text:
    June Johnson PENDERGRASS and Jimmy S. Johnson v. W. C. WATKINS and Nell Watkins.
    Civ. 2001.
    Court of Civil Appeals of Alabama.
    April 9, 1980.
    Rehearing Denied May 14, 1980.

      George E. Trawick, Ariton, for appellants.
    Thad Yancey, Jr., of Cervera & Yancey, Troy, for appellees.
   WRIGHT, Presiding Judge.

This is a child custody case of unusual. origin with material collateral aspects.

The parents of Rusty Johnson, a child of eight years, were divorced in Pike County Circuit Court, Judge Riley Green sitting, on May 8, 1975. Custody of Rusty, an only child, was, by agreement of the parents, given to June, the mother. Jimmy, the father, was by agreement ordered to pay $75 per month as support. In October 1977, the mother became financially unable to care for herself and her son and voluntarily relinquished complete custody to the father. The father had remarried. In January, 1979, the father moved from Pike County and left Rusty with his paternal grandparents. They immediately placed the child with W. C. and Nell Watkins. Nell Watkins is the sister of the father of Rusty.

After relinquishing custody of Rusty, the mother went to Mississippi and obtained employment as a long-haul truck driver. After a time she began to drive a truck as a team with Pendergrass. They drove and lived together for approximately a year and established a residence in Texas. June called her former mother-in-law from time to time inquiring about Rusty. She sent him money on his birthday and wrote him. In May 1979, after learning that the father had left the child and custody had been taken by the Watkinses, June returned to Troy and obtained an agreement from the father that custody of Rusty be returned to her. Based upon a petition and the agreement of the parents, Judge Green entered judgment on May 12,1979, returning custody to the mother and directed the sheriff to effect return of Rusty to the mother.

The Watkinses then filed a petition in a separate proceeding before Judge Butts (the other judge of the 12th circuit) in Pike County Court seeking custody of Rusty, alleging the parents to be unfit for custody. Motion for instanter custody was also filed. Instanter temporary custody was granted to the Watkinses ex parte with hearing set thereon for May 17, 1979. There was no hearing set upon the petition for permanent custody. The petitions presented to Judge Butts and the instanter order for custody signed by him were dated May 11. However, they were not filed in the clerk’s office until May 14. On May 15, Judge Butts, upon motion of then counsel for the mother, continued the May 17 hearing. That counsel then was replaced. The order of continuance stated that the ease was set for “hearing on its merits” on June 20, 1979.

On May 18, the Watkinses filed a motion with Judge Green in the divorce case requesting that he set aside his modification order of May 12 by which he granted custody to the mother. Judge Green immediately set aside the May 12 order as requested without notice to counsel or the parents of Rusty.

The mother appeared in person and by counsel and the father appeared by the same counsel on June 20, 1979, after filing motions to dismiss. Representing the father, counsel moved for a continuance because the father (a truck driver) was unable to leave New Orleans because of the truckers’ strike. Continuance was denied. The court announced in open court that both the petition of the mother for custody to be returned to her in the original case and that of the Watkinses for permanent custody would be heard at the same time. In other words, Judge Butts assumed control of the original case between the father and mother previously heard by Judge Green and combined it for hearing and disposition with the separate action of the Watkinses. Counsel for the parents strenuously objected, insisting that the hearing was set only upon the ex parte order for temporary custody. Counsel stated to the court that the father was a party and the legal custodian of Rusty by virtue of the re-instatement of the judgment of October 1977, after the setting aside by Judge Green of his modification of May 12, 1979, and could not be present for the hearing. Counsel further objected to the consolidation of the two cases and the holding of a hearing for final judgment thereon without previous notice and sufficient opportunity to prepare.

The court proceeded to hear the matters and entered judgment on June 22, 1979, granting custody of the child, Rusty, to the Watkinses, forbidding his removal from the jurisdiction of the court, and granting reasonable visitation rights to the parents upon the condition of the posting by each of a $5,000 cash bond. The parents appeal. We reverse.

The appellants, hereafter referred to as parents, have presented three issues on appeal. The first, succinctly stated, is that the parties who had secured entry of judgment by agreement in the original case were denied due process when that judgment was set aside a few days later upon motion by a stranger to the case without notice according to Rules 5 and 59, ARCP.

We consider that Judge Green erred in setting aside a judgment deciding issues between the parents of Rusty upon the motion of the Watkinses who were not parties in that case and who had not moved for and been granted intervention under Rule 24, ARCP. The Watkinses were without standing in the case between the parents and had no right to challenge the judgment. TRW, Inc. v. Ellipse Corp., 495 F.2d 314 (7th Cir. 1974); Mettee v. Bolling, 266 Ala. 50, 94 So.2d 191 (1957). There was no indication of fraud upon the court or invalidity apparent upon the face of the judgment. There are decisions which permit a non-party to attack a judgment on such grounds. In such cases, the court could have set the judgments aside sua sponte. Kupferman v. Consolidated Research and Manufacturing Corp., 459 F.2d 1072 (2d Cir. 1972); State Farm Mutual Insurance Co. v. Senn, 277 Ala. 508, 172 So.2d 533 (1965); Aiello v. Aiello, 272 Ala. 505, 133 So.2d 18 (1961); Taylor v. Jones, 202 Ala. 18, 79 So. 356 (1918). It does not cure the error to contend the court had power to set aside the judgment under Rule 59(d) ARCP. We need not decide whether it did or not. The fact is, it did not set it aside under that rule and for a reason for which it might have granted a motion for new trial.

The continued existence of the judgment giving the mother custody would not have prevented the Watkinses bringing their petition challenging her fitness as a parent and seeking custody, although its existence would have placed the burden upon the Watkinses of overcoming by clear and convincing evidence the primary right of a parent to custody of her own child. The proper forum for the Watkinses was in the original case before Judge Green who was familiar with the parties and had assumed jurisdiction over the child. The action of the Watkinses created the confusion of two cases relating to the same child. Their petition filed before Judge Butts disclosed the existence of the other case and their knowledge of it.

This court considers the setting aside of the judgment granting custody to the mother upon the motion of non-parties without motion to intervene and the conceding of authority to another tribunal without notice, erroneous.

However, we do not reverse the judgment of the trial court for that error nor for the charged error of putting the parents to trial on the issue of permanent custody without proper notice or opportunity to prepare for trial. We find the judgment of the trial court taking permanent care, custody and control from the natural mother and granting it to the Watkinses so contrary to the evidence and the law as to constitute an abuse of discretion.

We have carefully studied and considered the evidence presented. We have already related the sequence of events occurring since the break up of the marriage and the home into which the child, Rusty, was born.

The evidence further discloses that the mother had custody of Rusty from birth until he was more than five years old. For ápproximately a year and a half after the divorce and until placing him in the custody of his father, she had sole custody and the burden of support except for nominal assistance. She worked as a nurse’s aide and in a dress factory. There is no testimony but that during those five years the mother loved and cared for Rusty. For the stated reason that she could no longer carry the financial burden of his care, she voluntarily relinquished his custody to the father who had since remarried.

For some fifteen months, Rusty was with his father and stepmother. The mother in the meantime had trained and become employable as a truck driver, making it possible to earn far more than she had earned in her former employment. During the period of the father’s custody, the mother kept informed through communication with her former mother-in-law. There is inference of a lack of concern and interest by the mother because she did not personally visit or communicate with the child during this period. Although specifically unexplained by her testimony, the mother did testify that she was informed that she would be put in jail by the father if she attempted to see or visit Rusty. Testimony from the father as to that question was unavailable because he was in New Orleans at the time of the hearing.

The evidence showed that upon learning Rusty was no longer with his father, the mother came to- Troy and secured the return of legal custody from the father from Judge Green. It was at that point that the Watkinses appeared and sought custody.

There is no question but that the Wat-kinses are fine people and provided Rusty with love and care for some three months before the mother came for him. They have two children of their own. There appears from the evidence no indication but that the mother now has the means to provide a good home for Rusty. It appears from the evidence that she loves him and that he loves her.

Our courts have long adhered to the principle that the best interests of the child is the fundamental inquiry in every child custody case. Brill v. Johnson, 293 Ala. 435, 304 So.2d 595 (1974); Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966). It is also a principle in such cases when there are conflicting claims between a parent and non-parents that the parent has the primary right to custody, Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939), and that the right to maintain family integrity is a fundamental right protected by the due process standards of the Constitution. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). That principle is compatible with the presumption that parental custody will better serve the best interest of the child, Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973). That presumption can only be overcome by a strong showing that it would be contrary to the best interests of the child. Smith v. Jones, 275 Ala. 148, 153 So.2d 226 (1963). Our courts have also said many times that the determination of custody in every case must rest upon its own facts. Talley v. Lott, 283 Ala. 499, 218 So.2d 828 (1969).

This court is always cognizant of the heavy burden which rests upon the trial court in child custody cases. We presume to alter their judgment only after careful consideration. We recognize that in this case, Rusty has already endured change of home and custodians at least three times in three years. It is likely that concern for the effects of another change entered into the decision of the trial court to deny custody to the mother. This court has considered that also. However, we also consider the desirability and societal importance of re-establishing a permanent family unit with Rusty and his mother. It is unlikely that living with the Watkinses for only three months at the time of the hearing, with knowledge and memories of his mother, has developed a psychological parent-child relationship between' Rusty and the Watkinses. Such a close permanent relationship is, in our opinion, unlikely to develop while Rusty knows the whereabouts of his mother and is visited by her. On the other hand, there has already been a parent-child relationship forged between Rusty and his mother during the first five years of his life. There has been no physical abuse to dampen that relationship. It is reasonable that the wound of the two-year separation (though lengthened by pendency of this appeal) will quickly heal and be forgotten upon reunion. This court deems it to the best interest of Rusty that he be re-united with his mother in a permanent and stable relationship.

