author: HOLMES, Judge.

text:
    Ruth B. BARNHILL v. Roger F. BARNHILL
    Civ. 2130.
    Court of Civil Appeals of Alabama.
    May 14, 1980.
    Rehearing Denied June 11, 1980.

      Warren L. Finch and Ann E. Taylor of Finch, Shoemake & Taylor, P. C., Mobile, for appellant.
    Lloyd E. Taylor, Fairhope, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Baldwin County entered a judgment divorcing the parties and giving effect to an antenuptial agreement which by its terms barred the wife from any interest in the husband’s estate. The wife appeals from that aspect of the decree giving effect to the antenuptial agreement and we affirm.

The dispositive issue on appeal is whether there is sufficient evidence to sustain the trial court’s determination that the ante-nuptial agreement was valid.

Reviewing the record with the attendant presumption, the following is pertinently revealed:

The husband and wife were married in 1974. Both parties were in their sixties and had been previously married, their former spouses having predeceased them.

The wife had a college degree and was a school teacher. She is now retired. The husband was engaged in extensive farming operations.

Prior to the marriage the wife visited the husband on several occasions and saw his homeplace, his cattle and some of his land. The wife knew that the husband owned considerable land and was in business with other family members in a farming operation.

The wife, together with her son, owned a home in Montgomery of an undetermined value and cash assets of approximately $25,-000.

Several weeks prior to the marriage, the parties signed an agreement, which in pertinent part is as follows:

5. It is agreed, in the event of a separation, that each party shall have no right as against the other by way of claims for support, alimony, attorneys’ fees, costs or division of property.
6. It is further agreed that this agreement is entered into with a full knowledge on the part of each party as to the extent and probable value of the estate of the other and of all of the rights conferred by law upon each in the estate of the other by virtue of said proposed marriage, but it is their desire that their respective rights to each other’s estate shall be fixed by this agreement, which shall be binding upon their respective heirs and legal representatives.

The record further indicates that the husband conditioned his marriage to the wife upon the wife signing such an agreement. In fact, the husband testified that he told the wife the only way he would marry her was if she signed an antenuptial agreement.

The husband contacted an experienced attorney who drafted the instant agreement. Before the parties signed, the attorney explained the contents of the document to the husband and to the wife. There is evidence to indicate that the wife knew what the effect of the agreement would be and was not happy with it. However, the record indicates that the wife nevertheless voluntarily signed the agreement.

After four years of marriage, the wife petitioned the court for a divorce requesting alimony and a property settlement. The husband answered, setting up the ante-nuptial agreement as a bar to any interest in his estate.

After an ore tenus hearing, the learned trial judge determined that the parties knowingly and voluntarily entered into the agreement and that the agreement was valid and barred the wife from obtaining any interest in the husband’s estate upon dissolution of the marriage.

At the outset, we note that antenup-tial agreements are valid in Alabama. Reynolds v, Reynolds, Ala.Civ.App., 876 So.2d 732 (1979). However, courts scrutinize such agreements to determine whether they are just and reasonable. Allison v. Stevens, 269 Ala. 288, 112 So.2d 451 (1959).

An ante-nuptial agreement will be held valid as just and reasonable if the husband is able to show that certain conditions have been met. The husband, in this instance, has the burden to show that the consideration was adequate and that the entire transaction was fair, just and equitable from the wife’s point of view or that the agreement was freely and voluntarily entered into by the wife with competent independent advice and full knowledge of her interest in the estate and its approximate value. Allison, supra. Meeting the requirements of either of the above tests is sufficient to give effect to an antenuptial agreement.

The wife, through able counsel, contends that the agreement is invalid because there was not adequate consideration for the wife relinquishing her rights in the husband’s estate. Put another way, the wife contends that the only consideration given her was the husband’s relinquishment of any interest in the wife’s estate and since the husband’s estate was much larger than the wife’s, the agreement was not based upon adequate consideration. We do not agree.

Marriage may, under appropriate circumstances, be sufficient consideration for an antenuptial agreement. See, McDonald v. McDonald, 215 Ala. 179, 110 So. 291 (1926); 41 C.J.S. Husband and Wife § 88 (1944). This is particularly true when other factors are present such as the husband’s relinquishment of any rights that he might have in the wife’s estate. See, Allison, supra; 41 C.J.S. § 88, supra.

In this instance, marriage was clearly part of the consideration for executing the agreement. The husband was adamant in demanding that the wife sign an ante-nuptial agreement before he would marry the wife. The record indicates that the wife at first was reluctant to sign such an agreement. The husband then informed the wife that he would not marry her unless she signed the agreement. It was only after these events that the wife signed the agreement. Thus, with the above in mind, it can be concluded that the marriage itself was sufficient consideration to support the antenuptial agreement.

In addition, the husband by signing the agreement gave up any right in what could be classified as the wife’s substantial estate. This relinquishment was also valuable consideration. Thus, the wife’s contention that there was inadequate consideration is without merit.

As indicated above, not only must the consideration be adequate but the entire transaction must have been fair, just and equitable from the wife’s point of view.

In this instance, there is absolutely no evidence of fraud or duress in executing the agreement. The attorney who drafted the agreement advised the wife as to the effect of the agreement prior to her signing it.

The wife had the agreement several weeks prior to the marriage and there is evidence to indicate that the wife sought competent independent advice prior to the marriage concerning the agreement.

The evidence in all respects indicates that the agreement was entered into voluntarily; furthermore, that the wife knew what she was relinquishing when she signed the agreement as shown by her reluctance in signing the agreement until the husband told her that he would not marry her unless she signed an agreement. Additionally, the record indicates the wife at least had a general knowledge of the extent of the husband’s estate. All of the above goes to indicate the agreement was fair, just and equitable from the wife’s point of view.

Based upon the above, we find no error in the trial court’s determination that the agreement was valid because there is sufficient evidence to establish adequate consideration and, furthermore, there is sufficient evidence to establish that the entire transaction was fair, just and equitable from the wife’s view. Allison, supra; Norrell v. Thompson, 252 Ala. 603, 42 So.2d 461 (1949).

The wife next contends that the trial court committed reversible error in overruling the wife’s objections to certain questions as being leading questions.

The questions asked were these:

Q. Did you tell this to the then Mrs. Burkett that you wanted to be sure that your land and what you have went to your children?
Q. Now, did you tell her that you would do this to get her to sign this agreement?

We note that the trial court has a vast discretion in ruling on objections to questions contended to be leading. In addition, this court will not put the trial court in error for such a ruling unless it is plainly and palpably wrong. All Am. Life & Cas. Co. v. Dillard, 287 Ala. 673, 255 So.2d 17 (1971).

Furthermore, a judgment should not be reversed for the improper admission of evidence unless it appears that the error complained of has probably injuriously affected the substantial right of the parties. Rule 45, ARAP. Our review of the record does not reveal that the substantial right of the parties was so affected by the above.

In any event, in this instance, the objections to the question came after the witness answered the questions and no motion was made to exclude such answers. Under these circumstances, we will not put the trial court in error. Gilbreath v. Gilbreath, 278 Ala. 289, 177 So.2d 915 (1965).

