author: ALMON, Justice.

text:
    Claudia L. CAGLE, et al. v. Clara L. CASEY and Kelley Jean Laminack.
    80-7.
    Supreme Court of Alabama.
    Sept. 25, 1981.

      John S. Casey, Heflin, for appellants.
    William S. Halsey of Burnham, Klinefel-ter, Halsey & Love, Anniston, for appellees.
   ALMON, Justice.

This is an appeal from a judgment denying relief in a suit to cancel a deed because of the alleged mental incompetency of Mo-lee Laminack, a 63-year-old woman.

On December 15, 1977, Molee Laminack and her husband, Melvin, executed the deed in question, which conveyed a fifty-acre tract of land upon which their home was located, to one of their daughters, Clara L. Casey. Title to the land was in Molee’s name. Her husband had previously deeded the land to her because of a problem he had anticipated which is not relevant to this case.

On June 6,1979, after the death of Molee and Melvin, the Laminack’s other daughter, Claudia L. Cagle, and the children of the Laminack’s deceased son, Edward, brought this action to cancel the deed on the grounds that Mrs. Laminack lacked the mental capacity to execute the deed and that the execution was the result of undue influence of Clara Casey.

Apparently, the undue influence claim was abandoned and the only issue before this Court is whether the evidence of Mrs. Laminack’s alleged incompetency is so conclusive as to overcome the trial court’s decision in a non-jury case to uphold the deed.

Appellants assert that the natural disposition of her property, but for her mental state, would have been to her four children or their families, in equal shares, particularly when this was all the land she owned.

There was other evidence, however, which contradicted this argument. It was shown that the tract of land was originally owned by Curtis Casey, Clara L. Casey’s husband. Curtis Casey transferred the land to Melvin Laminack in exchange for a $200.00 automobile. Subsequently, Melvin Laminack transferred the property to his wife. Also, it was shown that Clara L. Casey spent more time and money than the other three children in caring for her mother as Mrs. Laminack’s health began to deteriorate. These facts would lend credence to the respondents’ assertion that there was nothing unnatural in their mother’s act of deeding the property to Clara Casey.

The basis of the appellants’ incompetency claim is that Mrs. Laminack’s health began to deteriorate rapidly during the year 1977. Several friends of the family testified that prior to the date the deed was executed there were several instances when Mrs. Laminack did not exhibit a sound mind; instances when she did not recognize lifelong friends; when she “got lost” in familiar surroundings; and when she did not comprehend what was happening around her. The most notable of these instances occurred in April, 1977, when the whole family was attending the funeral of Mrs. Laminack’s son, Edward (the father of three of the appellants in this case). Claudia L. Cagle testified that at one point after the funeral Mrs. Laminack indicated that she was having so much fun she thought the family should get together like that more often. According to Claudia, her mother acted as if she had forgotten they were there for Edward’s funeral.

Medical evidence was introduced through the deposition of Dr. J. K. McLendon. His examinations revealed, and it was undisputed at trial, that Mrs. Laminack suffered from arteriosclerosis (hardening of the arteries) and occasional syncope (fainting) episodes as early as May, 1977. Dr. McLendon determined that her condition was not unusual for a 63 year-old-woman, and one which people commonly refer to as senility. He explained that this condition is caused by a constriction in the blood vessels which results in periods of insufficient oxygen to the brain, during which periods the individual might faint, or have difficulty thinking clearly.

Dr. McLendon last examined Mrs. Lami-nack during her hospitalization in early October, 1977, following one of her fainting episodes. He concluded that her arterio-sclerotic vascular disease had developed to the point that she would continue to have periods of mental confusion and depression. In his opinion, she was in no condition to manage her business affairs at that time. However, he admitted that she was quite capable of functioning normally if she were kept in her home environment, and that she might have had lucid periods following her October examination when she was in complete control of her mental capacities and was able to exercise “perfectly normal good judgment.”

There was also undisputed evidence that Melvin Laminack was very influential in Mrs. Laminack’s life. Clara Casey and Claudia Cagle agreed that their mother would have done anything their father asked her to do. Clara Casey stated that her father might have encouraged her mother to deed the property to her. Claudia admitted that she did not think her father would have caused her mother to sign the deed if he thought she was of unsound mind.

The facts concerning the execution of the deed were presented through the testimony of Wayne Smith, an attorney. Mr. Smith drafted the deed at the Laminacks’ request and was present on December 15, 1977, when the deed was executed. He did not have sufficient contact with Mrs. Laminack to offer an opinion as to her competency, but he did see her husband, Melvin, sign the deed and then hand it inside his car to Mrs. Laminack, who then signed it and handed it back to him.

Clara L. Casey was not present at either the drafting or the execution of the deed. In fact, she did not learn of its existence until February, 1978, when she went with her father and paid $25.00 to have the deed recorded.

Clara Casey felt that her mother deeded the property to her because it had originally belonged to Clara’s husband and because Clara was more attentive when Mrs. Lami-nack’s health began to deteriorate. Clara Casey visited her mother at least once every two weeks during the fall of 1977. She saw her twice during December and felt that she was alert and capable of managing her affairs at that time.

In January, 1978, Mrs. Laminack stayed with Clara Casey for a few weeks. It was during this visit that Clara noticed a sudden change in her mother’s condition and rushed her to the hospital, because she thought that her mother was a victim of a stroke. The doctors concluded that she had not had a stroke but they advised Clara to place her in a nursing home, where she remained until her death in November, 1978.

Kelley Jean Laminack, Mrs. Laminack’s other son, testified that he had visited his mother in August 1977, and that she appeared to be capable of handling her affairs at that time. His next visit was on January 15,1978, after Clara had notified him of her apparent stroke. Kelley admitted that his mother’s condition had, then, deteriorated to the point that he doubted her competency-

Although Kelley Laminack was named as a defendant in this case, it must be noted that his testimony was actually against his interest because he stood to receive a one-fourth interest in the subject property in the event the deed was cancelled by the courts.

Thus, having reviewed these facts and the entire record thoroughly, we are of the opinion that the evidence in this case does not mandate a reversal of the trial court’s decision upholding this deed. We are aware that we are authorized to reverse the decision of a trial court if its conclusion is clearly contrary to the great weight of the evidence. Insurance Company of North America v. Mays, 278 Ala. 20, 174 So.2d 700 (1965); Turnham v. Potter, 289 Ala. 685, 271 So.2d 246 (1972); First Alabama Bank of Montgomery v. Adams, 382 So.2d 1104 (Ala.1980).

The appellants had the burden of proving to the reasonable satisfaction of the trial court that the grantor was incompetent at the very time of the transaction. Equitable Life Assurance Society of the United States v. Welch, 239 Ala. 453, 195 So. 554 (1940); Berry v. Berry, 269 Ala. 623, 114 So.2d 916 (1959). However, the evidence presented on this point was in sharp conflict. The trial court, even considering the fact that Mrs. Laminack was suffering from arteriosclerosis and periodic syncope episodes, concluded that appellants failed to prove that she lacked the capacity to fairly understand "the nature and consequences of her act on December 15, 1977, in the presence of her husband and her attorney.

This has been a difficult case for us to resolve and we know it was difficult for the trial judge, particularly in view of Dr. McLendon’s testimony regarding her mental and physical condition sometime prior to the execution of the deed. However, the trial judge was in a better position to observe the witnesses, other than Dr. McLen-don, and had a better opportunity to judge the weight and credibility of their testimony. We cannot say that the decision of the trial judge is clearly contrary to the evidence, and it therefore is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Lillian Dean HICKS v. Lacy HICKS.
    Civ. 2741.
    Court of Civil Appeals of Alabama.
    Sept. 2, 1981.
    Rehearing Denied Sept. 30, 1981.

      Charles E. Tweedy, Jr. of Tweedy, Jackson & Beech, Jasper, and Walter Joe James of James, Lowe & McNamee, Haleyville, for appellant.
    Cecil M. Matthews, Chelsea, for appellee.
   HOLMES, Judge.

This is an appeal from a judgment of the Circuit Court of Winston County which terminated the ex wife’s periodic alimony pursuant to § 30-2-55, Code of Ala. 1975 (Cum. Supp.1980).

The appellant, Mrs. Hicks, and the appel-lee, Mr. Hicks, were divorced on August 22, 1979. The divorce decree required Mr. Hicks to pay $1,000 per month in periodic alimony. On August 29, 1979, pursuant to a motion by Mr. Hicks, the trial court reduced the amount of periodic alimony to $750 per month. Mr. Hicks appealed that holding to this court and we affirmed. Hicks v. Hicks, 387 So.2d 207 (Ala.Civ.App. 1980), cert. denied, 387 So.2d 209 (Ala.1980).

On December 30, 1980, Mr. Hicks petitioned the trial court seeking to have the alimony payments completely terminated pursuant to § 30-2-55. His petition alleged that Mrs. Hicks was “living openly and/or cohabiting with a member of the opposite sex.” The court, after an ore tenus trial, held that Mrs. Hicks had cohabited with a member of the opposite sex within the meaning of § 30-2-55 and terminated her alimony. Mrs. Hicks appeals to this court from that order contending that the evidence is insufficient to support the judgment. We agree and reverse.

