miller when he transferred title to the vehicle to Brett. Accordingly, the burden shifted to Brett to go forward with the evidence.

The trial court could have ascertained under Brett’s first evidence as to the attorney’s fees that all of the Miller indebtedness to him existed at the time of the vehicle transfer, that it was entirely a preexisting debt, and that the value of the tractor-truck so greatly exceeded the fees due that the tractor-truck transfer was void.

On the other hand, if the trial court ascertained that part of the consideration for the vehicle transfer was the payment of an antecedent debt and a portion thereof was for future legal services to be performed by the attorney for his client, the burden was upon Brett to reasonably satisfy the trial court that the total consideration was both valuable and adequate since there is no dispute that Miller was insolvent, failing or financially embarrassed when he executed the title transfer. In that respect, the trial court could have determined that Brett did not meet that burden since there was evidence that the vehicle might be worth around $15,000, while the fees due could have amounted to $7,000 or less. Thus, one finding of that court under the evidence could have been that the consideration for the transfer, while valuable, was substantially inadequate, thereby voiding the transaction. “Where.. .the consideration is substantially or grossly inadequate, fraud may be inferred as a matter of law from inadequacy alone.... [T]he mutual fraudulent intent of the parties is inferred by law from the great disparity between the real value and the consideration given.” J. C. Jacobs Banking Co. v. Campbell, supra ; 15 A.B.R. at 2497.

Additionally, the trial court could have been dissatisfied with the proof relative to the amount of Brett’s fees. Some of the material elements to be considered in establishing a reasonable attorney’s fee are: “time, labor, skill, experience, professional reputation, weight of responsibility, nature and value of services involved, and the results accomplished by the rendition of the services.” Ingalls v. Hare, 266 Ala. 221, 96 So.2d 266 (1957). In his evidence, Brett merely related that he had been a practicing attorney for five years, that he had done legal work for Miller on numerous occasions prior to December 1980, and that, at such time, Miller owed him between seven and eight thousand dollars. Such general information without specificity, was inadequate to allow the trial court to reach an independent determination as to the amount due if that amount was to be a reasonable fee. Conversely, if, between the attorney and his client, they reached an agreement as to the amount, or amounts due, there is no proof of such fact. The trial court could have considered that Brett thus failed in his burden in that regard as to proof of the adequacy of the consideration.

Here, questions of fact were involved and those issues were determined adversely to Brett by the trial court. Where a fraudulent conveyance case is heard personally by the trial court, every legitimate presumption must be afforded to its findings, which will not be disturbed on appeal unless they are palpably wrong. J. C. Jacobs Banking Co. v. Campbell, supra, 15 A.B.R. at 2499. Under the evidence in this case, we cannot find that the trial court was palpably wrong. The evidence, or lack thereof, is supportive of its findings. Accordingly, we affirm.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code of Alabama (1975) and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Oliver NICHOLES v. STATE.
    1 Div. 293.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Floyd C. Enfinger, Jr. of Lacey & En-finger, Fairhope, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for rape in the first degree. Sentence was 40 years’ imprisonment.

The defendant contends that the pretrial identification procedures were impermissi-bly suggestive in that he was the only common participant in both the photographic and corporal lineups, despite the fact that one victim identified the defendant and another individual and the other victim selected yet a third individual from the photographic lineups. It is not contended and there is nothing in the record which even implies that either the photographic displays or the corporal lineups were suggestive apart from the defendant’s common participation.

In the late afternoon of the eighth of March, 1981, Laura and Leslie were abducted while walking home along Highway 98 near the Grand Hotel in Baldwin County. Within hours after the crime occurred Leslie was taken to a hospital where she selected the defendant’s picture from five photographs shown her by the police. Later that night, after her release from the hospital, she was again shown the same five photographs and selected pictures of the defendant and Carl Douglas. At this time Laura was also shown the photographs and she identified Julius Frye. Either one or both girls then requested a lineup.

This lineup was held the next day. Of the three individuals selected in the photographic displays (the defendant, Douglas and Frye), the defendant was the only one appearing in the six-man lineup.

The two victims separately viewed two lineups. Although the same men were in each lineup they were rearranged differently for each viewing. In both lineups Leslie identified the defendant and no one else. In her first lineup, Laura identified the defendant and Livingston Johnson. In the second, she selected the defendant based only upon a voice identification.

In Houston v. State, 49 Ala.App. 403, 272 So.2d 610 (1973), this Court held that it is not error to have the person identified in the photographic lineup participate also in a corporal lineup, even though he may be the only common participant in the two procedures.

“Defendant complains of the fact that the victim was shown defendant’s photograph prior to the lineup and argues that this was suggestive to the point that his subsequent identification and victim’s testimony of such upon the trial violated his right to due process. It should be pointed out that for some reason, Mr. Watson did not recognize the defendant from the pictures shown him prior to the lineup. Therefore, it is hard to see how the act of showing him a number of pictures could have influenced his later identification of defendant at the lineup. Assuming the victim had been able to identify the defendant from the photographs shown him, this, standing alone, would be insufficient to show improper suggestions to the extent that his later lineup identification would be inadmissible.” Houston, 40 Ala.App. at 406, 272 So.2d 610.

See also Childers v. State, 339 So.2d 597 (Ala.Cr.App.), cert. denied, 339 So.2d 601 (Ala.1976). This is. in accord with the numerous cases cited in the annotation on this subject found in 39 A.L.R.3d section 16 at 508 (1971) and its pocketpart. These cases recognize the general rule that the fact that an accused is identified by a witness from a photograph before he appeared in a lineup at which the same witness selected him again does not render the lineup so suggestive as to require the exclusion at trial of the lineup identification or taint the in-court identification of the accused by the witness. This rule applies even where the witness is unable to make a positive identification of the defendant from the photographic display. People v. Hernandez, 11 Cal.App.3d 481, 89 Cal.Rptr. 766 (1970). While such a procedure may be suggestive to some degree, we do not consider it unnecessarily suggestive.

Reviewing the totality of the circumstances surrounding the identification procedures involved in this particular case, this Court finds nothing in the evidence to indicate any impermissible suggestiveness in those procedures which would give rise to the likelihood of mistaken identification.

We have searched the record and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Edward SMITH v. STATE of Alabama.
    No. 3 Div. 435.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.

      William W. Gobrecht of Skinner & Go-brecht, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Jeffrey H. Long, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Edward Smith was indicted for “rape” for violating § 13A-6-61, Code of Alabama 1975. The jury found him “guilty as charged” and the trial court sentenced him, pursuant to the Alabama Habitual Felony Offender Act, to life imprisonment without parole.

Sufficient evidence was presented by the prosecution to support the jury’s finding that this appellant raped the prosecutrix on January 24, 1981, either at a “big barn” south of Montgomery, or at John’s Motel No. 2 in Montgomery, or both. The prosecution’s evidence revealed that the prosecu-trix knew the appellant, and that the appellant tricked her into leaving a “night club” with him, forced her by threats of bodily harm to have sexual intercourse with him, and eventually apologized for his actions while driving her back to her automobile.