This case is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex Parte Ruth Burkett BARNHILL. In re Ruth Burkett BARNHILL v. Roger F. BARNHILL.
    79-714.
    Supreme Court of Alabama.
    Aug. 22, 1980.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and SHORES, JJ., concur.


author: BRADLEY, Judge.

text:
    Harvey C. MONK v. Hildegard M. MONK.
    Civ. 2133.
    Court of Civil Appeals of Alabama.
    June 4, 1980.
    Rehearing Denied July 9, 1980.
    Maury Smith and Julia S. Waters of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, and W. Stanley Garner, Ozark, for appellant.
    Robert H. Brogden of Brogden & Quatt-lebaum, Ozark, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this appeal were divorced by the trial court for incompatibility of temperament. The decree divided the property of the parties, gave custody of the parties’ only child to the mother, awarded child support to her, and gave her $150 per month as periodic alimony. From this decree the husband appeals. We affirm.

Harvey and Hildegard Monk were married on September 24, 1968. He was twenty-five years old and she was thirty-two years old. One child was born to this marriage, Stephen Howard Monk, who is ten and a half years old.

The issues on appeal are whether the trial court committed reversible error in its division of the parties’ property; in its award of $150.00 a month periodic alimony to the wife; and in its award of custody of the minor son to the wife.

The husband’s first contention is that the trial court’s division of the parties’ property is so grossly inequitable as to be an abuse of its discretion. Of course it is axiomatic that if a trial court abuses its discretion in the award of alimony, its decree cannot stand. Goodman v. Goodman, Ala.Civ.App., 366 So.2d 281 (1979). However, it should be remembered that a property division between parties to a divorce action does not have to be equal, only equitable. And, what is equitable will have to be determined on the basis of the nature of each case. Caylor v. Caylor, Ala.Civ.App., 344 So.2d 173 (1977).

In the instant case, Mrs. Monk was awarded the homeplace which was valued at $56,000; however, she was required to assume the $18,000 mortgage. She also received a 1977 Buick automobile, a microwave oven, and the household furnishings. We note here that Mrs. Monk entered this marriage as the owner of a house which was later sold, and an automobile. The house was sold and the husband testified the parties realized a net equity of $4,400 which they applied to the purchase of another house. However, their 1977 federal income tax return showed a capital gain of $10,012.09.

Mr. Monk was awarded some cemetery lots, a lot on Lake Eufaula, Alabama, a 1975 Ford automobile, a peanut combine and inverter, stocks and mutual funds worth about $1,000, miscellaneous personal property, and two lots in Florida on which was owed about $2,500. He was ordered to satisfy the indebtedness on these two lots. He was also ordered to assume other outstanding loans of about $16,950.

Based on the above evidence, we do “not consider that the division of property between the parties to this action is so inequitable as to be an abuse of the trial court’s discretion. This conclusion is supported by the fact that the most significant asset of the parties, the homeplace, was awarded to the wife, who was also given custody of the parties’ minor child and responsibility for the mortgage. See Cobb v. Cobb, Ala.Civ. App., 352 So.2d 1384 (1977); Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974).

The husband’s next contention is that the trial court abused its discretion in awarding the appellee $150 a month periodic alimony.

Alimony is a matter within the sound discretion of the trial court and will not be reversed except for palpable abuse. Stewart v. Stewart, Ala.Civ.App., 341 So.2d 490 (1977).

The criteria which the trial court considers in a determination of alimony are as follows: (1) the earning ability of the parties; (2) their future prospects; (3) their age, health and station in life; (4) the duration of the marriage; and (5) the conduct of the parties as relates to the cause of divorce. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962).

In the instant case, Mrs. Monk was forty-three and Mr. Monk was thirty-seven at the time of the divorce. The marriage lasted eleven years.

At the time she met Mr. Monk, Mrs. Monk was working as a sales clerk and assistant branch manager at the Post Exchange, Port Rucker, Alabama. She is still working there and earns a net pay of $462.36 a month. On the other hand, Mr. Monk is a flight instructor with Doss Aviation at Fort Rucker and earns $948.90 a month. Although there is a dispute as to the earnings from his position as a major in the National Guard, the appellee appears correct in referring to his 1978 wage and tax statement which lists $5,420.28 net pay which would amount to $461.61 net pay per month. Therefore his total take-home pay per month is $1,410.51.

The evidence at trial also established that Mrs. Monk had some health problems. She had to wear support hose because of leg problems. Mrs. Monk testified that she had had seven operations on her legs. Mr. Monk testified that his wife had only one leg operation to his knowledge.

As for the conduct of the parties, Mrs. Monk admitted to engaging in an adulterous affair after she and her husband had separated. However, there was also testimony by Mrs. Monk that she had found her husband embracing another woman and that she had also caught Mr. Monk talking on the phone to this same woman. Mrs. Monk testified that she had found prophylactics in her husband’s possession, although she had her tubes tied in 1973. There was also testimony by both parties indicating that each had performed acts of violence on the other on occasion.

After carefully considering the evidence in light of the above noted criteria for determining alimony, we cannot hold that the trial court palpably abused its discretion.

The husband’s third issue is whether the trial court abused its discretion in the award of custody of the minor child to the wife.

In a child custody case we have repeatedly stated that the primary consideration is the welfare and best interests of the child. Hodges v. Nelson, Ala.Civ.App., 370 So.2d 1020 (1979).

The father claims an unhealthy environment exists at the mother’s home and that it would be in the best interests of the child to live with the father. Mr. Monk related that he had found drugs at the wife’s house on two occasions—at these times an adult son of the wife’s by a former marriage was staying at the house, though he no longer resides there; that on one occasion the son brought several of his friends to the house at night and they lounged on the front lawn drinking beer and singing; that the wife had become so intoxicated one night after the separation that she had to be taken home, however the bartender at the country club testified this was the only time she had seen the wife intoxicated; that the wife used vulgar language in front of the child; and that the older son would discipline his child.

Testimony was adduced showing that the mother had a loving relationship with the child; that she kept a neat, clean house; that the mother and child attended church regularly; that the husband was away from the house much of the time, but when he was present he yelled at the child, leaving the care and nurture of the child up to the mother; and that the child was afraid of the father.

Mr. Monk seems to contend that the wife should not be given custody of the child mainly because she spent several days with a male friend in another city. However, an adjudication of the wife’s adultery in a divorce action is not in and of itself an absolute bar to her having custody of the parties’ minor children. Eskew v. Eskew, 57 Ala.App. 512, 329 So.2d 567 (1976) We noted that a parent should not, necessarily, be deprived of child custody for each act of indiscretion or immorality unless such behavior had a detrimental effect on the child. In the instant case there is no evidence that the mother’s behavior had such effect.

The evidence as to whether the best interests of the child would be served by placing his custody in the mother or the father is conflicting. The trial court was in the best position to decide the conflict in the evidence on custody, for it heard the testimony and saw the witnesses testify. Consequently, its resolution of the conflicting evidence relating to child custody must be upheld unless the decision is plainly and palpably erroneous. We cannot say that this aspect of its decree is erroneous by this standard.

