author: MADDOX, Justice.

text:
    CENTURY PLAZA COMPANY, a general partnership v. HIBBETT SPORTING GOODS, INC., a corporation.
    78-562.
    Supreme Court of Alabama.
    March 21, 1980.

      James N. Brown, III, Birmingham, for appellant.
    Jesse A. Keller of Keller & Cochran, Florence, for appellee.
   MADDOX, Justice.

This appeal involves a shopping center lease and a dispute between the parties over what agreement was reached regarding “common area maintenance.” The essential facts are:

Century Plaza, through its agent, Engel Realty, presented to Ira Hibbett several proposed leases during a two-year period prior to the opening of the Century Plaza Mall in Birmingham in August, 1975. Century aggressively solicited Hibbett to open a sporting goods store in its facility. Section 28 of those proposed leases provided that a charge of thirty cents per square foot would be levied on the tenant for common area maintenance. Hibbett refused to enter into an agreement with Century Plaza at that time.

On September 29,1975, negotiations were resumed and Engel Realty proffered to Hibbett a proposed lease. Hibbett claims that he asked one Bennett, agent of Engel Realty, whether Section 28 was unchanged from the earlier proposed leases, and that he was assured by Bennett there was no change, whereupon, he signed the lease without reading the contested section. Bennett says he told Hibbett that he would still be charged thirty cents per square foot, but Bennett contends he was not asked whether Section 28 had been changed in the new lease. The lease Hibbett signed exempted the square footage of several of the major department stores in the mall from the formula of calculating the common area maintenance charge; therefore, Hibbett’s obligation for common area maintenance was substantially higher than his obligation would have been under the leases proffered to him previously.

The trial court heard the testimony ore tenus and found that Engel’s agent made a material misrepresentation to Hibbett, upon which Hibbett relied to his detriment. The court found Engel’s conduct to be inequitable, unconscionable and fraudulent. The court denied Century Plaza any relief on its declaratory judgment suit. The trial court reformed the lease so that the text of Section 28 as set forth in the proffered lease which was originally discussed with Hibbett was substituted for that in the executed lease. In effect, the court granted Hibbett the relief he requested in his counterclaim.

On appeal, counsel for Century Plaza contends that because Hibbett had ample opportunity to review for himself the contents of the questioned instrument, he may not now complain that the instrument does not represent the agreement consummated by the parties.

It is true generally that where a party, having the ability to read and understand an instrument, fails to do so, and signs it without reading it, he cannot avoid the obligations embodied in the instrument by pleading ignorance of its contents. A party is not bound, however, if fraud was practiced upon him. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 260, 266 So.2d 865 (1972).

The record adequately supports the finding of the trial court that fraud was practiced on Hibbett. The court could have found that Hibbett asked whether Section 28 remained unchanged from the earlier proposed leases, and was assured that it was the same, and that he relied on that representation to his detriment by executing the proffered lease without reading the subject section. Since this was an ore tenus case, the findings of fact made by the trial judge are favored with a presumption of correctness and his finding will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Tanner v. Winfield, 365 So.2d 651 (Ala.1978).

The second question presented is whether the trial court committed reversible error in refusing to permit Century Plaza, as plaintiff, to introduce Hibbett’s deposition. The record indicates that when Century Plaza’s counsel asked the court the accept Hibbett’s deposition into evidence, an objection was made and a colloquy ensued between the court and counsel regarding the state of the law regarding the use of depositions at trial. The record shows that the following occurred:

“MR. BROWN: And we also offer Mr. Hibbett’s deposition into evidence.
“MR. HARRIS: I don’t think that’s proper, Judge.
“MR. BROWN: Sure, it is.
“MR. HARRIS: Not proper to offer a man’s deposition when he’s sitting right here in the courtroom.
“MR. BROWN: I believe the rule is presently that a deposition of a party may be used for any purpose whatsoever.
“THE COURT: Well, that’s true, but of course, when the witness is in the courtroom, why, he’s subject to examination by both parties, and — I don’t know, it might shorten the matter if you took his deposition. Is there something in there you want to object to?
“MR. KELLER: No, sir, I just object to it at this time. We’ve got a very confusing Supreme Court case on that, as you know, about it.
“THE COURT: I sure do.
“MR. KELLER: And I have it on appeal right now, and all the other cases say that . . . rule does not apply if he’s
sitting there or if it’s redundant, or if it contains objectionable testimony, that that statement . . . offered for any
purpose — can be put for any purpose don’t [sic] make sense, and we do object to it. He’s sitting here at this time.
“THE COURT: Well, I’ll have to sustain the objection.
“MR. BROWN: All right,„Your Honor.
“THE COURT: That’s as much for your protection as it is for his.
“MR. BROWN: Yes, sir.”

Century Plaza has not designated the contested deposition as a part of the record on appeal; therefore, we do not have the deposition before us to determine whether Century was prejudiced by its exclusion from the evidence. We do know from the record, that in the instant case, Century’s counsel, during cross-examination, made extensive use of Hibbett’s deposition in cross-examining him.

Century Plaza cites Southern Guaranty Insurance Company v. Scott, 52 Ala.App. 641, 296 So.2d 730 (1974), and Cunningham v. Lowery, 45 Ala.App. 700, 236 So.2d 709 (1970), for the proposition that it is reversible error for a court to exclude a deposition of a party.

In Southern Guaranty Insurance Company v. Scott, the Court of Civil Appeals did hold that the exclusion of the deposition in that case was reversible error; nevertheless, the Court of Civil Appeals correctly cited Wright & Miller, Federal Practice and Procedure, Civil, § 1245, which deals with Rule 32(a)(2) of the Federal Rules of Civil Procedure, as follows:

“ ‘This provision must be liberally construed. The trial court has discretion to exclude parts of the deposition that are unnecessarily repetitious in relation to the testimony of the party on the stand, but it may not refuse to allow the deposition to be used merely because the party is available to testify in person. “It has been consistently held that the Rule permits a party to introduce, as part of his substantive proof, the deposition of his adversary, and it is quite immaterial that the adversary is available to testify at the trial or has testified there. Thus applied, the Rule is a restatement of the long recognized rule of evidence that statements of a party which are inconsistent with his claim in litigation are substantively admissible against him.” (Citations omitted)’ ”
52 Ala.App., at p. 644, 296 So.2d at p. 732.

By quoting from Wright and Miller, we believe the Court of Civil Appeals was aware that the failure to admit the deposition of a party does not necessarily and inevitably result in reversible error under all circumstances. Alabama Rule 32 is patterned after Rule 32 of the Federal Rules of Civil Procedure and this Court has adhered to the decisions of the federal courts which construe this rule. For example, in Duna-hoo v. Brooks, 272 Ala. 87, 128 So.2d 485 (1961), this Court relied on the opinion of Judge Learned Hand in Pfotzer v. Aqua Systems, Inc., 162 F.2d 799 (2d Cir. 1947), in reaching its conclusion that the deposition of a party was admissible as evidence even though the deposed party was present in court. In Pfotzer, there were other grounds to justify the reversal of the case, namely, failure to charge the jury, exclusion of a prior conviction, and the exclusion of certain correspondence and documents; therefore, Pfotzer cannot be considered to stand for the blanket proposition that the failure to admit the deposition of a party constitutes reversible error under all circumstances. Accordingly, the Alabama eases which follow the Pfotzer statement cannot be deemed to stand for the proposition that reversible error necessarily results from the refusal to admit a deposition into evidence in every instance.

The colloquy between the trial judge and counsel seems to indicate that the trial judge understood that the entire deposition of a party is not necessarily relevant. Century’s counsel answered affirmatively when the trial judge said: “That’s as much for your protection as it is for his.” The trial judge could only have meant that the Hib-bett deposition could contain evidence extremely favorable to Hibbett and damaging to Century.

In view of the fact that there might be some confusion in the cases regarding the circumstances under which the deposition of a party may be used, we here attempt to clearly state the rule which should be applied.