We have considered the testimony that the mother lived and worked with her present husband before marriage. In view of their subsequent marriage and establishment of a home, such former relationship, unknown to Rusty unless informed by others, has little relevance to the best interest of Rusty.

It is the judgment of this court that the primary legal right of the mother to custody of her child in this case is consonant with the best interest of the child and the trial court abused its discretion in holding to the contrary. The judgment is hereby reversed and the trial court is directed to enter judgment granting the permanent custody of the child Rusty to the mother, June Johnson Pendergrass.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Lester B. HOLMES v. Mary Flesher HOLMES.
    Civ. 2123.
    Court of Civil Appeals of Alabama.
    May 14, 1980.

      Walter E. Duffey, Huntsville,, for appellant.
    William K. Bell of Lammons, Bell & Sneed, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The husband appeals from the decree charging abuse of discretion in the trial court’s division of property, award of alimony in gross and award of periodic alimony.

The wife filed a complaint for divorce on June 27, 1978. After an ore tenus hearing, the trial court rendered a decree granting the divorce on the ground of incompatibility. The decree further provided that each party would retain all items of personal property which he or she owned prior to the marriage or inherited during the marriage.

The wife was awarded the parties’ residence subject to a mortgage which she was to assume, a lump sum in the amount of $28,500, periodic alimony of $400 per month and a 1970 Chevrolet automobile.

The husband was awarded a rental house owned by the parties, a sailboat, an airplane, several old automobiles which he had purchased and the assets and equipment of his printing business.

The husband contends that the trial court erred in awarding both alimony in gross and periodic alimony to the wife. He argues that alimony in gross is a final termination of rights resulting from a marriage including the right of the wife to future support. There is no merit in this contention. This court and the Alabama Supreme Court have held that both alimony in gross and periodic alimony may be awarded in one judgment of divorce. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974); Bowers v. Bowers, 355 So.2d 732 (Ala.Civ.App.1978).

We find no merit in the husband’s contention that the $28,500 was awarded as reparations to the wife for money lost by the husband after divorce proceedings were initiated. This court will not look to the mental processes of the trial judge in arriving at an award but only to see if the resulting decree is supported by the evidence. Gamble v. Gamble, 363 So.2d 790 (Ala.Civ.App.1978). In making a determination of what is fair and equitable, the trial court may consider any relevant factors including the earning capacity and future prospects of the parties, the source of the marital property and the conduct of the parties. Bailey v. Bailey, 345 So.2d 304 (Ala.Civ.App.1977).

In this case, the wife suffers from phlebitis which has severely restricted her earning capacity. The husband, on the other hand, receives a military pension of $1,412.69 per month and owns and operates a printing company which provides him with additional income. Much of the property awarded to the wife was inherited by her from her father or given to her by him during his lifetime. The trial court could also have considered the evidence concerning the husband’s financial dealings subsequent to the filing of the divorce complaint.

On June 30, 1978, the husband purchased a $40,000 six month certificate of deposit. The certificate was issued in the name of a lady friend or the defendant. Also on June 30, 1978, three days after the divorce complaint was filed, the trial court issued an order directing that the parties not “transfer, assign, conceal or otherwise dispose of or otherwise dissipate” any asset of the parties. On August 11, 1978, the husband withdrew the $40,000 by a check made payable to him. He stated that he cashed the cheek into four hundred one-hundred-dollar bills, put the bills into a large manila envelope and carried the money with him on trips to Birmingham and Atlanta for the purpose, of purchasing new equipment for his printing business. After two and one-half weeks, he decided to return the money to the bank. He discovered that $30,000 of the money was missing. His explanation of the loss was that “sometime I had picked it up and part of this money had fallen out; and, of course, somebody came along and saw it and grabbed it.”

As a result of this activity the husband was found to have violated the June 30, 1978, order of the' trial court and sentenced to five days in jail for contempt of court.

We have carefully reviewed the evidence presented at the ore tenus hearing before the trial court. Considering the facts set out above along with other evidence in the record, we are unable to hold that the award to the wife is so unsupported by the evidence as to be an abuse of discretion. The judgment is affirmed.

The wife’s request for attorney’s fee on appeal is granted. ' She is awarded the sum of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge. BRADLEY, Judge,

text:
    Jean E. RALLS v. John Greal RALLS.
    Civ. 2131.
    Court of Civil Appeals of Alabama.
    May 14, 1980.

      W. Harold Albritton for Albrittons & Givhan, Andalusia, for appellant.
    Rivard D. Melson for Harden & Melson, Monroeville, for appellee.
    William D. Melton, Evergreen, amicus curiae.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were divorced on March 23, 1977, by decree of the Conecuh County Circuit Court. The decree incorporated an agreement of the parties which was reached just before time for trial and dictated into the record by counsel for the parties.

The decree awarded custody of the parties’ two minor children to the mother. The father was required to pay $300 per month as support for the two children. The payments were to continue as long as either child remained in school and cease as of the time neither child was in school. The father was also required to pay $200 per month as alimony which payments were to continue until such time as neither child was in school and the mother was remarried. In addition, the father was required to pay the necessary expenses for the college educations of the children and all medical, dental and drug expenses of the children which were not covered by medical insurance during the time they were in school.

On June 12, 1979, the father filed a petition to modify the divorce decree. The mother answered and filed a counterpetition to modify. Both petitions were amended at trial. The father’s petition as amended asked that the decree be modified to:

(1) [Rjeflect that the $300 per month child support cease when the youngest child of the parties attains her majority.
(2) [Rjequire defendant (the father) to pay $200.00 per month directly to each child so long as said child is in undergraduate school.
(3) [Djelete the requirement that defendant pay plaintiff periodic alimony.

The mother’s counterpetition asked for increased alimony and child support, a more equitable division of property, and attorneys’ fees.

After an ore tenus hearing the trial court modified the decree (1) to relieve the father of the obligation to pay child support after the youngest child reaches the age of nineteen years, and (2) to relieve the father of the obligation of paying the necessary expenses for the college education of each child as he or she reaches the age of nineteen years. The trial court refused any further relief to the father and denied all relief on the mother’s counterpetition. The mother appeals.

There are two issues on appeal.

The first is whether the trial court erred in modifying the divorce decree to relieve the father from the obligation of providing support and college expenses for his children beyond their majority, where the decree incorporated an agreement of the parties.

The law in Alabama is clear that a court does not have the power, in the absence of an agreement, to order a parent to support an adult child. Davenport v. Davenport, 356 So.2d 205 (Ala.Civ.App.1978); Huckaba v. Huckaba, 336 So.2d 1363 (Ala.Civ.App.1976). However, we know of no decision of our appellate courts which has decided whether a judgment, based upon an agreement of the parties, requiring payment by a parent of support and education expenses for a child beyond the statutory age of majority may be enforced.

The father argues that it is unclear from the divorce decree whether these provisions were based on an agreement of the parties or were orders of the court based on testimony taken at the original hearing. We find no merit in this argument.

The decree of the court in the original divorce proceeding states: “An agreement having been entered into between the parties and dictated into the record in this cause, said agreement is hereby ratified and affirmed. . . . ” In addition, both parties testified at the hearing on the petitions to modify that the divorce decree was based upon an agreement.

The question then is whether this agreement, when incorporated into the court’s decree, is binding upon the parties even though the court could not make such an order sua sponte. We find that such an agreement is binding upon the parties until modified by a court of competent jurisdiction.

It has been said that an agreement between the parties fixing child support payments, when incorporated into a judgment, becomes merged into the judgment and thereby loses its contractual nature to the extent that a court of equity has the power to modify the decree when changed circumstances so justify. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969). The parties by requesting their agreement be made a part of the judgment submit that agreement' to the equity consideration of the court. The court may accept the agreement or part of it or may reject the agreement and make such order as it finds to be fair and equitable and in the best interest of the children. We hold the parties are bound by the provisions of their agreement which are incorporated into the judgment until those provisions are modified by a court of competent jurisdiction. This holding is in conformity with that of the great majority of other jurisdictions. Ovaitt v. Ovaitt, 43 Mich.App. 628, 204 N.W.2d 753 (1972); White v. White, 25 N.C.App. 150, 212 S.E.2d 511, aff’d, 289 N.C. 592, 223 S.E.2d 377 (1975); Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648 (1944); Robruck v. Robruck, 167 Ohio 479, 150 N.E.2d 421 (1958); West v. West, 131 Vt. 621, 312 A.2d 920 (1973); 27B C.J.S., Divorce, § 319(4) at 610; 24 Am.Jur.2d, Divorce and Separation, § 832 at 944.

Where one of the parties seeks to modify a judgment fixing child support payments in accordance with an agreement, there will be no modification except for clear and sufficient reasons. Hutton v. Hutton, supra. The evidence in this case does not show such clear and sufficient reasons for modification and the trial court erred in modifying the decree.

The mother’s final issue is whether the trial court abused its discretion in refusing to increase child support payments and award her attorneys’ fees.

The trial court found no changed circumstances which would warrant modifying the decree to increase child support payments. Having carefully considered the record, we agree with the trial court. We find no abuse of discretion. Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979).

However, we believe the mother should be awarded attorneys’ fees. This litigation is the result of the father’s attempt to relieve himself of obligations which he voluntarily assumed. The mother retained counsel to defend her rights and the rights of her children under the parties’ agreement. We do not believe she should bear the burden of that defense. There is expert testimony that a reasonable attor-' ney’s fee in this case would be between $750 and $1,000. The mother is awarded $750 as attorneys’ fees.

The mother also requested that she be awarded attorneys’ fees for her representation on this appeal. Her request is granted in the amount of $500.