For the reasons set out above, the decree of the trial court is affirmed.

Mrs. Monk has requested an award of attorney’s fee for defending this appeal, but, in view of the evidence, we conclude that she is able to pay for the services of her attorney. Request for attorney’s fee is-denied.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: FAULKNER, Justice.

text:
    Ex parte Harvey C. MONK. In re Harvey C. MONK v. Hildegard M. MONK.
    79-808.
    Supreme Court of Alabama.
    Aug. 22, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, SHORES and EMBRY, JJ., concur.


text:
    Billy G. HALLMAN v. CITY OF NORTHPORT.
    Civ. 2240.
    Court of Civil Appeals of Alabama.
    July 30, 1980.
    C. Michael Stilson, of Thompson & Stil-son, Tuscaloosa, for appellant.
    Ryan deGraffenried and Robert P. Reynolds of Hubbard, Waldrop, Tanner & de-Graffenried, Tuscaloosa, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge:

This is an appeal by a police officer of the City of Northport from a judgment of the circuit court sustaining a decision of the Personnel Board of the City of Northport that he was not entitled to seniority rights for approximately five years when he did not actually work for Northport pending a final determination of a prior disciplinary action against him.

For a more comprehensive understanding of the case, it is necessary to summarize the lengthy history of this controversy.

During “horse play” while on duty, Hall-man discharged his pistol, nearly shooting a fellow officer, and, as a consequence, he was dismissed as a patrolman by the city council in December 1973. He appealed to the personnel board, who sustained his dismissal, which resulted in his appeal to the circuit court where he likewise received the same adverse ruling. This resulted in his appeal to this court where, on May 26,1976, the case was reversed and remanded to the circuit court for a trial de novo. Hallman v. City of Northport, Ala.Civ.App., 333 So.2d 152 (1976). On November 8,1978, the circuit court rendered its judgment which modified the action of the board by suspending him for thirty days with forfeiture of all back pay. The judgment was silent as to seniority rights. No appeal was taken from the November 8 judgment and Hall-man resumed his employment on December 8, 1978, as a Northport patrolman. From December 1973 until December 1978, he had been employed as a police officer, or deputy sheriff, by other cities and by the Lamar County Sheriff’s office.

Hallman testified, “I was under the impression when I went back the seniority came automatically. That is all I have asked for my job and seniority back. When I went back Chief Ellis advised me the court order didn’t state one way or the other and . . . ” he requested a hearing before the board. On August 8, 1979, the board granted seniority to him only for the time he actually worked for Northport, from November 1972 through December 1973. They further decided that he was not entitled to seniority from December 1973 to December 8, 1978. He again filed a notice of appeal on August 15,1979, to the circuit court, which court, on December 12, 1979, also decided that he was only entitled to seniority for said thirteen months. Hall-man again appeals to this court.

The right to appeal is purely statutory, and an appeal taken without statutory authority must be dismissed for want of jurisdiction. Wheat v. Ramsey, 284 Ala. 295, 224 So.2d 649 (1969); Tarvin v. Tarvin, 266 Ala. 214, 95 So.2d 397 (1957); 2 Ala. Digest Appeal and Error Key 1. Here, pertinent parts of the statute governing appeals from a decision of the personnel board to the circuit court are as follows:

Section 19. Appeal to the Court. Decisions of the board may be enforced in the court by mandamus, injunction, or other appropriate proceedings. The employee . . may, within ten (10) days after the decision of the board is rendered, appeal to the court from any decision of the board affirming, imposing or refusing to affirm or impose dismissal or demotion as disciplinary action by filing notice of such appeal .

Act 1225, Acts of Alabama, Regular Session 1969.

This case has no pleadings except for the simple, but ample, notice of appeal from the board’s decision to the circuit court. Therefore, it would be a stretch of judicial imagination beyond all bounds of judicial propriety or credibility to hold the notice of appeal to be anything but what it states that it is, an appeal.

The appeal was not from any decision of the board either affirming or refusing to affirm the appellant’s dismissal or demotion as disciplinary action. The appeal was from a decision of the board denying that Officer Hallman was entitled to certain seniority. There is no statutory authority for anyone to appeal from any decision of the personnel board as to seniority rights of a city employee. The legislature did not grant the right to appeal from such decisions. The circuit court, therefore, had no jurisdiction as to Hallman’s latest appeal. Wheat v. Ramsey, supra; Tarvin v. Tarvin, supra. The trial court being without jurisdiction to render the judgment of December 12, 1979, the appeal to this court must be dismissed. Local 1264, I. B. of E. W. v. Broadcast Service of Mobile, Inc., 278 Ala. 29, 175 So.2d 460 (1965).

The fact that the parties have raised no question concerning jurisdiction, either in the trial court or here, and invite the court to consider the case on its merits, is not controlling. Lack of jurisdiction cannot be waived, or supplied by consent of the parties. (Citations omitted.)

City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958).

We have no alternative but to dismiss the appeal.

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

APPEAL DISMISSED.

All the Judges concur.


text:
    Euell R. RUSSELL v. Joyce RUSSELL.
    Civ. 2245.
    Court of Civil Appeals of Alabama.
    July 30, 1980.

      W. Bartlett Taylor, Andalusia, for appellant.
    James M. Prestwood of Prestwood & Prestwood, Andalusia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

These proceedings sought to enforce child support as previously ordered in a divorce judgment.

The contentions of the appellant-defendant are (1) that the trial court erred in overruling his motion for a new trial, and (2) there was error in divesting the defendant of his ownership in real estate to satisfy his delinquency in child support payments.

The final divorce decree was filed on December 2, 1968, and an appeal by the defendant ensued. Russell v. Russell, 45 Ala. App. 455, 231 So.2d 910 (1970). While much of the decree was quoted in the 1970 opinion, for a more comprehensive understanding of the issues now before the court, we again quote some of the pertinent provisions of the 1968 decree.

IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that during the dependency of the minor children of the parties or any of them, that the respondent shall pay to the complainant as support and maintenance for said minor children an amount of his take home pay each week which is equal to the percentages hereinafter set forth. ... In weeks which the respondent does not work or does not make payments to the complainant for the use and benefit of said minor children in the amount of money as hereinafter decreed, there shall accrue as a lien against his interest in the real estate of the parties an amount equal to the sum as hereinafter set forth. It is further Considered, Ordered, Adjudged and Decreed by the Court that when the earnings of the respondent shall not be sufficient to pay the following amounts each week for child support that the difference between the amounts so paid by the respondent and the amounts herein set forth shall accrue as a lien in favor of the complainant against the respondent’s interest in the real property of the parties and to be paid before the respondent shall enjoy any use and benefit of any of the real estate of the parties. [T]he difference between the actual amount paid and the minimum herein fixed shall be a lien in favor of the complainant against the interest of the respondent in the real estate of the parties to be paid by him before any enjoyment of the proceeds of the real estate.
IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that all real estate acquired by the parties during the marriage and still owned by the parties at the time of this trial, regardless as to how title to said property was taken, whether in the name of either individually, or in the name of the parties jointly, are to be held and managed by the complainant for the use and benefit of the parties all as herein set forth. Said complainant is to be permitted to use any of said real estate as the place of abode of herself and the minor children of the parties and to manage by rental any and all of the remainder of said properties and to collect the rental therefrom and apply the rental of said property from the date of this decree until all indebtedness against all of said real estate has been paid and then after the payment of all indebtedness, now existing against said real estate shall have been paid, and after the complainant has been reimbursed for all sums expended by her in the payment of said mortgage indebtedness over and above the rental income of the properties, this decree shall be inoperative as to any of said properties. .
It being the intention of the Court that the complainant shall have the responsibility for making all present mortgage payments on said real estate and that after said mortgages are paid that the complainant shall reimburse herself from the rental income of the properties for sums expended by her for said mortgage payments over and above the rental income less repairs, insurance, taxes and commission as hereinabove set forth. It is further Considered, Ordered, Adjudged and Decreed by the Court that each of the parties are hereby enjoined from conveying, encumbering or filing a bill for partition and sale on any of the properties and any interest therein owned by either of the parties to any of the above described property until all indebtedness now existing against said property shall have been paid in the manner herein-above provided for the payment of the same and until the youngest of said minor children of the parties shall be non-dependent as herein described as that same term pertains of the payment of support money for the maintenance and education of said minor children of the parties. It being the intention of the Court that when the mortgage indebtedness against said property shall have been paid from the proceeds of the rentals of the same as hereinabove enumerated and when all of the minor children of the parties are no longer dependent on the parties as hereinabove defined, that each of the parties shall enjoy the title to all of the real estate in the exact degree as they originally saw fit to receive the conveyance of the title to the same.

In 1979 the plaintiff filed a petition averring that the defendant was, under the terms of the divorce decree, indebted to her in the amount of $36,573.07 for expenses as to the real property and that defendant was in arrears as to child support in the total sum of $26,384.57. She requested that defendant’s interest in the real estate described in the decree be divested from him and invested in the plaintiff. The defendant answered the petition. On the day that the case was set for trial, the defendant and his attorney conferred, but, shortly before trial, the defendant was observed leaving the courtroom by the trial judge and by plaintiff’s attorney. His attorney, personally and through his secretary, searched in vain for the defendant. Without a request for a continuance and without objection, the court instructed the attorney for the plaintiff that he could proceed with his evidence. At the ensuing trial, it was stipulated by counsel that the child support payments due to that date amounted to $26,298.57. Evidence was taken as to the real estate expenses.

On October 9, 1979, the judgment of the trial court was filed, which stated partially as follows:

Each of the parties being represented by counsel and each of the parties being present until just before the commencement of the trial when the Respondent voluntarily and without any explanation absented himself and thereafter the Court proceeded to hear the evidence.
The Court finds from the evidence that the Respondent is in arrears in the payment of child support in the amount of twenty-six thousand two hundred ninety-eight dollars and fifty-seven cents ($26,-298.57). It being obvious to the Court that said child support will never be paid and that the lien fixed by the decree of the Court entered on November 2, 1968, should be enforced and the Respondent’s interest in the real estate described in said decree should be divested out of him and invested in the Complainant. .

On October 29, 1979, the defendant filed a motion for a new trial complaining of excessive damages being awarded to the plaintiff because of the divesting of the defendant’s interest in the real estate and contending that the defendant’s evidence could have refuted the evidence upon which the “verdict” was based and that he had evidence which explained the arrearage of child support payments and new evidence as to his employment status for the past ten years which might affect the ultimate decision of the court. Although the judge overruled the motion on February 6,1980, it had already been denied by operation of law upon the expiration of ninety days from the date of the filing of the motion. Rule 59.1, ARCP.

1

A ruling upon a motion for a new trial is within the sound discretion of the trial court and will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979); 15 A Ala.Digest, New Trial, Key No. 6.

The defendant abandoned the courtroom before the trial. The “new evidence” would have consisted of the evidence which the defendant was then cognizant of or which could have been discovered with reasonable diligence. The amount of child support in arrearage was not disputed. Therefore, we hold that the defendant’s motion for a new trial was due to be overruled upon all stated grounds other than that one attacking the divesting of his interest in his lands, which will be discussed separately herein.

2

In view of the subsequent failure of the defendant to support his children in the stipulated total amount of $26,298.57 as of the date of the trial, it is eminently clear that the learned trial judge exercised utmost wisdom in the 1968 decree by declaring a lien upon defendant’s interest in the lands in the event of unpaid child support. Such lien was upheld by this court in the prior appeal.

The plaintiff, therefore, had a lien for the $26,298.57 delinquent child support upon the defendant’s interest in the property described in the divorce judgment. If she desired, she was entitled to have her lien enforced, but we know of no authority by which defendant’s interest in the property could then be summarily forfeited to her as was done by the latest judgment. After the rental proceeds paid the mortgage indebtedness and when all of the children were no longer dependent, each party was awarded the same interest in the real estate as they originally received in the conveyance of title to the same, the defendant’s interest, however, being subjected to such lien. This constituted a property division of the real estate of the parties,

“After a lapse of thirty days from the date of the decree, a court cannot modify a property settlement provision except to correct clerical errors.” Monroe v. Monroe, 356 So.2d 196 (Ala.Civ.App.1978). A property settlement is not subject to being modified because of changed conditions. Cochran v. Cochran, 289 Ala. 615, 269 So.2d 897 (1972). In this respect, there is no difference between a judgment of a court dividing the parties’ property and a judgment which approves an agreement of the parties providing for a division of property.

Here, by the terms of the divorce decree, the defendant was awarded all of the interest which he held in the described real estate subject to a lien to be impressed against same if he failed to make the required child support payments and subject to plaintiff’s said management thereof. Such is a property division, and the court’s subsequent action in divesting his interest therein and vesting it in the plaintiff would constitute a modification of the division of property.

If the concept of a property division be totally ignored, the forfeiture of his interest in the lands is not the proper method of foreclosing or enforcing her lien. Without question, the plaintiff has a lien against the interest of the defendant in the subject land.

The summary order of sale immediately concurrent with the declaration of the lien fails to allow defendant opportunity to discharge the lien. Neither does it give opportunity of notice to possible pri- or lien holders nor does it allow contest of defendant’s alleged interest in the property.
As a general rule, a lien of alimony or support may be enforced as other liens are enforced; 24 Am.Jur.2d 739. Divorce and Separation. However, in this state it has been held that a divorce court having declared a lien on real estate to secure payment of support, has inherent jurisdiction to entertain a petition to enforce the lien, independently of statutory remedies provided for the enforcement of liens. Hedgecock v.Hedgecock, 249 Ala. 31, 29 So.2d 285. Though a divorce court has such inherent power of enforcement of liens for support, it appears that in exercising such power all persons having an interest in the property involved are necessary parties. Such is the case in all other actions to enforce a lien on real property in equity. Title 33, § 1, Code of Alabama 1940. McLendon v. Truckee Land Co., 216 Ala. 586, 114 So. 3.
Our observations as to the summary foreclosure of the judgment lien in this case are made more apropos by the further observation that such foreclosure and sale was not a part of the petition nor requested by the prayer therein. There was no testimony as to the need for such sale. Cooley v. Cooley, 51 Ala. App. 273, 277, 284 So.2d 729, 732 (1973).