The dispositive issue is whether the trial court erred in terminating the alimony in light of § 30-2-55 and subsequent judicial interpretations of that statute.

The instant case comes to this court from the trial court clothed with a presumption of correctness. This presumption is rebut-table and “may be overcome by the lack of evidence or where the evidence presented to the trial court is sufficient to sustain its judgment.” Cougar Mining Company v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177, 1178 (Ala.1981).

In the instant ease the trial court was presented with evidence that Mrs. Hicks and a Mr. Wendell Crumpton had dated two or three times per week for about a year. It is undisputed that Mrs. Hicks lived in Lynn and Mr. Crumpton lived approximately thirteen miles away in Haleyville. Mr. Crumpton was a frequent visitor at Mrs. Hicks’ home but there is no evidence the two of them shared a common dwelling. Mr. Crumpton’s visits to Mrs. Hicks’ home normally consisted of eating with Mrs. Hicks, playing cards with Mrs. Hicks and others or watching television with Mrs. Hicks. On several of these visits Mr. Crumpton stayed quite late at Mrs. Hicks’ home. There is conflicting evidence that on one occasion Mr. Crumpton “slept over.” Mrs. Hicks was seen at Mr. Crumpton’s trailer late at night on only one occasion. No evidence was introduced that she ever spent the night there. Mrs. Hicks and Mr. Crumpton both visited a mutual friend in Oklahoma. They traveled to Oklahoma in separate vehicles. The evidence is in conflict as to whether they returned together in the same vehicle. Additionally, Mr. Crumpton accompanied Mrs. Hicks to Albany, Georgia, along with Mrs. Hicks’ brother and his family. Finally, the trial court was also presented with evidence that Mrs. Hicks had begun, in recent months, to date another man in addition to Mr. Crumpton.

Section 30-2-55 in pertinent part provides:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex....

The trial court in the case before us specifically found that Mrs. Hicks and Mr. Crumpton were cohabiting with one another. The word cohabitation, as used in § 30-2-55, has not been specifically defined by an appellate court of this state.

Courts from other jurisdictions have defined cohabitation in various manners. A Mississippi court has defined cohabitation as dwelling together. Hunt v. Hunt, 172 Miss. 732, 161 So. 119 (1935). A New York court has defined cohabitation as simply living together. Bracksmayer v. Bracksmayer, 22 N.Y.S.2d 110 (1940). Another New York court has held that cohabitation implies a relationship of a permanent nature existing over a period of time and means more than a single act of intercourse. Kinley v. Kinley, 115 N.Y.S.2d 341 (1952).

Based upon the foregoing authorities and common usage, it is apparent that cohabitation requires some permanency of relationship coupled with more than occasional sexual activity between the cohabitants. In previous cases before this court in which alimony has been terminated pursuant to § 30-2-55, this permanency of relationship has manifested itself by the former spouse sharing a dwelling with a member of the opposite sex. Blackwell v. Blackwell, 383 So.2d 196 (Ala.Civ.App.1980); Ivey v. Ivey, 378 So.2d 1151 (Ala.Civ.App.1979); Parish v. Parish, 374 So.2d 348 (Ala.Civ. App.1979); cert. denied, 374 So.2d 351 (Ala. 1979); Atkinson v. Atkinson, 372 So.2d 1106 (Ala.Civ.App.1979). Other factors, previously considered by this court, which indicate a permanency of relationship include ceasing to date other members of the opposite sex, Atkinson v. Atkinson, supra; payment of the former spouse’s creditors by a member of the opposite sex, Parish v. Parish, supra; and purchase of clothes for the former spouse by a member of the opposite sex, Parish v. Parish, supra. None of the factors indicating a permanency of relationship are present in this case.

The facts in the instant case are more similar to those before the court in Jones v. Jones, 387 So.2d 217 (Ala.Civ.App.1980), cert. denied, 387 So.2d 219 (Ala.1980). In Jones, the ex wife and her male friend did not share a common dwelling though he was a frequent visitor and often stayed overnight. The male friend did not contribute to the ex wife’s finances. Unlike the case presently before us, the couple in Jones freely admitted having had sexual relations on numerous occasions. The trial court held that such evidence was not sufficient to terminate alimony under § 30-2-55 and we affirmed. Consequently, we must reverse in this case.

The burden of proof is upon the party petitioning for relief under the statute. Section 30-2-55 does not require the petitioner to prove an habitual living arrangement arising to the level of a common-law marriage, but it does require that the petitioner prove more than an occasional post-marital indiscretion. Parish v. Parish, supra; Atkinson v. Atkinson, supra. The evidence before the trial court in this case at most could be interpreted as proving only an occasional indiscretion. Such evidence is not sufficient to terminate alimony under § 30-2-55.

On appeal, through counsel, Mr. Hicks maintains that, notwithstanding § 30-2-55, the trial court had before it sufficient evidence to terminate Mrs. Hicks’ alimony. Undoubtedly, a trial court under appropriate circumstances has the power to modify or terminate alimony based upon changed circumstances. Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317 (1963). The trial court in this instance, however, did not base its decision to terminate the alimony on any evidence of changed circumstances. Instead, it clearly and explicitly based its judgment upon § 30-2-55. On appeal, this court will consider only the issues determined by the trial court. Trans-Continental Mutual Insurance Co. v. Harrison, 262 Ala. 373, 78 So.2d 917 (1955).

The wife also contends the trial court erred in failing to award attorney’s fees to her for representation in the trial court. The award of attorney’s fees at the trial level is within the sound discretion of the trial court. Penn v. Penn, 246 Ala. 104, 19 So.2d 353 (1944). We find no abuse of discretion in this case.

The wife requests attorney’s fees for representation on appeal. A fee of $500 is awarded for such representation.

The case is due to be affirmed in part, reversed in part, and remanded for entry of a judgment not inconsistent with the above.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Michael R. McCLAIN and Melvin Ray McClain v. STATE DEPT. OF INDUSTRIAL RELATIONS and Pony Express.
    Civ. 2793.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.
    Rehearing Denied Sept. 30, 1981.

      Peter J. Meredith, Birmingham, for appellant.
    George C. Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, State of Ala., Dept, of Industrial Relations, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

The Appeals Referee and Board of Appeals found claimants totally disqualified from compensation by Section 25-4-78(3)b, Code (1975) for recurrent tardiness after repeated warnings. On appeal for trial de novo to circuit court, claimants’ claims were consolidated for trial. The court, sitting without a jury, heard all the evidence and on November 18, 1980, reversed the referee’s decision, finding no deliberate misconduct, and awarded full benefits to both claimants. On March 23, 1981, on motion by the Department of Industrial Relations and Pony Express, defendants, the court vacated its previous order. In affirming the decision of the Board of Appeals, the circuit court expressly found no “deliberate ” misconduct, but held that misconduct standing alone fell within the ambit of § 25-4 — 78(3)b, Code (1975). Claimants appeal.

Michael R. McClain and Melvin Ray McClain, claimants, were employed by Pony Express. Claimants had been late for work on several occasions prior to their termination and had received numerous oral and written notices and warnings of possible termination. Claimants received a warning on August 23, 1979, for their tardiness and their employment was terminated the next day, August 24,1979, when they were again late for work. Claimants testified that they had set three alarm clocks the previous night but due possibly to a power outage, the clocks were one hour behind and claimants were one hour late to work as a result.

Relevant portions of § 25 — 4-78(3), Code (1975) provide for disqualification as follows:

b. If he was discharged from his most recent bona fide work for actual or threatened deliberate misconduct committed in connection with his work... after previous warnings to the individual. [Providing for complete disqualification.] c. If he was discharged from his most recent bona fide work for misconduct connected with his work (other than acts mentioned in paragraphs a and b of this subdivision.) [Providing for partial disqualification.]

The first question presented is whether misconduct must be “deliberate” to require total disqualification under § 25 — 4-78(3)b. It is well settled in Alabama that the Unemployment Compensation Act is in the nature of insurance for the unemployed worker, a remedial measure for his benefit. Therefore, it should be liberally construed in claimant’s favor, and disqualifications from benefits should be narrowly construed. Department of Industrial Relations v. Smith, 360 So.2d 726 (Ala.Civ.App.), cert. denied, 360 So.2d 728 (Ala. 1978); Department of Industrial Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App. 1976). Although the question has apparently never been squarely answered, opinions of this court reflect an assumption that § 25-4-78(3)b applies only to “deliberate” misconduct. See, Henley v. Housing Authority of Montgomery, 403 So.2d 265 (Ala.Civ.App. 1981); Department of Industrial Relations v. Baldwin, 363 So.2d 100 (Ala.Civ.App.), cert. denied, 363 So.2d 101 (Ala. 1978); Department of Industrial Relations v. Jaco, supra. Furthermore, the use of the term “misconduct,” absent modifying words in § 25-4-78(3)c, indicates legislative intent that “deliberate misconduct” and “misconduct” are two separate and distinct categories of employee behavior, authorizing either total disqualification or partial disqualification respectively.