The trial court’s order modifying the divorce decree is reversed.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

BRADLEY, Judge,

concurring specially:

I concur with the majority’s conclusion that the trial court did not err in refusing to increase child support payments and that it did err in failing to award attorney’s fees to the mother. I also agree with the majority that the trial court erred in holding that a parent cannot be made to support an adult child where that parent has, by agreement incorporated into the trial court’s decree, agreed to do so. But, I do so only because the supreme court has - apparently taken the position that an equity court in a divorce action can require a parent to support an adult child if such action is based on contract. See Reynolds v. Reynolds, 274 Ala. 477, 149 So.2d 770 (1961) and Murrah v. Bailes, 255 Ala. 178, 50 So.2d 735 (1951).


author: HOLMES, Judge.

text:
    Sterling Gray FRANKS v. Joyce Marie FRANKS.
    Civ. 2179.
    Court of Civil Appeals of Alabama.
    May 14, 1980.
    James K. Davis, of Fite, Davis & Fite, Hamilton, and Tweedy, Jackson & Beech, Jasper, for appellant.
    Bill Fite, Hamilton, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties, ordered the husband to pay child support, and made a division of certain property. The husband, through able counsel, appeals contending the trial court abused its discretion in the award of child support and the division of property. We find no such abuse of discretion as to require reversal.

Viewing the record with the attendant presumption of correctness, the record in pertinent part reveals the following: The parties were • married for approximately seven years. The wife had a daughter by a previous marriage which the husband adopted. The child is not in the best of health. While the record is not a paragon of clarity as to the amount of money the husband earned, there is testimony from the wife that he earned $700 a week. In addition to this testimony, the record indicates that the husband is engaged in an ongoing trucking business with his brother.

After an ore tenus hearing the trial court awarded custody of the daughter to the wife. The husband was required to pay $50 per week child support and one-half of the child’s medical expenses.

The wife was awarded a 1978 automobile. However, the wife was required to pay the indebtedness thereon. Additionally, the wife was awarded one-half of a certificate of deposit purchased during the marriage. Put another way, the wife was awarded $9,202. No periodic alimony was awarded the wife.

The husband contends in brief that the certificate of deposit was purchased by the husband from money he received from the sale of a certain piece of real estate. This property was owned by the husband prior to the marriage. The husband therefore argues that since the wife made no contribution in acquiring the property and hence the certificate of deposit, she is not entitled to any amount upon divorce. Additionally, the husband contends the amount of child support is excessive.

As this court and our supreme court have stated on numerous occasions, a division of property and amount of child support are matters within the sound discretion of the trial court and are not to be reversed on appeal absent a manifest abuse of discretion. Goodman v. Goodman, Ala.Civ.App., 366 So.2d 281 (1979); 8 Ala.Digest Divorce <§=> 286(5) and @=>296.

Here, in this instance, with the facts as indicated above in mind, we cannot say the trial court so abused its discretion as to require reversal, either in the award of child support or in the division of property.

Regarding the amount of child support, the sum of $50 per week is not excessive when consideration is given to the amount of the husband s income coupled with the needs of the child.

As to the division of property, this court cannot say there was such an abuse of discretion requiring reversal, particularly considering the fact that no periodic alimony was awarded.

The wife has requested an attorney’s fee for representation on appeal. A fee of $500 is awarded.

The case is due to be affirmed.

AFFIRMED.

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


author: SCRUGGS, Retired Circuit Judge.

text:
    Carol A. ASHLEY v. Charles R. ASHLEY.
    Civ. 2180.
    Court of Civil Appeals of Alabama.
    May 14, 1980.

      Rodney B. Slusher, Florence, for appellant.
    H. R. Campbell of Campbell & Hodges, Scottsboro, for appellee.
   SCRUGGS, Retired Circuit Judge.

This controversy involves the custody of two boys who were three and six years of age at the time of the last trial.

After the circuit court had previously heard considerable oral testimony, the parties were divorced on October 6, 1978, and, in the divorce judgment, the court awarded custody of the two children jointly to the plaintiff and to the defendant. The judge recited in his decision that, although there had been some indiscretions on the part of both parties since their separation, each party was fully fit and capable of caring for the children. The court further stated:

The Court is well aware that a more specific award of custody may be necessary in the future, especially in view of the fact that the older child will be entering school next year, and jurisdiction of this cause is expressly reserved for the purpose of awarding custody, visitation and support of said children.

On July 30, 1979 the plaintiff-father filed his petition seeking modification of the October 6, 1978 judgment so as to award primary custody of the children to him. The mother filed her answer and a counterclaim likewise seeking custody of the children. Both parents are in agreement that the joint custody judgment should have been modified and primary custody granted to one parent. Their disagreement is, and was, over which parent should have custody of the boys.

The same circuit judge who tried the original contested divorce proceeding also heard the testimony given at the contested custody hearing on October 1, 1979. The children’s custody was awarded to the father, and the mother appeals such decision.

The latest judgment contained five pages of findings or conclusions of fact as to why custody was awarded to the father. We have carefully read and studied the evidence taken at the last custody trial and we ascertain that there was evidence before the circuit judge upon which his factual findings or conclusions as to that particular trial could be reasonably based. We cannot make such verification as to findings therein involving the divorce trial since the evidence of that trial is not before us.

The defendant relies upon the presumption that a mother is normally presumed to be the proper custodian of children of tender age unless for some reason she is unfit; and she relies further upon the fact that the six year old child expressed a preference to the judge in chambers that he be allowed to live with his mother.

The lower court found that both parties were fit parents and further ascertained with regard to such presumption that it is based upon the premise that the mother has cared for the children during their earliest years more than the father, and that the children are, in fact, more dependent upon the mother for such care. The trial judge decided that the presumption did not apply in this case since all of the evidence at the divorce trial indicated that the father had looked after the needs and cared for the children since birth, almost as much as the mother, which continued up until the time of the mother’s move to Florence, Alabama on September 4, 1979. We must accept such factual findings of the trial judge.

It is clear that the lower court considered the preference of the oldest child in making his custody judgment; however, the desire of such a young child is not binding upon the courts and can be accorded only very little weight in the decision-making process. Parks v. Parks, 275 Ala. 613, 157 So.2d 212 (1963).

The last paragraph of the custody judgment was as follows:

The Court notes that this decree may well have been considerably different, had the Defendant chosen to remain in the community where they resided during their marriage and where the children had resided for their lives.

The defendant contends that her change of residence from Scottsboro to Florence was the sole reason that she was deprived of custody of her sons. However, it is obvious from a reading of the entire judgment that her move was only one of many factors upon which the trial judge based his decision.

Of supreme concern in all child custody cases is the best interest of the child. Ala. Dig., Divorce, 298(1) (1959). This is an easy rule to state, but a difficult rule to apply. This “what is best for the child” rule prevails over presumptions and has probably caused judges more sleepless nights than any other one legal or equitable principle. It is an awesome responsibility, fraught with difficulty, to determine the best welfare of children. The trial judge observes attitudes, facial expressions, voice tones and all human traits in parties and witnesses testifying and appearing before him, weighs the evidence, wishes for the wisdom of Solomon, and hopefully reaches the correct decision in the case. This unique opportunity to observe and hear is the primary reason for the strong presumption favoring the trial court’s findings in cases of this nature. Mothershed v. Mothershed, Ala.Civ.App., 348 So.2d 501 (1977); Ala. Dig., Divorce, 312.6(5) (1959).

Our judgment cannot be substituted for that of the trial judge unless we are convinced that he was clearly and palpably wrong. This we cannot say in this case; hence, we must affirm the judgment of the circuit court.

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

AFFIRMED.

All the judges concur.


author: JOSEPH J. MULLINS, Retired Circuit-Judge. BOOKOUT, Judge,

text:
    Patricia KILPATRICK v. STATE.
    6 Div. 137.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    Rehearing Denied March 18, 1980.

      Sherman B. Powell, Jr., Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit-Judge.

The appellant, Patricia Kilpatrick, was indicted by the Grand Jury of Cullman County on an indictment containing two counts; count no. 1 charging her with grand larceny and count 2 charging the offense of buying, receiving, and concealing stolen property. The property was described in both counts as, “One Remington Wingmaster Pump Shotgun, Model No. 870, Serial No. S 75 3383V, of the value of $140.00, the personal property of Elvie Brown.” Appellant entered a plea of not guilty. Appellant was found guilty of buying, receiving or concealing stolen property by a jury, and duly sentenced to three years in the penitentiary and made application for probation. Appellant filed a motion for a new trial which was duly overruled and she gave notice of appeal to this Court.

The appellant was represented by counsel of her choice at all proceedings in the trial court and is so represented in this Court. This appeal was submitted to this Court on briefs.

The appellant in her brief contends that the trial court erred to her prejudice on two grounds: First, by refusing to grant appellant’s motion to dismiss count 2 charging buying, receiving or concealing stolen property for failure of the State to prove venue in Cullman County; second, by refusing to grant appellant’s motion to dismiss for failure of the State to meet the requisite burden of proof. Both issues are properly raised by the record.