First, the provision of Rule 32 that the deposition of a party “may be used by an adverse party for any purpose” must be liberally construed. The rule permits a party to introduce, as part of his substantive proof, the deposition of his adversary, and it is quite immaterial that the adversary is available to testify at the trial or has testified there. Nevertheless, the trial court has discretion to exclude parts of the deposition that are unnecessarily repetitious in relation to the testimony of the party on the stand, but it may not refuse to allow the deposition to be used merely because the party is available to testify in person. The failure of the court to admit the deposition of a party does not necessarily and inevitably result in reversible error. Any case previously decided by this Court or by the Court of Civil Appeals which might conflict with this statement of the rule should no longer be followed.

In the instant case, the trial court should have permitted Century Plaza to introduce in evidence all or part of Hibbett’s deposition “so far as admissible under the rules of evidence applied as though the witness were then present and testifying . . . .” Rule 32, A.R.C.P. If Century Plaza wanted to introduce those parts of Hibbett’s deposition which might have been favorable to Hibbett, Century Plaza had this right; but was it reversible error for the trial court to refuse to allow Century Plaza to introduce the deposition at that time? We do not think so. In several federal cases involving the application. of federal Rule 32, those courts have concluded that the failure to admit the deposition of a party is merely harmless error, particularly in those situations, as in the instant case, where the party has testified and the deposition is used extensively during cross-examination. Cf., Merchants Motor Freight v. Downing, 227 F.2d 247 (8th Cir. 1955); J. W. Bateson Company v. Romano, 266 F.2d 360 (6th Cir. 1959); Pursche v. Atlas Scraper and Engineering Co., 300 F.2d 467 (9th Cir. 1962); Fey v. Walston & Company, Inc., 493 F.2d 1Ó36 (7th Cir. 1974); Fenster-macher v. Philadelphia National Bank, 493 F.2d 333 (3d Cir. 1974); and, Pingatore v. Montgomery Ward & Co., 419 F.2d 1138 (6th Cir. 1969).

From the record before us, we cannot say whether the trial court committed reversible error by refusing to allow counsel for Century Plaza to use all or part of Hibbett’s deposition. Century Plaza did not designate Hibbett’s deposition as part of the record on appeal; therefore, we do not have it available to us for consideration of appellant’s claim that the trial judge committed reversible error in failing to accept it into evidence. 2 Ala.Dig., Appeal and Error, Key No. 712. We do note that counsel for the shopping center did use the deposition extensively in cross-examining Hibbett.

The record in this case points up what may be a misconception by bench and bar about the procedure for using a deposition during trial. Unless there is agreement to allow the document itself into evidence, the proper method for getting relevant, material and competent evidence contained in a deposition before the factfinder is as follows:

The examining attorney would obtain the services of an individual who would act as the deponent; as the examining attorney read the questions from the deposition, the individual acting as the deponent would read the answers given by the deponent. When this method is used, the opposing party would have an opportunity to object to any irrelevant, immaterial or incompetent evidence. In no event, unless by agreement of the parties, should the deposition itself be admitted into evidence as an exhibit, whether the trial is before the court without a jury or before the court and a jury.

AFFIRMED.

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

BLOODWORTH, J., not sitting.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Melba Till ALLEN v. STATE.
    3 Div. 949.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      Richard D. Horne and James E. Atchison of Hess, Atchison & Stout, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., James F. Hampton, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of violating the Alabama Code of Ethics for Public Officials pursuant to the provisions of Section 36-25-1, et seq., Code of 1975, as last amended, being Act No. 130, Regular Session, 1975. She was sentenced to one year in the penitentiary which sentence was to run concurrently with the three year sentence imposed upon her in a previous conviction under another specific provision of the Ethics Statute. That conviction was affirmed by this court on November 20, 1979.

Omitting the formal parts, the indictment reads as follows:

“The Grand Jury of said County charge that, before the finding of this indict-merit, Melba Till Allen, whose name is to the Grand Jury otherwise unknown, on or about to-wit: the 2nd day of May, 1977 in a statement of economic interests required to be filed by the said Melba Till Allen with the Alabama State Ethics Commission on a form provided by the said State Ethics Commission, pursuant to the provisions of Act 130, Regular Session of the Legislature of Alabama, 1975, did feloniously fail to list her indebtedness to banks operating or doing business in the State of Alabama in that, to-wit: the said Melba Till Allen did swear or affirm that as of December 31, 1976 she was indebted to nine (9) such banks for amounts less than Twenty-Five Thousand and no/100 ($25,000.00) Dollars and that she was indebted to one (1) such bank in an amount exceeding Twenty-Five Thousand and no/100 ($25,000.00) Dollars but less than Fifty Thousand and no/100 ($50,000.00) Dollars, and that she was indebted to one (1) such bank in an amount exceeding Fifty Thousand and no/100 ($50,000.00) Dollars but less than One Hundred Thousand and no/100 ($100,-000.00) Dollars and that she was indebted to one (1) such bank in an amount of One Hundred Thousand and no/100 ($100,-000.00) Dollars or more, when, as of December 31,1976, the said Melba Till Allen was indebted to such banks in amounts as follows, to-wit:
OUTSTANDING INDEBTEDNESS AS OF DECEMBER
BANK 31,1976
Alabama City Bank of Gadsden $ 10,000.00
Alabama National Bank of Montgomery 47,963.00
Auburn Bank and Trust Company 7,329.63
Bank of Huntsville 5,180.41
Bank of the Southeast 50,000.00
Brent Banking Company 10,060.25
Cahaba Bank and Trust Company,
Inc. 8,682.01
Central Bank of Birmingham 11,904.48
Central Bank of Montgomery 15,000.00
Central Bank of Uniontown 70,000.00
Cherokee County Bank 7,814.00
Citibanc of Alabama/Fultondale 15,000.00
First National Bank of Greenville 2,412.09
The Citizens Bank, Oneonta 59,000.00
OUTSTANDING INDEBTEDNESS AS OF DECEMBER
BANK 81,1976
The Citizens Bank, Prattville 25,208.96
The City National Bank 15,810.00
First Bank of Macon County 20,043.83
First Alabama Bank of Gadsden, N.A. 4,763.68
The First National Bank of Autauga County 13,530.59
The First National Bank of Florence 5,500.00
The First State Bank of Altoona 10,098.05
The First State Bank of Lamar County 9,389.39
The Fort Deposit Bank 40,115.75
The Greenville Bank 2,843.45
Luverne Bank and Trust Company 3,866.00
MetroBank 30,000.00
Merchants National Bank 19,000.00
National Bank of Commerce of Birmingham 15,237.32
The Peoples Bank of Carrville 9,285.30
Peoples Bank of Tuscaloosa 6,000.00
Pike County Bank 11,764.95
Shelby State Bank 8,758.42
Southern National Bank 5,783.63 Southern Bank, Ñ.A. 500,000.00
Union Bank & Trust Co. 51,104.54
Wilcox County Bank 100,650.00
against the peace and dignity of the State of Alabama.”

The evidence presented by the State showed that appellant did not correctly complete the “Statement of Economic Interests” on the form furnished her by the State Ethics Commission. This form included a Statement of Indebtedness to Banks, Credit Unions and Savings and Loan Associations, Insurance Companies, Mortgage Firms, Stock Brokers, Other Businesses (credit card indebtednesses), and Individuals. Appellant signed the form on April 29, 1977, and it was received by the Commission on May 2,1977. The form expressly required a report of debts owed to all businesses operating in Alabama on December 31 (1976) including debts of the spouse and dependent children.

The statement of indebtedness is required pursuant to the provisions of Section 36-25-14, Code of 1975. This section further provides, in part, “In the event that said information required herein is not filed as required, the Commission shall notify the public official or employee concerned as to his failure to so file and the public official shall have 10 days to file said report after receipt of said notification.

“(b) After the original filing of the above prescribed statement(s), each person shall make additional subsequent filing within 90 days after the termination of each succeeding reporting year . . . ”

It was stipulated that appellant was the State Treasurer at the time she filed the financial statement for the year ending on December 31, 1976. The financial statement filed by Mrs. Allen revealed that she was indebted to a total of 12 Alabama banks.