The appellant testified not only that he did not force the prosecutrix to have sexual intercourse with him on the night in question but also that he had no contact with her whatsoever. (R. 131-134). In fact, he testified that on this night he did not visit the “night club” from which the prosecutrix was abducted. (R. 156-159).

The prosecutrix was allowed, over the appellant’s objections, to introduce two other women who also testified that they, too, had been raped by the appellant. The first of these witnesses testified that the appellant abducted her from a Montgomery city street in late July, 1980, and took her to a vacant house south of Montgomery and raped her.

This house was located on the same isolated dirt road and very close to the “big barn” where the prosecutrix was allegedly raped. This witness testified that after the appellant beat, threatened and raped her, he drove her back to the city of Montgomery and apologized for his actions.

The other witness testified that, like the prosecutrix, she knew the appellant. She saw him at a “night club” one night in December, 1980, when she was home visiting her mother during the Christmas holidays. He took her to his room at John’s Motel No. 2, beat her, threatened her, and then raped her. When he was through, he drove her back to the street where her mother lived, apologized for his actions and let her out of the car.

Besides his own testimony denying that he even saw the prosecutrix on the night in question and denying any sexual contact with the other two alleged rape victims who had testified for the prosecution, the appellant’s only other evidence in his behalf was the testimony of his girl friend who stated that he was “a nice person.”

I

Appellant’s primary contention on appeal is that the trial court erred in permitting the prosecution to introduce evidence of these “three other rapes” allegedly perpetrated by the appellant. Two of these alleged rapes were not even prosecuted and the appellant was acquitted for the third. Appellant argues that the probative value of these alleged prior offenses was far outweighed by their ineradicable prejudicial effects.

A

We can dismiss appellant’s arguments concerning the alleged rape for which appellant was acquitted for two reasons. First, the evidence of this incident was first introduced to the jury by the appellant, himself, in an unresponsive answer to a cross-examination question by the prosecution. (R. 171). Further inquiry by the prosecution regarding the circumstances of that incident was prevented by the trial court, which sustained appellant’s subsequent objections (R. 172 and 174). Secondly, Alabama follows the rule that an acquittal of a prior offense does not render otherwise admissible evidence of that offense inadmissible. Mitchell v. State, 140 Ala. 118, 37 So. 76 (1904); Robinson v. State, 40 Ala.App. 101, 108 So.2d 188 (1959).

Therefore, the focus of our discussion will be on the admissibility of the evidence concerning the two alleged prior offenses that were not prosecuted. (R. 79 and R. 104).

B

As the appellant points out, the prosecution’s strategy in this case was obvious. The prosecution was faced, as in many rape cases, with a situation where the final outcome would depend upon “the prosecu-trix’ word against the appellant’s.” There were no other eyewitnesses to the crime. Because the prosecutrix was scared and emotionally upset, she consequently delayed in reporting the incident to the police. There was no direct physical evidence to connect this appellant with this crime.

Moreover, in this particular instance the prosecutrix knew her assailant and voluntarily left a “night club” with him late at night. A conviction under these circumstances was doubtful. The prosecutrix would be, at best, emotionally unstable on the witness stand. The appellant, if indeed he had escaped conviction on prior rape charges, would undoubtedly be an experienced and perhaps a more persuasive witness.

The prosecutrix positively in court identified the appellant as the man who raped her. The appellant insisted that he did not rape her and that he was not even with the prosecutrix on the night in question. The prosecution, as in most rape cases, was aware of the fact that this prosecutrix’ testimony, alone, pitted against this emphatic denial by the appellant might not be sufficient to convince the jury that she had accurately identified her assailant.

However, the prosecution knew that there were circumstances surrounding this rape incident that were very unusual. After the rapist beat and choked the prosecu-trix, threatened further violence, and repeatedly raped her, he not only apologized for his actions and begged her forgiveness but also drove her back to her automobile where she could return to safety. These were two of the aspects of this rape incident that the prosecution believed would connect this appellant with this crime.

Therefore, the evidence was introduced that on at least two prior occasions within six months of this incident, the appellant raped women (who positively identified him at trial) to whom he afterwards apologized and that he eventually returned each of them to a place of safety. In essence, he used the same means or method of operation of perfecting this rape or followed the same “modus operandi” that he had used on prior occasions. It is these unique similarities with the instant offense that justify the admission of this evidence concerning these two alleged collateral offenses. Johnson v. State, 242 Ala. 278, 5 So.2d 632 (1942); Daniels v. State, 243 Ala. 675, 11 So.2d 756, cert. denied, 319 U.S. 755, 63 S.Ct. 1168, 87 L.Ed. 1708 (1943); Harvey v. State, 41 Ala.App. 300, 130 So.2d 823 (1961), and cases cited therein; Humphrey v. State, 54 Ala.App. 62, 304 So.2d 617 (1974); Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975), and cases cited therein. Hayes v. State, 384 So.2d 623 (Ala.Cr.App.1979), cert. denied, 384 So.2d 627 (Ala.1980).

Furthermore, one of the other incidents was similar in that the victim knew the appellant, left a “night club” with him late at night and was raped at appellant’s room at John’s Motel No. 2. The other offense had the additional similarity that it occurred in a house on the same isolated dirt road in south Montgomery where the barn, in which the prosecutrix was first raped, was located.

The appellant argues in brief that the evidence of these prior offenses does not fit any of the well recognized exceptions to the rule excluding evidence of collateral offenses. He claims that under these circumstances the “identity” exception does not apply because “identity” was not in issue.

To the contrary, the appellant’s own testimony that he was not with the prosecutrix that night coupled with the prosecutrix’ positive identification of appellant as her assailant placed “identity” in issue. Humphrey v. State, supra; Hogue v. State, and authorities cited, supra. This was not a question of whether or not the prosecutrix could correctly identify the appellant, a man she knew, but rather it was a question of whether or not the prosecutrix could “identify” or “connect” the appellant with this incident.

In the case at bar, we are of the opinion that the similarity in circumstances of time, place and method of operation between the assault on the prosecutrix and the assault on the other two female victims is very great.

We therefore hold that the trial court properly admitted the evidence of the prior assault on the other victims. Authorities cited herein. See also 77 A.L.R.2d 841. Given the testimony of the prosecutrix on the issue of the appellant’s intent and identity, we are of the opinion that the trial court’s rulings are correct.

II

Appellant asserts that the trial court erred in not granting his request for a preliminary hearing before indictment.

