text:
    Sam K. SNOW v. Marinel C. SNOW.
    Civ. 2429.
    Court of Civil Appeals of Alabama.
    Jan. 21, 1981.
    M. Douglas Ghee of Agee & Ghee, Anni-ston, for appellant.
    H. Merrill Vardaman of Vardaman & Vardaman, Anniston, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The trial court denied the plaintiff’s motion to terminate or reduce alimony. The former husband appeals and contends that the circuit court was palpably wrong.

On January 14, 1975, the parties were divorced by a judgment which confirmed their agreement whereby the defendant was awarded $500 per month as periodic alimony.

The allegations in the plaintiff’s 1980 motion as to a material change of circumstances were “that the assets and income of Marinel C. Snow have remained substantial while the Petitioner’s income has drastically decreased and his assets have been depleted to the point that he is no longer able to pay alimony.” He additionally contended that his health had so deteriorated that he was unable to further meet his alimony payments.

After an ore terns hearing where the only witnesses were the two parties, the trial judge denied a change in alimony and ordered that the amount of alimony to be paid remain the same. We shall examine the evidence alongside the motion to ascertain if the testimony was such that the judgment was palpably wrong.

There has been no favorable material change in the status of the former wife. To the contrary, her standard of living has diminished, and, as is the case of people on fixed incomes, she has been plagued by the ravages of more than five years of inflation without an increase in alimony. She has not remarried, is still unemployed and is 57 years of age. However, in that respect, we are not impressed that the defendant desires, or has actively sought, gainful employment. Her only income is from assets which she received through the divorce property settlement, which income consists of gross rents of $2,400 per year and annual interest income approximating $2,500. Her income taxes amount to around $1,000 per year. She is still indebted upon a real estate mortgage, which she has reduced, since the divorce, to a present balance of $3,500. Her combined alimony and income are barely adequate to cover her expenses, with the alimony alone being insufficient to provide food, transportation, clothing and house payments for her.

The plaintiff, who is 60 years of age, remarried over five years ago and the couple have a four year old son. In 1979 the plaintiff conveyed to his present wife his one-half undivided interest in 38 acres of woodland worth around $10,000; the house in which they reside, the equity thereon being approximately $15,000; and the building used for his business, valued at $25,000. This transfer of substantially all of his assets was entirely voluntary on his behalf, was without monetary consideration, and does not constitute a lawful excuse for ending or altering the payment of alimony; neither does his remarriage alone. Massey v. Massey, 276 Ala. 502, 164 So.2d 498 (1964).

Although he alleged in his motion that he cannot continue to pay alimony because of ill health, his testimony was emphatic and unequivocal that he enjoys good health.

Thus, the principal ground in his motion was that his income has decreased to the point that he can no longer pay alimony.

The plaintiff has been a brick dealer since 1963 and owns his own business, which was not incorporated until October 1, 1979. No brick is kept in inventory. He solicits the purchase of brick at 10% over his cost, orders them from one of his brick manufacturers, pays the salary of a truck driver to deliver the brick to his customer, collects from the customer and pays the manufacturer.

The joint income tax returns, according to the plaintiff, indicated the following income before taxes: 1975, $14,485; 1976, $13,588; 1977, $40,935; and 1978, $39,170. He contends that in 1979 he had a deficit of checks over receipts of almost $8,500 and that such deficit for the first five months in 1980 amounted to slightly over $7,000, all occasioned by a depressed building industry. The checks, or books, were not in evidence. He opined that he was on the verge of bankruptcy.

The plaintiff and his family lived out of the business prior to its incorporation. For the last quarter of 1979, he was paid a weekly salary of $350 by the corporation, but such salary ceased on December 31, 1979. His present wife has worked for the business since their marriage, with her weekly salary since October 1, 1979, being $350 gross, $279 net. Since January 1,1980, the plaintiff’s wife has paid all of their living expenses. His itemized list of monthly expenses, excluding alimony of $500, totaled $2,222.17, but were critically and sharply examined in detail by the trial court. His wife received $150 per month as child support for her 17 year old son by a prior marriage, who resides with them. In 1980, the only income which either the plaintiff or his present wife received from all sources consisted of her net salary from his corporation of $279 per week and her $150 per month child support. Although they did not borrow any money to pay expenses and had no money on hand, he testified that his wife paid all of their 1980 expenses which, as of the June 4 trial, were entirely current, other than alimony to the defendant after March. The plaintiff was not able to explain as to how they met such obligations or where the extra money came from.