The State then proceeded to call witnesses to prove the allegations of the indictment to show that Mrs. Allen was individually or jointly indebted to 36 banks instead of 12 banks as she reported on her disclosure statement. The first witness was Mary McDaniel who testified that she was employed by the Alabama City Bank of Gadsden, Alabama, and was custodian of the records of that bank. She stated that appellant and her husband executed an unsecured note to the bank in the year 1976 in the amount of $10,000.00. This note was given and accepted by the bank as security on a note made to the bank by D. E. Lock-lear and wife, Bette Locklear, who had defaulted on the payment of the note. The note executed by Mrs. Allen and her husband was outstanding on December 31, 1976. Appellant failed to disclose this indebtedness to the State Ethics Commission. Ms. McDaniel further testified that, on the date of appellant’s trial, there was an outstanding balance due on this note in the amount of $8,890.00. The note was introduced into evidence.

Mr. Hugh Webb testified that he was the Drive-In Manager and Custodian of the records of the Cherokee County Bank, Centre, Alabama. He stated that appellant was personally liable on a note to the bank on October 14, 1976, in the amount of $7,814.00. The note was unsecured and at the .time of appellant’s trial the note was not due and the balance was still $7,814.00. The loan records were introduced into evidence.

Mr. Donald G. Henderson stated that he was the Custodian of the records at the City Bank of Alabama, Pultondale, Alabama. He said that Mrs. Allen executed an unsecured note to the bank in the amount of $15,000.00 and this indebtedness was outstanding on December 31, 1976. The note was introduced into evidence.

Mrs. Jo Karen Parr testified that she was an attorney with an outstanding law firm in Montgomery and a Certified Public Accountant licensed to practice accounting by the State Board of Public Accountants in the State of Alabama. Also she is a part time Deputy District Attorney for Montgomery County and has been serving in that position since May 1, 1978. It was the duty of Mrs. Parr to examine all the notes and bank records of the various banks to which appellant was indebted during the year 1976 and had failed to list on the disclosure statement filed with the Ethics Commission. A great number of these notes and records had been subpoenaed at the instance of the Montgomery Grand Jury. Her testimony on direct examination covered some 40 pages in the transcript. We will summarize her testimony for the sake of brevity.

Mrs. Parr stated that she found four notes signed by Mrs. Allen to the Alabama National Bank of Montgomery which were outstanding on December 31, 1976. These notes and bank records were identified by State’s exhibit numbers and introduced into evidence but we see no useful purpose in mentioning the exhibit numbers. There was one note in the amount of $5,000.00 and one in the amount of $6,500.00, both of which were unsecured. There was one note in the amount of $35,000.00 executed by Randy E. Allen, Marvin E. Allen, and Melba Till Allen. This note was secured by 508 shares of stock in the Keith Williams Corporation, a contracting firm owned by the Allen family. There was another note in the amount of $2,556.00 signed by Mrs. Allen alone and it was unsecured.

There was an unsecured note, signed by Melba Till Allen, to the Auburn Bank and Trust Company, Auburn, Alabama, in the amount of $7,329.63. This was a renewal note dated June 15, 1976.

There was an unsecured note in the amount of $5,475.51, signed by Melba Till Allen, to the Bank of Huntsville, Huntsville, Alabama. This note was outstanding on December 31, 1976.

Mrs. Parr viewed the bank records of the Bank of the Southeast in Birmingham, Alabama, and ascertained that Mrs. Allen was indebted to that bank in the amount of $50,000.00 as evidenced by an unsecured note which was outstanding as of December 31, 1976. The note was dated November 5, 1976.

This witness viewed the records of the Brent Banking Company in Brent, Alabama, and found that Mrs. Allen had executed an unsecured note to that bank in the amount of $10,060.25 which was due at the year end of 1976.

Mrs. Allen signed an unsecured note to the Cahaba Bank and Trust Company in the amount of $10,000.00. The unpaid balance on this note as of December 31, 1976, was $8,682.01.

Mrs. Allen was indebted to the Central Bank of Birmingham on a note in the face amount of $8,250.00 which was outstanding on December 31, 1976. The bank records reflected there was a second note in the amount of $15,000.00 signed by Mrs. Allen and Virginia Suggs. Both notes were unsecured and were due and payable as of December 31, 1976.

The records of the Central Bank of Un-iontown, Alabama, reflected there was a promissory note executed by Melba Till Allen, Marvin E. Allen, Mary H. Nolen and Wilbur B. Nolen in the amount of $70,-000.00. This note was secured by a real estate mortgage and was outstanding on December 31, 1976.

Mrs. Parr examined the records of the First National Bank of Greenville, Georgia-na Branch, and found a secured note on the real estate executed by Marvin E. Allen and Mrs. Marvin E. Allen. The balance due and owing on this note as of December 31,1976, was $2,412.09.

A review of the records of the Citizens Bank of Oneonta, Alabama, reflected a note signed by Melba T. Allen and Marvin E. Allen, in the amount of $59,000.00. This note was secured by a real estate mortgage and was unpaid as of December 31, 1976.

A promissory note was executed by Melba Till Allen to the Citizens Bank of Pratt-ville, Prattville, Alabama, dated December 30, 1976, and secured by a 1973 Kenworth Tractor and a 1967 Hardy Trailer with a 1975 Model Box. Mrs. Allen was solely liable on this note. The balance due and owing on December 31, 1976, was $25,-208.96.

Mrs. Allen signed a promissory note to City National Bank of Sylacauga, Alabama, dated November 15, 1976, in the amount of $15,810.00. This was an unsecured note and the note was outstanding on December 31, 1976.

Mrs. Parr further testified that the First Bank of Macon County was no longer in existence and the F.D.I.C. had custody of their loan records. She went to the F.D.I.C. Liquidator’s Office in Notasulga and reviewed the loan records there. She stated, “This is a note and ledger card. The note is dated August 26, 1976. The amount of the note is $20,043.83. The note is signed by Melba Till Allen.” The note is unsecured and was due and unpaid on December 31, .1976.

Mrs. Allen signed a $5,000.00 note to the First City National Bank of Gadsden, Alabama, dated June 27, 1972, payable on demand. It was an unsecured note and the outstanding balance on December 31, 1976, was $4,753.68.

Mrs. Allen signed a note to the First National Bank of Autauga County, dated October 5, 1976, in the amount of $13,-530.59. The note was unsecured and the face amount of this note was due and unpaid on December 31, 1976.

Mrs. Allen executed a note payable to the First National Bank of Florence, Alabama, in the amount of $5,500.00, dated August 25, 1975. The note was unsecured and the amount was due and unpaid on December 31, 1976.

An unsecured note in the face amount of $12,000.00 was signed by Mrs. Allen to The First State Bank of Altoona on September 12, 1972. As of December 31, 1976, the unpaid balance was $10,098.05.

A note signed by Marvin E. Allen and Melba Till Allen payable to The First State Bank of Lamar County, dated March 18, 1975, in the amount of $17,300.00, was secured by a 1973 White Freight Liner Truck and a 45 foot Hoffer Trailer. The outstanding balance on this note as of December 31, 1976, was $9,389.39.

Two promissory notes, $10,000.00 and $30,000.00 respectively, were executed by Mrs. Allen alone to The Fort Deposit Bank on August 18, 1976. These two notes were secured by a mortgage signed by Melba Till Allen and Marvin E. Allen. According to the testimony of Mrs. Parr, “The ledger card reflects that $40,115.75 is due and owing as of December 31, 1976.”

An unsecured demand note in the amount $2,843.45 was executed by Melba Till Allen to the Greenville Bank and this same amount was outstanding and unpaid, according to the bank’s loan records, as of December 31, 1976.

The general liability ledger of the Lu-verae Bank and Trust Company reflected that as of December 31, 1976, Mrs. Allen owed the bank $3,866.57. The note originally signed by Mrs. Allen was repaid on October 25, 1977.

An unsecured note in the amount of $30,-000.00 was executed by Melba Till Allen and Louise Nolen to the MetroBank of Birmingham on October 1,1976. The note was outstanding and unpaid as of December 31, 1976.

Mrs. Allen signed an unsecured note in the amount of $19,000.00 payable to The Merchants National Bank of Mobile on November 9, 1976. This was her indebtedness alone and this sum was unpaid on December 31, 1976.

A promissory note in the sum of $15,-237.32, payable to the National Bank of Commerce of Birmingham, was executed by Melba Till Allen on October 18, 1976, and this note was due and payable on January 17, 1977. She was still indebted in this amount on December 31, 1976.