We need not reach this issue because, as in Hale v. State, 355 So.2d 1158 (Ala.Cr.App.1978), there is nothing in the record to verify appellant’s arguments at trial and his stated grounds in his “motion to quash” that he indeed requested, and the trial court so ordered, a preliminary hearing. Even if he cleared this procedural hurdle, the issue of the right to a preliminary hearing “before indictment” has been clearly decided adversely to him for the reasons set forth in Duncan v. State, 369 So.2d 885 (Ala.Cr.App.1979), and reaffirmed in Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981), and also Snipes v. State, 404 So.2d 106 (Ala.Cr.App.), cert. quashed 404 So.2d 110 (Ala.1981).

III

Appellant further contends that the trial court erred in the sentencing hearing by admitting “improper” evidence of the appellant’s three prior felony convictions. Appellant does not contend that he did not have three prior convictions, but rather that they were not properly proven at the sentencing hearing. In fact, the appellant testified at trial (R. 129-132) that he had been convicted of the same three felonies sought to be proven at the sentencing hearing.

We refrain from specific comment with reference appellant’s arguments in brief because his specific objections raised on appeal do not correspond to his specific objections raised at trial.

During the sentencing hearing, appellant objected to the state’s proof of appellant’s two state felony convictions because the documents used (R. 240-241) did not exhibit the trial court’s “finding of guilty” and he objected to the proof of his federal felony conviction because the document used (R. 242) did not bear a seal (R. 218). In brief on appeal, however, the only ground asserted in objection to the proof of the state convictions is that the document at R. 241 “does not reflect Defendant was represented by counsel or that he knowingly waived same.” The only ground stated in objection to the proof of the federal conviction is that the document at R. 242 does not comply with a requirement of ARCP, Rule 44(a)(1), that the document contain “a certificate under oath signed by the person stating he is the official custodian of the record and that the laws of his jurisdiction require the record to be kept.”

The trial court will not be placed in error for these grounds on appeal that were not specified during the sentencing hearing. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974); Slinker v. State, 344 So.2d 1264 (Ala.Cr.App.1977); Johnson v. State, 364 So.2d 1187 (Ala.Cr.App.), cert. denied, 364 So.2d 1190 (Ala.1978).

We also note that in this case the appellant’s testimony solicited by his counsel on direct examination that he had been convicted of these three prior felonies certainly was proper proof of these convictions. Thus, no error appears.

IV

Appellant’s final two arguments request that we declare “unconstitutional” Alabama’s Habitual Felony Offender Act, § 13A-5-9, Code of Alabama 1975, and Alabama’s rape statute, § 13A-6-61, Code of Alabama 1975.

A

Appellant complains that the apparent allowance for “selective enforcement” of the Alabama Habitual Felony Offender Act conflicts with his “right to jury trial” and his “right to equal protection.”

Since appellant received a jury trial and there is no evidence of record of any improper “selectivity” of enforcement as to appellant, appellant’s argument must fail. Moreover, these issues as raised by appellant, have been clearly resolved against him by prior decisions which we herein cite. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981); Williams v. State, 393 So.2d 492 (Ala.Cr.App.1981); Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981); Seritt v. State, 401 So.2d 248 (Ala.Cr.App.), cert. denied, 401 So.2d 251 (Ala.1981).

B

Appellant contends that § 13A-6-61, Code of Alabama 1975, is unconstitutional because it is impermissibly “gender-based” in violation of the “equal protection” clause of the Fourteenth Amendment to the United States Constitution. Section 13A-6-61 defines the crime of “rape in the first degree” as the act committed when a male “engages in sexual intercourse with a female by forcible compulsion” and designates this crime as a Class A felony. On the other hand the crime committed when a female “engages in sexual intercourse with a male without his consent” is “sexual misconduct,” which is covered in § 13A-6-65, Code of Alabama 1975, and designated as a Class A misdemeanor. It is this inequality in punishment, a Class A felony for males versus a Class A misdemeanor for females, for essentially the same criminal conduct that appellant cites as violative of his right to “equal protection.”

True these statutes clearly single out males for more severe punishment than that provided for females who commit a similar crime. However, § 13A-6-61 (the only statute challenged in the instant case) will withstand constitutional scrutiny if its “gender-based” classification is reasonable, not arbitrary, and rests upon some ground of difference having a fair and substantial relationship to the objective of the legislation. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Hobson v. Pow, 434 F.Supp. 362 (1977).

The obvious objective of § 13A-6-61(a)(1) (the only portion- of this statute under attack) is to protect females from sexual attacks by males which result in nonconsensual sexual intercourse. This objective is a legitimate state interest because of the potential harm to the victim and society. Female victims of nonconsensual sexual intercourse by males are subjected to a possible unwanted pregnancy and the medical, physical, sociological, moral, and psychological problems associated therewith, in addition to the physical injuries and psychological traumas potentially inflicted upon any victim of a sexual assault. This “unwanted pregnancy” risk to the victims is uniquely characteristic of nonconsensual sexual intercourse perpetrated by males upon females in contrast with the similar act committed by a female upon an unwilling male. This specific characteristic of the crime described in § 13A-6-61(aXl), which presents the possibility of a higher degree of harm to its victims than does its counterpart described in § 13A-6-65(a)(2), is the clearest example of a “ground of difference” sufficient to justify this “gender-based” classifications.

Moreover, “rape” of females is a long recognized and very serious problem in this state due not only to the severity of this potential harm to its victim but also to the frequency with which it occurs. This frequency factor further distinguishes a § 13A-6-61(a)(l) crime from a § 13A-6-65(a)(2) crime. The appellant has not presented and we are not aware of any evidence to the effect that nonconsensual sexual intercourse by females is as serious a problem as nonconsensual sexual intercourse by males.

Moreover, such nonconsensual sexual intercourse often results in unwanted pregnancy. This too often results in society having to care for the victims who are the result of such attacks, as well as the children born as the result of such.

These reasons are clearly a sufficient basis for legislative action.

It is our decision that § 13A-6-61, Code of Alabama 1975, is not unconstitutional due to its alleged discriminatory treatment of males because the punishment prescribed therein was reasonably designed to deter and control a specific and serious problem of legitimate concern to the citizens of this state.

For the foregoing reasons, this case is due to be and is hereby, affirmed.

AFFIRMED.

All the Judges concur.

      . For cases in other states with similar analy-ses upholding the constitutionality of similar statutes see: People v. Reilly, 85 Misc.2d 702, 381 N.Y.S.2d 732 (1976); People v. Davoli, 95 Misc.2d 402, 407 N.Y.S.2d 432 (1978); People v. Smith, 97 Misc.2d 115, 411 N.Y.S.2d 146 (1978); State v. Witt, 310 Minn. 211, 245 N.W.2d 612 (1976); Lamar v. State, 243 Ga. 401, 254 S.E.2d 353 (1979); Stewart v. State, 534 S.W.2d 875 (Tenn.Crim.1975).


text:
    Diane E. DONNER, alias v. STATE.
    5 Div. 611.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Diane E. Donner was indicted by the Macon County Grand Jury for the July 4, 1980 murder of her husband, Willie M. Donner, by shooting him with a shotgun in violation of § 13A-6-2 Code of Ala. (Amended 1977). After a lengthy trial, the jury found appellant guilty of manslaughter. The trial court sentenced her to four years’ imprisonment. From that conviction she now appeals.