The plaintiff contends that there was no conflict in the evidence and that the only duty of the court was to analyze it and determine from it whether there had been such a change of circumstances as to justify a modification or elimination of alimony. Sims v. Sims, 253 Ala. 307, 45 So.2d 25 (1950). However, it appears that the trial court had severe reservations about some of the plaintiff’s testimony regarding expenditures, and the plaintiff failed to explain how the alleged expenses of from $2,200 to $2,700 per month for the first five months in 1980 could have been paid entirely and exclusively from his wife’s monthly child support and her net weekly corporate salary.

According to his testimony, the husband’s professional association is paid a gross salary of $42,500. His expenses and taxes are paid from that sum. His testimony was that he netted some $14,500 from that sum. The weight and credibility of that testimony were for the judge.

Meyer v. Meyer, Ala.Civ.App., 375 So.2d 799, 800 (1979).

We presume that the judgment of the trial court is correct since the evidence was heard orally. The judgment will not be set aside unless the trial court was palpably wrong. Childress v. Childress, Ala.Civ.App., 378 So.2d 1147 (1979). “Palpable” means “[e]asily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.” Black’s Law Dictionary (5th ed. 1979). As stated in Meyer, supra, the weight and credibility of the plaintiff’s evidence was not for the trial court which held adverse to the modification motion. When an appellate court dutifully considers the trial evidence and is uncertain therefrom as to whether alimony should, or should not, have been modified, the party having the burden of persuasion has failed to overcome the presumption of correctness; for, under such circumstances, it is not easily perceptible, or plain, or obvious, etc., that the trial court was erroneous in rendering the judgment. The circuit court did not palpably abuse its discretion in refusing to terminate or reduce alimony. We, therefore, must affirm.

As a fee upon appeal, we hereby award an attorney’s fee of $400 to be paid by the plaintiff to the defendant’s attorneys.

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) of the Code of Alabama of 1975, and it is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    STATE of Alabama v. NORMAN TIE AND LUMBER COMPANY, a corporation.
    Civ. 2446.
    Court of Civil Appeals of Alabama.
    Jan. 21, 1981.

      Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr. and B. Frank Loeb, Asst. Attys. Gen., for appellant.
    L. Merrill Shirley, Elba, for appellee.
   HOLMES, Judge.

This is a tax case.

The Circuit Court of Pike County granted the taxpayer’s Rule 56, ARCP, motion for summary judgment. The Revenue Department of the State of Alabama appeals, contending the trial court erred in granting summary judgment in favor of the taxpayer.

Specifically, the State contends that the provisions of § 40-23-37, Code of Alabama 1975, are not available to the taxpayer and therefore summary judgment should have been granted in favor of the State. We agree and reverse and remand.

The record reveals the following: Taxpayer is a corporation engaged in the business of manufacturing and selling treated lumber used in the construction of chicken houses. The taxpayer sold the treated lumber to third parties who built the chicken houses for other parties who were engaged in the production or raising of poultry on poultry farms.

The State and City assessed sales tax against the taxpayer at a rate of 4%. This assessment was made pursuant to § 40-23-2(1), Code of Alabama 1975, and other appropriate Code sections. The taxpayer appealed the assessment to the circuit court, contending it was entitled to the lower tax rate of 1 Vz% as provided by § 40-23-37. The circuit court agreed with the taxpayer and granted summary judgment in taxpayer’s favor. Hence this appeal.

Prior to deciding this appeal on its merits, it is necessary to address certain contentions of the taxpayer.

The taxpayer, through able counsel, argues in brief that summary judgment was proper in favor of taxpayer in that the State’s counter affidavit in opposition to summary judgment and/or its own request for summary judgment came too late.

The taxpayer filed its motion for summary judgment and supporting affidavits on May 27, 1980. The matter was set for a hearing on June 18, 1980. On June 18, 1980, the State filed its motion for summary judgment and its supporting affidavit. This affidavit was clearly also an affidavit in opposition to taxpayer’s affidavit. The taxpayer objected to the State’s action, claiming the documents came too late. The trial court overruled taxpayer’s objection.