In his order of March 23,1981, the trial judge found as a matter of fact that “[I]f misconduct to be a disqualifying factor must be deliberate misconduct, then this Court would be hard pressed to find that it could be said that a failure to wake up and come out of a semi-conscious state when one is asleep, could ever be held to be deliberate misconduct.” The ore tenus rule applies. When a case is heard orally before the court sitting without a jury, the court’s findings are presumed correct unless plainly contrary to the weight of the evidence. Steele v. Carter, 390 So.2d 299 (Ala.Civ. App. 1980); Davis v. Prestwood, 381 So.2d 85 (Ala.Civ.App. 1980). Whether the misconduct of claimants was deliberate or not was for the trier of fact according to the evidence. From the record before us, we cannot say that the finding of no deliberate misconduct was clearly wrong. We do not hold that continued failure to awake and report to work on time may not be determined to be “deliberate misconduct” under the statute.

After finding that claimants’ actions constituted “misconduct” and not “deliberate misconduct” the trial court erred in applying § 25 — 4-78(3)b, which requires “deliberate misconduct” and results in a total disqualification from benefits. It is our judgment that the judgment below should be reversed insofar as it directs total disqualification, and remanded for application of § 25-4-78(3)c to determine the partial disqualification from benefits for “misconduct.”

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Leslie James GLASS v. Ruth Cornalia Kite GLASS.
    Civ. 2788.
    Court of Civil Appeals of Alabama.
    Sept. 16, 1981.
    Rehearing Denied Sept. 30, 1981.
    Steven R. Sears, Montevallo, for appellant.
    Oliver P. Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Shelby County divorced the parties and made an award of $3,800 to the wife. In addition, the wife was awarded an attorney’s fee of $500.

The husband appeals contending the trial court erred regarding certain evidentiary rulings and further that the trial court abused its discretion in the award to the wife.

It is clear that the divorce decree was entered after the trial court heard the evidence ore tenus. All of the evidence before the trial court is not contained in the record on appeal. The two page transcription of the evidence includes only excerpts from three of the witnesses who testified at trial. The excerpts appear not to relate to the complained of error.

In the absence of all the evidence heard and received by the trial court on which it based its decision, the trial court’s decree is presumed to be supported by sufficient evidence so as to require affirmance on appeal. Jenkins v. Jenkins, 352 So.2d 1 (Ala.Civ.App. 1977).

AFFIRMED.

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


text:
    Juanita N. CRENSHAW v. Theodore CRENSHAW.
    Civ. 2358.
    Court of Civil Appeals of Alabama.
    Sept. 30, 1981.
    Walter L. Davis, Prichard, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

After the divorce, the wife’s post-judgment motion was overruled by the trial court, and she appeals.

By their pleadings, each party sought the exclusive ownership of their jointly owned home. Following an ore tenus trial before the circuit court, the divorce judgment was rendered on October 12, 1979. The wife was granted custody of the three minor children and the home was ordered sold.

On October 22, 1979 the wife filed the following motion, which is the pivotal motion on appeal and which shall hereinafter be referred to as the October motion:

MOTION TO RECONSIDER AND CORRECT PROPOSED DECREE HEREIN

The Plaintiff in this case moves this court to alter the proposed decree which it has indicated it will render in this case and respectfully requests the court to change said intended decree in the following manner:
1. The Plaintiff requests] the court to allow she and her three minor children to inhabit the homestead and she agrees to make the payments thereon, it being her intention to move back into the homestead when the repairs have been finished which are presently being made. She respectfully asks this court to set that homestead apart to her and the children in order that they might live there, instead of ordering the same sold.

In 1980 on the following dates the following matters occurred:

(1) January 25 — The trial court overruled the October motion.
(2) March 25 — The wife filed a motion to set aside the January 25 order nunc pro tunc.
(3) March 27 — The trial court granted the wife’s motion of March 25 and set aside the January 25 order nunc pro tunc.
(4) April 18 — The trial court overruled the wife’s October motion.
(5) May 29 — The wife gave notice of appeal from the October 12, 1979 judgment of divorce and from the April 18, 1980 order.

Because of the great expiration of time since the perfection of the appeal, we hasten to add that this controversy was not submitted for our decision until September 2, 1981.

Generally, appeals must be taken within forty-two days of the date of the entry of the judgment or order appealed from. However, a post-trial motion filed pursuant to A.R.C.P. rule 59 suspends the running of the time for filing a notice of appeal until forty-two days after the entry of the order granting or denying such motion. If the motion is denied because of its pendency in the trial court for more than ninety days, the time for filing a notice of appeal is computed from the date the motion is denied by the provisions of A.R.C.P. rule 59.1. A.R.A.P. rule 4(a).

The October motion was clearly intended to be a pre-judgment motion; but was not filed until ten days after the final judgment had been rendered and entered. At most, the October motion is either a motion for a new trial or a motion to alter or amend the divorce judgment under rule 59. It was overruled or denied by operation of law under rule 59.1 no later than January 22. The appeal should have been perfected on or before March 4. The orders of the trial court which overruled the wife’s motion after January 22 are nullities. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975); Carnes v. Carnes, 365 So.2d 981 (Ala.Civ.App. 1978), cert. denied, 365 So.2d 985 (Ala. 1979). Thus, the appeal was taken too late.

The October motion is not an A.R. C.P. rule 60(b) motion. It is not based upon nor does it allege any of the grounds therein stated which authorize relief from a final judgment. In any event, there was no abuse of discretion in overruling the motion. Ingram v. WAAY Television, 394 So.2d 65 (Ala.Civ.App. 1981).

Out of deference to earnest counsel for the wife, we note that, regardless of the label which is placed upon the October motion, it was not error for the trial court to overrule it. Also, on the merits of the case, the record before this court does not authorize a reversal under the well-known rules of review and the prevailing presumption as to cases heard personally by the trial court. Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ. App. 1980).

Since, at best, the October motion was a rule 59 motion, the appeal was not timely and must, accordingly, be dismissed. A.R. A.P. rule 2(a)(1).

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

APPEAL DISMISSED.

All the judges concur.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Jimmie L. SWAIN v. STATE.
    7 Div. 788.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    After Return to Remand Oct. 6, 1981.
    Cecil M. Matthews, Chelsea, for appellant.
    Charles A. Graddick, Atty. Gen. and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to an indictment charging burglary in the second degree. Alabama Code 1975, Section 13A-7-6(b). Prior to sentencing the State filed a “Notice of Prior Convictions” stating its intent to invoke the provisions of the Alabama Habitual Offender Act. Alabama Code 1975, Section 13A — 5-9.

The circuit court granted the defendant’s motion to set aside his guilty plea and ordered that plea “void and held for naught.” The defendant then withdrew his plea of not guilty and entered a plea of guilty. The court explained to the defendant his constitutional rights and found that “based on such statements and explanations by the court, it is now the opinion of the court that defendant has full understanding of what the plea connotes and that said plea was made voluntarily and intelligently.”

The next notation in the judgment entry reveals that the defendant applied for pre-sentence investigation and the case was continued “for further consideration by the court.” The judgment entry then states:

“On this the 25th day of July, 1980, Does the Defendant have anything to say before the Court imposes the sentence of law upon you? The Defendant answered No, Sir.
s/ Harold E. Walden. Judge
“On this the 25th day of July, 1980, It is the judgment of the Court that the defendant is guilty of the offense contained in Title 13A-5-9(c)(l) and it is the further judgment of the Court that the defendant's punishment be fixed at imprisonment in the penitentiary of the State of Alabama for 15 years and 0 days.”

The record contains no specific finding by the circuit court that the guilty plea was accepted or that the defendant was found guilty of the offense charged in the indictment.

The habitual offender statute provides additional penalties for habitual felony offenders. It does not create or define any offense.

Alabama Code 1975, Section 13A-5-9(c)(1) provides:

“(c) In all cases when it is shown that a criminal has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows:
(1) On conviction of a Class C felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less that 15 years.” (emphasis added)

Since the record does not show that the defendant was convicted of burglary in the second degree as charged in the indictment, this case is remanded to the jurisdiction of the circuit court. If that court did actually accept the plea of guilty and find the defendant guilty as charged the record and judgment entry should be corrected to reflect that action. However if, at the time of accepting the guilty plea, the court only adjudged the defendant guilty of the “offense” contained in Section 13A-5-9(c)(l), the defendant must be brought before the court, adjudged guilty of the offense charged, and properly sentenced.

This Court has upheld the constitutionality of Alabama Code 1975, Section 13A-5-9 in Smith v. State, Ala.Cr.App., 392 So.2d 1273, (1980), and Watson v. State, Ala.Cr. App., 392 So.2d 1274, (1980).

REMANDED WITH DIRECTIONS.

All Judges concur.

AFTER RETURN TO REMAND

BOWEN, Judge.

On remand the defendant was properly adjudged guilty of the offense charged and properly sentenced. Therefore, the judgment of the Circuit Court is due to be and is hereby affirmed.

OPINION EXTENDED;

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Katherine MILLER v. STATE.
    1 Div. 188.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      Don Conway, Mobile, for appellant.

      Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted for the first degree robbery of $162.00 from Jean Starling by use of a deadly weapon, a shotgun. Appellant waived the reading of the indictment at arraignment and pled not guilty. The case was tried before a jury and appellant was found guilty. Following a presen-tencing investigation, the trial court sentenced appellant to imprisonment in the State penitentiary for ten years. Appellant filed notice of appeal and a motion for new trial. The court denied the motion for new trial and this appeal followed.