A note signed by Marvin E. Allen and Melba Till Allen, payable to the Peoples Bank of Carville, in the sum of $25,200.00, dated January 24,1975, was secured by one 1973 Kenworth Diesel Tandem Truck and one 1974 40 foot flat trailer. Both Mr. and Mrs. Allen were personally and individually liable on this note. It was not a corporate indebtedness. As of December 31, 1976, there was an outstanding balance on this note in the amount of $9,285.30.

A promissory note, dated November 29, 1976, in the amount of $6,000.00, payable to the Peoples Bank of Tuscaloosa, was signed by Melba Till Allen alone. It was an unsecured note and the entire amount was outstanding on December 31, 1976.

A promissory note dated June 29,1976, in the sum of $7,731.29, payable to the Pike County Bank, was signed by Marvin E. Allen and Melba Till Allen. This note was secured by a 1972 model Mack Truck and a 1972 East Dump Trailer. This was not a corporate obligation. Both Mr. and Mrs. Allen were personally and individually liable on this note.

The Pike County Bank records reflect that an installment note in the original amount of $11,308.52 was executed by Melba Till Allen alone. This note was secured by a 1971 East Dump Trailer equipped with a hydraulic hoist. Mrs. Parr testified that she had not totaled the amounts due and owing on these two notes but both notes were unpaid as of December 31, 1976.

A promissory note, dated July 10,1976, in the amount of $8,500.00 payable to the Shelby State Bank, was signed by Melba Till Allen, alone. It was an unsecured note and on December 31, 1976, there was an outstanding balance of $8,758.42.

A promissory note, dated January 27, 1976, in the amount of $6,262.27, payable to the Southern National Bank of Birmingham, was signed by Melba Till Allen. The note was unsecured and on December 31, 1976, the unpaid balance was $5,783.63.

A promissory note, dated August' 27, 1976, in the amount of $500,000.00, payable to the Southern Bank, N.A., Montgomery, Alabama, was executed by Melba Till Allen, Louise H. Nolen, and Mark Lyons, III, and this note was secured by a real estate mortgage. As of December 31, 1976, this same amount was outstanding.

Mrs. Parr reviewed the loan records of the Union Bank and Trust Company and found three notes that were unpaid and that were outstanding on December 31, 1976. One was an unsecured note, payable on demand, signed by Mrs. Allen, on which there was an unpaid balance in the amount of $4,887.44. There was another note, dated December 3, 1976, in the amount of $24,200.00, executed by Marvin E. Allen and Melba Till Allen. It was secured by the transfer and assignment of a promissory note and mortgage. Mrs. Parr stated she found an installment note on a ledger card which was paid on June 30, 1977. She testified that the indebtedness represented by these three notes was unpaid as of December 31, 1976. These notes and loan records of the bank were introduced into evidence.

Mrs. Parr further testified that she checked the records of the Wilcox County Bank which had closed its banking operations. The records were in the possession of the F.D.I.C. Liquidating Agent. She was asked if these records reflected any loans to Mrs. Allen. She replied, “Yes, sir. The bottom document in the earlier document or the document that we’re most concerned with here. It’s a note dated November 27, 1976. The face amount of the note is $100,-650.00. It is signed by Marvin E. Allen and Melba Till Allen. The note is .unsecured.” This amount was still outstanding as of December 31, 1976.

Mrs. Parr concluded her testimony by saying that she didn’t go to any banks that did not have any outstanding indebtedness on Mrs. Allen. All of the notes, ledger sheets and related bank documents, examined by Mrs. Parr and introduced into evidence, pertained to personal or joint indebtedness to the 36 banks listed on the indictment. Stated another way, none of them involved corporate indebtedness or obligations.

It was the State’s theory that Mrs. Allen filed a false statement on her financial condition to the Ethics Commission, dated April 29,1977, and received by the Commission on May 2,1977, with the avowed intent to deceive and conceal her true and accurate indebtedness from the Ethics Commission; that she did this with an evil intent to hide from the Commission her true financial condition and, ultimately, to prevent the general public from knowing the truth as to her indebtedness. It was the State’s contention that Mrs. Allen concocted a scheme to get several banks in Alabama to issue letters of credit in the sum of $50,-000.00 each, use these letters of credit in an out of state bank, consolidate her indebtedness, and discharge her obligations, so that in the event her disclosure statement was checked it would show she had a clean slate. The record reflects that her scheme was deliberate and willful and her motives were mala in se. If her financial disclosure statement had been truthful, reflecting that she was indebted to State banks in amounts over one million dollars, the wrath of the general public would have swept across this state with hurricane force, leaving her political future in shambles. It was certainly relevant for the State to adduce evidence from which the jury could legally infer her true motives and evil intent.

The State called Mr. H. G. Hayes, President of the American Bank of Geneva, who testified that he met Mrs. Allen in the summer of 1977 at a local motel and from there they went to a local restaurant for dinner. He could not recall the precise date but said it was some time in September. They were accompanied to the restaurant by Mrs. Louise Nolen, Vance Dyar and Mr. John Ward. Mr. Ward was Chairman of the Board of the American Bank of Geneva. Mr. Hayes further testified that the purpose of the meeting was to obtain letters of credit from banks to consolidate loans of Mrs. Allen. He explained that a letter of credit is a commitment from a bank for a loan some time in the future.

State’s Exhibit No. 50 was shown to Mr. Hayes and he identified it as a copy of a letter of credit issued by the American Bank of Geneva to Leisure and Development Properties, Inc., for $50,000.00 on the condition that it would not be used or negotiated, for three years, and stated, “We had a ten day option at that time to negotiate it.” He said it was explained to him in Mrs. Allen’s presence that Leisure Development was to be the medium through which letters of credit would be used at some out of state bank or place to obtain a loan to consolidate other loans. He stated that prior to the issuance of the letter of credit Mrs. Allen had a loan from his bank and her indebtedness was to be paid by a consolidated loan from out of Alabama. It was Mrs. Allen’s loans which prompted the meeting on this occasion and which prompted the issuance of a Letter of Credit by his bank. Mr. Hayes further testified that the $50,000.00 Letter of Credit issued by the American Bank of Geneva was subsequently voided due to “all the publicity about the activities of the Treasurer’s Office.”

Mrs. Allen was not an Incorporator of Leisure and Development Properties, Inc., a corporation. However, she wrote the following letter on August 23, 1977:

“To: Selected Banks of Alabama
“From: Melba Till Allen
“Gentlemen:
“As the holder of this letter, you are hereby guaranteed by me that I accept total responsibility for any Letter of Credit issued by you to Leisure & Development Properties, Inc., according to the terms and conditions of said Letter of Credit.
“I have read and understand the terms and conditions of your Letter of Credit, thus making this letter my personal irrevocable guarantee to pay same.
“Copy of this letter will serve the purpose as the original.
“Sincerely yours,
/s/ Melba Till Allen Melba Till Allen
“MTA:n
“I hereby certify that this is a true and correct copy of Letter of Intent and Mrs. Allen appeared before me this date, August 23, 1977 and voluntarily signed same.
/s/ Louise H. Nolen Louise H. Nolen.”

A copy of the Articles of Incorporation was introduced into evidence as State’s Exhibit No. 53. An examination of this exhibit does not show that Mrs. Allen was an incorporator, officer, director, or shareholder. According to the above quoted letter she became a guarantor to any bank in Alabama issuing a Letter of Credit to such corporation. Certainly some consideration must have accrued to her to issue such a letter of guaranty.

The State called as a witness the custodian of records in the Office of the Judge of Probate to prove the Articles of Incorporation of Leisure and Development Properties, Inc. The Incorporators were Louise Nolen, M. F. Dyar, and Jack Bonner. The date of incorporation was August 31, 1977.