The taxpayer states on appeal to this court that in view of the above, the lateness of the State’s affidavit, etc., there was no counter affidavit properly before the trial court. Taxpayer relies on Rules 56 and 6 of ARCP. Taxpayer further states that since no appropriate affidavit was before the trial court opposing taxpayer’s motion and affidavit, the trial court cannot be in error in granting taxpayer’s summary judgment motion.

We disagree. The trial court overruled taxpayer’s objection regarding the tardiness of the State’s affidavit and no appeal or cross appeal was taken from this action. An appellate court will not consider part of a trial court’s action adverse to appellee when no cross appeal is taken by appellee. See, State, Dept. of Indus. Relations v. Deslattes, Ala.Civ.App., 372 So.2d 867, writ denied, 372 So.2d 872 (1979); 2A Ala.Digest, Appeal & Error Key 878(1).

Furthermore, we note that federal courts, in construing the Rule 56(c) requirement of opposing affidavits being filed at least one day prior to hearing, leave to the trial court the discretion whether to accept or reject affidavits on the day of the hearing. Farina v. Mission Investment Trust, 615 F.2d 1068 (5th Cir. 1980); L. D. Woods v. Allied Concord Financial Corp., 373 F.2d 733 (5th Cir. 1967); Beaufort Concrete Co. v. Atlantic States Construction Co., 352 F.2d 460 (5th Cir. 1965), cert. denied, 384 U.S. 1004, 86 S.Ct. 1908, 16 L.Ed.2d 1018 (1966).

In this instance, the trial court’s action in overruling the taxpayer’s objection to the affidavit permitted the late filing as indicated in Rule 6, ARCP, and in the absence of facts, as shown by the record, showing an abuse of discretion we cannot find the trial court’s action to be error.

In addition to the above, the taxpayer argues that the State’s affidavit is in and of itself insufficient.

In view of the above (no cross-appeal), we do not deem it necessary to set out in detail taxpayer’s contention regarding this aspect. Suffice it to say that while the State’s affidavit is not a paragon of clarity, we consider it is sufficient for summary judgment purposes in this case. We find that the pleading allegations, affidavit, and supporting documents before the trial court make the case a proper matter to be disposed of by summary judgment. See, Holloway v. Government Employees Insurance Co., 295 Ala. 328, 329 So.2d 529 (1976).

As stated above, the dispositive issue on the merits is whether the taxpayer may avail itself of the provisions of § 40-23-37, Code of Alabama 1975.

Section 40-23-37 in pertinent part provides:

There is hereby levied, in lieu of the state sales tax levied by section 40-23-2, a privilege or license tax against the person on account of the business activities engaged in and in the amount to be determined by the application of rates against gross sales, or gross receipts, as the case may be as follows:
Upon every person, firm or corporation engaged or continuing within this state in the business of selling at retail any machine, machinery or equipment which is used in planting, cultivating and harvesting farm products, or used in connection with the production of agricultural produce or products, livestock or poultry on farms, and the parts of such machines, machinery or equipment, attachments and replacements therefor which are made or manufactured for use on or in the operation of such machine, machinery or equipment, and which are necessary to and customarily used in the operation of such machine, machinery or equipment, an amount equal to one and one-half percent of the gross proceeds of the sale thereof. ... (Emphasis supplied.)

The State contends that sales of treated lumber used to build chicken houses which are attached to real estate are not covered by the lower rate of 1V2% provided for in § 40-23-37. The State argues that such lumber is not a “machine, machinery or equipment” used in connection with the production of poultry; that such lumber constitutes building materials within the purview of § 40-23-l(a)(10), Code of Alabama 1975; and that the sale of such lumber is subject to sales tax at the general rate under § 40-23-2, Code of Alabama 1975.

The pertinent parts of the above mentioned Code sections are as follows:

Section 40-23-2 provides:
There is hereby levied ... a privilege or license tax ... in the amount to be determined by the application of rates against gross sales, or gross receipts, as the case may be, as follows:
(1) Upon every person, firm or corporation ... engaged or continuing within this state in business of selling at retail any tangible personal property whatsoever, including merchandise and commodities of every kind and character, ... an amount equal to four percent of the gross proceeds of sales of the business .... (Emphasis supplied.)

and § 40-23-l(a)(10) states:

Sales of building materials to contractors, builders or landowners for resale or use in the form of real estate are retail sales in whatever quantity sold.