That portion of the judgment of the lower court finding an arrearage in the payment of child support in the amount of $26,298.57 is affirmed; however, we must hold that the learned trial judge erred, in part, by divesting the defendant’s interest in the property and vesting such interest in the plaintiff. This case must be remanded for further proceedings; and, in that connection, we recommend a close reading of the above quoted portion from the Cooley case as possible, partial guidance as to such proceedings.

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

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

All the Judges coneur.


author: BOWEN, Judge.

text:
    Darrell Bernard WALKER v. STATE.
    1 Div. 118.
    Court of Criminal Appeals of Alabama.
    April 22, 1980.
    Rehearing Denied May 27, 1980.

      Floyd C. Enfinger, Jr., of Lacey, Enfinger & Newell, Fairhope, for appellant.
    Charles A. Graddick, Atty. Gen., James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree murder of Charles Phillips. Sentence was life imprisonment. Four issues are presented on appeal.

I

Our review of the facts clearly reveals that the defendant was not denied his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The fifteen month delay from the defendant’s arrest until his trial was caused, at least in large part, by his appeal to the Alabama Supreme Court of the decision of the juvenile court transferring the defendant for criminal prosecution in the circuit court. Further delay was also caused by defendant’s failure to hire an attorney. Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker. Argo v. State, 282 Ala. 509, 213 So.2d 244 (1968) (delay caused by continuance granted at the request of the defendant); Keene v. State, 277 Ala. 327, 169 So.2d 769 (1964) (delay occasioned by absence of a material witness for the defendant); Hammett v. State, 45 Ala.App. 52, 223 So.2d 293 (1969) (delay occasioned by defendant’s confinement to Bryce Hospital for a competency hearing); Love v. State, 44 Ala.App. 85, 203 So.2d 140 (1967) (delay due to defendant’s escape from the State). There is no evidence that the defendant demanded or made any attempt to obtain an earlier trial. Under these circumstances we find no merit in the contention that he was denied a speedy trial.

II

During the State’s case in chief, the prosecuting District Attorney took the witness stand and testified to a confession the defendant made to him in the presence of the defendant’s retained attorney. Before trial commenced, the District Attorney knew that he was going to be a witness. The rule is clearly stated in Maund v. State, 254 Ala. 452, 461, 48 So.2d 553, 561 (1950).

“Although a prosecuting attorney is competent to testify, his testifying is not approved by the courts except where it is made necessary by the circumstances of the case, and, if he knows before the trial that he will be a necessary witness, he should withdraw and have other counsel prosecute the case. The propriety of allowing the prosecutor to testify is a matter largely within the trial court’s discretion.”

However, by allowing the District Attorney to testify without objection, the defendant waived any argument he might have with regard to this matter. Objection was only raised on motion for new trial and then it was too late. “The grounds urged for a new trial must ordinarily have been preserved at the trial by timely and sufficient objections.” Fuller v. State, 365 So.2d 1010, 1012 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1013 (Ala.1979).

III

The confession of the seventeen year old defendant was properly admitted in evidence after the State proved the usual voluntariness and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), predicate and, additionally, that the defendant had been advised by counsel before the statement was made. Alabama Code 1975, Section 12-15-67. When a conflict occurs in the evidence with respect to the voluntariness of a confession, and the trial judge finds that the confession was voluntary, great weight must be given his judgment. His finding will not be disturbed on appeal unless this Court is convinced that the conclusion is palpably contrary to the weight of thé evidence. Thompson v. State, 347 So.2d 1371, 1375 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977). We find no error in the admission of the confession into evidence.

IV

Twice during his cross examination of the defendant, the District Attorney accused the defendant of lying.

“Q. The reason is, you don’t know, because you are lying.
“A. I am not lying. You just want me to be lying.
“MR. ENFINGER [Defense Counsel]: Judge, we’re going to object to that.”
* * * * * *
“Q. You are lying.
“MR. ENFINGER: Judge, we are going to have to object.
“THE COURT: Sustain the objection. Ladies and Gentlemen of the Jury, disregard that comment from your minds.’’

The evidence presented by the State and that presented by the defense directly conflicted and was irreconcilable. Under the evidence, it was logical to conclude that someone was misrepresenting the facts. “The credibility of witnesses as shown by the reasonableness of their story and many other considerations, are legitimate subjects of criticism and discussion.” Smith v. State, 344 So.2d 1239, 1242 (Ala.Cr.App.), cert. denied, 344 So.2d 1243 (Ala.1979). Counsel’s comments should be limited to closing argument. While the District Attorney’s comments may have been improper, they do not represent a case of reversible error.

Here there was no ruling on defense counsel’s first objection. His second objection was sustained and the jury was instructed to disregard the prosecutor’s comment. No additional objection was made, there was no motion for a mistrial, and there was no request for further instruction. This issue was not raised on the motion for new trial. Such a status, prima facie, shows an absence of reversible error. Orr v. State, 40 Ala.App. 45, 49, 111 So.2d 627, affirmed, 269 Ala. 176, 111 So.2d 639 (1958).

We have searched the record for error prejudicial to the defendant and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and BOOK-OUT, JJ., concur.

DeCARLO, J., not sitting.


text:
    Ex parte Darrell Bernard WALKER. (Re: Darrell Bernard Walker v. State of Alabama).
    79-682.
    Supreme Court of Alabama.
    Aug. 22, 1980.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and SHORES, JJ., concur.


text:
    Bruce HALL v. STATE.
    3 Div. 163.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied June 17, 1980.
    Curtis C. Reding, Jr., Montgomery, for appellant.

      Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted for grand larceny and escape. A jury found the defendant not guilty of grand larceny and guilty of escape. Sentence was eighteen months’ imprisonment.

The defendant was an inmate of the state prison system assigned as a staff member to the Montgomery Work Release Center. He was a bus driver. The defendant was not on work release. Because of some allegations that he had attempted to steal cigarettes from a grocery store in Montgomery, the defendant was going to be transferred to Kilby Correctional Facility for safekeeping during the investigation. During the transfer, just after they “had gotten out the gate” of the work release center and before the defendant could be placed in a car, the defendant “broke and ran” from the custody of two correctional counselors.

The defendant was indicted under the provisions of Alabama Code 1975, Section 13-5-65, pertaining to felony escape from a penitentiary or from custody. The defendant contends that he should have been indicted under Section 14-8-8 for misdemeanor escape.

Under the particular facts of this case, we need not determine whether the escape of an inmate staff member of a work release program, that inmate not being on work release, constitutes a felony under Section 13-5-65 or a misdemeanor under Section 14-8-8. Here it is clear that the defendant escaped from the actual custody of two correctional counselors who were transporting the defendant from the work release center to a state penitentiary. We do not think that the intent of the state legislature in passing Section 14-8-8 and Section 14-8-10 was to reduce this type of escape from a felony to a misdemeanor. This was not a case of a mere failure “to remain within the extended limits of his confinement or to return within the time prescribed to the place of confinement” condemned by Section 14-8-8. Jenkins v. State, 367 So.2d 587 (Ala.Cr.App.1978), 367 So.2d 590 (Ala.1979); Miller v. State, 349 So.2d 129 (Ala.Cr.App.1977).