State’s evidence tended to prove that El-vie Brown lived in a house at Route Number 2, Vinemont, Alabama, in Cullman County; that the appellant’s address was P. 0. Box 63, Vinemont, Alabama; that Brown’s house was secured and it was locked, and that he had in his possession several guns in his house when he left to go to the Panama Canal Zone on or about the 7th. or 8th. of July, 1978; that among the guns that he had in his house was a Remington Wingmaster 870 Pump Shotgun, Serial No. S 753383V, of the value of $140.00 that he had gotten from his brother; that when he returned to his home about the 15th. or 16th. of August, 1978, he found the screens were removed from the back and front doors; the back door had a hole cut under the door; the guns, seven fishing rods, cameras, and binoculars that he had in his home when he left to go to the Canal Zone were missing; that on the 25th. of August, 1978 he was at the Penn Gun Store in Hartselle, in Morgan County, Alabama, and found, and identified the Remington Wingmaster Pump Shotgun that had been taken from his home; that after he made sure the serial number was right he called the county officers and told them he had found his gun and where it was; that soon after August 25, 1978 Officer Spradlin handed him the gun in the sheriff’s office' for identification; that the gun was returned to him; that the gun was in a gun case and had been in Brown’s possession for a year and a half, and he identified it as one taken from his home; that embedded in the bottom of the gun case was state’s exhibit 1, a card that had the serial number of the gun on it and other information describing the gun.

State’s evidence further tended to prove that on July 29th., 1978 Dennis Spradlin, an investigator for the Cullman County Sheriff’s Department, went to the home of Elvie Brown in Cullman County at 8:50 A.M. and examined his house; that Spradlin found the screen on the back door ripped off the door, being cut open with a knife or sharp instrument around the door knob, vertically; there was damage in the bathroom, kitchen, and bedroom, the furniture was overturned, drawers were pulled out and clothes out on the floor; that Spradlin obtained a list of property that had been taken from the home of Brown; that on the 27th. day of August, 1978, Spradlin went to the Penn Gunshop in Hartselle, Morgan County, Alabama, and obtained from Mr. Penn a Remington Pump Shotgun in a tan looking case; that Spradlin examined the gun and compared the serial number on it and he examined the gun case and brought the gun and gun case to the sheriff’s office where he tore open the end of the case and removed state’s exhibit 1 which is a registration card for a military base describing the gun, who it belongs to, the make, model, serial number and the gauge of the gun; that the serial number in the case coincided with the serial number on the gun, and with the serial number and description of the gun Spradlin obtained from Mr. Penn; that Officer Spradlin kept the gun and case for a short period and released them back to Mr. Brown; that in the latter part of August or first part of September, 1978, Spradlin requested that appellant come to the Sheriff’s Department, which she did, and before talking with her, Spradlin advised her of her rights and she stated that she understood them; that appellant stated that she bought the gun at the Flea Market at Lacón, that she did not know who she bought it from, she could find out; that Spradlin advised her to find out and contact him in two weeks, which appellant said she would, and Officer Spradlin heard nothing from her until he arrested her two weeks later.

State’s evidence further tended to prove that Mr. O’Neal Penn owned and operated Penn Sales Company in Hartselle, Morgan County, Alabama, where he bought and sold guns; that he knows the appellant and had only known her since he bought a gun from her August 2nd., 1978 for ninety dollars; that she signed a slip of paper identified as state’s exhibit number 2 when he bought the gun from her; that on state’s exhibit number 2, in handwriting, is the following: “8/2/78 1 Rem 870 12 GA Ser-S753383V Patricia W. Kilpatrick P. 0. Box 63, Vine-mont, Ala — Patricia Kilpatrick;” that when the appellant sold Mr. Penn the gun, he asked her why she wanted to sell it, and she said her husband died and she needed the money; that Mr. Penn did not know her husband and had never seen him until the day of appellant’s trial; that Mr. Penn asked appellant to see her driver’s license and he looked at it; that on the 28th. of August, 1978 Mr. Spradlin, in his capacity as a police officer, came to Penn’s place of business and Mr. Penn turned the gun over to him and Mr. Spradlin gave him a receipt for it, defendant’s exhibit A; that Mr. Penn showed him the receipt that appellant had signed.

The testimony of appellant’s husband, Harrold Kilpatrick, a witness for the appellant, tended to prove that he had been married to the appellant about ten years; that around the middle of July, 1978 he purchased a pump shotgun at the Flea Market in Lacón, Alabama, in Morgan County; that he was a carpenter and was at the Flea Market looking for a miter box; that a guy there was trying to sell the gun and Mr. Kilpatrick looked at it and bought it for seventy-five dollars and took it to his home; that Mr. Kilpatrick kept the gun at his home for about a month; that he gave the gun to the appellant and she took it and left with it; that about two weeks before appellant was arrested Mr. Kilpatrick and the appellant, at the request of Mr. Spradlin, went to his office to talk to him; that he gave Mr. Spradlin a description of the man he bought the gun from; that Mr. Kilpa-trick was unable to find the person he bought the gun from and in about two weeks the appellant was arrested.

The appellant testified on her behalf and her evidence tended to prove that Mr. Kil-patrick who had just testified was her husband, and she had been married to him eleven years; that she got the gun from her husband and took it to Penn’s Gun Sales and sold the gun to Mr. Penn for ninety dollars; that she stated to Mr. Penn that she had a gun in the car, and that she would like for him to look at it, and she went to the car and brought the gun in for Mr. Penn to look at before he bought it; that she showed him her driver’s license, and signed state’s exhibit number 1 and told Mr. Penn where she lived; that when she sold the gun, she took the ninety dollars home and gave it to her husband; that she did not break in Mr. Elvie Brown’s home and steal the gun, and does not know who did; that she did not know the gun was stolen, and had no reason to believe that it was; that she was not with her husband at trade day when he bought it; that she went to the sheriff’s office the next morning after Mr. Spradlin called her and answered all his questions about the gun; that she told Mr. Spradlin that her husband bought the gun, and that she sold it to Mr. Penn; that she does not deny she had the gun and sold the gun.

We consider appellant’s first contention with reference to venue. State’s evidence is sufficient to sustain the jury verdict that the property was the property of Elvie Brown, that it was recently stolen in Cullman County, Alabama, that it was in the possession of the appellant whose address was Vinemont, Alabama, P. 0. Box 63, that the appellant had possession of it at Mr. Penn’s Gun Store in Hartselle in Morgan County, Alabama, that she sold the gun in Morgan County.

Larceny, and buying, receiving and concealing stolen property are ambulatory offenses under the decision of the Supreme Court of Alabama. Where property is stolen in one county and carried into another, venue is in either county. Code of Alabama, 1975, Sec. 15-2-9; Milam v. State, 240 Ala. 314, 198 So. 863; Holt v. State, 49 Ala.App. 582, 274 So.2d 356; certiorari denied, 290 Ala. 367, 274 So.2d 360; Weeks v. State, Ala.Cr.App., 346 So.2d 1181.

We hold that under the facts in this case venue was proper in Cullman County.

Appellant contends that the evidence was not sufficient to sustain the jury verdict finding the defendant guilty under count 2 of the indictment. The essential elements of the crime of buying, receiving or concealing stolen goods are: 1. That the property described in the indictment had been feloni-ously taken and carried away as charged in the indictment; 2. And that the defendant bought, received, concealed or aided in concealing the property, knowing at the time it was stolen, or having reasonable grounds for believing at the time that it was stolen; 3. And at the time she so bought, received, concealed, or aided in concealing, the property, knowing that it was stolen, or having reasonable grounds for believing at the time that it was stolen, she did not have the intent to restore the property to the owner. Code of Alabama, 1975, Sec. 13-3-55; Walker v. State, Ala.Cr.App., 355 So.2d 755; Scott v. State, 55 Ala.App. 318, 314 So.2d 921; Waters v. State, Ala.Cr.App., 360 So.2d 358; certiorari denied, Ala., 360 So.2d 367.

When sufficient evidence is produced to prove the foregoing three elements, and the defendant has possession of the stolen- property soon after the theft and is unable to give a satisfactory explanation of her possession, the jury may infer guilt. We hold that under the facts in this case the guilt or innocence of the appellant was a question for the jury. Character v. State, 51 Ala.App. 589, 287 So.2d 916; Weeks v. State, Ala.Cr.App., 346 So.2d 1181; Holt v. State, 49 Ala.App. 582, 274 So.2d 356; certiorari denied, 290 Ala. 367, 274 So.2d 360; Milam v. State, 240 Ala. 314, 198 So. 863.

As provided by Alabama Code, 1975, Title 12-22-240, we have searched the record for any other errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act. # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., concurs specially.

BOWEN, J., joins in special concurrence.

BOOKOUT, Judge,

concurring specially:

I concur with the majority because the appellant resided in Vinemont in Cullman County. She therefore possessed the stolen property in Cullman County before taking it to Morgan County to sell it. Venue was sufficiently proven as being in Cullman County by State’s Exhibit No. 2, the receipt she signed showing her address to be in that county.

I do not however want to be understood as agreeing with the inference which could be drawn from the majority opinion that buying, receiving, and concealing stolen property is an ambulatory offense in all cases. Sledge v. State, 40 Ala.App. 671, 122 So.2d 165 (1960), is a very valid and important exception to the general rule announced in the majority opinion. Where property is stolen in one county by one party and taken to another county and sold to a second party who had no connection with the theft, the second party cannot be tried in the county where the theft was committed absent some proof connecting him with the theft or possession in that first county. Section 15-2-9, Code of Ala. 1975, does not have universal application in buying, receiving, and concealing cases. That principle is recognized in a careful reading of Milam v. State, 240 Ala. 314, 198 So. 863 (1940), although Milam is often cited in support of the “boiler plate” proposition that buying, receiving, or concealing, etc., is an ambulatory offense.

BOWEN, J., joins in the above.


author: JONES, Justice.

text:
    Ex parte Patricia KILPATRICK. (Re Patricia Kilpatrick v. State of Alabama).
    79-477.
    Supreme Court of Alabama.
    May 30, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    William S. LANGLEY v. STATE.
    1 Div. 57.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied April 1, 1980.
    Lawrence J. Hallett, M. A. Marsal, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

William S. Langley was charged by indictment with feloniously assaulting John Reid, a conservation law enforcement officer of the State of Alabama, while engaged in the active discharge of his duties pursuant to the provisions of § 13-1-42, Code of Alabama 1975. The jury found the appellant “guilty as charged,” and the trial court sentenced the appellant to nine years imprisonment.