The taxpayer contends the treated lumber constitutes a machine, machinery, or equipment used in connection with the production of poultry and that the correct rate is 1V2% under § 40-23-37.

The general rule of statutory construction is that absent any indication to the contrary, words in a statute will be given the meaning generally accepted in popular, everyday usage. Dark’s Dairy, Inc. v. Alabama Dairy Commission, Ala., 367 So.2d 1378 (1979); Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830 (1974); State v. Crayton, Ala.Civ.App., 344 So.2d 771, writ denied, 344 So.2d 775 (1977).

This court in Department of Revenue v. James A. Head & Co., Inc., 54 Ala.App. 136, 306 So.2d 5 (1974), writ denied, 293 Ala. 751, 306 So.2d 12 (1975), in construing Tit. 51, § 786(2)(j), Code of Alabama 1940, which now appears as § 40-23-1(a)(10), defined “building material” as material used in construction work and is not limited to materials used in constructing a building with sides and covering. The term was also found to include any type of material used for the improvement of one’s premises and to include anything essential to the completion of a building or structure of any kind for the use intended. See, Wood Preserving Corporation v. State Tax Commission, 235 Ala. 438, 179 So. 254 (1938).

Webster defines a “machine” as “an assemblage of parts ... that transmit forces, motion, and energy one to another in some predetermined manner and to some desired end (as for sewing a seam, printing a newspaper, or hoisting a load).” Webster’s Third New International Dictionary (1971). See, State v. Taylor, 262 Ala. 639, 80 So.2d 618 (1954).

“Machinery” has been defined as “any combination of mechanical means designed to work together so as to effect a given end.” State v. Taylor, supra.

“Equipment” has been defined by Webster as “(1) the implements (as machinery or tools) used in an operation or activity, (2) all the fixed assets other than land and buildings of a business enterprise.” Webster’s Third New International Dictionary (1971). See, Y. D. Lumber Co. v. Refuge Cotton Oil Co., 153 Miss. 302, 120 So. 447 (1929).

The courts of other states have considered the question of whether a building or a similar structure constituted “machinery” or “equipment.” In George v. Town of Calais, 135 Vt. 244, 373 A.2d 553 (1977), a silo used for the storage of animal feed was held not to be machinery, and in Y. D. Lumber Co. v. Refuge Cotton Oil Co., supra, a cotton seed house was found not to be equipment.

In the instant case the treated lumber was used in the construction of buildings, specifically, chicken houses. There was no evidence in the record to indicate that the lumber was used directly in the production of poultry as are cages or devices used to feed and water the birds. See, State v. Taylor, supra.

After reviewing the decisions of the courts of this and other states, and after assigning to the terms “building materials,” and “machines, machinery and equipment” the meanings generally accepted in popular everyday usage, we find the treated lumber to be building materials within the purview of § 40-23-l(a)(10). Therefore, the sale of such lumber by taxpayer is subject to taxation under the provisions of § 40-23-2(1).

The taxpayer also contends the State is estopped from collecting the assessed sales tax. In an affidavit filed in support of the taxpayer’s motion for summary judgment, the taxpayer’s bookkeeper stated she was advised by an employee of the State Department of Revenue that the applicable sales tax rate was 1V2%. We would note, however, that in the assessment and collection of taxes, the State is acting in its governmental capacity and it cannot be estopped with reference to the enforcement of taxes even when the taxpayer has been advised that it is not responsible for a tax. Boswell v. Abex Corporation, 294 Ala. 334, 317 So.2d 317 (1975).

The above being dispositive we find it unnecessary to address the other issues presented.

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

REVERSED AND REMANDED FOR ENTRY OF JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James ALLRED v. STATE.
    6 Div. 668.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      T. Lee Bishop, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty under an indictment which, omitting the formal parts thereof, is as follows:

“The grand jury of said county charge that, before the finding of this indictment, JAMES ALLRED, whose name is to the Grand Jury otherwise unknown, did draw a check or cause or direct the drawing of a cheek with intent to defraud on the account of A. & G. Coal Company, Inc., a corporation, in the amount of THIRTY EIGHT THOUSAND THREE HUNDRED EIGHTY FOUR DOLLARS AND SIXTY-EIGHT CENTS, upon the First National Bank of Birmingham, Jefferson County, Alabama, knowing at the time of the drawing of the check that the account of A. & G. Coal Company, Inc., a corporation, upon which the check was drawn did not have sufficient funds on deposit in or enough credit with First National Bank of Birmingham, Birmingham, Jefferson County, Alabama, for the payment in full of such check.”