Appellant raises no issue on appeal concerning the sufficiency of the State’s evidence. Our review of the State’s evidence convinces us that it presented a prima facie case of manslaughter. § 13A-6-3 Code of Ala. (Amended 1977). Wyrick v. State, Ala. Cr.App., - So.2d - [8 Div. 462 Ms. November 24, 1981]. Thus, only a brief narration of the facts is necessary.

Between 6:00 and 7:00 a. m. on July 4, 1980 appellant and her husband began to argue in front of their trailer in Tuskegee about where he had been the night before. Apparently, he had been away from home most of the night of July 3 and returned home shortly before their argument. A fight ensued outside their trailer with both being physically abusive to the other. The fight continued in the trailer after the victim had forced appellant inside. Shortly thereafter, the argument ended. Around 9:00 a. m., a noise similar to that of a shotgun discharging was heard by a neighbor. Shortly thereafter, appellant went to the nearby trailer of neighbor Yvonne Caldwell and told her to “... come on, I want to show you something, I want to show you what I did.” (R. 166) Subsequently, appellant left the trailer, called an ambulance, and returned to the trailer. She later left with the ambulance and her husband.

Appellant made several incriminating statements to neighbors prior to the fight. Mrs. Yvonne Caldwell testified that on July 4 prior to the shooting appellant had asked her for a gun stating that “. .. I’m going to get him, I’m going to fix him he ain’t going to be coming home late.... ” (R. 164) Shortly after the shooting, appellant stated to Mrs. Caldwell,

“What am I going to do, she said, what am I going to do. She said, I don’t know what happened, then she said, she said we ■ were tussling over the gun. First she said she didn’t know what happened, then she said, we was struggling over the gun. And then she said, I’m (appellant) crazy, . . . . ” (R. 167)

Mrs. Caldwell testified that about two or three hours after the ambulance had left, appellant returned and stated to her:

“Yvonne, don’t tell anybody what I told you this morning, nothing I said this morning. She said, they will try to say I did it.” (R. 170)

Mrs. Caldwell stated that appellant’s appearance and clothes were neat with no scratches or blood on her.

Mrs. Gloria Simmons, a neighbor of appellant, and her sister, Ms. Bertha Moss, testified to the July 4 fight between appellant and her husband. Simmons heard the gunshot and saw appellant go to Caldwell’s trailer, leave and return to the trailer park, and talk to Caldwell again. Both testified that shortly after the shooting they heard appellant state to Caldwell, “.. . what was she going to do, she couldn’t take him to the police because they would say she did it.” (R. 124) Both witnesses testified that appellant’s appearance was neat and saw no scratches or blood on her.

Appellant’s oral statement to Macon County Deputy Sheriff James Smith, properly admitted after proof that appellant was informed of and waived her Miranda rights and the proper voluntariness predicate was established, revealed that she admitted shooting her husband while asleep on the couch.

The ambulance drivers as well as members of the hospital emergency room staff testified to their attempts to assist and save the victim’s life. Both Dr. Wendell Gay-lord, who treated the victim at the hospital and Dr. Thomas Gilchrist, who performed an autopsy on the victim, testified that the cause of death was a shotgun wound to the chest.

Dr. Gilchrist, whose qualifications were unchallenged, testified that the wound was not self-inflicted and that it was fired from a distance of one to three feet away. He testified that the trajectory of the shell through the body was consistent with the theory that the victim was lying down when shot and with such being fired from behind him and over his left shoulder.

Aside from the character evidence offered by appellant, she asserted that the shotgun was fired accidentally during a scuffle between them shortly after the victim had pointed it at her head and threatened to blow it off.

I

Appellant contends that the trial court erred in denying her motion to suppress evidence seized during a search of her trailer.

During the initial search of the trailer by Tuskegee Police Officer Marvin Brooks, who was the first police officer to arrive at the scene, no evidence was seized. Officer Brooks merely searched the trailer for suspects or other victims. After finding none, he secured the scene.

The second search of appellant’s trailer, conducted by Macon County Deputy Sheriff James Smith who was in charge of investigating the shooting, discovered a shotgun in a bedroom closet. In addition, he took several photographs of the living room wherein the shooting occurred.

The trial court, after holding a hearing outside the presence of the jury on appellant’s motion, suppressed introduction of the shotgun into evidence. Thus, there was no adverse ruling to appellant as her motion was granted rather than denied.

Apparently, appellant considers the photographs “evidence” seized during Deputy Smith’s search of the trailer and therefore inadmissible even though they do not depict the shotgun. Regardless of whether the above contention raises a viable issue for our review, appellant objected to the admission of the photographs contending that the scene had been materially altered prior to their taking as a coffee table on which the victim had fallen, was not shown.

Oscar Rowe, an emergency medical technician who responded to appellant’s call for assistance, testified that he and his partner, Robert Bryant, arrived on the scene and viewed the victim in the living room of the trailer. Both men had arrived prior to and left before any police officer arrived. Rowe stated that he found the victim “laying across the coffee table with his head in a chair.... ” (R. 93) His testimony placed the coffee table in front of the sofa on an oriental-type rug. Rowe testified that the State’s photographs did not accurately depict the scene as he saw it when he arrived. The photographs were taken after both men had left the scene. He stated that it was possible that he and Bryant had moved the coffee table when treating and moving the victim but, to the best of his knowledge, thought that they had not.

Robert Bryant testified that the coffee table “was right in front of the sofa” (R. 107) when he entered the living room of appellant’s trailer. As far as he knew, the coffee table was in that position when he left. He unequivocally stated that he did not have to move it in order to pick up the victim.

Tuskegee Police Officer John Curwin arrived on the scene after Rowe and Bryant had taken the victim to the hospital and after Officer Brooks had initially searched the trailer. He stated, without further explanation, that the coffee table was “next to the sofa.” (R. 56)

Deputy Smith, testifying as to the position of the coffee table, stated:

“A Upon entering the living room, I saw blood on the floor, there was a chair adjacent to the right with blood on it and a couch directly in front of me with blood on it and a coffee table to my left, about a foot away from the couch.
“Q You noticed a coffee table which was about a foot away from the couch?
“A A foot away from the couch. (R. 61)
“Q Where’s the coffee table?
“A The coffee table would have been to
the side of the couch, about a foot away. “Q Was the coffee table turned straight?
“A It was turned straight.
“Q Was it directly in front of the sofa?
“A No, not directly, it was just a little out.” (R. 62)
“COURT: Was the coffee table in front of the couch or beside the couch?
“A In front of the couch, pulled back about a foot away.”
“Q Isn’t this the front of the couch?
“A This is the front of the couch, where the blood is.
“Q But, there’s no coffee table there, is there?
“A Yes, because the coffee table wasn’t important at that time, I needed the blood not the coffee table.”
“COURT: Did you move the coffee table?
“A Nothing was moved, it was just the angle I took it at.
“COURT: Your testimony is, the coffee table was there, but the angle you took the photograph, just doesn’t show the coffee table.
“A Yes sir.” (R. 65)

Deputy Smith testified that the photograph fairly and accurately depicted the scene as it appeared when he arrived. He could not state whether anything had been moved prior to his arrival.