The State introduced into evidence Exhibit No. 51 which reads as follows:

“Route 1, Box 225
Hope Hull, Alabama 36043
August 11, 1977
“To: Selected Banks of Alabama
“From Melba Till Allen
“Gentlemen:
“This letter will introduce Mr. V. C. Dyar, who is assisting me in the formation and combining of various properties owned in part and in whole by me.
“Mr. Dyar will explain in detail the proposed plan of action I am seeking to develop. Any courtesies extended Mr. Dyar on my behalf, and any assistance you might render will be greatly appreciated.
“Yours very truly,
/s/ Melba Till Allen
“MTA:n
“Sworn to and subscribed before me this
11th day of August, 1977.
/s/ Louise H. Nolen Notary Public
“Seal:”

Mr. Melvin G. Cooper, Executive Director of the Alabama State Ethics Commission, explained to the court and the jury the functions of the Commission. He identified State’s Exhibit No. 6 as the Statement of Economic Interests that is required to be completed by April 30th of each year by all elected and appointed public officials of the State and all employees earning $15,000.00, or more. State’s Exhibit No. 6 was the form filed by Mrs. Allen and it was received into evidence without objection. This form includes the spouse and dependent children of the reporting official or employee. The form also includes income from salaries and businesses. Mrs. Allen listed her salary as Treasurer of the State of Alabama, income from Keith Williams, a construction company, Quail Run and PSWALA ATD. Her salary was listed by an “X” mark in the column as being $10,000.00 or more. She put an “X” in the same column as salary from Keith Williams and an “X” in the same column as profits from Quail Run. In the column headed $1,000.00 but less than $10,000.00 she listed PSWALA ATD and noted the income was “fees.”

In column B she listed the following businesses from which she, her spouse .and dependent children received no income: Lou-Mel Corp., Stars Over Alabama, and Ross Ag. Enterprises.

The form requires the reporting person to set out all indebtedness to all businesses operating in Alabama on December 31 of each year for which the report is filed. Mortgages on the home in which the reporting person lives are not to be included. The businesses include banks, loan associations, insurance companies, mortgage firms, stockbrokers, other businesses, and individuals. On this part of the form Mrs. Allen listed 12 banks and one insurance company.

Mr. Cooper testified that he had in his possession a document showing that Mrs. Allen was indebted to a number of banks greatly in excess of 12. In an endeavor to get Mrs. Allen to disclose to the Ethics Commission the true number of banks to which she and her husband were indebted, he wrote her the following letter on September 23, 1977 (State’s Exhibit No. 5):

“The Honorable Melba Till Allen
State Treasurer
State of Alabama
State Capitol
Montgomery, Alabama 36130 “Dear Mrs. Allen:
“We are completing a review of Statements of Economic Interests, filed by officials and certain employees of State, County and Municipal government between January 1 and April 30, 1977. “In this connection, we have received information possibly indicating that through oversight, you did not show the proper number of banks to which you and your husband were indebted as of December 31,1976. Additionally, a question has been raised as to whether you were also indebted to ‘other businesses’ as shown in Item VI of the financial disclosure form. “It is also possible that you have omitted ownership of property in Montgomery County which should be shown in Item IV. I have attached copies of the appropriate pages in the event you wish to amend your Statement of Economic Interests. Of course, if the entries you have previously made are correct, you need only inform us of this fact.
“Finally, we would appreciate a definition of ‘Quail Run’ and ‘PSWALA ATD’ which are shown as sources of income in Item II of the Form. May we hear from you regarding these matters by October 7, 1977?
“Thank you in advance for your cooperation and assistance.
“Sincerely,
Melvin G. Cooper
Executive Director
“MGC/js
“Enclosures”

On September 26,1977, Mrs. Allen replied to Mr. Cooper’s request by the following letter:

“Mr. Melvin G. Cooper
Executive Director
State Ethics Commission
State of Alabama
312 Montgomery Street
Montgomery, Alabama 36104
“RE: Review of Statement
of Economic Interest.
“Dear Mr. Cooper:
“As per your letter with reference to my Hope Hull, Alabama, property, I did not include the house and land in Hope Hull, where we reside. I understood that I was to omit that. However, I will be happy to give you this information if it is required.
“Regarding ‘indebtedness to other businesses,’ we were negotiating with Hawthorne Melody Farms owners for an additional part of Stars Over Alabama, but the negotiations were not finalized until after the reporting time, therefore, I could not truly list it, because it was not finalized.
“I did not realize that I was to include business loans in the top part of the form, but if I was supposed to list all corporate loans, I would have to go into great detail, because Keith Williams Corporation owns many pieces of equipment and grossed over $1.5 million last year.
“ ‘Quail Run’, is defined as a piece of property or a subdivision in Mobile, Alabama.
“ ‘PSWALA, Ltd.’, is an interest in a movie.
“I do not now, or have never owned property in Washington County.
“If I can be of further assistance in clarifying this matter, please advise.
“Sincerely yours,
/s/ Melba Till Allen MELBA TILL ALLEN State Treasurer
“MTA/mb”

It will be noted in this letter that Mrs. Allen did not mention any additional banks to which she or her husband were indebted.

Evidently the news media had learned about Mrs. Allen’s financial problems and began a series of articles concerning them. On October 6, 1977, Mrs. Allen wrote the following letter to Mr. Cooper which was introduced into evidence as State’s Exhibit No. 7:

“Mr. Melvin G. Cooper
Executive Director
State Ethics Commission
312 Montgomery Street
Montgomery, AL 36104
“Dear Mr. Cooper:
“Although corporate loans are not required on our ethics report, I want to disclose them to you in view of the vicious attack by The Birmingham News regarding any person or corporation in which I am involved.
“As the Keith Williams Corporation is a corporation owned completely by my family, some of the loans are endorsed by, or in the name of, my husband, son or me. The Corporate records reveal that these are Corporate loans, and endorsements are an added protection for the lender. “The much publicized ‘Stars Over Alabama’ project is real estate in North Alabama. ■ The loans on this property were already in the banks when I became involved; however, accounts payable loans have been made since.
“On the attached page I have listed loans for the different businesses to the best of my knowledge as of December, 1976. “If you need further information, please let me know.
“Yours very truly,
/s/ Melba Till Allen
MELBA TILL ALLEN
State Treasurer
“MTA:rdf
“Attachment”

To this letter Mrs. Allen attached a statement headed “Keith Williams Trucking Company — Statement of Indebtednesses.” This attachment was not on the copies of the form sent her by Mr. Cooper as mentioned in State’s Exhibit No. 5. This attachment was compiled by Mrs. Allen. On this attachment the number of banks to which Mrs. Allen was indebted was shown to be 17 as opposed to 12 banks shown on State’s Exhibit No. 6. It cannot be ascertained from the attachment if Mrs. Allen was adding 17 additional banks to- which she was indebted or whether she was adding five additional banks. Convinced that Mrs. Allen was not going to cooperate with the Commission in giving full and complete information regarding her financial status the Ethics Commission through the Executive Director wrote Mrs. Allen and requested that she give him and his assistant, Mr. Howard E. McKenzie, blanket authority to review her financial transactions in banks throughout the State. Mrs. Allen wrote a letter to Mr. Cooper giving this authorization. There were about 311 banks in Alabama and all but 101 banks honored the authorization for Mr. Cooper and Mr. McKenzie to examine the loan records pertaining to Mrs. Allen.

As to the banks which refused to cooperate the Commission directed Mr. Cooper to contact the District Attorney to have the grand jury subpoena the records of these banks. This was done and the loan records of these balking banks were delivered to the Montgomery County Grand Jury and Mrs. Allen was indicted for failing to comply with the Ethics Commission in making a true financial disclosure statement as required by law.

Testifying in her own behalf Mrs. Allen said she waited until almost the last minute on the Ethics Report and it was hurriedly done; that she tried to pick out the loans that were strictly personal and she did not realize that she left out some until it was brought out at trial. She said that she couldn’t remember exactly how the loans were titled. She admitted she did not use the copies of the forms sent her by Mr. Cooper, but used a form that she prepared.

On cross-examination she testified that in the short time she had to complete the report she could have made a mistake. She tried to explain that some of the loans could have been for the Keith Williams Company which was owned by her, her husband and son. She stated that there were 17 bank loans made on behalf of the company. She claimed that she listed more loans than were contained in the indictment.

Mrs. Allen testified on direct examination that no “bank or anybody lost one dime” as a result of her actions. The State cross-examined Mrs. Allen in regard to other loans, one from the First Bank of Alabaster and one from the First Alabama Bank of Montgomery. The loan from the First Bank of Alabaster, State’s Exhibit No. 56, concerned a business venture involving a motion picture. The venture was in the form of a limited partnership with Mrs. Allen signing the promissory note as general partner. BAPSH Films, Ltd. was the original name of the venture, but it later became known as PSWALA. The two names were acronyms composed of initials of the parties involved.