A major insistence on appeal, as well as in the trial court, is that it is too vague and indefinite to apprise defendant of what he is called upon to defend. The indictment was based upon the Alabama Worthless Check Act (Acts 1971, No. 2479, p. 3958), particularly § 4 thereof, which provides:

“It shall be unlawful for any person to draw a check, or to cause or direct the drawing of a check, with intent to defraud, on any depository, knowing at the time of the drawing of such check that the maker, drawer or payer thereof does not have sufficient funds on deposit in or enough credit with the depository for the payment in full of such check and all other checks upon such funds or credit then outstanding....”

Section 12 of said Act provides that the punishment for the crime, when “the check is for $500.00 or more,” shall be a “fine of not less than $500.00 nor more than $5,000.00 and/or imprisonment not to exceed three years.” The jury fixed defendant’s punishment at a fine of $4,000.00. The court imposed no additional punishment.

After arraignment, but well before the date set for trial defendant filed a motion to dismiss the indictment, which assigned twelve separate and several grounds, among which were included, that it did not state whom the defendant intended to defraud, the name of the payee in the check, the date of the alleged check, and more general grounds as to the sufficiency of the indictment.

We readily see that an indictment under the Alabama Worthless Check Act that merely sets forth as factual averments the name or designation of the account upon which the check is drawn and the amount of the check would be insufficient to particularize the transaction that gave rise to the indictment. It could well be that over a course of a few months or a year the drawer of checks would have drawn a large number of checks for the same amount on the same account. Faced with an indictment that he had drawn a check on such an account for that amount, he could be bewildered by the large number of possibilities as to what specific check was involved. This, however, can hardly reasonably be stated as to a check in the exact amount of $38,384.68 as alleged in the indictment.

It is to be noted also that the indictment does not allege the name or identity of the payee of the check. The omission thereof in an indictment under the Act could well lead to great difficulty for an accused in an effort to determine what he is called upon to defend. Furthermore, the omission could leave an accused at a loss to determine whom or what entity the prosecution contends he intended to defraud. This, according to the rationale of Andrews v. State, per Judge Bookout, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977), holding that an indictment for an assault and the like should state the name of the victim, if known, subjects the indictment in the instant case to serious criticism.

A demurrer constitutes the appropriate method of testing the sufficiency of an indictment. McKinney v. State, 50 Ala.App. 271, 278 So.2d 719, cert. denied, 291 Ala. 789, 278 So.2d 724 (1973). However, as stated in Andrews, supra, “Due process dictates that a defect associated with an essential element of the offense which leaves the accused unaware of the nature and cause of the charge against him cannot be waived by failure to timely demur. (Authorities cited).”

Notwithstanding our expressed view in derogation of the quality of the indictment when considered abstractly, we find that reversible error cannot be predicated thereon under the facts and circumstances of the instant case. The record shows that the motion to dismiss the indictment was brought to the attention of the trial court and to some extent it was argued, but very little was said about it, and the defendant did not insist on a ruling thereon. We follow the action taken in Hill & Pitchford v. State, Ala.Cr.App., 339 So.2d 601, cert. denied, Ala., 339 So.2d 610 (1976) on the ground stated on rehearing in Andrews v. State, supra, in distinguishing it from Hill & Pitchford in saying that in Hili & Pitch-ford “No ruling of the trial court was before this Court for review.” In addition, we note that the record shows affirmatively that defendant at the time of trial knew the identity of the check he was charged with unlawfully drawing. Based on his knowledge of the identity of the check, defendant filed a plea of former jeopardy, or collateral estoppel, in which he averred that defendant had been previously put to trial on a previous indictment for unlawfully drawing the identical check, and charged in the plea that as to that indictment and trial thereon, the court “stopped the trial after essentially all of the State’s evidence was in” and “dismissed” the prosecution and ordered that “another indictment ... be preferred.” After considerable argument and a lengthy hearing, the court ruled against defendant as to his plea of former jeopardy.