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

AFFIRMED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex parte Bruce HALL. (Re: Bruce Hall v. State of Alabama).
    79-730.
    Supreme Court of Alabama.
    Aug. 22, 1980.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, SHORES and EMBRY, JJ„ concur.


text:
    Michael Douglas SIMS v. STATE.
    7 Div. 712.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied June 17, 1980.
    Randy B. Brooks, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of Ronnie Tippins by stabbing him with a knife. A jury convicted him of murder in the second degree and fixed punishment at ten years’ imprisonment. Two issues are raised on appeal.

I

Initially the defendant contends that the trial judge’s instructions to the jury on the presumption of malice from the use of a deadly weapon unconstitutionally shifted the burden of proving the element of malice to the defendant.

The trial judge charged the jury on the element of malice.

“Malice means done with fixed hate or with wicked intention or motive not the result of sudden passion. That is a definition of actual malice; but the word malice as used in this statute which defines murder has a broader meaning than that. It includes not only actual malice but includes what we call legal or implied malice. And in a broader sense, it means a state or condition of mind which prompts a person to do an unlawful act without legal justification or extenuation. Now, every intentional and unlawful killing of a human being is presumed to be done with malice aforethought unless the circumstances that surround the killing rebut the idea of malice. Every intentional and unlawful killing of a human being with a deadly weapon, such as any type firearm, or knife, or stick, is presumed to be done with malice, unless the evidence which proves the killing rebuts the presumption of malice. So, if a person intentionally and unlawfully kills another by the use of a deadly weapon, such as shooting him with a gun or stabbing him with a knife, he would be guilty of murder in either the first or second degree, unless there are certain circumstances and facts which surround the killing which rebut the idea of malice.”

The judge also charged the jury on the principles that the defendant is presumed innocent; that the burden of proof is upon the State to show the defendant’s guilt beyond a reasonable doubt and to a moral certainty; that the person claiming self-defense “takes on himself the duty of offering some evidence” of self-defense, “unless the evidence offered by the State showing the killing also supplies such evidence.” The court charged:

“He (the defendant) is never under any duty to offer any evidence to show that he was free from fault or show that he did not provoke the difficulty except as may become necessary to meet the evidence which offered by the State that he was not free from fault, or to show that he did provoke the difficulty.”

The trial judge also gave a number of written charges requested by the defendant which, among other things, instructed the jury that the defendant is presumed innocent; that “the burden of proof in this case rests with the prosecution from beginning to end of trial to establish beyond a reasonable doubt every fact essential to the conviction of the defendant. The defendant has no burden to sustain”; and finally that:

“In connection with the question of self-defense you are to presume and assume that the defendant was free from fault in bringing on the difficulty, and the burden is on the State, to prove beyond a reasonable doubt that the defendant was not free from fault in bringing on the difficulty.”

In Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977) affirmed, 361 So.2d 640 (Ala.1978), this Court faced the same argument as the defendant now raises.

“In Strong v. State, 52 Ala.App. 237, 291 So.2d 325, this Court held:
“ ‘Malice is an essential ingredient of murder. As a general rule, it is an inferential fact not susceptible of positive or direct proof. It arises by inference from other facts proven, and in the trial of cases of homicide is to be drawn by the jury, unless the evidence shows, without room for adverse inference, that the killing was intentional, and was accomplished by the use of a deadly weapon which, as a matter of law, may be pronounced a deadly weapon. Mitchell v. State, 60 Ala. 26; Wallace v. State, 41 Ala.App. 65, 124 So.2d 110; Hackmen v. State, 41 Ala.App. 642, 148 So.2d 253; Kemp v. State, 278 Ala. 637, 179 So.2d 762; Brand v. State, 46 Ala.App. 41, 237 So.2d 524; Smith v. State, 47 Ala.App. 513, 257 So.2d 372.
“ ‘In Jones v. State, 13 Ala.App. 10,68 So. 690, the Court of Appeals, per Brown, J., said:
“ ‘ “Where the killing results from the intentional use of a deadly weapon — that is, a weapon which the court may pronounce such as a matter of law, such as a gun or pistol of sufficient caliber and carrying force as to produce death — and the evidence which proves the killing does not at least afford room for an inference rebutting the presumption of malice arising from the use of such weapon, it is then incumbent on the defendant to rebut that presumption by other evidence. If he fails in this burden, the presumption is conclusive against him, and no duty devolves upon the trial court to instruct the jury on any degree of homicide less than murder. Gafford v. State, 125 Ala. 1, 28 So. 406; Hornsby v. State, 94 Ala. 55, 66, 10 So. 522; Hadley v. State, 55 Ala. 31, 37; Mitchell v. State, supra; Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96; Rogers v. State, 117 Ala. 9, 22 So. 666.” ’
“We hold the trial court’s oral charge to the jury on the presumption of malice from the use of a deadly weapon was correct in every respect. Jones v. State, quoted in Strong, supra.”
Jacobs, 361 So.2d at 625.

As in Jacobs, we think that “a careful reading of the Court’s charge to the jury makes crystal clear the burden of proof never shifted from the State to the defendant.” Jacobs, 361 So.2d at 624. The charge was not offensive to the principles expressed in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

II

The evidence shows that the defendant had been living with Josie McRath and her five children for six months prior to the murder and that Mrs. McRath had lived in the apartment for eighteen months before the defendant moved in. Although this appears undisputed, the defendant testified that he “had [his] own house.” This was not explained.

In his oral charge to the jury on self-defense, the trial judge instructed on the duty of retreat and further charged:

“[B]ut this does not apply if you are in your own home, your own abode, and you are not required to flee from your home. So, if you believe that this incident occurred in the home or abode of where the defendant, Michael Douglas Sims, lived, then he was under no duty to retreat

On appeal, the defendant contends that his requested charge number 36 should have been given as it correctly states the law of self-defense that was applicable in this case. Charge 36 does not mention a duty to retreat and is as follows:

“It is not necessary under the evidence in this case that the Defendant should have actually been in danger of death or great bodily harm at the time he stabbed the deceased in order for him to be justified in stabbing the deceased. He had a right to act upon the appearance of things at the time, taken in the light of all the evidence; he had the right to interpret the conduct of the deceased in the light of any threats or prior aggressive actions of the deceased that the evidence shows the deceased to have made against the defendant. If the circumstances attending the stabbing were such as to justify a reasonable man in the belief that he was in danger of great bodily harm or death, and he honestly believed such to be the case, then he had a right to stab the deceased in his own defense, although as a matter of fact he was not in actual danger; and if the jury believes that the defendant acted under such conditions and circumstances as set out above, the burden of showing that the defendant was not free from fault in bringing on the difficulty is on the state, and if not shown the jury should acquit the defendant.”