At the close of the State’s case, appellant moved to exclude the evidence because of the failure of the State to prove appellant’s involvement in the alleged crime. The trial court denied appellant’s motion. We set forth here in detail the evidence which sustains the trial court’s ruling on appellant’s motion.

Jean Starling, the victim, operated a convenience store, Compac Store # 12, at Tillman’s Corner in Mobile County, Alabama. On February 6, 1980, at approximately 2:30 a. m., she noticed a small automobile with three occupants parked directly in front of the store. The male driver and a female passenger sat in the front seat, while another man occupied the back seat of the vehicle. The driver got out, came into the store, and purchased cigarette papers. He looked around the store, asked about ice cream, and then said to Ms. Starling:

“. .. ‘See that fellow in the back seat of the car? He’s got a gun on you, and he is going to kill you if you don’t give me the money.’ ”

At first, Ms. Starling thought he was joking with her, but as she looked more closely she saw that the man in the back seat of the vehicle had a shotgun pointed at her. She immediately gave the money to the driver, Oliver Ray Hall. Hall left the store and said something out of Ms. Starling’s hearing to the female passenger, the appellant herein, to which appellant responded. Hall then returned to the store and stated Ms. Starling did not give him all the money, so they were going to kill her. At the same time, the appellant and the other man, Kenneth Burkett, both started to get out of the car. This so scared Ms. Starling that she reached for her gun and shot Hall. Hall staggered out of the door and was helped into the sedan by his two accomplices. They left in their vehicle and were followed immediately by a local law enforcement officer, Detective Ray Price, who had observed the trio’s suspicious behavior at the scene. Ms. Starling stated they took approximately $162.00 from her.

Detective Roy K. Price of the Mobile County Sheriff’s Office testified he was at Tillman’s Corner early on the morning of February 6, 1980, at the Sheriff’s Office substation, directly across from the Compac Store where the robbery occurred. He observed a two-door red sedan occupied by three individuals parked at the side of the store. After several minutes they drove to the front of the store, and, after a short while, left the store. Because they did not go into the store or use the telephone, Price became suspicious and followed them without turning on his lights. The vehicle went a short distance, then turned around, returned to the store, and parked in front of the store. When Detective Price arrived Hall was at the counter in the store, while the other two remained in the automobile. Price observed appellant get out of the right front seat, stand beside the vehicle for a minute or so, and then get back into the sedan as Hall exited the store. About the same time, Price heard shots fired, then saw Hall jump into the driver’s seat and take off in the vehicle with the two accomplices. Price fired four shots to disable the vehicle and took off in pursuit. After traveling a short distance the sedan pulled off the road and stopped. When Price reached the vehicle door, Hall and the male passenger had exchanged places, and Burkett was behind the wheel. Price observed through the open door a handful of money on the front seat. Appellant was seated in the right front seat, while Hall occupied the back seat. There was a quantity of beer and cigarettes on the back seat and a shotgun partially covered with a blanket.

Appellant was arrested by Detective Price and taken to the Mobile County Sheriff’s Office, where she was informed of her rights. After signing a waiver of rights form, appellant made a voluntary oral statement, which was transcribed by Detective Price. Price testified appellant appeared to have been drinking but was not intoxicated at the time she made the statement. Appellant testified on voir dire, however, that she was drunk when the statement was taken, having drunk beer and vodka the entire preceding day, but that she had understood her rights when she was informed of them. Cynthia Hicks, a friend of appellant, also testified on voir dire that appellant had been drinking heavily the day before the robbery and was drunk when she last saw her at 12:00 midnight, shortly before the robbery occurred.

Over appellant’s objection, her statement was received into evidence. Detective Price read the statement aloud from the stand and his narration appears in the record as follows:

“(As read from statement.)
“Q. What is your full name?
“A. Katherine Miller.
“Q. What is you address and phone number?
“A. 6229 Tillman Drive, Mobile, Alabama. No phone.
“Q. How old are you, and what is your date of birth?
“A. Thirty-three. Five, 15 of ’46.
“Q. How far did you go in school?
“A. Seventh grade.
“Q. Can you read?
“A. Yes.
“Q. Do you know who I am?
“A. Yes.
“Q. Do you understand your rights as read to you before this statement?
“A. Yes.
“Q. At about zero of 1:45 hours, two, six of ’80, were you in Theodore?
“A. Yes.
“Q. While you were in Theodore, what happened, if anything?
“A. We pulled in front of the store. He said he was going to get some gas. He pulled off. He went back to the store. I have got to get some gas. Oliver went into the store. He was there for awhile, and I got out and told him to come on. He ran out and said, T got shot.’ We pulled off and there was gunshots. We pulled over to the side of the road, and that is when the law came.
“Q. How were you travelling?
“A. That red car.
“Q. Is this the car you were in when arrested?
“A. Yes.
“Q. Did you see Kenneth Burkett with the gun?
“A. No.
“Q. Did you see Oliver Hall put money in the seat of the red car?
“A. He had a handful of money when he came out of the store.
“Q. Do you know what name the store you was in ...”
“THE WITNESS: Correction,
“Q. . . . you was at?
“A. I think it was a Compac.
“Q. Did you know the red car was stolen?
“A. Yes. I knew he didn’t pay for it.
“Q. Do you know where the beer and other items in the red car came from?
“A. Yes, they came from over there.
“Q. Do you know the name of the store where the beer and other items came from?
“A. No.
“Q. Did you know Oliver Hall was going to rob the Compac food store before he went into the store?
“A. No, I did not.
“Q. Is there anything you want to add to this statement at this time?
“A. No.
“Q. Is this statement true and correct to the best of your knowledge?
“A. Yes.
“Q. Is this statement voluntary, and in your own words?
“A. Yes.
“Q. Were you threatened or promised anything for making this statement?
“A. No.
“Signed, Katherine Miller. Witnessed, Roy K. Price.”

Walter Crook, a Baldwin County Deputy Sheriff, testified he also questioned the appellant, along with Detective Price, at the Mobile County Sheriff’s Office on February 6, 1980. Crook questioned appellant as to a burglary of a store and the theft of an automobile that had occurred earlier in the afternoon in Baldwin County. Appellant told Crook she had been with Oliver Hall earlier in the day and that they took an automobile and later broke into a store in the Magnolia Springs Community. Crook stated appellant appeared to be sober at the time he questioned her.

The State rested following Officer Crook’s testimony. The defense made a motion to exclude the State’s evidence, which the trial court denied.

Katherine Miller, the appellant, testified in her own behalf. She stated she was drunk at the time the robbery took place, having been drinking beer and vodka all day long. She testified she did not know the store was going to be robbed and thought Hall was merely stopping to get gasoline in order to take her home to Theodore, Alabama. Appellant’s version of the robbery appears as follows:

“Q. When the car did come to the Com-pac store, did you direct the driver to go there to tell him to go there, or anything of that sort?
“A. No, I did not.
“Q. Did he ask you anything about going there?
“A. No.
“Q. Did he say why he went there?
“A. To get some gas, is what he said.
“Q. What happened after the car got there to get some gas?
“A. Well, he went in and he was in the store for awhile, and then I started to get out and see why he, you know, hadn’t come back out, and when I started to get out, I seen him coming out. So, I set back down. And then he ran and jumped in the car and started holding his stomach, and he said, T was shot.’ You know, and I didn’t believe him. You know, I thought he was joking. And then he, you know, he started groaning, he said, ‘I’m shot,’ and I looked and he had blood. I just went hysterical.”

Appellant further testified that, earlier in the day, she was with Oliver Hall when he picked up from an automobile dealer the keys to a red vehicle which she thought Hall was going to test drive. Later that day, she stated the red vehicle in which she was a passenger, and which Hall was driving, “smashed into a store” in Magnolia Springs. She did not know if it was an accident or on purpose, but she did remember Hall looting the store. She could not recall if she stole anything because she was so drunk. Appellant testified on cross-examination as follows:

“Q. Well, you were riding around with him half the night with a bunch of stolen property in the car, were you not?
“A. Well, I knew he done that. He had crashed the door down.
“Q. All right, and you knew there was a lot of stolen property in the car, did you not?
“A. Yes.
“Q. And, you knew that the car should have been returned, did you not?
“A. I suppose, yes.”

The appellant also called several witnesses who testified as to appellant’s good reputation in the community, after which the defense rested.

Appellant asserts the evidence presented by the State did no more than show her presence at the time and place of the crime, and hence was insufficient to present a question for the jury and should have been excluded by the trial judge. We acknowledge the principle that mere presence does not make one a party to a crime, but we must stress the fact that the term “aiding and abetting” encompasses all assistance rendered by a party’s acts, words of encouragement or support, or presence, actual or constructive, to render assistance in the event it becomes necessary. Watkins v. State, Ala.Cr.App., 357 So.2d 156, cert. denied, Ala., 357 So.2d 161. The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Fuller v. State, 43 Ala.App. 632, 198 So.2d 625. Rather, the jury must examine the conduct of the parties and the testimony as to the surrounding circumstances to determine its existence. Fuller, supra; Watkins, supra.