The appellant filed motions to dismiss the charges at the close of the State’s evidence, and also a motion for a new trial, challenging the weight and sufficiency of the evidence, which were duly overruled following a hearing thereon. This appeal followed.

John Reid testified that he was a conservation officer with the State of Alabama on the night of June 11-12, 1979. Together with fellow officers, Captain Griffin, Officer Robert Hill, and Deputy Warden Buster Hough, he departed Grove Hill, Alabama, on Highway 84, and headed for a location known as Hill’s Store, approximately half way between Grove Hill and Coffeeville in Clarke County, Alabama. The officers stopped on a dirt road near a turnoff and observed a “bright light shining” in a field nearby, about a quarter of a mile from Hill’s Store. The officers were acting in response to complaints of night hunting in the area. Officer Reid stated that the officers were acting in the official discharge of their duties and were in uniform on the evening in question.

Officer Reid stated that, together with the other officers, he proceeded into the field in the direction of the bright light. The officers separated and after that Officer Reid did not see the light again. He stated that he then returned to Highway 84 where the following occurred (R. p. 69):

“Q. Did you come back to Highway 84 at any time?
“A. Yes, sir, I came back to the Highway, went to 84.
“Q. After you got on Highway 84, what occurred or happened at that place other than you just waiting or watching?
“A. I was waiting along the road there. I could hear somebody coming through the bushes east of me, maybe one hundred yards, probably. I could hear footsteps coming up the road there. The steps got even with me and I turned the light on and told him to halt.
“Q. What happened then, if anything?
“A. He swung around and pointed at me. When he did, I got down behind the bank. He said, who are you son of a bitch. And fired three, a gun three times.
“Q. What happened then?
“A. After he fired, he hollered out, where are you, you son of a bitch. And then, of course, turned around and ran into the woods, on the south side of 84.
“Q. Mr. Johnny, did you see the man that you halted there on the road that night?
“A. Yes, sir.
“Q. What kind of light did you have, if any?
“A. I had a flashlight with me.
“Q. Did you shine that light on that man?
“A. Yes, sir.
“Q. Did you shine it on his face?
“A. Yes, sir.
“Q. Did you have a good look at the man?
“A. Yes, sir.
“Q. You tell the Jury this man was armed?
“A. Yes, sir.”

Officer Reid stated that he fell down behind the bank and he heard three shots fired toward him, and a few moments later Captain Griffin and Officer Hill came up. As Reid returned to the highway, he found three 30.06 empty shell hulls on the opposite side of the black top road from where he had been standing before diving behind the bank. He stated that he got a good look at the face of his assailant, whom he positively identified in court as the appellant, William S. Langley, and that he next observed the appellant two hours later when he was found in the woods.

Officer Reid stated that Captain Hill and the other officers called for a dog officer from Atmore and he arrived in twenty to thirty minutes. He stated that he then accompanied the dog officer and two other dog boys, and they trailed the appellant into the woods. He stated that they found the appellant standing in a tree top, unarmed, about one and a half hours later.

Officer Reid stated that, as they were returning to the road along a path, they found a six-volt battery and a bottle with about a fifth or quart of whiskey. He stated that he detected the odor of alcohol on the breath of the appellant. He stated that, after they arrested the appellant in the woods, they advised him of his Miranda rights, and, without any threat, intimidation, coercion, or inducement, the appellant stated that he had been in the woods coon hunting.

On cross-examination Reid stated that he initially described the appellant as being six feet, three inches tall, with long hair, and a beard, and this was the description which had been broadcasted on the sheriff’s radio. He described the appellant in court as having longer hair at the time of his arrest, and not being as tall as he originally thought. Reid also stated that the shooting took place around 8:00 in the evening, and that Langley was arrested “about 10:30 that evening.” He stated that he carried a five-cell, long flashlight and had shined it on the appellant when he directed him to halt just before the appellant fired at him. Reid stated that he took the three spent shell hulls, the six-volt battery, and the bottle of whiskey, together with other items seized at the scene, to the State Toxicology Office in Mobile and turned them over to Mr. Carter.

Richard Dale Carter testified that he was a firearms expert with the Alabama Department of Forensic Sciences, formerly the State Department of Toxicology. Mr. Carter testified to the following on direct examination (R. pp. 91-92):

“Q. Would you tell the Jury what a comparison microscope is.
“A. A comparison microscope is a microscope that is set up so it has two sets of viewing heads or lenses, one on each side. And a bullet is mounted on each side— well, the viewing screen, as you look in it, it is split so you can see one bullet on this side of the screen or the cartridge case, and one is put on this side and they can be brought together so that the marks that are on them can be compared.
“Q. Yes, sir. What significance, if any, does an extractor place on a shell when it extracts it from the chamber after being fired?
“A. An extractor is one of the mechanisms that may leave an identifiable mark on an expended cartridge case.
“Q. Are these examined when you make your examination?
“A. Yes, sir.
“Q. What other examination of expended hulls as to trying to locate them to a particular gun, what do you look for?
“A. Depending on the type of weapon. The first thing is the firing pin impression on the primer. Next is the breech-face impression. By that, I mean the back of the bolt or breech of a weapon. When the cartridge is fired, the force of the expanding gases and bullet leaving the barrel forces the cartridge case back against the breechface of the weapon. If there are any irregularities in the breech-face, this breechface acts just like a stamp, and it stamps any irregularities into the base of the cartridge case.
“Also, the extractor and ejector mechanism of the weapon, depending on the weapon, itself, whether it’s semi-automatic clip fed or whatever. There may be clip marks and/or mechanism marks on the expended cartridge case, as it has just worked through the action of the weapon.
“Q. Were you serving in this capacity, doing this type of work on or about January of this year?
“A. Yes, sir, I was.
“Q. Were you located in Mobile?
“A. Yes, sir.”

Mr. Carter testified that he received three expended 30.06 rounds of Remington-Peters shells, better known as Springfield ammunition, and he also received one live round and a gas operated semi-automatic 30.06 742 Remington rifle from Mr. Reid on January 14, 1979.

Mr. Carter testified that, on cross-examination, he had cleaned the rifle as it had mud on it, and part of the barrel showed early signs of rust. He stated that,' after breaking the weapon down and thoroughly cleaning it, he subsequently test fired the rifle. He stated that he could positively testify, based on his tests, that the rifle delivered to him by Conservation Officer Reid had positively fired the three shell hulls which were delivered to him by Officer Reid (R. pp. 106-107, 113). Mr. Carter stated that the three expended shell hulls, the rifle and the one unfired round, had been in his sole possession since delivery to him by Officer Reid until the morning of trial.

Conservation Officer John Reid was recalled and testified that the shooting incident occurred on Thursday evening, and the following Sunday morning he returned to the scene with other officers to search for a rifle and light. He testified that, after looking for about an hour in the general area near where the appellant was arrested on Thursday evening, he found a 30.06 rifle lying in about six to eight inches of water in a creek about fifty to sixty yards off Highway 84. Reid testified that he personally retrieved the gun from the creek bed, and also found lying nearby in the creek bed a light. He testified this occurred about 10:00 on Sunday morning following the arrest of the appellant the preceding Thursday evening. Reid gave the serial number recorded on the 742 30.06 rifle as being 8,700,6681. Reid stated that he delivered the 30.06 rifle, together with one live round found in the chamber of the rifle when he removed it from the creek bed, and three expended shell hulls, to Mr. Richard Dale Carter on January 14,1979, in Mobile.

Jack Knowles testified he was a dog trainer for the State of Alabama on January 11, 1979, and lived at Flomaton, Alabama. Mr. Knowles stated he received a call about 8:00 on the evening of Jamiary 11, a Thursday night, and drove about eleven miles but from Grove Hill on Highway 84 toward Coffeeville. He stated that he carried six dogs with him, but did not use but two of them.

Mr. Knowles stated that he there met Conservation Officer John Reid and several other officers. He stated that he and Officer Reid and two dog boys began to follow the two bloodhounds into the woods. He said that, after following them for about a mile and a half, they came upon a white male standing under a holly bush tree and they - arrested him and took him back to Highway 84. While following a path back toward the highway, Mr. Knowles stated that they found a five-volt battery and a bottle of some kind of whiskey, which they carried back to the highway with them.

On cross-examination, Mr. Knowles stated that he and Officer Reid followed the dogs for approximately one and a half miles, using a flashlight, and that it took about forty-five to fifty minutes before finding the man under the tree. He stated that he came close enough to him to determine that “he was drinking.”

Conservation Officer Robert N. Hill stated that he accompanied fellow Officer Johnny Reid on the night of January 11, 1979, to the vicinity out Highway 84 near Hill’s Store. He stated that the officers first observed a bright light in a “grown field oak patch,” that they were trying to apprehend persons who were night hunting. He stated that he saw Officer Reid come into the woods toward the field, and the light went off. He stated that, about fifteen to twenty minutes later, he heard Officer Reid call “halt” in a loud voice and shine his flashlight. Moments later, Hill stated he heard three rapid shots and called to Officer Reid. Immediately after, he heard a male’s voice say, “You s.o.b.,” and he then ran to the scene, which was about thirty to forty yards away from where he had been standing. He stated that he arrived about the same time as Captain Griffin, and they called for bloodhounds. They did not attempt to go into the woods until the dogs arrived. Hill explained that he observed Officer Reid pick up three spent 30.06 shell hulls on the shoulder of the road on the south side of Highway 84.

The appellant filed two motions to dismiss the charges, which were overruled by the trial court.