Appellant presents the adverse ruling on his plea of former jeopardy as another ground for a reversal. The burden of his contention seems to be that as the jury had been selected and sworn in the previous case, jeopardy had attached and defendant could not be tried again for the same alleged crime.

The answer to appellant’s contention as to the plea of former jeopardy is amply supplied by Code 1975, §§ 15-8-90 and 15-8-91, formerly Code 1940, Tit. 15, §§ 253, 254, as follows:

“§ 15-8-90. An indictment may be amended, with the consent of defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described.
“§ 15-8-91. If the defendant will not consent to such amendment of an indictment, the prosecution may be dismissed at any time before the jury retires as to the count in the indictment to which the variance applies, and the court may order another indictment to be preferred at a subsequent time, in which case an entry of record must be made to the effect following: [a prescribed form for such an order].”

The record shows that on the trial of a previous prosecution for drawing the same check it developed that there was a fatal variance between the evidence and the particular language of that indictment, which is different from the language of the indictment in the instant case, in that the first indictment alleged that defendant “the said James Allred did not have sufficient funds on deposit” or “enough credit” for the payment of the check, and that there was no evidence to support such averment, that on the other hand the evidence showed that the particular check was drawn on the account of A. & G. Coal Company, Inc., a corporation, and that said company did not have sufficient funds on deposit or enough credit for the payment of the check. The record further shows that the court in the first case determined that the defendant would not consent to an amendment of the indictment so as to meet the variance and meticulously entered an order in compliance with provisions of the cited sections of the Code.

Compliance with the statutory law on the subject in dismissing a prosecution on the ground of a material variance does not furnish a basis for a plea of former jeopardy. Oliver v. State, 234 Ala. 460, 175 So. 305 (1937); Moore v. State, Ala.Cr.App., 366 So.2d 1150 (1979); Pratt v. State, 48 Ala.App. 341, 264 So.2d 571 (1972); Ex parte Shirley, 39 Ala.App. 634,106 So.2d 671, cert. denied, 268 Ala. 696, 106 So.2d 674.

The only remaining ground asserted by appellant for a reversal relates to the question of the sufficiency of the evidence to justify a guilty verdict. This gives us considerable concern. It was not a case in which at the moment of the drawing of the check defendant obtained quid pro quo. The check was drawn by two persons, both officers of A. & G. Coal Company, Inc., a corporation, with authority to draw on the account of said company. Ray-Brooks Machinery Company, Inc. was the payee of the check. The two companies had entered into a contract whereby Ray-Brooks Machinery Company was to supply certain machines and machinery to A. & G. Coal Company for the purpose of dehydrating saturated coal dust or small particles of coal, referred to in the evidence as “coal fines.” It was to be a cash transaction, but each party apparently knew that A. & G. needed financing. We are impressed by the strength of the evidence on behalf of defendant indicating that both the buyer and the seller understood at the time the check was drawn that there was not enough money in the bank to take care of the check. We are not persuaded that such evidence was outweighed by the evidence tending to show the contrary. The evidence does not firmly convince us that defendant had that necessary intent to defraud that is an essential of the crime charged. The entire transaction was one difficult to assay. The apparatus involved was complicated. Many pages of a lengthy record are devoted to attempts to explain the intricacies of the problem involved. The equipment sold or supplied by the contract was delivered to A. & G. Coal Company, but it did not work as expected. On the other hand, the evidence indicates that both parties understood that it was not reasonably certain that it would work at the time.

At the time the contract was entered into between the parties, a deposit of $6,000.00 by cheek was given to the agent for Ray-Brooks Machinery Company, which check was deposited and honored. At the time the check alleged in the indictment was delivered to the agent of Ray-Brooks Machinery Company, he was asked, according to his own testimony on the trial, to hold the check “for a couple of days.” However, he said that he was not told that the check at the time “was not good.” The check was held nine days before deposit; it was returned about six days thereafter, marked by the bank “N.S.F.” (Not Sufficient Funds). The record shows that during all of such time the amount of the cheek was far in excess of the funds in the bank to the account of A. & G. Coal Company.

Irrespective of our concern as to the strength of the evidence favorable to the State as opposed to the evidence favorable to defendant on the crucial issue of the existence of the essential element of intent to defraud, we cannot say that there was not substantial evidence in favor of the State on the point. In this circumstance, a jury question was presented. We state also that the question of the sufficiency of the evidence to justify a submission of the case to the jury was not raised by any motion to exclude the evidence or any request for a directed verdict or an affirmative charge in favor of defendant. There was no motion for a new trial.