Defendant’s requested charge 36 was approved in Watts v. State, 177 Ala. 24, 33, 59 So. 270 (1912); Davis v. State, 214 Ala. 273, 277, 107 So. 737 (1926). This charge was later disapproved because it omitted the element of retreat. Smith v. State, 230 Ala. 18, 21, 158 So. 808 (1935); Bowman v. State, 35 Ala.App. 420, 426, 47 So.2d 657 (1950). Here the element of retreat is not involved, it being undisputed that the killing took place in the apartment where the defendant was living, so this charge constitutes a correct statement of the law under the facts of this case.

However, requested charge 36 was properly refused. The charge embraces several principles of law. The trial judge’s oral instructions fully and completely covered the principles that the burden of showing freedom from fault and apparent danger was on the State. Some principles included in requested charge 36 were also covered in some of the given requested charges. Consequently, the refusal of charge 36 was proper.

“Where a requested charge states several distinct propositions of law, the court may properly refuse it if some of them are fully covered in his oral instructions.” Nolen v. State, 376 So.2d 1145, 1147 (Ala.Cr.App.) cert. denied, 376 So.2d 1148 (Ala.1979).

There was no objection to the oral instructions on the principle of retreat and there was never any oral request that the jury be instructed that the defendant had no duty to retreat. Defendant’s requested charge 14 is the only instance of record where the judge was requested to instruct that the defendant was not required to retreat under the facts of this case. However, this charge was specifically, disapproved in Johnson v. State, 257 Ala. 644, 647, 60 So.2d 818 (1952), for its failure to hypothesize the jury’s conclusion on a belief from the evidence.

Generally, in a homicide case in which the evidence shows conclusively that the defendant is under no duty to retreat it is error for the court to charge the ordinary rule that requires a retreat and the exceptions wherein a retreat is not required without declaring that the defendant owed no such duty. Wilkinson v. State, 361 So.2d 400, 404 (Ala.Cr.App.), cert. denied, 361 So.2d 405 (Ala.1978). “If the [trial] court is in error in what it does say in its oral instructions, the remedy is only be way of exceptions [objections] thereto.” Passmore v. State, 47 Ala.App. 189, 190, 252 So.2d 115, 116 (1971). In the absence of a request, objection or exception, alleged error in the trial court’s failure to instruct cannot be raised for the first time on appeal. Peterson v. State, 227 Ala. 361, 150 So. 156, cert. denied, 291 U.S. 661, 54 S.Ct. 439, 78 L.Ed. 1053 (1933); Hurst v. State, 356 So.2d 1224, 1237 (Ala.Cr.App.1978) (failure to instruct that a person who is attacked in his own home does not have a duty to retreat).

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

AFFIRMED.

All Judges concur.


text:
    Ex parte Michael Douglas SIMS. (Re: Michael Douglas Sims v. State of Alabama).
    79-763.
    Supreme Court of Alabama.
    Aug. 22, 1980.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.


author: HARRIS, Presiding Judge. TYSON, Judge,

text:
    Harvey Leroy GRIFFITH v. STATE.
    4 Div. 734.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.
    C. H. Espy, Jr., Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted and put to trial for the possession of marijuana. He was convicted and sentenced to ten years in the penitentiary. He was represented at all stages of the proceedings in the court below, and on this appeal, by counsel of his choice.

The evidence presented by the State at trial tended to prove that a search warrant was served upon appellant at his residence and subsequently about one-half pound of marijuana was found in the house and about thirty pounds of marijuana were found in his pickup parked in the driveway. Appellant did not testify during the case in chief nor did he present any evidence in his behalf.

The sole issue presented on this appeal concerns the trial court’s refusal to suppress the evidence seized from the appellant’s truck. He contends that the trial court’s failure to suppress this evidence prevented him from arguing to the jury that the smaller amount of marijuana found in his residence was for his personal use.

The warrant in question was obtained after Charles Blount, an ABC Board enforcement agent, received information by telephone from a reliable informer that the appellant had marijuana in his possession at his residence, 1006 Southland Drive, Do-than. The informer conveyed this information to Blount on October 28,1978, after the informer visited the appellant’s residence on that same day. The informer also told Blount that the appellant was supposed to go after another load of marijuana.

After receiving this information Blount and Deputy Sheriff Leroy Wood watched appellant’s house from about 10:00 p. m., Saturday, until about 7:00 a. m., Sunday, October 29, 1978. Their main observation post was the ball field at Rip Hewes Stadium, about 200 yards from appellant’s residence. Just before daylight a 1978 GMC Sierra Classic pickup pulled in the driveway. Two people, fitting the general description of those allegedly in possession of the marijuana, got out of the truck and entered the house. Around 6:00 or 6:30, Blount left Wood to continue the surveillance while he went to District Court Judge Billy Sheffield to obtain a search warrant.

Blount swore to an affidavit which states:

“Before me Billy J. Sheffield a Judge of the District Court, Houston County personally appeared Charles Blount who, being duly sworn, deposes and says that he has probable cause to believe and does believe that Harvey Griffith, whose name is to affiant otherwise unknown, has in his possession marijuana, contrary to the law at his residence located at 1006 Southland Drive, Dothan, Houston County, Alabama. Affiant’s probable cause for believing the above is as follows: a reliable informer personally told affiant that he was at the above described residence within the past 36 hours and on that occasion personally saw Harvey Griffith, whose name is to affiant otherwise unknown, in possession of marijuana at that residence. Affiant states that this informer is reliable and has given affiant information about drug law violations within the past 6 months which proved to be true and upon which arrests and convictions have been had. Affiant further states that this informer has never given him false information.”

The judge duly considered the information contained in the affidavit and issued the following search warrant:

“TO THE SHERIFF OR ANY CONSTABLE OF SAID COUNTY
“Proof by affidavit having this day been made before me by Charles Blount that he has probable cause to believe and does believe that Harvey Griffith, whose name is otherwise unknown, has in his possession marijuana, contrary to law, at his residence located at 1006 Southland Drive, Dothan.
“You are therefore commanded, in daylight only to make immediate search on the person of Harvey Griffith, whose name is otherwise unknown in and upon the above described premises for the following property:
marijuana
and if you find the same or any part thereof to bring it forthwith before me, at my office at the Houston County Courthouse, Dothan, Alabama.”

While obtaining this warrant, Blount called his supervisor, Inspector Kenneth Cherry, and ABC Agent James Lecroy, to inform them of the impending search and to request their assistance.

Blount met the others at the residence and at 7:00 a. m. Deputy Sheriff Wood knocked on the door and was admitted in the house. Upon the officer’s entry and search of the residence, about one-half pound of marijuana was found. While the others were inside Blount went to the truck and looked through the rear window of the campershell. From this vantage he stated he could smell the aroma of marijuana. Blount saw, through the window, a dark plastic garbage bag tied at the top. He went inside and obtained the keys from the defendant who owned the truck. When Blount unlocked the campershell and removed the bag he discovered that the bundle was actually two garbage bags, one inside the other, filled with a number of Ziploc plastic bags containing a total of 30.16 pounds of marijuana.

Appellant contends that the trial court committed reversible error by denying his motion to suppress evidence of this large amount of marijuana found in the truck. He contends that the trial court should have suppressed this evidence for two reasons.