As a general rule, photographs are admissible in evidence if they are properly verified either by the photographer or a person who is familiar with the subject of the photograph and if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. Photographs may be admitted if they tend to shed light on, strengthen, or to illustrate other testimony in the case. Carpenter v. State, Ala.Cr.App., 400 So.2d 417, cert. denied, Ala., 400 So.2d 427 (1981); Hurst v. State, 397 So.2d 203, cert. denied, Ala., 397 So.2d 208 (1981); Gamble, McElroy’s Alabama Evidence § 123.03(1), (3rd ed. 1977).

It is within the trial court’s discretion to determine the sufficiency of preliminary proof offered to identify photographs and to show that they fairly and accurately represent what they purport to be. Only when its exercise is abusive will such be overturned. Carpenter, supra; Hurst, supra; McElroy, § 123.03(2).

The testimony of the State’s witness leads us to believe that the coffee table had been moved at some point after the shooting. It is unclear at what point and by whom such was done. Excluding that change, the testimony established the accuracy of the photographs. Further, it unequivocally proved that the photographs correctly depicted the scene at the time they were taken.

The admission of the photographs could greatly aid the jury in better understanding the testimony of both the State’s witnesses and the appellant herself as well as assist it in visualizing the spatial arrangement of appellant’s living room wherein the fatal shooting occurred.

In addition, we fail to see nor has appellant explained the material significance of the position of the coffee table in reference to the struggle that ensued immediately prior to the shooting, especially in light of the fact that she does not deny her presence at that time but disputes the manner in which such occurred.

Photographs are not rendered inadmissible when conditions have changed and are not exactly the same as they were at the time when the incident occurred when the differences are immaterial and sufficiently explained to the jury. Such goes to the weight of the evidence, rather than its admissibility. Cash v. State, 43 Ala.App. 390, 191 So.2d 230, cert. denied, 280 Ala. 710, 191 So.2d 234 (1966); McElroy, § 123.-03(4); See generally Stowe v. State, 53 Ala.App. 118, 298 So.2d 48 (1974); Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336 (1965).

After a close scrutiny of the photographs and the testimony concerning them, we find no error in their admission into evidence.

II

The chain of custody and possession of the corpse was clearly established through several State’s witnesses. The ambulance drivers, Rowe and Bryant, testified that on July 4 they turned the victim over to the hospital emergency room staff for treatment. After an attempt to save his life, Dr. Wendell Gaylord, pronounced the victim dead.

Macon County Coroner Ocie Burton viewed the corpse on July 4 at both the hospital and morgue which was located in the hospital. He accompanied it to the morgue from the emergency room. Mr. Burton also viewed the body on July 5. At that time as the day before, the body was in the same condition as when he had received it. On July 5, he turned it over to Mr. Lonnie Hardin, an employee of the Department of Forensic Sciences.

Hardin transported the corpse to the Montgomery County morgue.. He turned it over to Dr. Thomas Gilchrist who performed an autopsy on it in his presence.

Based on the above facts, we find that a sufficient chain of custody for the corpse was established for the autopsy results to have been properly admitted. Mauldin v. State, Ala.Cr.App., 402 So.2d 1106 (1981). Chain of custody evidence must show a reasonable probability that the property involved is one in the same and in the same condition. Snipes v. State, Ala.Cr.App., 364 So.2d 424 (1978); Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ala., 360 So.2d 367 (1978).

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.” Sexton v. State, Ala.Cr.App., 346 So.2d 1177, 1180, cert. denied, Ala., 346 So.2d 1180 (1977).

Thus, we find no break in the chain of custody of the corpse.

Further, contrary to appellant’s contention, the testimony of Dr. Gilchrist clearly proved the cause of death, as did the testimony of Dr. Gaylord. Their testimony was received without objection. Dr. Gilchrist testified:

“Q Were you able to reach a conclusion as to the cause of his death?
“A Yes.
“Q What was that conclusion?
“A Mr. Donner’s death was caused by shotgun wound to the chest.” (R. 13)

III

Appellant stated her final contention as follows: “That the prosecution engaged in misconduct to the extent that the jury was substantially prejudiced thus depriving the appellant of a fair trial.” (Appellant’s brief p. 13)

Appellant directs our attention to several instances where she contends that the State asked “loaded questions” which prejudiced the jury against her. Of those instances enumerated in her brief, appellant either did not object to the questions or had her objection to it sustained. In other instances, either no answer or a negative answer was given to the question. Thus, no prejudice to appellant resulted. Davis v. State, Ala.Cr.App., 401 So.2d 187, cert. denied, Ala., 401 So.2d 190 (1981); Yates v. State, Ala.Cr.App., 390 So.2d 32 (1980); Starley v. City of Birmingham, Ala.Cr.App., 377 So.2d 1131, cert. denied, Ala., 377 So.2d 1134 (1979); Gould v. City of Birmingham, Ala.Cr.App., 375 So.2d 1296 (1979); Rupert v. State, Ala.Cr.App., 374 So.2d 451 (1979).

As to the State’s questions referring to the victim being asleep when shot, we note that Mrs. Caldwell testified without objection that during one of her conversations with appellant on July 4 before the shooting, she said, “Roy’s (the victim) asleep on the couch and I don’t want to wake him up.” (R. 164) In addition, in her oral statement to Deputy Smith appellant admitted that her husband was asleep when shot. On several occasions during the course of the trial, where the State attempted to elicit answers to questions concerning whether the victim was asleep, appellant’s objections to such were sustained.

We find no error in any of the trial court’s rulings in this regard.

We have examined the record and find same to be free of error. The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Loretta GULLATT, alias v. STATE.
    6 Div. 548.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.

      J. Wilson Dinsmore and Renee D. Culver-house, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Anthony J. McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

The appellant was indicted in three separate two-count indictments for the child abuse of three infant sisters in violation of Ala.Code § 26-15-3 (1975). The cases were consolidated for trial. The jury found appellant guilty under count two of each indictment which charged her, in substance, as a responsible person, with torturing, willfully abusing, or otherwise willfully maltreating the infants by intentionally failing to provide them with proper nutrition of sufficient quality and quantity, so as to cause the infants to suffer from malnutrition, and as a result suffer serious physical injuries. The trial court fixed appellant’s punishment at two years in the state penitentiary for each guilty verdict, each term to run consecutively.