Earl Standifer was affiliated with the BAPSH Films, Ltd. venture. He signed three promissory notes in the amount of $16,250.00 each which were used as collateral for the loan from the First Bank of Alabaster. These three notes were introduced into evidence as State’s Exhibit 57.

Under cross-examination Mrs. Allen testified that she represented to Standifer that these notes would be paid “from the earnings of the film.” “I told him that if later down the road if he wanted to sell it there were some other people interested.” Though she did not remember exactly, she stated her words “could have been” to the effect that she would find buyers for Stan-difer’s part of the venture.

The State offered a letter marked State’s Exhibit 58 for appellant to examine. She did so and read the contents of the letter into evidence.

“Dear Melba: Mr. Ned Bearden, President of the First Bank of Alabaster, called me to come in and talk with him regarding the note that I co-signed with you in the name of Bapsh Films, Ltd. It was due August 10, 1977. He stated that the bank examiners said that it had to be either paid off or security made immediately to satisfy them. Please take care of this right away.
“Melba, according to the information in my file, this is not even close to what we initially invested in. Therefore, I want you to sell my part, as you said you could do, just as soon as possible, and clear this matter up with my banker.
“I am looking forward to hearing from you very soon.
“Sincerely, Earl Standifer.”

Mrs. Allen testified that she had not sold Standifer’s share of the venture.

Mrs. Allen further testified that Thelma Eubanks was initially going to buy into BAPSH Films, Ltd., but later changed her mind. The State offered for Mrs. Allen’s examination and subsequently into evidence State’s Exhibit No. 59, a note to the First Alabama Bank of Montgomery, dated May 4, 1976 in the amount of $25,000.00 and signed by Mrs. Allen, Virginia H. Suggs and Thelma Eubanks.

“Q. Then you’re saying that at the time she signed this note that she became a limited partner in BAPSH, Films, Ltd.? “A. She was in the process. I’m not sure. That was her part of it, so I’m not really sure.”

Mrs. Allen stated that at the time Mrs. Eubanks signed the note, “We discussed with her exactly like we did the others .

We just told her about the film. I really couldn’t represent a great deal because I don’t know that much about films.”

Mrs. Eubanks later told Mrs. Allen that she wanted to get out of the venture. Mrs. Allen told Mrs. Eubanks that she would be glad to get her off the note if the bank would let her off. Subsequently, when Mrs. Allen talked to “the bank”, the bank officials were unwilling to release Mrs. Eu-banks from her obligation. Mrs. Allen testified that at some point Mrs. Eubanks was no longer obligated. Appellant said, “As far as I understood, she was, because we renewed it and she didn’t sign it. I, was not misrepresenting anything to her.” “Q. I understand, but did you tell her that?” “(A) Yes, because I understood she was [off the note] because the bank allowed us to renew it and pay the interest without her signing it ... He [an officer with First Alabama Bank] let me renew it without her signing it.”

After a discussion in chambers the State continued its cross-examination of Mrs. Allen. She testified about another business proposal, known as Leisure Development Company, Incorporated. Mrs. Allen said this was proposed by Vance C. Dyar, one of her associates, “to put mine and Mrs. No-len’s assets into this corporation.” Asked whether she went along with this proposal, she said, “Absolutely not.” At this point she was asked whether or not she did in fact write a letter guaranteeing a letter of credit to the corporation. Mrs. Allen replied:

“A. I’m glad to have the opportunity to talk about that letter. That is the letter that I signed for my partner for an authorization, and she let Mr. Dyar have it and he made a blanket endorsement out of it. And the first time I read that letter was in the Birmingham News, but it is my signature. Are you talking about the endorsement or the other one?
“Q. I’m talking about State’s Exhibit No. 52, Mrs. Allen.
“A. Yes, this is the one that was used over my signature. This was given to Louise just blank, my partner, that I’ve been in business with since ’73. I had no reason to worry about her having a sheet of paper with my signature on it.”

Continuing, Mrs. Allen testified that, although the letter was notarized, she signed only a blank page, and it was not a letter of guaranty.

The State, proceeding further, asked Mrs. Allen about another letter, State’s Exhibit 51, and about the Leisure Development Company, Inc. When asked about a meeting which allegedly occurred at the Sahara between her, her associates, and officers of a Geneva bank, Mrs. Allen denied that business proposals were discussed. She testified that the conversation was casual, “just chit-chat.”

The State put on several witnesses to rebut Mrs. Allen at the conclusion of her testimony. Louise Nolen and Thelma Eu-banks testified concerning their association with Mrs. Allen, as did H. G. Hayes of the American Bank of Geneva.

Thelma Eubanks testified that Mrs. Allen, Mrs. Suggs, and a Mr. Puckett asked her to invest in the BAPSH Films, Ltd., but that she did not have any money to do so. Mrs. Allen then asked her if she would endorse the note, State’s Exhibit 59, saying they would only have it a short time and they would repay it. Mrs. Eubanks endorsed the note. Later she asked Mrs. Allen about the note and Mrs. Allen told Mrs. Eubanks she was no longer obligated. Mrs. Eubanks testified that she is presently the defendant in a suit filed by the bank to recover on the note.

H. G. Hayes is President of the American Bank of Geneva. He stated that during the summer of 1977 he and John Ward, Chairman of the Board of Directors of the bank, met Mrs. Allen, Vance Dyar, and Mrs. No-len at the Sahara Restaurant in Montgomery.

Mr. Hayes was asked if anything was discussed by any person in the presence of Mrs. Allen concerning the letter of credit that was issued by his bank in September of 1977 to the Leisure Development Company, Inc. He replied, “Just that they were going to obtain, I thought, some nine, I believe, letters of credit of $50,000 each to be used to consolidate loans.” He stated that the letter of credit given by his bank was guaranteed by a letter of guaranty from Mrs. Allen, which was delivered to him on August 23, 1977, by Dyar.

Testifying further, Mr. Hayes said that, at the meeting in Mrs. Allen’s presence, the subject of obtaining State deposits for his bank was discussed. He said, “At the supper meeting,” Dyar had told them they would get a State deposit that' night. Hayes said Mrs. Allen stated, “That she had been interviewed by the Birmingham News that day and did not have time to get the deposit ready.” Hayes stated that Mrs. Allen said after the meeting “that she could give us some demand deposits from time to time but it would have to be in small increments . . . because the legislature was watching the Treasurer’s Office very closely concerning the deposits.” Mr. Hayes stated that he saw Dyar subsequently and that on one occasion Dyar flew to the Geneva Airport with a State deposit for $500,000.

The appellant contends that the State by asking Mrs. Allen about the loans, and her representations thereto, was cross-examining her for impeachment purposes by asking her of her own specific bad acts in order to show her bad character. Likewise the appellant contends that the State by asking Mrs. Eubanks about her dealings with appellant was attempting to show the witness’s bad character by testimony of others as to their knowledge of her specific bad acts. The appellant further contends the State’s examination of Mr. Hayes adduced testimony about prior acts of the appellant’s misconduct which was irrelevant and specifically excluded by the rules of evidence.

The record reflects that in each instance the State was proceeding with a logical purpose different from that alleged by the. appellant.

A witness, by taking the stand, puts in issue his character or reputation for truthfulness. Pugh v. State, 42 Ala.App. 499,169 So.2d 27. One method of impeaching a witness is to disprove his statements made in court by the testimony of other witnesses. Jones on Evidence, 26.1, pg. 170. It is competent for a party to contradict his adversary’s witness by showing the facts to be otherwise than as testified to by him, and thus discredit the witness. Smith v. State, 261 Ala. 270, 73 So.2d 916. An accused in a criminal prosecution who testifies in his own behalf is likewise subject to contradiction. Holloway v. State, 38 Ala. App. 434, 89 So.2d 313, cert, denied 265 Ala. 697, 89 So.2d 317. The State was plainly rebutting or contradicting Mrs. Allen’s testimony.

The facts adduced by the State were plainly material and relevant. They show a motive for Mrs. Allen’s nondisclosure from which her intent may be inferred, i. e., if her extensive financial schemes had not existed there would have been no reason not to make a full disclosure.