The appellant called one Ralph Martin, a twenty-five year old native of Coffeeville in Clarke County. Martin stated he knew the appellant, William S. “Bill” Langley, and that he, himself, had just been released from the County Jail, having filed a bond on January 11, 1979, for night hunting.

Martin stated he drove toward Coffee-ville on Highway 84 and near Hill’s Store was pulled over by Officers Robert Hill and Johnny Reid, two conservation officers.

Martin stated that he drove on to Coffee-ville and there ran into a state trooper in a drive-in and began talking with him. He stated that he overheard a dispatch come over the trooper’s radio, stating that the conservation officers were looking for a man on Highway 84 that was six feet, three inches tall, with long hair and a beard and that he had shot at Johnny Reid.

On cross-examination, Martin admitted that the trooper, in whose car he had been sitting, had given him a speeding ticket about nine months before.

Robert Eugene Booker testified he lived at Eight-Mile in Clarke County on January 11, 1979. Booker indicated that he saw the appellant, William S. “Bill” Langley, about 4:00 on the morning of January 11, 1979, in Coffeeville. Booker stated that Langley, the appellant, “wanted me to take him to pick up a deer,” and that was near Fend-ley’s Store, which is also known as Hill’s Store. He stated this was on a Thursday morning, about 4:00, just before daylight

The appellant did not testify at trial. The trial court gave an extensive oral charge on the applicable law, and at its conclusion also gave some written charges requested by the appellant. Following this, no exception was taken to the court’s oral charge (R. p. 158).

I

The appellant contends that the State failed to produce sufficient evidence to support the charge of unlawful assault on a law enforcement officer in the active discharge of his duties, and, therefore, his motions to dismiss the charges should have been granted.

A careful review of the evidence establishes that the appellant was positively identified at the scene of the assault on January 11, 1979, and again in open court by Conservation Officer Johnny Reid. Moreover, Reid personally found the three expended 30.06 rifle hulls that evening, along with a six-volt battery and a bottle of whiskey. The following Sunday morning, Reid found a 30.06 rifle and a light lying in a creek bed in six to eight inches of water about fifty to sixty yards off Highway 84 near the scene of the assault.

State Toxicologist Carter positively stated in court that, after cleaning the rifle and test firing it, he was absolutely certain that it was the rifle which fired the three shell hulls delivered to him by Officer Reid to the exclusion of any other weapon of similar caliber or make.

Officer Reid and Mr. Knowles, the dog trainer, noticed the odor of alcohol on the breath and person of the appellant.

Officer Hill stated that he overheard Officer Reid tell the appellant to “halt” and saw him shine his flashlight on him. He then heard the appellant exclaim, “You s.o. b.,” then heard three rapid shots being fired.

Both Officers Reid and Hill indicated they were on duty in the active performance of their responsibilities, looking for persons who were illegally hunting at night.

We are of the opinion that the State properly proved the essential elements of the charge against the appellant, and, therefore, his motions to dismiss, and motion for a new trial, were properly overruled. Wright v. State, 49 Ala.App. 539, 274 So.2d 95 (1973); Washington v. State, 57 Ala.App. 465, 329 So.2d 155 (1976); and Kendricks v. State, Ala.Cr.App., 378 So.2d 1203, 1979.

II

The appellant challenges the use of a special prosecutor in this case, the Honorable Wyman O. Gilmore.

The law in Alabama is clear that a special prosecutor'may appear as an assistant to the prosecution with the consent of the court. Handley v. State, 214 Ala. 172, 106 So. 692 (1925), and authorities therein cited. Moreover, such special prosecutor need not show the authority under which he is employed or acting. Handley v. State, supra.

In the case at bar, Mr. Gilmore, at the request of defense counsel and out of the hearing of the jury venire, nevertheless told defense counsel who his employer was (R. p. 46), and the trial court determined that Mr. Gilmore was appearing with the' consent of the State and approved his appearance as such special prosecutor (R. pp. 45-47).

We are of the opinion that the trial court properly permitted Mr. Gilmore to appear in this cause and no error is shown by this record. Handley, supra; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858 (1969). This Court judicially knows that Mr. Gilmore was the district attorney for the circuit in which he appeared for a number of years.

Ill

Finally, the appellant asserts that the trial court committed reversible error in its oral charge to the jury. This charge appears on Record Pages 152 through 159. The record reflects that no exception was taken thereto (R. p. 158). The trial court will not be reversed on matters asserted in the oral charge of the court when the appellant does not except to same. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967); Cooper v. State, Ala.Cr.App., 364 So.2d 382, cert. denied, 364 So.2d 388 (1978).

We have carefully examined this record and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte William S. LANGLEY. (Re William S. LANGLEY v. STATE of Alabama).
    No. 79-505.
    Supreme Court of Alabama.
    May 30, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge. TYSON, Judge,

text:
    Blanchard Woodrow GRIFFIN, Jr. v. STATE.
    No. 1 Div. 937.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      M. A. Marsal, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted for murder in the first degree, convicted of murder in the second degree and sentenced to imprisonment for fifteen years.

It happened at night in a “bar” at a place uniformly referred to by the witnesses as “Marco’s” in Mobile County. There was strong evidence that defendant had cursed the alleged victim, Mayo Flynt Odom, that Odom responded by knocking defendant to the floor, that defendant went outside and obtained a rifle, with which he shot and killed Odom. Defendant testified that he had been drinking extremely heavily, that he had some recollection of what had happened between him and the victim prior to the firing of the shot that killed him, but he could not give a clear account of what occurred. No question is raised on appeal as to the sufficiency of the evidence to support the verdict, and we see nb basis for a serious question as to the sufficiency.

During the interrogation by the court of the panel of jurors from which the jury to try the ease was to be selected, the following occurred:

“THE COURT: . . . Do any of you have any knowledge of this particular case? This charge against this defendant? Alright. Your name and your panel number.
“JUROR FRED SAVELL: Panel 3.
“THE COURT: Mr. Saveli, you have some knowledge of this case?
“JUROR: Yes, Your Honor, I heard—
“THE COURT: —I don’t want you to go into detail. You do have knowledge of it, right?
“JUROR: Right.
“THE COURT: Would that fact have any bearing on your duty and responsibility to render a fair and impartial verdict based solely on the evidence presented in this case in this courtroom?
“JUROR: I don’t believe so. It might though.
“THE COURT: Your duty and required responsibility is to exclude from your consideration when you sit on the Jury, to consider only what is presented in Court. And you are saying you are unable to do that?
“JUROR: No, sir. I’ll be able to.
“THE COURT: I have to be sure to know what you mean. Are you going to be able to do it?
“JUROR: Yes; sir.
“THE COURT: You can exclude the fact that you have knowledge of this case before hand and you have heard other things said about it. That you would decide the case based on what you find the evidence to be presented in this courtroom?
“JUROR: Yes, sir.
“THE COURT: Is there any question about that?
“JUROR: No, sir.
“THE COURT: You may be seated.
“MR. MARSAL: I challenge for cause, Judge. He testified that he has knowledge in and knowledge acquired outside the realm of. evidence makes him disqualified as a juror.
“THE COURT: I will deny the motion, Mr. Marsal.
“MR. MARSAL: We except.”

It may well be that the court should have inquired further of the juror as to whát he meant by having some knowledge of the case, but we cannot say with assurance that it should have done so or that defendant was injured by reason of the failure of the court to do so.

It has long been the established law in Alabama not only that it is the duty of the trial court “before administering the oath prescribed by law” to ascertain that jurors possess the qualifications required by law (Code Ala. 1975, § 12-16-6) bút also it is the right of a party to supplement the examination by the court, as thus stated:

“In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.” Code of Alabama, Recomp. 1958, Tit. 30, § 52.

In considering the language of both the cited Code sections as it was then found in the applicable Code of 1958, Recompiled, the court held in Johnson v. State, Ala.Cr.App., 335 So.2d 663, 672, cert. denied, 335 So.2d 678 (1976):

“Appellant contends that the trial court’s voir dire examination of prospective jurors was inadequate and that denial of this motion for individual counsel-conducted voir dire constituted error.
“The trial court allowed the defense to submit questions ‘to the court for its consideration one day before the qualifying of jurors,’ and the trial judge also allowed additional questions during the qualification of jurors, ‘if the response to the original questions pronounced by the Court seems to justify such additional questions.’ We find no abuse of discretion by the trial court in following such procedure. Title 30, § 6, Code of Alabama 1940, requires the trial judge to ascertain that the jurors possess the qualifications required by law, and Title 30, § 52, allows either party the further right to examine jurors, ‘under the direction of the Court.’ . .

It seems that Ala.Code 1975 does not have a counterpart to Code of Alabama, Recompiled 1958, Tit. 30, § 52. The language thereof is to be found, with some modification as noted, in Rule 47, Alabama Rules of Civil Procedure:

“The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination as may be proper.”

Notwithstanding any apparent hiatus, there can be little doubt as to the law that has prevailed for many years in Alabama to the effect that in the process of selecting the jury from the venire afforded, each party has the right to have questions formulated by it propounded to the jury, either by the court or by the party as the court may determine, if such questions reasonably relate under the circumstances to the question of the qualification or interest or bias on the part of prospective jurors.

The answer of the juror does not disclose any of the twelve specific grounds for challenge for cause contained in Ala. Code 1975, § 12-16-150. It is conceivable, we think, that additional questions to and answers of the juror would have disclosed a ground for challenge for cause, but this is by no means certain. At any rate, it was as incumbent upon the defendant as it may have been upon the court, to assure such an interrogation of the juror as to reveal a ground for challenge. Under the circumstances presented, no error is to be found in the court’s denial of defendant’s challenge of the particular juror.