Ms. Betty Jean Burks, the mother of the three infant girls in question, testified that on January 18, 1979, because of her mental and nervous condition, and on the advice of her psychiatrist at the Smolian Clinic in Birmingham, she turned custody of the children over to the Department of Pensions and Security (DPS). DPS subsequently placed the three girls in appellant’s foster home where they remained until December 18, 1979. Ms. Burks testified that her daughters were in “perfect condition” and were not suffering from any illness when she gave temporary custody to DPS. (R. 20) While the little girls were staying in appellant’s foster home, Ms. Burks saw them approximately four times and noticed on these occasions that they were physically ill. Ms. Burks stated that on the occasions she saw her little girls, the twins, who were five years’ old, complained about the treatment they were receiving in appellant’s home. They complained about being hungry and about being beaten. DPS was always responsible for arranging the children’s visits with Ms. Burks. Ms. Burks had no personal contact with appellant.

During Easter weekend of 1979 Ms. Burks described all three of her daughters as being in “bad condition” and as having lost “a lot of weight.” (R. 21) Ms. Burks stated that the girls appeared very hungry; “I mean they ate a lot.” (R. 22) Ms. Burks testified that she made peanut butter and jelly sandwiches, cracker and jelly sandwiches, bologna sandwiches, boiled hot dogs and fed the girls cereal “and it still wasn’t enough.” (R. 22) The girls then suffered from nausea and diarrhea. Ms. Burks reported her daughters’ condition to DPS worker Chris Humphries. Ms. Burks stated that she made more than one complaint to DPS about her daughters’ physical condition, but to her knowledge DPS took no action.

Ms. Burks testified that on her daughters’ third visit, which occurred while she was still receiving treatment and was living at the UAB Transitional Home, their physical condition was worse. “They still ate a lot and vomited and then had diarrhea.” (R. 23) Ms. Burks next saw the girls on December 18, 1979 and described their condition as “very poor.” (R. 24) They had lost even more weight. Ms. Burks took her daughters to Children’s Hospital in Birmingham the next day where they remained for approximately one month. Ms. Burks has retained custody of the girls since that time.

Dr. Frank. Bryson Waldo, a third year resident pediatric physician at Children’s Hospital, testified that he, along with Dr. Wesley Vick, examined the Burks children on December 20, 1979. Dr. Waldo stated that all three children were very withdrawn and quiet for their ages. “[A]ll three children were extremely thin in their extremities, arms, legs; they had very protuberant, large, abdomens; they had marked loss of the subcutaneous or fat just underneath the skin, all this indicating an acute lack of nutrition, basically of calories.” (R. 58) Dr. Waldo also identified various scars on the girls which were “most consistent with being struck with a long, thin object.”

When Dr. Waldo compared the three basic measurements used in pediatrics to assess the growth of children, height, weight and head circumference, he found that “all three children had normal head circumferences; normal height, although on the lower side of normal; and grossly abnormally low weights. Significantly below normal.” (Emphasis added) (R. 59,60) The normal weight for the twins was between forty and forty-five pounds. One twin weighed thirty pounds and the other weighed twenty-six pounds at the time they were admitted to the hospital. The normal weight for the two year old infant was between twenty-five and thirty pounds. She weighed eighteen pounds and seven ounces on admission. Dr. Waldo found no medical disorder or disease other than malnutrition which could have been responsible for the children’s condition. “I know of no other disease process, no organic disease that could mimic this.” (R. 63)

Dr. Waldo stated that when the children were initially admitted to the hospital they were put on a regular diet, but that “it was clear after the first day that their intestines were not going to be able to tolerate that.” (R. 62) The children were then given limited amounts of food and “as they began to gain weight in the hospital we were slowly able to increase their diet.” (R. 62) Dr. Waldo testified that due to the children’s extremely famished condition at the time they were admitted to the hospital, “they had been without any substantial amount of food” for “certainly more than two weeks. If they had received no solid intake at all, water alone, it would have had to be over two to three weeks.” (R. 63)

Dr. Waldo further testified that all three children were discharged from Children’s Hospital on January 11, 1980 after a total stay of twenty-two days. At the time of discharge each child had increased in weight approximately twenty-five percent. The larger twin weighed forty pounds, the smaller twin weighed thirty-four pounds thirteen ounces and the two year old child weighed twenty-five pounds two ounces.

At the conclusion of Dr. Waldo’s direct examination the following exchange occurred:

“Q Dr. Waldo have you in the past in working in the hospital and in medical school and so forth studied child abuse?
“A Yes, sir.
“Q The symptoms or what you would look for in an abused child?
“A Yes.
“Q Are there any courses taught on that in medical school?
“A Not specific courses in medical school.
“Q What courses that you took in medical school would encompass that area?
“A In your pediatric rotation there are several lectures devoted specifically to recognition and diagnosis of child abuse.
“Q Have you observed yourself instances of child abuse in your work?
“A Yes, sir.
“Q Would that be at Children’s?
“A Yes, sir.
“Q Have you observed such cases many times or few times?
“A I have testified in two other—
“MR. DINSMORE: I would object again, I think this might be a matter better taken outside the presence of the jury and I move to do so.
“THE COURT: Overruled.
“MR. DINSMORE: Exception.
“Q You have testified in court?
“A I have testified in court on two other cases of abused children and have seen a large enough number in the hospital that weren’t directly under my care but were in the hospital that I couldn’t really, less than fifty but more than fifteen, in that range.
“THE COURT: Let me ask you is child abuse recognized as a specific field of pediatric medicine?
“A I don’t understand your question. It’s not a recognized board certified spe-ciality. ..
“THE COURT: I understand that. But is it a branch of ...
“A There are physicians who have made that their primary interest in pediatrics. And they have studied it and written about it.
“THE COURT: So it is a separate field from just the care...
“A I think that the recognition and diagnosis of child abuse is the responsibility of every general pediatrician and pediatric training programs make it their obligation to train the general pediatrician to recognize and diagnose the abused child because of the high mortality of unrecognized child abuse. I think it is recognized as a diagnosis that the trained pediatrician should make.
“THE COURT: In those terms? Child abuse?
“A Yes, sir.
“Q In your opinion were these children abused?
“A Yes.
“MR. DINSMORE: Your Honor again I object. I still don’t think he’s qualified. He said there is a certain area of pediatrics that is that of child abuse. He is not qualified. He acknowledged the existence of some training that some other people may have had but the district attorney has not qualified this witness as having that training.
“THE COURT: Overruled.
“MR. DINSMORE: We except.
“THE COURT: You may answer.
“A I do believe in my training as a general pediatrician that these children had been abused.
“MR. DUNN: Thank you, sir. That’s all.” (R. 68-70)

On cross-examination, Dr. Waldo testified that the children were malnourished longer than one month before their admission to the hospital and could have been gradually malnourished for a year.