We find there was legal evidence before the jury, at the time appellant’s motion was made, from which the jury could by reasonable and fair inference have found appellant aided and abetted in the robbery of Ms. Starling. Stewart v. State, Ala.Cr. App., 350 So.2d 764. The jury could have considered appellant’s presence in connection with her companionship, as well as her conduct before, during, and after the perpetration of the crime. Thomas v. State, Ala.Cr.App., 363 So.2d 1020. This robbery was the culmination of a twelve-hour crime spree by appellant and her two companions, involving multiple crimes in two different counties. Appellant admitted in her statement to Officers Price and Cook that she was aware the automobile in which they were traveling was stolen, and that she and Hall had broken into a store in Baldwin County. The testimony of Detective Price evidenced the presence and suspicious behavior of appellant and her companions at the scene of the crime prior to the time they returned to rob the store. And finally, the victim herself testified that it was only after Hall went outside the store and conversed with appellant that he returned to the store and stated they were going to kill her because she had not given him all the money. It was this statement in conjunction with appellant’s motions toward exiting the vehicle which caused Ms. Starling to fire upon Hall. Certainly the circumstances surrounding appellant’s actions before the robbery, her presence at the robbery, and her movement toward the store when Hall threatened to kill Ms. Starling presented ample evidence from which the jury could determine appellant’s culpable participation in the robbery.

Statements of appellant pertaining to her involvement with Oliver Hall in the theft of an automobile and the burglary of a grocery store in Baldwin County, which occurred shortly before the robbery of Ms. Starling, were admitted into evidence over appellant’s objections. Appellant argues evidence of separate crimes was inadmissible because of the extremely prejudicial effects of such evidence.

The general rule of law is that evidence of other or collateral crimes is not admissible as substantive evidence to establish the guilt of the accused of a particular crime. Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678 (1976), U.S. cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976). There are, however, well established exceptions to this rule. Wharton’s Criminal Evidence, § 31, sets those exceptions forth as follows:

“ ‘These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand, to protect the accused and secure to him the rights guaranteed to him by the Constitution and the laws.’ ”

Appellant’s awareness of, involvement in, and presence during the theft of the automobile, as well as the burglary of the grocery store, were properly admissible in the instant trial as evidence of her intent and guilty knowledge in relation to the robbery of Ms. Starling. These collateral crimes were by necessity admissible to show intent and knowledge existed from the circumstances. Bobo v. State, 56 Ala.App. 622, 324 So.2d 336; Mason v. State, 259 Ala. 438, 66 So.2d 557. Appellant contended she was merely along in the automobile, without knowledge of or involvement in the crime. Her intent and knowledge thus became relevant and crucial issues. The evidence of collateral crimes was properly admissible for the purpose of negating her assertion of lack of intent and knowledge and was relevant and competent regardless of any incidental effect. Bobo, supra; Wilkins v. State, 29 Ala.App. 349, 197 So. 75, see also McKenzie v. State, 33 Ala.App. 7, 33 So.2d 484, cert. denied, 250 Ala. 178, 33 So.2d 488.

We find further that the admission of the other crimes was properly admissible as part of the res gestae, in that all of the criminal acts were part of one continuous criminal adventure by the same parties occurring within a matter of hours. Summers v. State, Ala.Cr.App., 348 So.2d 1126, cert. Ala., 348 So.2d 1136; Moseley v. State, Ala.Cr.App., 357 So.2d 390.

Appellant contends she was entitled to have the jury instructed by the trial judge as to the limited purpose for which evidence of other crimes was admitted at trial and that the court’s failure to so instruct was reversible error.

Where evidence is admissible for one purpose, the trial court will receive it into evidence, despite the fact that there may exist some other purpose for which it is not admissible. When such evidence is admitted against an appellant, it is the sole responsibility of the appellant to request the court to instruct the jury as to the limited and proper purpose for which such evidence is admitted. If the appellant failed to request such an instruction, she may be considered to have waived the right to the protective instruction. Robinson v. State, Ala.Cr.App., 361 So.2d 379, Ala., 361 So.2d 383. We have held that the evidence was admissible for a legal purpose. If appellant perceived a different and harmful effect flowing from such evidence, it was her duty to request a special charge on that subject. Houston v. State, 203 Ala. 261, 82 So. 503.

It appears appellant did make an allusion, orally, to a limiting instruction after the court completed its oral charge. However, appellant on appeal bears the onus of bringing a record before the appellate court. Core v. State, 50 Ala.App. 533, 280 So.2d 794, 291 Ala. 776, 280 So.2d 797 (1973). Counsel must submit written instructions to the trial court covering the omitted principle of law in order to preserve the potential error for appellate review. Gray v. State, 52 Ala.App. 48, 294 So.2d 448; Thigpen v. State, Ala.Cr.App., 369 So.2d 291, writ denied, Ala., 369 So.2d 297.

“[W]here a party desires the court to extend its oral charge to cover some applicable law in the trial of a case, his remedy is to request a written charge on the subject, which if refused would protect the record and present the matter to the Appellate Courts. The rules governing objections and exceptions to the oral charge of the court either in the matter of what the court says or does not say require that if the objection is to what the court did say the remedy is only by exception thereto (Passmore v. State, 47 Ala.App. 189, 252 So.2d 115), and if the objection is to the court’s refusal or omission to charge on a particular subject applicable under the evidence the procedure is by way of a requested written charge. (Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Trenholm v. State, 38 Ala. App. 57, 77 So.2d 491). Smith v. State, 53 Ala.App. 657, 303 So.2d 157.”

It is also true that a trial judge may not fix a particular time during the trial by which written charges must be tendered to the court. Johnson v. State, Ala. Cr.App., 365 So.2d 123, writ. denied, Ala., 365 So.2d 130. However, in the instant case, the matter is not before us for review, because no requested written charge covering the principle of law appellant argues was omitted was presented to the trial court, nor is it in the record for our review. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied, 293 Ala. 746, 309 So.2d 850; Johnson, supra.

Without the presence of written charges in the record, it would require this court to resort to “speculation and to guess” what the proffered charges would have said. Johnson, supra. This issue was not properly preserved for review.

Appellant argues the trial court omitted to charge the jury as to the meaning of one element of the offense charged, in that he failed to define his use of the term theft, as it relates to intent. It is, of course, a mandatory duty of the trial judge to instruct the jury orally on the different and distinguishing elements of the offense charged. Davidson v. State, Ala.Cr.App., 360 So.2d 728, writ denied, Ala., 360 So.2d 731. Appellant orally excepted to the court’s oral charge in this particular but did not request a written charge. However, we have reviewed the court’s oral charge and find that the trial court in the course of his oral charge did in fact adequately explain the term “theft” as it relates to intent. The court charged the jury as follows:

“Therefore, in order to find a Robbery in the First Degree offense, you must find that the Defendant in this case, Katherine Miller, committed or attempted to commit theft from the person or presence of the named party in the indictment, Mrs. Starling, I have forgotten her first name, and that in the course of committing or attempting to commit the theft, the Defendant, Katherine Miller either used force or threatened the imminent use of force against the person of Mrs. Starling with the intent to overcome her physical resistance or physical power to resist or to compel acquiescence to the taking of or an escaping with the property.” (R. 154)

We find no merit in appellant’s contention.

Appellant contends the trial court failed to adequately instruct the jury on the element of “intent to promote or assist the commission of the offense” as it relates to the phrase “aid and abet.” Defense counsel objected to the court’s oral charge in this particular. The record reflects the following oral charge:

“Now, the law relating to aiding and abetting would, of course, apply where you find from the evidence, that the Defendant was actively participating in a plan preconceived with knowledge of what was to be done. And, although no specific acts were carried out by such a Defendant, if such a Defendant were there, available, and ready and able to aid and help or abet, provide assistance to those principals actually carrying out the named crime for which the Defendant would be charged, then that, in that regard, such assistance being present and available to aid those principals carrying out the offense named in the indictment would, in effect, require that the Defendant be found guilty of the same crime as the principals carrying out the particular physical actively acting in committing the crime.”

We have reviewed the court’s charge in this respect and find that it correctly and fully covers this element.

The trial court’s oral charge to the jury pertaining to the resolution of conflicts in the evidence appears in the record as follows:

“Now, I told you initially in your consideration of the evidence, that there is a rule that you must presume all witnesses speak the truth who testify before you. And that means that there is nothing in conflict with what a witness says. You must, by the law, presume that that witness is speaking the truth. If other evidence leads you to question that particular witness’ statement or testimony before you, then, of course, that’s when you must apply your common sense and these factors in making the determination of wherein the truth lies as to that particular conflict.
“Now, you do that by assessment of that witness’ testimony. Your complete observation to that witness testifying, their interest in the case, any bias or prejudice they may have, any animosity or hate or ill will towards one person or another, the Defendant or someone else, or their position, their job, and consider all those factors assessing the credibility and weight you are going to assign that particular witness in ascertaining whether the witness’ version is the one you are going to believe as the most truthful, or whether the other evidence that is in conflict, which should be believed.
“The law places that burden entirely on your shoulders, because you must, of course, resolve any conflict which relates to a material aspect in the case. That means something that would affect the guilt or innocence of the Defendant. So, each witness should be judged on that basis where their testimony is in conflict with other evidence. Every witness who took the stand must be given that test, including the Defendant who has a right, of course, to testify in her behalf, but who, under the law, you are required to consider this element that she is the Defendant on trial when you consider and assess her testimony that is transferred to you.”