In the absence of any error in the record prejudicial to defendant, the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: JONES, Justice. MADDOX, Justice

text:
    Ex parte James ALLRED. (Re: James Allred v. State of Alabama).
    79-339.
    Supreme Court of Alabama.
    Nov. 7, 1980.
    As Modified on Denial of Rehearing Jan. 9, 1981.

      T. Lee Bishop, Jr., and Ronald M. Hand, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for respondent.
   JONES, Justice.

We granted this petition to review the double jeopardy issue arising out of Defendant’s conviction for the offense of issuing a worthless check. A detailed statement of the factual background is found in the Court of Criminal Appeals opinion, Allred v. State, [MS. Feb. 5, 1980], 393 So.2d 1026 (Ala.Cr.App.1980). Suffice it to say that the double jeopardy plea here in issue arose in the context of a second trial, based on a second indictment.

This second indictment, with one exception, was identical in all respects to the indictment under which Defendant was put to trial initially. The sole dissimilarity was that the first indictment charged Defendant with issuing a worthless check on his personal account, while the subsequent indictment charged that the check was drawn on a corporate account.

During the first trial, because the evidence disclosed that the check (otherwise correctly described in the indictment) was drawn on the account of A. & G. Coal Co., Inc., the State sought to amend the indictment pursuant to § 15-8-90, Code 1975, which authorizes an indictment to be amended, with consent of Defendant, as to certain matters. Whereupon, Defendant having refused to so consent, the trial Court, invoking § 15-8-91, dismissed the prosecution (reciting the variance between allegation and proof) and ordered “another indictment ... to be preferred.”

The Court of Criminal Appeals, reciting the trial Court’s compliance with §§ 15-8-90 and 15-8-91, upheld its refusal of Defendant’s plea of double jeopardy entered in the second trial. We reverse and remand.

Section 15-8-90 is but a codification of the common law which forbade amendments to an indictment, even as to an immaterial variance between indictment and proof, without the consent of defendant. Shiff v. State, 84 Ala. 454, 4 So. 419 (1887); and Lay v. State, 42 Ala.App. 534,170 So.2d 815 (1965). Section 15-8-91 directs the procedure for a “variance” dismissal and for reindictment in the event of Defendant’s nonconsent. Our case law has consistently upheld the validity of this statutory scheme, as against a double jeopardy challenge, where the variance is of such a material character that the second indictment constitutes a separate and different offense.

That the statutory amendment procedure is restricted in its application is well illustrated in Wright v. State, 40 Ala.App. 683, 122 So.2d 555 (1960), which disallowed a double jeopardy plea, reasoning that the charge in the first indictment was not sustainable by the proof adduced thereunder. See, also, Oliver v. State, 234 Ala. 460, 175 So. 305 (1937).

While the statutory scheme may have a narrow field of operation within constitutional bounds, its application cannot validate what is otherwise proscribed under the double jeopardy clause of the Constitutions of the State of Alabama and the United States. Otherwise stated: Although the trial Court’s actions were procedurally consistent with the statutory scheme, the dismissal of the first indictment must be grounded upon a material variance, or it must have been due to some “manifest necessity” before Defendant is constitutionally subject to retrial.

The “manifest necessity” exception, recognized and applied in Arizona v. Washington, 435 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), and in the cases cited therein (see, also, Woods v. State, 367 So.2d 982 (Ala.1978)), finds its application in the factual context of a second prosecution for the same offense. On the other hand, rein-dictments within the contemplation of the amendment statutes (§§ 15-8-90, -91) are prosecutions for offenses not sustainable by the evidence adduced under the original indictment, i. e., for a different offense.

Thus, the ultimate issue here presented is whether Defendant’s plea of double jeopardy was interposed to an indictment which charged him with commission of the same offense for which he had been put to trial under the first indictment. The answer is implicit in the postulation of two opposing hypotheses: (1) If the variance between the averment in the indictment (that the check was drawn on Defendant’s personal account) and the proof (that it was drawn on the corporate account) precludes a sustainable conviction, then it is a material variance; and the reindictment pursuant to the amendment statute is permissible and Defendant’s plea of double jeopardy is unavailable; and (2) if, on the other hand, the variance is of such an immaterial nature as not to defeat the sustainability of Defendant’s conviction thereunder, the statutory scheme for reindictment is impermissible; and, where such reindictment procedure is invoked, Defendant’s plea of double jeopardy is valid.

An indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied 293 Ala. 746, 309 So.2d 850 (1974); Frye v. State, 369 So.2d 892 (Ala.Cr.App.1979). Here, the requisite constituents of the offense which must have been set out are: that the Appellant (1) drew the check, (2) with intent to defraud, (3)knowing that there were insufficient funds to cover the check. Smith v. South eastern Financial Corporation, 337 So.2d 330 (Ala.1976).

Our examination of the first indictment reveals that these constituents are clearly and succinctly set forth and that the wording of the indictment substantially follows the statute creating the offense. The indictment’s description of the particular account on which the check was drawn is mere surplusage.

While there was a variance between the averments of the first indictment and the proof as to the description of the account upon which the alleged worthless check was drawn, Alabama law requires a “material” variance before a conviction will be overturned for that reason. House v. State, 380 So.2d 940 (Ala.1979). Because the requisite statutory elements include no reference to the account on which the check is drawn, the proof under the first indictment warrants a conviction of the offense charged; thus, the variance between the description of the bank account in the indictment and the proof adduced at the first trial is wholly immaterial.

Our finding of no material variance between the first indictment and the proof thereunder, coupled with the absence of the requisite elements of “manifest necessity” for terminating the initial proceeding, mandates our holding that the second offense, the trial of which invoked Defendant’s double jeopardy plea, was the same offense for which Defendant had been indicted and put to trial earlier. Ex parte Collins, 385 So.2d 1005 (Ala.1980). Thus, the Court of Criminal Appeals erred in affirming the trial Court’s rejection of Defendant’s plea of double jeopardy.

REVERSED AND REMANDED.

FAULKNER, SHORES, EMBRY, BEAT-TY and ADAMS, JJ., concur.

MADDOX, J., concurs specially.

TORBERT, C. J., dissents.

ALMON, J., not sitting.

MADDOX, Justice

(concurring specially).

This case points up the need in this state for a rule of criminal procedure which would permit an amendment to an indictment, even after commencement of the trial, if no additional offense is charged and substantial rights of the defendant are not thereby prejudiced.

This Court now has under consideration a proposed rule of criminal procedure which would permit amendment of the charges, “without the defendant’s consent, at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Proposed Rule 13.5, Alabama Rules of Criminal Procedure. This proposed rule follows substantially the language of the Uniform Rules of Criminal Procedure, 231(g)(2), which states:

(2) After commencement of the trial. After commencement of trial, the court may permit the prosecuting attorney to amend the information at any time before verdict or finding if no additional or different offense is charged and substantial rights of the defendant are not thereby prejudiced.
An amendment may charge an additional or different offense with the express consent of the defendant.

In Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed. 717 (1978), the court stated that “[t]he prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar.” Current Alabama procedure does not permit the prosecutor to amend the indictment if the defendant does not consent; therefore, this Court is required to reach the result it reached in Ex parte Collins, Ala., 385 So.2d 1005 (1980).

Under current Alabama procedure, the prosecutor, unless he can obtain the consent of the accused, must get a new indictment. If he gets a new indictment, the defendant may have available to him the plea of double jeopardy.

      . Constitution of Alabama of 1901, Art. 1, § 9; Anthony v. State, 49 Ala.App. 462, 273 So.2d 222 (1972); Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); and Garsed v. State, 50 Ala.App. 312, 278 So.2d 761 (1973). United States Constitution, 5th Amendment; Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1973); Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).

      . The State does not seriously contend that the requisite elements of “manifest necessity” exist; rather, both at trial and here, it is the State’s position that the trial court properly invoked the amendment statutes.

      . Alabama Worthless Check Act (Acts 1971, No. 2479, p. 3948).


author: PER CURIAM.

text:
    James ALLRED v. STATE.
    6 Div. 668.
    Alabama Court of Criminal Appeals.
    Jan. 20, 1981.
   PER CURIAM.

REVERSED AND REMANDED ON AUTHORITY OF THE SUPREME COURT OF ALABAMA, 1981 ALA., 393 So.2d 1030. NO OPINION.

All the Judges concur.