Dr. John Wesley Vick, III, a second year resident pediatric physician at Children’s Hospital, testified that he worked with Dr. Waldo in treating the Burks children. He saw the children on daily basis and concurred with Dr. Waldo that when the children arrived at the hospital they were very emaciated and malnourished.

“I feel very strongly that they received very poor nutrition over an extended period of time prior to their admission to the hospital. I think that is very clear. I think that some of the scars that were on them are suspicious. I think it is also very clear that when they came to the hospital they were very withdrawn. In fact little Princess would not even speak. This indicates to me that there was abuse.” (R. 89, 90)

Dr. Barbara Randolph Johnson, a licensed clinical psychologist head of the Department of Pediatric Psychiatry at Children’s Hospital, and a member of the hospital’s child abuse detection team, saw the Burks children on several occasions while they were in the hospital. Dr. Johnson stated that she performed psychological evaluations on all three girls. She gave the children one objective test, the Peabody Picture Vocabulary Test used to determine intellectual ability; the remainder of her testing was subjectively based. In discussing her subjective testing of the children the following exchange occurred:

“Q And what conclusion did you reach as a result of this subjective testing?
“A I saw their behavior change pretty dramatically during their hospitalization when I first came into contact with the twins. All three I would have labeled them pretty significantly depressed; their affect or their general mood was very dull, black, kinda bland. They were, I guess the best description is kinda vacant. They would rarely smile; rarely talk; just would stare at you. This changed over time and towards the latter part of their hospitalization I saw them improve pretty dramatically. Then the behavior that I saw that was sorta worrisome was kind of an indiscriminate affection-seeking; indiscriminate in the sense of it doesn’t matter who you were; they would run up to different adults in the hallway and hold on and ask to be picked up; ask for people to buy them food.
“Q Ask people to buy them food?
“A Yes.
“Q Do you have a judgment based on your association and examination of the girls as to what factors caused this indiscriminate affection-seeking?
“A This one behavior in combination with some others that I saw in the children led to the diagnosis of an adjustment reaction stemming from depravation.
“Q Depravation of what?
“A Of a number of things for them. For physical need and emotional as well. You oftentimes see this with kids who have been either abused and/or neglected, that there is an almost craving or starving for affection and the kids will go to anybody to try to find it.
“Q And you saw that in these children?
“A Yes.
“Q All three of them?
“A Yes. Now the younger one, her method of showing that was not as pronounced, it didn’t demonstrate itself until she was discharged. She was the one I was most concerned about because she remained the most depressed and the hardest one to reach in the hospital. She left the hospital really before she had regained speech.
“THE COURT: She didn’t talk in the hospital?
“A Very little. She talked to one nurse in the hospital. She never spoke to me. “Q Based on your contact with them and your examination of them do you have an opinion as to what would cause them to be in the state that they were in when they first came to you in that they were blank; passive; staring?
“A Coming from an environment where they had been, their needs were not met; where they had been abused; where they had been neglected. I think what they were showing was comparable to sort of a what in an adult might be seen as either traumatic shock syndrome or depressive reaction. Children can be depressed as well. I think what we saw was the equivalent of depression stemming from those kind of environmental things.” (R. 105-107)

Dr. Johnson continued in her testimony that she had seen numerous cases of child abuse where the children exhibited a depressive reaction. In the Burks girls’ case improvement began to occur within a week to ten days. Dr. Johnson testified over objection that the children had complained about being deprived of food, beaten and eating out of garbage cans; the trial court instructed the jury concerning this testimony as follows:

“This does not mean that if that did, that that happened. This goes to the doctor’s diagnosis of a certain fact. The fact that certain complaints were made is not evidence that they did in fact happen. They may not have happened. Certainly, ladies and gentlemen, you are not to take these last couple of questions to assume from this, this testimony, that that in fact happened and I instruct you not to consider that it is in fact true. But you may answer the question. And it goes just to the question as a history of this doctor to form a basis of a diagnosis; not the truthfulness of the complaints.” (R. 108-109)

Ms. Chris Humphries, a DPS social worker whose duties included the supervision of children in foster homes, testified that she was familiar with the appellant and supervised her foster home in 1979. Ms. Hum-phries stated that the Burks children were first placed in appellant’s foster home in January, 1979 and that she started working with the case in February. She stated that the Burks children remained under her supervision until they were removed from appellant’s foster home on December 19,1979. During the course of the year Ms. Hum-phries testified that she made approximately eight visits to the appellant’s home regarding the Burks children. Ms. Hum-phries arranged seven visits with the Burks children to see their mother. She personally transferred the girls from appellant’s home to Ms. Burks. Ms. Burks was at no time allowed to visit the children at appellant’s home.

At the conclusion of Ms. Humphries’ testimony the State rested its case and the appellant’s motion to exclude the evidence was overruled. Several defense witnesses, including the appellant who testified in her own behalf, presented evidence which was conflicting with the State’s case. Appellant testified, in essence, that when she received the Burks children they were undernourished; that she fed them as much as she could, but they would not gain weight. Appellant admitted receiving $135.00 per child per month for their support from DPS.

I

The State’s evidence was sufficient to prove beyond any reasonable doubt that appellant was guilty of child abuse as charged in Count Two of the indictment. Any conflicting evidence was for the jury to resolve. McBryar v. State, 368 So.2d 568 (Ala.Cr.App.), cert. denied, 368 So.2d 575 (Ala.1979). This court is required to view the evidence in the light most favorable to the State. Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and not substitute its judgment for that of the jury. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

Circumstantial evidence is not inferior evidence. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978), and will support a conviction as strongly as direct evidence provided it points to the guilt of the accused. Kelsoe v. State, 356 So.2d 735 (Ala.Cr.App.1978). The jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inferences it chooses to draw. Kontos v. State, 363 So.2d 1025, 1034 (Ala.Cr.App.1978). See also Dolvin v. State, 391 So.2d 133 (Ala.1980); Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981).

II

Appellant contends that Dr. Waldo was not qualified as an expert witness to give testimony on the subject of child abuse. We disagree with this argument. From that portion of Dr. Waldo’s testimony taken verbatim from the record, as previously set out in this opinion, it is clear that Dr. Waldo was properly qualified to give his expert opinions on the subject of child abuse.

The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose decision will not be disturbed on appeal except for palpable abuse. Kozlowski v. State, 248 Ala. 304, 27 So.2d 818 (1946); Davis v. State, 352 So.2d 3 (Ala.Cr.App.), cert. denied, 352 So.2d 8 (Ala.1977). An individual may qualify as an expert witness by study, practice, experience or observation. Radney v. State, 342 So.2d 942 (Ala.Cr.App.), cert. denied, 342 So.2d 947 (Ala.1977). An expert witness is one who can enlighten a jury more than the average man in the street. Carlton v. State, 342 So.2d 1382 (Ala.Cr.App.1977). Also see C. Gamble, McEIroy’s Alabama Evidence § 127.01(5) (3rd.Ed. 1977).