Appellant contends that Act No. 130 is unconstitutional in that it violates Section 173 of the Constitution of 1901 which governs the impeachment and removal from office of certain public officials for the commission of designated crimes specified in that section. Appellant overlooks Section 176 of the Constitution of 1901 which provides:

“The penalties in cases arising under the three preceding sections shall not extend beyond removal from office, and disqualifications from holding office, under authority of this state, for the term for which the officer was elected or appointed; but the accused shall be liable to indictment and punishment as prescribed by law.” (Emphasis supplied.)

The Supreme Court of Alabama in Comer v. City of Mobile, Ala., 337 So.2d 742, upheld the constitutionality of Act No. 130 by holding: “The purpose of Act No. 130 was not so altered as to bring the taint of unconstitutionality as to all of its sections not heretofore stricken.”

This Court followed Comer in affirming the conviction of appellant in an unrelated case on November 20,1979, in an opinion by Judge DeCarlo.

Mrs. Louise Nolen was one of the incorporators of Leisure and Development Properties, Inc. She testified that the purpose of the corporation was to try to get all loans of Mrs. Allen and her loans together with their assets and put them under one umbrella; that Mrs. Allen was well aware that was purpose of the corporation as they both had discussed it. She further stated, “We were to incorporate all the Alabama loans into one company and due to the fact that Mrs. Allen was in politics, and attempt to get them in another out of state bank with the assets.”

The testimony of Mrs. Nolen flatly contradicted the testimony of Mrs. Allen wherein she denied trying to get her loans in an out-of-state bank.

The evidence presented by the State, although conflicting, was overwhelming that Mrs. Allen filed a false Financial Statement with the State Ethics Commission. The State proved the allegations of the indictment beyond peradventure of a reasonable doubt.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, the Court of Criminal Appeals has no right to disturb the verdict; whether there is such evidence is a question of law, its weight and probative value are for the jury. Ala.Dig., Criminal Law, «==1159.2(8).

Appellant filed a motion for a new trial and extensive hearings were held. At the conclusion of these hearings the trial court overruled and denied the motion. Decision on a motion for a new trial rests largely within the sound discretion of the trial court and, in reviewing that decision, the Court of Criminal Appeals will indulge every presumption in favor of the correctness thereof. Ala.Dig., Criminal Law, <®=911.

We have carefully read, and reread, the five volume record in this case. We have searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is, in all things, affirmed.

AFFIRMED.

All the Judges concur except BOOKOUT, J., who concurs in the result.


author: PER CURIAM.

text:
    Ex parte Melba Till ALLEN. In re Melba Till Allen v. State.
    79-332.
    Supreme Court of Alabama.
    March 28, 1980.
   PER CURIAM.

WRIT DENIED.

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


text:
    Daniel LOCONTE, Appellant, v. STATE of Florida, Appellee.
    No. LL-2.
    District Court of Appeal of Florida, First District.
    May 15, 1979.
    Rehearing Denied July 6, 1979.
    Michael J. Minerva, Public Defender, and Carl S. McGirines, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The trial court summarily denied Daniel Loconte’s motion to vacate and set aside a judgment and sentence. He appeals, claiming that his guilty plea was the result of coercion and promises. We affirm.

Loconte cites Brumley v. State, 224 So.2d 447 (Fla. 4th DCA 1969), in support of his contention that he should have been given an evidentiary hearing based on the allegations in his motion, but we think Bramley is distinguishable. There, the inquiry into the free and voluntary nature of the plea was limited to questions about whether the defendant had been “influenced” and whether the plea was what he wanted. Here, there was a direct denial of coercion or promises by Loconte’s negative replies to the following questions: “Aside from the terms of the negotiated plea in this case . . has any person promised or suggested to you that you will be rewarded in any manner, or that you will receive preferential treatment other than that stated?” and “Has any person used any threats, force, pressure or intimidation to make you plead guilty to the charge?” Since the record conclusively refutes the allegations, the ruling of the trial court was correct. Pierce v. State, 318 So.2d 501 (Fla. 1st DCA 1975); Garcia v. State, 228 So.2d 300 (Fla. 3d DCA 1969).

AFFIRMED.

McCORD, C. J., and MILLS and SMITH, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    HART LAND & CATTLE COMPANY, INC., Appellant, v. OUTDOOR PROMOTIONS, INC., a Florida Corporation, Appellee.
    No. JJ-261.
    District Court of Appeal of Florida, First District.
    June 15, 1979.
    Rehearing Denied July 24, 1979.

      Dan R. Warren, of Judge & Warren, Day-tona Beach, Terrence T. Dariotis, Tallahassee, for appellant.
    Joseph C. Jacobs and J. Lawrence Johnston, of Ervin, Vam, Jacobs, Odom & Kitchen, Tallahassee, for appellee.
   PER CURIAM.

Our review of the record, consideration of the briefs and oral arguments, fail to demonstrate reversible error in the decision of the lower court.

The evidence was conflicting and the various claims and contentions of the parties somewhat inconsistent and confusing. In the final analysis, the trial court had to resolve legal and factual issues created by the conduct of the parties over a period of approximately three years, and rendered a decision in this complex litigation which we find is supported by the evidence.

Accordingly, the judgment appealed from is affirmed. Appellee’s motion for assessment of attorney’s fees on appeal is granted, and the cause is remanded to the trial court for determination of the amount.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The last sentence of the opinion is hereby stricken. Appellee’s motion for assessment of attorney’s fees on appeal is denied. Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 (Fla. 1974); Federal Home Loan Mortgage Corporation v. Taylor, 318 So.2d 203 (Fla. 1st DCA 1975). The instruments involved do not express a clear indication that the parties intended the provisions as to attorney’s fees to include attorney’s fees on appeal, and since they were entered into before October 1, 1977, the provisions of Section 59.46(1), Florida Statutes, do not apply. Under the prevailing case law at the time the instruments were executed attorney’s fees on appeal were not allowed. In all other respects, the petition for rehearing is denied,

McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur,

Certiorari denied; Fla.


author: SHIVERS, Judge.

text:
    J. E. JOYNER, INC., Appellant, v. Bernard ETTLINGER, etc., Appellees.
    Nos. MM-18, MM-19.
    District Court of Appeal of Florida, First District.
    Sept. 18, 1979.
    Rehearing Denied April 16, 1980.
    See also, FIa.App., 382 So.2d 31.

      Eugene Loftin, Jacksonville, for appellant.
    David R. Lewis, Jacksonville, for appel-lees.
   SHIVERS, Judge.

These consolidated appeals are from a Final Judgment on Intervention entered in a foreclosure action based on a security agreement and from a Final Judgment entered in a replevin action. These actions were consolidated for non-jury trial. In the foreclosure action appellant J. E. Joyner, Inc. (Joyner) was the plaintiff, appellees Bernard Ettlinger and A. A. Rosier-Rooter, Inc. (A. A.) were defendants, and appellees Roto-Rooter Sewer Service of Duval County, Inc. (Roto-Rooter) and Bernard Ettlinger as trustee of Roto-Rooter Sewer Service of Duval County, Inc., a Profit Sharing Plan (Profit Sharing Plan) were interve-nors. The replevin action was filed by Profit Sharing Plan against Joyner.

On October 31, 1974, A. A. executed a promissory note and security agreement in favor of Joyner. The security agreement included an “after-acquired” clause whereby property purchased by A. A. after the date of the security agreement would also act as security. This security agreement was perfected by Joyner.

In November of 1974, the Profit Sharing Plan loaned A. A. the money necessary to purchase two tractors, each equipped with a front-end loader and backhoe (hereinafter called equipped tractors or equipped tractor, if singular). A. A. executed a security agreement in favor of Profit Sharing Plan which was perfected. A. A. failed to make the January 15, 1976, payment. The Profit Sharing Plan immediately claimed the equipped tractors in satisfaction of its security agreement. One of the equipped tractors was stored at the location owned by Ettlinger and formerly leased to A. A. while the other was in a repair shop. Roto-Rooter had previously installed seven radios owned by Roto-Rooter in trucks owned by A. A.