At the close of the court’s oral charge the jury retired to the jury room to commence deliberations. At this time appellant’s counsel made several objections to the oral charge.

It is settled law in this state that exceptions to the oral charge must be made in the presence of the jury and before they leave the box, and any subsequent objection or exception cannot be considered on appeal. Jordan v. State, 56 Ala.App. 55, 318 So.2d 793, writ, denied, 294 Ala. 761, 318 So.2d 801; McNair v. State, 50 Ala.App. 465, 280 So.2d 171, certiorari denied, 291 Ala. 789, 280 So.2d 177.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Andrew GRIGGS v. STATE.
    2 Div. 299.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Lawrence B. Sheffield, Jr., Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

On his guilty plea the defendant was convicted of arson in the first degree and burglary in the second degree.

When the facts of this case are reduced to their simplest and clearest form, the record before this Court shows that the prosecutor promised to make a recommendation that the defendant receive two five year sentences to run concurrently; that in pleading guilty the defendant relied upon this promise; and that the prosecutor never made the promised recommendations.

We find no substantial distinction between the facts of this case and those in English v. State, 56 Ala.App. 704, 325 So.2d 211, cert. denied, 295 Ala. 401, 325 So.2d 216 (1975). Because it is undisputed that the prosecutor did not make his recommendations as promised, this case must be reversed and remanded. See Griswold v. City of Enterprise, 384 So.2d 1219 (Ala.Cr.App. 1980). This result is compelled under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: PER CURIAM.

text:
    David Larry NELSON v. STATE.
    6 Div. 50.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    William M. Dawson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala. 1981), and Ritter v. State, 403 So.2d 154 (Ala. 1981).

REVERSED AND REMANDED.

All the Judges concur.


text:
    Arthur Lee GILES v. STATE.
    6 Div. 147.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    John L. Carroll and Dennis Balske, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala.S.C. 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 159 (1981), July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Curtis Gene BEHEL v. STATE.
    8 Div. 406.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Elizabeth T. Cvetetic, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

This appeal is from a denial of a petition for writ of error coram nobis seeking to overturn appellant’s 1978 conviction of burglary in the first degree and a forty-year sentence in the penitentiary. A full-blown hearing was had and much testimony was taken. Appellant’s major contention is that he was denied adequate and effective assistance of counsel.

His original conviction was affirmed by this court on October 30, 1979, Behel v. State, Ala.Cr.App., 390 So.2d 662, certiorari denied, Ala., 390 So.2d 671.

Appellant contends that his retained counsel impeded his presence at trial when the verdict of the jury was announced in open court. This identical issue was raised on the original appeal and was decided adversely to appellant’s contention. In disposing of this issue this court stated:

“In Berness v. State, 263 Ala. 641, 83 So.2d 613, the Supreme Court of Alabama, when considering the method of which an appellant’s clear and unequivocal right to be present at every stage of his trial may be waived, said:
“ ‘We are of the opinion that a criminal defendant in a non-capital felony case may waive his continuous presence at the trial. But that this waiver must be of an affirmative and positive nature and made by him personally, as for example when he voluntarily absents himself from the courtroom during the conduct of his trial. Our holding that such conduct constitutes an affirmative and voluntary waiver of the constitutional right, personal to the defendant, is consistent with the holding in McNutt v. State, 25 Ala.App. 129, 142 So.2d 773.’ ”

In Behel, supra, this court went on to hold that appellant voluntarily absented himself from the courtroom and waived his right to be present in court when the verdict was returned. At the hearing on the motion for a new trial, appellant was offered the opportunity to explain his absence from the courtroom during his trial and he told the trial judge: “The reason that I didn’t, it was embarrassing to me to sit here and these people, that prosecutor telling this jury what I was supposed to have done when I didn’t do it. And that is the reason that I did not come back.”

At the coram nobis hearing appellant testified and presented testimony from his father and sister in an attempt to show that trial counsel impeded his attendance at the trial. However, there was no direct proof that trial counsel instructed appellant to stay away from the trial. Trial counsel testified that he did not in any manner, directly or indirectly, advise appellant to absent himself from the trial. On the contrary he wanted appellant present to testify in the case at the risk of being impeached because of a previous felony conviction. On the last day of the trial appellant was not in court and trial counsel asked his family where he could be located and they stated they did not know his whereabouts.

On the issue of ineffective assistance of counsel Honorable Lavern Tate, the District Attorney, testified as to Mr. Holt’s ability as a trial lawyer, saying, “Well, I would say that there is probably not anybody better than he is; there may be some as good, but none any better than he is in this particular area and in my field of the attorneys that I practice against.”

Mr. Robert Walker testified that he had been practicing law about fifteen years and had represented the Behel family for a number of years. He recommended Mr. Holt to the Behels to represent appellant because of his reputation as being one of the most prominent criminal attorneys in Alabama.

Mr. Holt was very aggressive in defense of appellant. That he is a very competent, able, diligent, and resourceful lawyer cannot be successfully gainsaid. While it is true that he did not make a closing argument for the defense this can be regarded as a judgment call and a matter of trial strategy. Much must be left to the discretion of trial counsel in making decisions in the trial of cases.

Trial counsel testified at great length as to his activities in preparing appellant’s case for trial. He interviewed a number of witnesses in an attempt to establish a credible defense. He did not know until the morning of the trial that appellant claimed he had an alibi witness and all efforts to locate such a witness proved fruitless. Associate counsel stated that appellant received the most effective representation available and that the single most important reason the case was lost was due to appellant’s failure to tell his attorneys about his alibi witness until the beginning of the trial. Mr. Walker stated that very seldom did an attorney waive closing argument but there are cases in which it is a very fine and smart trial tactic to do so.

Mr. Holt made a motion for a continuance when he learned that appellant was not in court the morning the jury returned the guilty verdict, but the court stated appellant was already an hour late and denied the motion.

When the state rested its case Mr. Holt made a motion to exclude the state’s evidence on the ground the state failed to make out a prima facie case. This motion was overruled. A motion for a new trial was filed and denied. Notice of appeal was given and oral argument requested. Mr. Holt filed a brief on appeal which exceeded sixty pages in length and the case was argued orally before the Alabama Court of Criminal Appeals. After the case was affirmed by this court, and an application for rehearing was overruled, a petition for writ of certiorari was filed in the Supreme Court of Alabama. This petition was subsequently denied.

A petition for a writ of error coram nobis is not intended to relieve a party of his own negligence. Lewis v. State, Ala.Cr.App., 367 So.2d 542, writ denied, Ala., 367 So.2d 547.

The duty of counsel, whether retained or appointed, is to prevent the trial from being or appearing to be a farce or mockery of justice and appellant has a heavy duty to carry the burden of proof to show that he was denied adequate and effective assistance of counsel. Harris v. State, Ala.Cr.App., 367 So.2d 524, writ denied, Ala., 367 So.2d 534.

In Seibert v. State, Ala., 343 So.2d 788, the Supreme Court held that the burden is on the petitioner to submit clear, full and satisfactory evidence of his assertions for relief.

The fact that appellant was convicted does not prove that counsel lacked zeal or competence, particularly when counsel has been retained rather than appointed. Summers v. State, Ala.Cr.App., 366 So.2d 336, writ denied, Ala., 366 So.2d 346.

An adequate defense in the context of a constitutional right to counsel does not mean that counsel will not commit what may later turn out to be tactical errors. Summers v. State, supra.

Even if Mr. Holt’s failure to make a closing argument is ultimately viewed as a mistake unfavorable to his client, that alone is not sufficient to demonstrate inadequate representation. Robinson v. State, Ala.Cr.App., 361 So.2d 1172.

Coram nobis proceedings are civil in nature and the burden of proof is on appellant to show that he was entitled to relief. On the record before us we hold that appellant failed to carry the burden cast by law upon him.

The judgment of the court below in denying the writ is affirmed.

AFFIRMED.

All the Judges concur.


text:
    George E. HENDRIX v. STATE.
    8 Div. 530.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      James D. Walker, Albertville, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The appellant petitioned for a writ of habeas corpus attacking the validity of the governor’s extradition warrant. At a hearing on the petition the appellant attempted to prove that the extradition proceedings were sought by the State of Georgia and others “directly or indirectly, to aid in the collection of a debt, demand or claim” and that therefore his extradition was not authorized under Section 15-9-48, Alabama Code 1975. The trial court refused to allow such evidence to be presented or considered, denied the petition, and ordered the appellant’s extradition to the State of Georgia.

The issue in this case is whether the accused is entitled to introduce evidence that his extradition is sought to aid in the collection of a debt and whether that issue is material or relevant in an extradition proceeding. Stated another way, the issue is whether Alabama Code 1975, Section 15-9 — 48, conflicts with the decisions of the United States Supreme Court. Alabama Code 1975, Section 15-9-48 provides:

“Nothing in this division shall be construed as authorizing the extradition of any person in this state to any other state where the extradition proceedings, directly or indirectly, seek to aid in the collection of any debt, demand or claim against the party sought to be extradited.”