III

The trial court properly allowed Dr. Johnson to testify that in her examination and treatment of the Burks children, they complained of being deprived of food, being beaten and eating out of garbage cans. As is stated in C. Gamble, McElroy’s Alabama Evidence § 110.01(1) (3rd.Ed. 1977):

“The expert opinion testimony of a physician-witness as to the condition, diagnosis, prognosis or otherwise of his patient, whom he has personally examined, may be based in part on the history of the case, including both his present and past condition and symptoms as related by the patient to the physician-witness in connection with, and as part of, the examination. The physician, for the purpose of showing the basis of his opinion, may testify to the patient’s statements to him concerning the history of the case.”

See State Realty Company v. Ligon, 218 Ala. 541, 119 So. 672 (1929); Frazier v. State, 366 So.2d 360 (Ala.Cr.App.1978).

Here, there was no admission through Dr. Johnson’s testimony of any statements by the Burks children of past facts relating who was responsible for their condition or as to the cause or the way in which their condition occurred. C. Gamble, McElroy’s Alabama Evidence § 110.01(2) (3rd.Ed. 1977). Appellant’s name was not mentioned. Frazier, 366 So.2d, at 366 and authority cited therein. Moreover, the trial court’s admonition to the jury concerning the reception of this evidence made it clear for what purpose the evidence was being received.

IV

Appellant alleges that the trial court committed reversible error in sustaining the State’s objection to the admission of Ms. Betty Jean Burks’ Eastside Mental Health Center records, Defendant’s Exhibit No. 20. Appellant alleges that the trial court’s ruling was in violation of Ala.Code § 12-21-43 (1975). We disagree.

Appellant attempted to introduce these records during the testimony of Ms. Boni Ramken, the records technician of Eastside Mental Health Center. Ms. Ramken testified that the records were made by a Ms. Sharon Turner, “the therapist in charge” at the center. (R. 178) Ms. Burks was called to the witness stand on three different occasions during the course of appellant’s trial. Through defense counsel’s thorough and sifting cross-examination of Ms. Burks it was ascertained that on January 18,1979, the day temporary custody of the three children was turned over to DPS, she was receiving treatment from the Smolian Clinic in Birmingham. As of that date Ms. Burks had been receiving treatment from the Smolian Clinic for “many months.” (R. 39) She had taken her youngest daughter with her to the clinic on each of those visits, before the time she placed the children in DPS custody. It was only prior to her treatment at the Smolian Clinic that Ms. Burks had sought emotional and psychological help at the Eastside Mental Health Center. (R. 39, 40) Ms. Burks candidly, admitted that she had gone to the Eastside Mental Health Center for approximately one year on a monthly basis and had discussed her psychiatric problems with counselors there. Throughout her testimony Ms. Burks gave frank and detailed accounts of her prior mental condition and of the treatment she received.

Any evidence of Ms. Burks’ mental condition which was contained in her Eastside Mental Health Clinic records, however, does not appear to be in any way determinative of the issue of appellant’s guilt. Ms. Burks had no contact with appellant. The question which the jury had to resolve was whether appellant was guilty of child abuse. Despite appellant’s protestations that the children were not in good condition when she received them, they were definitely in very poor condition when her custody of them ceased eleven months later. The children’s condition also vastly improved after they were properly nourished in the hospital for twenty-two days following the termination of appellant’s custody.

We thus find that the refusal of the trial court to admit Ms. Burks’ Eastside Mental Health Clinic records, which were compiled some months before appellant received custody of the three children, was proper. The admission of such evidence would have been remote, irrelevant and cumulative and would have tended to cloud the issues the jury was required to resolve.

The business entries exception to the hearsay evidence rule, Ala.Code § 12-21-43 (1975), cannot be used as a carte blanche vehicle to admit that which would otherwise be inadmissible. Greathouse v. Credit Bureau, Inc., 279 Ala. 524, 187 So.2d 565 (1966); Mahone v. Birmingham Elec. Co., 201 Ala. 132, 73 So.2d 378 (1954). At most, the failure to receive Defendant’s Exhibit No. 20 into evidence was harmless error. ARAP, Rule 45.

V

State rebuttal witness Teresa Bog-gan, the DPS social worker who actually placed the Burks children in appellant’s foster home in January, 1979, testified, without objection, that prior to the girls’ placement in appellant’s home she “judged them to be in excellent health.” (R. 327) Mrs. Boggan stated that none of the girls appeared to be underweight from her personal observation.

Appellant then objected to the introduction of certain medical records pertaining to the twins, State’s Exhibits No. 21 and 22. Mrs. Boggan stated that these medical records were included as part of their DPS records. The records indicated that the twins weighed 38V4 pounds and 31!/2 pounds, respectively, on November 6, 1978. The records were received by the circuit clerk’s office under subpoena duces tecum. While Mrs. Boggan testified that she did not know the exact date DPS received the twins’ medical records, DPS kept medical records in every case. Mrs. Boggan believed that Ms. Chris Humphries was responsible for placing the children’s medical records in the DPS records. Mrs. Boggan stated that a physical examination was required for every case coming under DPS.

Mrs. Boggan concluded her direct-examination that she saw the girls during the same month their weight information was recorded in State’s Exhibits 21 and 22. She stated that the information recorded in those exhibits did not appear to be out of line with her weight perception of the girls from personal observation.

State’s Exhibits 21 and 22 were not received into evidence as hospital records under Ala.Code § 12-21-5 (1975); rather they were received as business records under Ala.Code § 12-21-43 (1975). Whether or not these exhibits were properly received as business records, in conformity with Section 12-21-43, we need not decide because the entries pertaining to the twins’ weight was cumulative of other evidence that the children were in good physical condition and were not underweight at the time they were taken to appellant’s foster home. As is stated in Rule 45, ARAP:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of .. . the improper admission or rejection of evidence .. . unless in the opinion of the court to which appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” (Emphasis added.)

VI

There was no error in the trial court’s failure to give appellant’s requested jury charges. This court is not required to review the merits of requested charges when the accused does not reserve any exceptions to the trial court’s refusal at the trial court level: Allen v. State, [November 24, 1981], App., (Ala.Cr.App.1981). The “automatic exception” rule in criminal cases is no longer the law in Alabama. Alien, supra.

Moreover, we are of the opinion that the refused charges are either fairly and substantially covered by the oral charge of the trial court, or are abstract, misleading, not properly predicated on the evidence in this cause or are incorrect statements of the applicable legal principles, here controlling. The other refused charges are affirmative in nature and therefore properly refused under the evidence in this cause. Section 12-16-13, Code of Alabama 1975.

. We have examined each issue raised by appellant. In addition, we have searched the record for errors prejudicial to appellant’s substantial rights and have found none. The circuit court’s judgment of conviction is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.