A. A. defaulted on Joyner’s security agreement and permitted Joyner to pick up the encumbered property specifically listed in Joyner’s security agreement on February 2, 1976, from the location A. A. had rented from Ettlinger. Joyner also took the one equipped tractor from these premises and the seven radios pursuant to the after-acquired clause. On February 2, 1976, Joyner filed its complaint to foreclose the security agreement.

The Profit Sharing Plan filed the replevin action on May 13, 1976, seeking recovery of the equipped tractor taken by Joyner on February 2, 1976, and damages. On June 11, 1976, the Court in the replevin suit ordered Joyner to surrender possession of the equipped tractor to the Profit Sharing Plan.

On October 22, 1976, the Court in the foreclosure action appointed a receiver and ordered him to take possession of both of the equipped tractors. The receiver took possession of both of the equipped tractors. From the date the Profit Sharing Plan seized possession of the equipped tractors in January, 1976, the equipped tractor that was in the repair shop on February 2, 1976, was in the possession of the Profit Sharing Plan.

Both equipped tractors and the radios were sold on November 12, 1976, pursuant to court order in the foreclosure suit. Roto-Rooter and the Profit Sharing Plan objected to the sale and were permitted to intervene in the foreclosure suit seeking possession of the radios and of the equipped tractors, respectively, and damages.

The equipped tractors in the possession of the receiver were used and were damaged while being used. On April 5, 1977, the court in the foreclosure action ordered the receiver to deliver possession of both of the equipped tractors to the Profit Sharing Plan. The court’s order specifically ruled that the Profit Sharing Plan “shall retain and preserve said equipment subject to the further orders of this Court and be able to turn over said equipment to whomever this Court shall later determine to be the possessor thereof.”

On May 12, 1977, the court in the foreclosure suit confirmed the sale except for the equipped tractors and radios and entered a deficiency judgment in favor of Joyner and against A. A.

The foreclosure action and replevin action were consolidated for trial. By Final Judgment on Intervention entered in the foreclosure action, the court found that the Profit Sharing Plan’s purchase money security interest in the equipped tractors was superior in priority to Joyner’s security agreement, that the Profit Sharing Plan suffered the loss of use of the equipped tractors from October 1976 until April 1977 and that the equipment was greatly depreciated in value and damaged when it was used during that time in violation of the court’s order that it should be held in safekeeping by the receiver. Damages and possession were entered in favor of Profit Sharing Plan. Roto-Rooter was found to be the sole owner of the radios and damages that could be reduced by return of the radios were entered in its favor. By Final Judgment entered in the replevin action, the court awarded the Plan permanent possession of the equipped tractor taken by Joyner on February 2, 1976, and awarded the Profit Sharing Plan damages for the loss of use for approximately four months beginning February 2, 1976, and for depreciation and damages to the equipment.

As regards the Motorola radios, there is competent, substantial evidence that the radios were owned by Roto-Rooter and not A. A., that Joyner’s taking of the radios was wrongful, and that Roto-Rooter was damaged by the taking. The amount of damages was based on competent, substantial evidence. The Final Judgment on Intervention as regards the radios is, therefore, AFFIRMED.

The Profit Sharing Plan’s purchase money security interest in the equipped tractors had priority to Joyner’s “after-acquired” security interest. The Profit Sharing Plan, therefore, had the superior right to possession of the equipped tractors following default. However, Joyner’s security interest attached to the equity, if any, that A. A. may have had in the equipped tractors. International Harvester Credit Corp. v. American National Bank of Jacksonville, 296 So.2d 32 (Fla.1974).

When the Profit Sharing Plan seized possession of the equipped tractors on January 15, 1976, it did not automatically become the owner of the equipped tractors. The Profit Sharing Plan became a secured party in possession of collateral whose rights and duties are governed by Section 679.207, Florida Statutes. Section 679.-207(4) provides as follows:

“(4) A secured party may use or operate the collateral for the purpose of preserving the collateral or its value or pursuant to the order of a court of appropriate jurisdiction or, except in the case of consumer goods, in the manner and to the extent provided in the security agreement.”

Examination of the Profit Sharing Plan’s security agreement reveals no provision that would authorize use of the equipped tractors beyond the extent provided in § 679.207(4).

Section 679.505(2) Fla.Stat. (1977) is as follows:

“(2) In any other case involving consumer goods or any other collateral a secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor and except in the case of consumer goods to any other secured party who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or is known by the secured party in possession to have a security interest in it. If the debtor or other person entitled to receive notification objects in writing within 30 days from the receipt of the notification or if any other secured party objects in writing within 30 days after the secured party obtains possession the secured party must dispose of the collateral under s. 679.504. In the absence of such written objection the secured party may retain the collateral in satisfaction of the debt- or’s obligation.”

Joyner, as a secured party, was entitled to notice that the Profit Sharing Plan intended to retain the collateral in satisfaction of its purchase money security interest. The Profit Sharing Plan failed to comply with the mandatory provisions of § 679.-505(2). Its right to use the collateral is therefore governed by the provisions of § 679.207. While the Profit Sharing Plan had the right to possession of the tractors, it did not have the right to full use of the equipped tractors as if it were the owner. The damages awarded by the trial court to the Profit Sharing Plan and against Joyner for loss of use of the equipped tractors cannot be sustained.

The trial court’s award of damages to the Profit Sharing Plan and against Joyner for the damages and depreciation to the equipped tractors while the equipped tractors were in the hands of the receiver is unsupported. Joyner is not the insurer of the receiver and. cannot be held liable for the acts of the receiver in the absence of evidence that Joyner itself caused the damage. An examination of the record fails to reveal such evidence.

The Profit Sharing Plan is not entitled to recover more than the value of both equipped tractors as of the date Joyner seized the one equipped tractor on February 2,1976, or the amount of its lien, whichever is less, plus interest. The Profit Sharing Plan’s recovery should be reduced by the value of the equipped tractors on the date of the final judgment and the damages and depreciation to the equipped tractors while in the Profit Sharing Plan’s possession prior to final judgment. Joyner would be liable for any damages and depreciation to the one equipped tractor while in Joyner’s possession to the extent necessary to pay the Profit Sharing Plan’s recovery as above calculated. Joyner would also be liable for interest on the value of the two equipped tractors as of February 2, 1976, or on the amount of the Profit Sharing Plan’s lien, whichever is less, from February 2, 1976, until the date of the final judgment.

The trial court should determine who was responsible for the damages and depreciation to the equipped tractors while in the hands of the receiver and the amounts thereof. The court should also determine to whom the receiver should be made to account for such damages and depreciation.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

MILLS, C. J., and ROBERT P. SMITH, J., concur.


author: MILLS, Chief Judge.

text:
    J. E. JOYNER, Appellant, v. Bernard ETTLINGER and A. A. Rosier-Rooter, Inc., Appellees.
    No. KK-167.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.
    Rehearing Denied March 25, 1980.
    See also, Fla.App., 382 So.2d 27.
    Eugene Loftin, Jacksonville, for appellant.
    David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, for appellees.
   MILLS, Chief Judge.

This is the second appearance of this case on appeal. The first appeal was taken from an order of the trial court granting a new trial. After jurisdiction had vested in this Court, this Court entered an order relinquishing jurisdiction for thirty days so that the trial court could enter an order specifying the grounds for having granted the new trial as required by Rule 1.530(f), Fla.R. Civ.P. The trial court never entered such an order. Subsequently, this Court affirmed the order granting the new trial. A. A. Rosier-Rooter, Inc. v. Joyner, 351 So.2d 409 (Fla. 1st DCA 1977). After this Court had affirmed the order granting the new trial, appellees filed a “Motion to Rescind Order of New Trial and Enter Judgment” and this motion was granted by the trial court. It is from this latter order that the present appeal is taken. We reverse.

Under the facts of this case, the trial court was without the authority to withdraw the order granting the new trial. Although we recognize that the trial court may entertain a timely motion under Rule 1.540(b), Fla.R.Civ.P., after an order has been affirmed on appeal, Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977), such an exception is not applicable to the case, at bar. The motion filed was not a 1.540(b) motion but was merely an attempt to convince the trial court to grant the relief which had been denied by the appellate court.

REVERSED and REMANDED for a new trial.

McCORD and SHIVERS, JJ., concur.