At the request of the State and over the objection of defendant, the trial court required the parties to select a jury from a list of thirty, even though more than thirty jurors were then available. Appellant says that this was in conflict with Code of Alabama 1975, § 12-16-100, which provides that “the court shall require two lists of all the regular jurors empanelled for the week who are competent to try the defendant to be made” from which the jury shall be selected in criminal cases. He cites Brown v. State, 41 Ala.App. 565, 140 So.2d 371 (1962) and Lucas v. State, 22 Ala.App. 632, 118 So. 765 (1928) in support of his contention.

Appellee endeavors to distinguish the instant case from the cases cited by appellant and make them inapplicable to the quoted provision of Code 1975 § 12-16-100, by saying that said Section “deals with the mechanics of striking the jury.”

We do not agree with appellant’s contention that he was entitled to a list of forty-two jurors from which to select a jury; nor do we agree with appellee’s contention that the.minimal number of jurors from which a jury is to be selected of twenty-four persons, as provided by Ala.Code 1975, § 12-16-102, meets the general requirements of statutory law on the subject. Both parties have apparently overlooked the controlling statute, applicable only to counties with a population of not less than 200,000, nor more than 400,000 (which includes Mobile County). Appx., § 543(6), Code of Alabama Recomp. 1958 provides:

“In every criminal case, any defendant or the prosecution may demand a struck jury. When so demanding], the clerk or his deputy or assistant or other person designated by the judge presiding, shall furnish all parties with a list [of] thirty competent jurors in attendance upon the court in all cases except in capital cases, and in capital eases shall furnish all parties with a list of forty-two competent jurors in attendance upon the court

The actual trial of the case continued for parts of two days. The jury had been selected on a preceding day. On the first day of the actual trial, before the parties had stated their respective eases to the jury and before any of the witnesses testified, the court proceeded to have them come into the courtroom and be sworn as witnesses. Thereupon, the following, as pertinent to the proposition hereinafter discussed, occurred:

“THE COURT: Now the rule has been requested and I better have you all come up here and talk to y’all about this. Come up here. Let me have your atten-' tion please. As witnesses now, the law requires under this rule that you stay out of the courtroom until you are called to testify. So you’re under instructions from the Court now not to come into the courtroom until you are requested to come in and testify. The rule further provides that you cannot talk about your testimony before or after you testify with other witnesses. You have a right to talk to the lawyer who has subpoenaed you at any time. But you cannot discuss your testimony with anybody — with other witnesses before or after you testify [not included are splendid instructions to the jury as to their duty not to make contact or converse with the jury]. Don’t under any circumstances talk to anybody. Not only that, as far as evidence part of the case, stay away from the people involved on the other side of the case. Do not discuss the case out in the hall.
“MR. MARSAL: Judge, I have one observation to make. It’s my understanding that I have the right to talk to any witness regardless whether I subpoenaed them or the State subpoenas them.
“THE COURT: Well, I tell you you’re going to have that right with the permission of the Court. You have a right to talk to your own witnesses, but if you want to talk to a witness of the State, you must request the Court.
“MR. MARSAL: We except.
“MR. HALE: Judge, is that the same policy you wish me to abide by?
“THE COURT: It applies to both sides. Now if the lawyer of the State has called you as a witness, then, of course, the State prosecutor can talk to you. If the lawyer on the other side if you are a defense witness, before Mr. Hale can talk to you, he must talk to the Court and get permission. The same way Mr. Marsal. Before he can talk to the State’s witnesses, he talks to the Court and gets permission. Is that clear? Any question about that, Mr. Marsal?
“MR. MARSAL: Yes, sir. I except to it because I have a right to talk to them without the consent of the Court.
“THE COURT: You are expected and by order of the Court instructed to request such permission. Now, I don’t want witnesses now — in a case we had recently, we had people sitting out there looking in at people testifying. I don’t want you sitting out there on the bench watching people testify. I want y’all to stay away from the entrance to the door. . . . ”

A major insistence of appellant is that the right of his counsel to talk with witnesses was unduly and erroneously restricted by the action of the trial court. Although not dispositive of the particular issue in the instant case, it seems profitable to restate what was held and stated in Gallman v. State, 29 Ala.App. 264, 195 So. 768, 770-771 (1940):

“It is a mistake of a serious nature for a trial court, or opposing counsel, to assume or intimate that counsel for the defendant is not at full liberty to question, whenever he sees fit, any person who knows or is presumed to know the facts attendant upon the commission of the offense with which his client is accused. It is his solemn, sworn duty to ascertain, as far as he can, what the evidence is, and his duty is not at an end when he has examined, no matter how exhaustively, his client; he must see and talk with the witnesses. Sharwood’s Legal Ethics, p. 121; Elliott’s General Practice, Chapt. 1, Sections 1-5; Chitty’s Practice, Vol. 2, pages 21 and 53.
“If the defendant had the right to confer with the witness, Jordan, at all, he had the right to such conference in the absence of any intimidating influences whatever. The defendant, himself, had no right to the information of the witness except that which he, voluntarily and fairly, was willing to give. If counsel for the defendant abuses his right in obtaining the true and voluntary statement of a witness with reference to the facts deemed relevant upon the trial of the case then such counsel is amenable to the statutes of this State prohibiting the bribery, or intimidation, of witnesses and other specified improper conduct in connection therewith. It is therefore the opinion and judgment of this court that the trial court committed reversible error and abused its discretion in imposing upon defendant the right to confer with the witness upon the sole condition that the State’s solicitors be present at such conference.”

A party does not have the right either personally or by his attorney to confer with any and all witnesses at any and all periods of time and under any and all circumstances during .the trial of a case. To promote reasonable progress .and promptness, guard against disorder and disturbances in the premises surrounding the courtroom, protect inexperienced witnesses against injustice and misunderstanding, particularly witnesses who are not sui juris, discretion is vested in the trial court to make reasonable restrictions as to the time, place and circumstances under which counsel may confer with witnesses during a trial. For instances, it was held in Hudson, et al. v. State, 137 Ala. 60, 34 So. 854 (1902):

“As Alice Ware, a witness for defendants, was getting on the witness chair, defendants’ counsel for Hudson and Jones stated that he had not had an opportunity to talk to the witness, and asked to be allowed to speak to her privately before examining her, but the court declined to allow him to do so. This was a matter within the discretion of the court, and there does not appear to have been any abuse of its discretion.”

And in Veith v. State, 48 Ala.App. 688, 267 So.2d 480, 486 (1972), it was held that “due to the child’s tender years” and “emotional stress” he need not “be subjected to an interview just prior to the inception of trial.”

Many special circumstances in which the trial court was upheld in the exercise of its discretion in declining to permit counsel to talk with witnesses at particular moments, places and under special circumstances are to be found at 23 C.J.S. Criminal Law § 1025.

Even though we inwardly feel that there must have been some good reason in the mind of the trial court for restricting defendant’s counsel to such an extent that he could not talk with witnesses subpoenaed by the State unless and until he had obtained the permission of the trial court to do so, we look to the record in vain for such reason. There are good reasons, we think, to the contrary. The established right and duty of an attorney to talk with witnesses, even witnesses against his client, may be weakened by any condition that would require a report thereof or request therefor to be made to anyone, which is not justified in the absence of a countervailing reason for the restriction. Furthermore, an attorney for a party in a hotly contested case, whether at recess or not, whether overnight or not, can well have a notion in the interest of his client’s cause to talk to a particular witness, face to face or by telephone, on the sidewalk, or1 at the place of business of the witness, any of which could be at a time when access to the ear of the. court is not readily available. A denial of his usual right to talk with the witness could be a serious detriment to the cause of his client. In addition, we point out that the right of an attorney to interview a witness should not be impaired by any occasional right of the opposing attorney to be informed of the interview. Whether under the restriction imposed by the court, counsel would have been informed of the request of defendant’s counsel is not shown. The absolute impartiality of the trial judge is demonstrated by his placing the same restriction upon State’s counsel as he did upon defendant’s counsel, but even so, it either encouraged ex parte communications between counsel and the court or it permitted each counsel to be informed of what opposing counsel was doing as to the matter, which would give opposing counsel information to which he^ was not entitled unless otherwise obtained.

The question now under consideration is not to be confused with that of whether a defendant may obtain an order permitting or requiring a witness for the prosecution to allow defendant’s attorney to interview him. The latter question is largely embraced, as shown by the numerous authorities cited, in the statement in 23 C.J.S. Criminal Law, 1025, p. 1104:

“There is authority for the view that the trial court, in the exercise of a sound discretion, may refuse to permit accused or his attorney to interview witnesses for the prosecution.”

A review of the several authorities cited discloses various special circumstances, such as the untimeliness of the request for an interview with the witness. In some, special problems attendant upon a desire to interview witnesses in custody of the government were involved. In others, the problem for the trial court to determine involved a contest between a desire of the witness not to be questioned by defendant’s counsel and that of defendant or his counsel to interview the witness. There seems to be an abundance, if not a plethora, of cases in which the trial court has been affirmed in upholding the superior right of the witness not to be interviewed against his will, as well as in a variety of situations in which the trial court would not permit an interview by reason of the time, place, circumstances or peculiar status or situation of the witness. We find no case, however, in which there has been an approved blanket denial of defendant’s right to talk with witnesses for the State, none in which it was held that defendant could not talk with witnesses for the State unless first requesting and obtaining the consent of the court to do so. A defendant’s attorney has the right to talk with a willing witness, without first obtaining permission of the court. A denial of that right in the absence of any apparent reason therefor is out of the range of the discretionary functions of the court.