The trial court stated its reason for refusing to give effect to Section 15-9 — 48 and (or refusing to allow the appellant to show that his extradition was sought for the purpose of collection of a debt).

“THE COURT: Whether that is proper or not under the Alabama Supreme Court rulings I don’t know. Under the Federal Supreme Court rulings — the Federal rulings, it appears that is not a material issue in extradition.”
* * * 4c * *
“The only thing that we are going into this morning, and let me limit this — correctly or incorrectly—
“The Court is going to determine if the extradition papers are in order on their face ....
“Two, determine if the accused has been charged with a crime in the state demanding extradition.
“Three, determine whether the person charged is the fugitive named in the extradition request.
“A-'d four, determine whether the Petitioner, Mr. Hendrix, is a fugitive.”

In Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), the United States Supreme Court held:

“Whatever the scope of discretion vested in the governor of an asylum state, cf. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107, 16 L.Ed. 717 (1860), the courts of an asylum state are bound by Art. IV, Section 2, cf. Compton v. Alabama, 214 U.S. 1, 8, 29 S.Ct. 605, 607, 53 L.Ed. 885 (1909), by Section 3182, and, where adopted, by the Uniform Criminal Extradition Act. A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Cf. Bassing v. Cady, 208 U.S. 386, 392, 28 S.Ct. 392, 393, 52 L.Ed. 540 (1908). Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.”
99 S.Ct. at 535.

See also Pacileo v. Walker, 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385 (1980); Crumley v. Snead, 620 F.2d 481 (5th Cir. 1980).

Any state statute bearing on the subject of interstate extradition must complement the federal constitutional provision and statute, and any inconsistency therewith is obviously void. State v. Parrish, 242 Ala. 7, 11, 5 So.2d 828 (1941). “(T)he statutes of the several states and the decisions of the state courts upon this subject must be in harmony with federal law governing the matter.” State v. Shelton, 30 Ala.App. 484, 486, 8 So.2d 216 (1942).

Since Alabama Code Section 15-9-48 obviously conflicts with the decision of the United States Supreme Court in Doran, the statute must be held to be void. Under Doran whether the extradition is sought to aid in the collection of a debt is not a material or relevant issue in an extradition proceeding.

The judgment of the Circuit Court denying the petition for writ of habeas corpus is affirmed.

AFFIRMED.

All Judges concur.


text:
    Joseph TAYLOR, Jr. v. STATE.
    1 Div. 263.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    John Gonas, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

This is an appeal from an order of the Circuit Court revoking the appellant’s probation. The Attorney General, the appel-lee, has declined to file a brief “on the basis that the learned trial judge did not make a written statement as to the evidence relied on and the reasons for revoking Appellant’s probation as required by the Alabama Supreme Court in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975) in the interpretation of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).”

Our review shows that the requirements of Armstrong, supra, have not been satisfied. In revoking probation, a trial judge must make a written statement as to the evidence relied on and the reasons for revoking probation. Armstrong, 294 Ala. at 103, 312 So.2d 620. See also Carter v. State, 389 So.2d 601 (Ala.Cr.App.1980); Borst v. State, 377 So.2d 3 (Ala.Cr.App. 1979); Austin v. State, 375 So.2d 1295 (Ala. Cr.App.1979); Levert v. State, 373 So.2d 1263 (Ala.Cr.App.1979); Jenkins v. State, 368 So.2d 329 (Ala.Cr.App.1979).

The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Richard Johnston INGLE v. STATE.
    3 Div. 354.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    No brief for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Conspiracy to commit theft of property in the first degree; six years.

Leavie Hodge of the Montgomery County Sheriff’s Department testified that, as part of his investigation of meat thefts in Montgomery, Alabama, he met with one Charlie Barnes, an inmate of the Elmore County Jail, in December 1979. Barnes agreed to assist Hodge as an informant.

Charlie Barnes stated that he had been disposing of stolen property by “running things through” the appellant since September or October of 1979. Barnes recalled that on January 10, 1980, he met with appellant and one Buster Dunn at appellant’s place of employment. At this meeting, appellant and Buster Dunn suggested that that the three of them steal a truckload of meat. It was agreed that appellant would locate a truckload in Montgomery and that he and Barnes would drive it to Montezuma, Georgia, to sell it to Dunn.

Eight days later, Barnes met with appellant at the latter’s apartment in Montgomery, and they further discussed the theft of the meat for sale to Dunn. At this meeting, Barnes had a tape recorder hidden in his boot. The recording and transcript of his conversation with appellant were admitted into evidence at trial.

On January 23, 1980, Barnes called the appellant and told him that he (Barnes) had the meat and was ready to go to Georgia. Appellant stated that he had already talked to Buster Dunn about the transaction earlier that day. Appellant said that he would not be able to go to Georgia that night but he wanted Barnes to take Rex Wood in his place.

Doug Nelson of the Alabama Bureau of Investigation testified that he was working as an undercover agent with Barnes in delivering the meat. He stated that an official of the Winn-Dixie Corporation in Montgomery had agreed to lend the State a truckload of meat for its investigation. On January 23, 1980, Nelson picked up the meat, valued at approximately $18,000, from the Winn-Dixie warehouse, drove to the Mitylene exit on Interstate-85, and picked up Barnes. Nelson and Barnes then drove to Montezuma, Georgia, and delivered the meat to Buster Dunn. Dunn gave Barnes a $500. “downpayment” and all present were arrested by Georgia authorities participating in the investigation.

At the conclusion of the State’s case, appellant moved to exclude the evidence, arguing that the State had not established a prima facie case. Appellant contended specifically that the prosecution had failed to establish a “meeting of the minds” between appellant and Barnes in that Barnes was an informer who secretly intended to frustrate the conspiracy. Appellant also claimed that the State failed to prove an overt act in furtherance of the conspiracy. The motion was overruled and the appellant presented no evidence.

I

In our judgment, the State’s evidence was sufficient to establish a prima facie case of conspiracy, see Ala.Code § 13A — i-3 (1975), to commit theft of property in the first degree, see Ala.Code § 13A-8-3 (Supp. 1980).

Section 13A-4-3, supra, defines the offense of conspiracy, and limits the defenses thereto, in pertinent part, as follows:

“§ 13A-4-3. Criminal conspiracy generally.
“(a) A person is guilty of criminal conspiracy if, with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more oí such persons does an overt act to effect an objective of the agreement.
“(b) If a person knows or should know that one with whom he agrees had in turn agreed or will agree with another to effect the same criminal objective, he shall be deemed to have agreed with such other person, whether or not he knows the other’s identity.
“(c) A person is not liable under this section if, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, he gave a timely and adequate warning to law enforcement authorities or made a substantial effort to prevent the enforcement of the criminal conduct contemplated by the conspiracy. Renunciation by one conspirator, however, does not affect the liability of another conspirator who does not join in the abandonment of the conspiratorial objective. The burden of injecting the issue of renunciation is on the defendant, but this does not shift the burden of proof.
“(d) It is no defense to a prosecution for criminal conspiracy that:
“(1) The person, or persons, with whom defendant is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or is immune from prosecution, or
“(2) The person, or persons, with whom defendant conspired could not be guilty of the conspiracy or the object crime because of lack of mental responsibility or culpability, or other legal incapacity or defense, or
“(3) The defendant belongs to a class of persons who by definition are legally incapable in an individual capacity of committing the offense that is the object of the conspiracy.
“(e) A conspirator is not liable under this section if, had the criminal conduct contemplated by the conspiracy actually been performed, he would be immune from liability under the law defining the offense or as an accomplice under section 13A-2-24.” [Emphasis added]

Subsection (d)(2) of the statute provides the answer to appellant’s argument that he could not be guilty of conspiracy with Barnes because the latter was an informer without criminal intent. The statute specifically rejects the notion that it is a defense to a conspiracy charge that the person with whom the defendant agreed had no mental culpability. Ala.Code § 13A — 4-3, supra, also indicates that, although proof of an overt act is necessary, the accused himself need not do the act. It is sufficient if “any one or more of such persons [those with whom the defendant agreed] does an overt act to effect an objective of the agreement.” Ala.Code § 13A-4r-3(a) (1975). Without question, the State’s evidence proved the overt acts of Barnes’ driving the truckload of meat to Georgia, and Dunn’s giving partial payment on arrival.

Although not necessary to a prima facie case of conspiracy, the prosecution also introduced evidence that appellant did nothing to prevent the object of the agreement on January 23, 1980. Testimony from Barnes showed that, although appellant did not actually accompany him to Georgia to deliver the meat, appellant had discussed the delivery with Dunn that day and had suggested Rex Wood as a replacement passenger for Barnes.

In view of the foregoing facts, no serious argument can be made that appellant renounced the conspiracy within the terms of § 13A-4 — 3(c). That subsection indicates that an accused may escape liability only under the following conditions:

“[I]f, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, he gave a timely and adequate warning to law enforcement authorities or made a substantial effort to prevent the enforcement of the criminal conduct contemplated by the conspiracy.”

The testimony of Investigator Doug Nelson that the truckload of meat was worth approximately $18,000. brings the object offense within the definition of theft of property in the first degree. See Ala.Code § 13A-8-3(a) (Supp. 1980).

We have searched the record and have found no error; the judgment of conviction by the Montgomery Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Tyrone CHILLOUS v. STATE.
    3 Div. 383.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      Rick A. Williams, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Charles M. Allen, II, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The appellant was indicted and convicted for the criminal possession of a forged instrument in the second degree in violation of Ala.Code 13A-9-6 (Supp.1977). The trial court fixed his punishment at eight years in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty and not guilty by reason of insanity. Appellant is represented on this appeal, as he was at trial, by court-appointed counsel and has been furnished a free transcript.

The facts in this case are not complicated. Briefly, the State’s evidence proved that appellant cashed a check purportedly signed by a J. C. Wilson made payable to an A. V. Jackson at the Winn-Dixie Store on the Lower Wetumpka Road in Montgomery on or about February 11, 1980.

Mrs. Ila Juanita Thomas, head cashier at the Winn-Dixie, testified that appellant came into the store after lunch and asked her to cash the $243.22 check drawn on the Wilson Forest Products, Incorporated, account at the First Alabama Bank in No-tasulga. The check purportedly signed by a J. C. Wilson was numbered 113.

After requiring appellant to fill out an application for a check-cashing card, Mrs. Thomas okayed the check and appellant cashed it at one of the registers. Mrs. Thomas stated that appellant was “by himself when he came into the store.” Another Winn-Dixie employee, John Chappell, saw appellant getting the check approved by Mrs. Thomas on this occasion.

Mrs. Thomas testified that, two to three weeks later, after finding out that the check made payable to A. V. Jackson was “bad,” appellant returned to the Winn-Dix-ie Store and attempted to cash a second check made out to a Franklin D. Tolliver. Mrs. Thomas motioned for the store manager not to okay this second check appellant presented.

Mr. Benny Nolen, vice-president-comptroller of Bama Wood, Incorporated , testified that check number 113 on the Wilson Forest Products, Incorporated, account was stolen from his desk drawer along with twenty-four other blank checks and a check writer in January of 1980. Mr. Nolen stated that neither Wilson Forest Products, Incorporated, nor Bama Wood, Incorporated, ever wrote or issued the check to an A. V. Jackson. Mr. Nolen did not know an A. V. Jackson, nor did he know appellant.

Investigator Jonah B. Pemberton, Jr., of the Alabama Bureau of Investigation, stated that Mrs. Thomas and Mr. Chappell made a positive identification of appellant from a photographic lineup he presented to them on February 22, 1980.

Appellant presented evidence that he was illiterate. He testified in his own behalf that he had never seen Mrs. Thomas or been in the Winn-Dixie “a day in my life.” Appellant also denied having ever seen the check made out to A. V. Jackson or the application for a check-cashing card.

This court is required to view the evidence in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and not substitute its judgment for that of the jury. Cumbo v. State, Ala.Cr.App., 368 So.2d 871 cert. denied, 368 So.2d 877 (Ala.1979). We hold that the direct and circumstantial evidence presented by the State was sufficient to prove every element necessary to establish a prima facie case under Section 13A-9-6 and to prove appellant’s guilt beyond a reasonable doubt.

Appellant’s central contention of error in this case concerns a conflict in the State's evidence which developed during the testimony of Mr. Edward Burkett, a Certified Latent Print Examiner with the Department of Public Safety. Investigator Pemberton had testified previously that he had taken a set of appellant’s fingerprints, State’s Exhibit 8, at the Elmore County Jail on April 30, 1980. Mr. Burkett testified that he compared appellant’s known prints on State’s Exhibit 8 with the latent prints found on the application for a check-cashing card, State’s Exhibit 2, and with an enlargement of Exhibit 2, State’s Exhibit 3. Mr. Burkett, after making his comparison, determined that appellant’s known fingerprints and the latent prints were “one and the same.” Mr. Burkett testified, however, that he made the comparison on March 31, 1980, one month before Investigator Pem-berton took appellant’s known fingerprints.

Appellant’s initial objection to Mr. Burk-ett’s testimony regarding fingerprint comparisons due to the discrepancy in dates was overruled; the trial court held that the discrepancy affected the credibility, but not the admissibility, of the evidence. Appellant’s cross-examination of Burkett emphasized the discrepancy in dates testified to by Burkett and Pemberton. Later, after the State had rested and after appellant’s first witness had testified, the prosecution admitted to the trial court, outside of the jury’s presence, that there was a conflict in Burkett and Pemberton’s testimony: “We are not telling the Court that both witnesses say that what they each testified to is correct.... We are saying that we have an unexplainable condition.” The trial court ruled that the fingerprint evidence should be struck from the record and the jury instructed to disregard it. Appellant’s motion for a mistrial was denied.

For the sake of clarity we here set out the trial court's admonition to the jury in its entirety:

“THE COURT: Ladies and gentlemen of the jury, — first of all let the record reflect the entire jury is back in the Court Room.
“It has been brought to my attention by the District Attorney’s Office that there is an apparent unexplained discrepancy in regard to State’s Exhibits 8 and 3? That’s right, the fingerprints. There is apparently a discrepancy here so great that I am going to withdraw this one. You are not to consider it. The evidence tends to show that the fingerprint comparison that Mr. Burkett did, the latent print versus the ink print was done before the State’s evidence would indicate that the latent print was ever taken. I’m sorry, that would be the ink print was ever taken. Well, that’s physically impossible for there to have been a comparison before the print was taken. So, this evidence is going to be struck by the Court. You are to totally disregard it.
There is no evidence before the Court, whatsoever, at this time that the Defendant’s fingerprint was on the card, State’s Exhibit—
“MR. GILLIS: 2.
“THE COURT: 2. There’s no evidence of that, whatsoever. Now, let me ask you this: Is there anyone on the jury panel who feels that this would unduly affect their ability to render a just and true verdict in this case, based on that other evidence you have heard, and solely on that other evidence. If so, please raise your right hand.
(No response from jury.)
“THE COURT: All right, does everyone feel that they can try this case and in their minds say to themselves that there is no evidence that the Defendant’s fingerprints were on State’s Exhibit 2? Can you all do that? Because there is no evidence that his fingerprints were on State’s Exhibit 2. Okay?
(No response from jury.)
“THE COURT: Is the defense satisfied?
“MR. GILLIS: Ask the record to affirmatively indicate that the jury indicated to the Court through silence or no response that they felt they could render a fair, just, and impartial verdict based on the other evidence as has come before the Court, and any additional evidence that may come before the Court.
“THE COURT: Let me put it this way: There is an apparent mistake. There is no evidence that the Defendant’s fingerprint is on State’s Exhibit Number 2.
“MR. GILLIS: And further, that they should disregard the testimony of Mr. Burkett, Your Honor.
“THE COURT: Right. I want you to disregard Mr. Burkett’s testimony entirely. Okay. Is there anyone who cannot do that? If so, please raise your right hand.
“Okay. Let the record reflect that no one indicated they couldn’t disregard Mr. Burkett’s testimony entirely.
“Is the defense satisfied?
“MR. WILLIAMS: No, sir. We still move for a mistrial on the grounds that the evidence has been — that the jury has heard the evidence and it is prejudicial to the Defendant.
“THE COURT: Okay, that motion is denied. Is the State satisfied?
“MR. GILLIS: The State’s satisfied.
“THE COURT: I will say this to you; I want to emphasize this: What I’m saying goes solely as to the fingerprint evidence. What I’m saying doesn’t affect any of the rest of the evidence whatsoever. I want you to understand that. Mr. Burkett— well, Mr. Burkett has testified that he compared some prints that he could not physically have compared, put it that way, because the prints weren’t taken when he compared them. It’s just that simple. It’s an apparent error on his part; a mistake. There are no prints. There is not evidence of any prints, whatsoever, or any evidence whatsoever that the Defendant’s prints were on that card. Mr. Burkett’s testimony to the effect there was, is in error. Is that understood? Okay, let’s proceed.”

In our opinion the trial court’s ruling and instructions to the jury pertaining to the fingerprint evidence could not have prejudiced appellant. Rule 45 ARAP. The trial court’s ruling, in effect, did no more than what appellant had earlier raised in his initial objection to Burkett’s testimony. Substantial error is not presumed. It is the burden of the appellant to show error, and, before a reversal of the judgment is to be had, it must appeal to the Court that the error complained of has probably injuriously affected the substantial rights of the appellant. Kabase v. State, 244 Ala. 182,12 So.2d 766 (1943).

The granting of a mistrial is addressed to the broad discretion of the trial judge and his ruling will not be revised on appeal unless it clearly appears that such discretion has been abused. Woods v. State, 367 So.2d 982 (Ala.1978). Where error is eradicable a mistrial is too drastic and is properly denied. Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied, 358 So.2d 791 (Ala.1978).

Moreover, the trial court may, ex mero motu, exclude improper evidence at any stage of the trial. Rogers v. State, 36 Ala.App. 602, 61 So.2d 249 (1952). The question of admitting all the testimony of a witness, and then excluding it, is addressed largely to the sound discretion of the trial court. Sherard v. State, 16 Ala.App. 129, 75 So. 721 (1917).

We have reviewed the issues in this case as presented by appellant. In addition, we have searched the record, as required by law, for errors injuriously affecting appellant’s substantial rights and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

      . Bama Wood, Inc. owned controlling interest in Wilson Forest Products, Inc.