The record is free of any statement or inference that the witnesses for the State were unwilling for defendant’s counsel to converse with them. Contrary to the spirit of the principle that an attorney has the right to talk with willing witnesses, the court instructed the witnesses, “Don’t under any circumstances talk to anybody. Not only that, as far as the evidence part of the case, stay away from the people on the other side of the case.” Although no reason was given for the instructions, the court’s ruling was plain. The witnesses for the State could talk freely with State’s counsel; they could not talk with defendant’s counsel unless and until permission of the court was given. Why that distinction? The witnesses were the property of neither the State nor the defendant. The law was correctly stated in defendant’s exception: “I except to it because I have a right to talk to them without the consent of the court.”

The witnesses testifying for the State as to what occurred on the occasion of the homicide were a close friend of the dé-ceased and a brother of the deceased. Another brother of the deceased, the operator of Marco’s, where the homicide occurred, was present at the time of the homicide and was present in court as a witness. Defendant himself was the only witness for defendant who testified as to what occurred on the occasion of the homicide. Two additional witnesses testified for the State on rebuttal that on the day of the homicide the defendant and one George Smith tried to start a fight with them.

As previously stated, the testimony of defendant was to the effect that he was so intoxicated and so injured by being knocked down by the deceased that he did not have a good recollection of what occurred thereafter. It would be difficult to imagine a case in which an attorney could receive as little aid from his client in attempting to defend him, one in which the responsibility rested more heavily upon the attorney’s shoulders to do what he could, at every opportunity presented, to interview State’s witnesses as to what occurred. The restriction upon his right to do so over a period of two days and two nights could have well meant the difference between a verdict of murder in the second degree and a verdict of manslaughter in the first degree. The jury was in its province in finding the former, but freedom of a capable attorney to talk with the witnesses would certainly have put him in a better position to obtain honorably the best result possible for his client. The court was in error in its restriction upon that right.

For the error indicated, the judgment of the trial court should be reversed and the cause remanded for another trial.

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

REVERSED AND REMANDED.

All the Judges concur.

TYSON, J., concurs specially with opinion in which DeCARLO, J., joins.

TYSON, Judge,

concurring.

I concur in the principal opinion of this Court in this cause as prepared by the Honorable Leigh M. Clark.

As noted in the principal opinion, counsel for a criminal defendant is under a duty and obligation to seek out witnesses and endeavor to talk with them concerning the facts out of which a given case arose.

However, there is a counter balancing right, as noted also in the principal opinion, on the part of each witness to refuse to be interviewed by counsel or to otherwise talk with an attorney, or other party, seeking to interrogate such witness.

Several cases pointing out that a witness need not be subjected to an interview or required to speak with counsel before trial are cited in this Court’s opinion in Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (1972).

DeCARLO, J., joins in the above.

      . Ala.Code 1975 does not repeal “statutes which relate to or apply to only one county.” Ala.Code 1975, § 1-1-10.


text:
    Ex parte State of Alabama ex rel. Attorney General. (Re Blanchard Woodrow GRIFFIN, Jr. v. STATE of Alabama).
    79-462.
    Supreme Court of Alabama.
    May 30, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    Charlie McGEE, alias v. STATE.
    3 Div. 129.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.
    James R. Cooper, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Robbery; sentence: thirty-five years imprisonment.

The State’s evidence showed that on or around 8:20 p. m. on January 10, 1979, the appellant along with an accomplice entered the Spruce Street Majik Mart in Montgomery and robbed Mr. Bob Enwright, the store clerk, of approximately $127. The defense was that of alibi. A conflict between the State’s case and the appellant’s alibi presents a question for the jury. Crow v. State, Ala.Cr.App., 365 So.2d 1254 (1978), cert. denied, Ala., 365 So.2d 1256.

At the end of the State’s case in chief, counsel for the appellant orally moved to exclude the State’s evidence without assigning any specific grounds therefor. The trial court commits no reversible error in overruling a motion to exclude evidence where no grounds are assigned. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); Skelton v. City of Birmingham, Ala.Cr.App., 368 So.2d 877, cert. denied, Ala., 368 So.2d 880 (1979). In addition, the appellant did not request either the affirmative charge or file a motion for a new trial challenging the sufficiency of the evidence. Lewis v. State, Ala.Cr.App., 372 So.2d 882, cert. denied, Ala., 372 So.2d 885 (1979); Sprinkle v. State, Ala.Cr.App., 368 So.2d 554, cert. denied, Ala., 368 So. 565 (1978).

I

The appellant contends he should have been provided counsel at his preindictment lineup,and failure to do so violates his Sixth Amendment right to assistance of counsel. Consequently, he contends the victim’s in-eourt identification should have been suppressed. The appellant’s contention is without merit. A preindictment lineup is not a stage of an adversary judicial criminal proceeding at which the right to counsel attaches as defined in Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). See also: Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Hammons v. State, Ala.Cr.App., 371 So.2d 986 (1979).

II'

Appellant asserts that the victim’s in-court identification of him was tainted by an impermissibly suggestive photographic array and lineup. Consequently, he contends that the trial court should have suppressed any evidence and testimony concerning the identification.

A

Officer R. D. Mobley, of the Montgomery Police Department, testified that on January 24, 1979, he carried eight black and white photographs to the victim informing him that some suspects were in the array and requested him to look at them to see if he recognized anyone. The victim identified the appellant and one other. The photographs were of the same size and clarity with no distinguishing features suggestive that the appellant was the guilty party.

After a complete review of the photographic array and the testimony concerning such, we find nothing impermissibly, suggestive so as to taint the in-court identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Jackson v. State, Ala.Cr.App., 361 So.2d 1152 (1977); Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976). Consequently, we find no error in the trial court’s denial of the appellant’s motion to suppress on this ground.

B

Appellant also contends that the lineup viewed by the victim on January 27 tainted his in-court identification in that the appellant was the tallest member of the lineup and was intentionally placed in the middle, of the other participants so as to direct the victim’s attention to him. A photograph taken immediately after the victim identified the appellant, and illustrating the race, physical size, order of participants in the lineup, and clothing worn, was properly introduced into evidence. That photograph indicates nothing improperly suggestive concerning the characteristics of the appellant when compared with those of the other participants in the lineup. Furthermore, the victim in his testimony concerning the lineup stated that his identification occurred instantly as he walked into the room in which it was held. He testified that he could not describe the order in which the participants appeared in the lineup, nor did he pay any attention to the relative heights of the participants.

In view of the totality of the circumstances, we find no impermissible suggestions from the lineup so as to give rise to any substantial likelihood of misidentification. Neil v. Biggers; Jackson, supra. See also: Fletcher v. State, Ala.Cr.App., 337 So.2d 58 (1976). Additionally, we have reviewed the photograph of the lineup and find it not to be impermissibly suggestive. We therefore find the trial court properly denied the appellant’s motion to suppress.

Ill

Appellant contends his statement made to Officers R. D. Mobley and Rick Moore on January 24, and admitted into evidence, should have been excluded on two grounds: (1) that the statement was involuntarily made, and (2) that the interrogation did not cease upon the appellant’s request. Neither of those grounds were specifically raised in the trial court below, and no ruling was obtained on those grounds.

During pretrial discussions with the trial court, the district attorney stated that he was going to introduce physical evidence to which the appellant would possibly object. One of the items would be a sawed-off shotgun, apparently used in the robbery, which was recovered from the home of the appellant’s girl friend. The district attorney stated that he wished to comment on 'the gun to the jury in his opening statements. From the record:

“COURT: Since you express the intent, Mr. Pool, to refer to this weapon in opening statements, I believe, this is the proper time for the presentation of a motion to suppress.
“MR. COOPER: At this time I’d like to move to suppress the piece of evidence, the shotgun.
“MR. POOL: I also intend to present into evidence a statement made by the Defendant in some lineups. If they want to have all that prior to the trial that’s okay.
“COURT: Well, you can make the motion at this time.
“MR. COOPER: I would also ask that the lineup identification or photograph identifications or written or oral statements taken from Mr. Charlie McGee be suppressed.”

Counsel for the appellant stated no grounds in support of his motion. At no time during the testimony of the officers during the pretrial hearing did counsel object to the voluntariness predicate; neither did the trial court rule on that issue. The trial court’s final ruling, without any objection, was that “I’ll permit you to make reference to it in opening.” (Apparently referring to the shotgun.)

Again during the trial both officers testified as to questioning the appellant. The appellant’s statement, State’s Exhibit No. 8, was received into evidence without objection. Review on appeal is limited to matters on which rulings are invoked at the trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974); Mitchell v. State, Ala.Cr.App., 338 So.2d 524 (1976). In addition to there being no specific ground set out for suppression, no objection on introduction, and no ruling by the trial judge, the appellant’s statement to the police officers was not incriminating, but was exculpatory in nature. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1975), cert. denied, 295 Ala. 414, 327 So.2d 740 (1976); Glover v. State, Ala.Cr.App., 347 So.2d 592 (1977).

IV

Lastly, appellant contends that the introduction into evidence of the shotgun was improper in that it was the product of an illegal search and seizure. We are unable to find in the record where the shotgun was actually introduced and received into evidence. The arguments of both the appellant and the State presume its introduction. Counsel for appellant likewise moved to exclude the shotgun from evidence “as being the fruit of an illegal search and seizure, and there was no valid consent to search this house.” The trial court denied that motion. In any event, the appellant had no standing to raise the search and seizure issue. Fourth Amendment rights are personal rights which may not be vicariously asserted. He may not assert that a violation of the Fourth Amendment rights of a third party would entitle him to have the fruits of that search suppressed at his trial. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); McCraney v. State, Ala.Cr.App., 381 So.2d 102 [Ms. February 26, 1980]. Likewise, consent to search is a valid exception to the warrant requirement. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). This was a “consent” search.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Charlie McGEE, alias Joe McGee. (Re Charlie McGee, alias v. State of Alabama).
    79-460.
    Supreme Court of Alabama.
    May 30, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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