Appellant contends:

“The instant search warrant was based upon an affidavit describing the place to be searched as a residence; and said affidavit did not request authorization to search beyond the four walls of the residence. Any authorization in the actual search warrant which permitted the search beyond the residence was invalid as having been an attempt to provide more authorization than was requested by the affiant.”

Appellant contends that the word “residence” used in the affidavit means “dwelling” and therefore

“. . . Officer Blount did not specifically request a search warrant for the premises described as 1006 Southland Drive, Dothan, Alabama, but the residence or dwelling house located there, and the search warrant issued on this affidavit, if held to be valid, only authorized the search of the residence or dwelling house. It did not authorize the search of the yard, the premises, the cur-tilage or any vehicle situated near this residence.”

Appellant relies on a 1924 Mississippi case, Taylor v. State, 134 Miss. 110, 98 So. 459, and he quotes to this court the language which appears on page 460.

“The officers had no right to search any place except that described in the search warrant. In this case both the affidavit and warrant expressly limited the place to be searched to the building occupied by the defendant as a residence. This description does not include the grounds nor the outhouses on the premises.”

This case is not sufficient, persuasive authority because the language in the Mississippi warrant is different from that in the instant case. In Taylor the search warrant authorized the search “of a building occupied by Joe Taylor as a residence.” When the warrant was executed contraband was found in the house. The officers searched the yard and the outhouse finding more contraband. The court correctly held that the officers had no right to search beyond the place described in the warrant.

In the instant case the language in a warrant does not specifically limit the officers to a search of “the building used by Harvey Griffith as a residence” as found in Taylor but rather describes the place subject to search as

the person of Harvey Griffith . and in and upon the above described premises [1006 Southland Drive, Dothan, Alabama] . . ”

The trial court cited two Florida cases in his ruling denying the motion to suppress. Our . attention has not been called to an Alabama case and our research has not revealed one on the issues presented.

In Joyner v. State, 303 So.2d 60, 61 (Fla.App., 1974), the affidavit states that an informer had advised the affiant that the defendant was in possession of marijuana “at the above described premises.” The search warrant described the place to be searched as:

“the apartment on the left or eastward side of said dwelling house and the curti-lage . . . thereof.”

The officers searched the defendant’s car as well as the apartment, finding marijuana in the car. On appeal the defendant urged that the affidavit was insufficient to establish probable cause to search beyond the four walls of the apartment and that the term “curtilage” in the warrant did not include the car. In regard to this the court stated:

“There is no question but that a warrant may be no broader than the affidavit which is a prerequisite to its issuance
“However, in the case sub judice, as above recited, the affidavit stated that the affiant had been advised by a confidential informer that appellant was in possession of marijuana at the subject premises. The preposition ‘at’ has a broader meaning than ‘in’ . . . .”
“Our examination of the entire affidavit leads us to the conclusion that a reasonable interpretation of the information therein contained supports the assertion that appellant was in possession of marijuana ‘at’ the described premises and that the use of that preposition in an affidavit was sufficient to justify issuance of the search warrant describing not only the apartment of appellant but also the ‘cur-tilage’ thereof.”

After concluding that a search of the curtilage was authorized the court in Joyner went on to conclude that a search of an automobile within the curtilage was proper. The court quoted Alexander v. State, 108 So.2d 308 (Fla.App., 1959):

“The point now under consideration has been directly passed upon in other jurisdictions, and it has been uniformly held that where a search warrant authorizes officers to search a described building, together with the yard or curtilage on which the building is located, parked automobiles or other vehicles found in the yard or within the curtilage are proper subjects of search under the warrant. It has accordingly been held that evidence obtained by the search of automobiles or vehicles under such circumstances is admissible to prove the offense with which the defendant is charged.
“We therefore hold that the evidence obtained from the parked automobile located on the premises described in the search warrant in this case was properly admitted by the trial court, and the .motion to quash the search warrant and suppress such evidence was properly denied.”

In Alexander the defendant’s automobile, parked in the driveway, was searched and contraband was found. The court held that the automobile was a proper subject for search and that the appellant’s motion to suppress was properly denied where the search warrant provided for the search of a certain dwelling, the yard and all outhouses on the premises.

Finally, in Brooks v. U. S., 416 F.2d 1044 (Fifth Cir., 1969), the court held that a warrant authorizing the search of a cabin and lot also authorized a search of an automobile parked in the lot.

The affidavit in the instant case spoke of marijuana possessed by the defendant “at his residence” and under the rationale developed in the cases previously reviewed provided a sufficient basis for the search warrant authorizing a search of the premises and the truck found in the driveway.

Appellant further argues that this case is similar to Peavy v. State, Ala.Cr.App., 336 So.2d 199 (1976), where this court concluded the search was an unreasonable general exploratory search. However the facts under the review in Peavy bear slight resemblance to those presently under review. In Peavy the affidavit alleged that there were “controlled substances in a mobile home.” The search warrant authorized a search of all persons “present in or near said mobile home and any motor vehicle adjacent to said mobile home.” When the warrant was executed twenty people were in the mobile home and twelve automobiles were parked outside. The distinction between Peavy and the instant case is clear.

As the second basis for his argument that the trial court erred in denying his motion to suppress appellant maintains that the trial court improperly considered oral testimony allegedly presented to the magistrate issuing the search warrant, which was not reduced to writing as required by § 15-5-4 Code of Alabama 1975.

§ 15-5-4 states:

“Before issuing a search warrant, a judge, or magistrate authorized by law to issue search warrants, must examine on oath the complainant and any witness he may produce, take their depositions in writing and cause them to be subscribed by the persons making them. Such depositions must set forth facts tending to establish the grounds of the application or probable cause for believing that they exist.” (Emphasis added)

This issue arises from the trial court’s consideration of evidence that Blount presented to the District Court Judge oral testimony that the defendant was going to get' another load of marijuana. This testimony was not reduced to writing, i. e., included in the sworn and subscribed affidavit. The trial court denied the defendant’s motion to suppress, saying:

“The Court . . . is of the opinion that the information contained in the affidavit when considered along with the information given to the magistrate not appearing in the affidavit (concerning the Defendant going to obtain another load of marijuana) would authorize the Magistrate to issue a warrant for the house at 1006 Southland Drive, as well as its premises . . . .”

This court considered this question in Oliver v. State, 46 Ala.App. 118, 238 So.2d 916, (1970). Judge Almon speaking for the court said:

“. . . It is my view that oral testimony should be admissible to cure an otherwise defective affidavit.
“Could it have been logically argued that due to the failure of a committing magistrate (in conformity with Tit. 15, § 135, Code of Alabama, 1940, now repealed by Act No. 1106, Special and Regular Sessions, 1969) to reduce the evidence to writing, a defendant who has been bound over to the grand jury must be released. I think not. Similarly, the failure of an issuing magistrate to comply with Tit. 15, § 103, should not vitiate an otherwise valid search warrant.
“It should be remembered that prior to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, evidence was admissible at trial, with the exception of liquor cases (Tit. 29, § 210, Code of Alabama, 1940) regardless of the manner of seizure. To strictly construe Tit. 15, § 103 [§ 15-5-4, Code of Alabama, 1975] as to prevent a reviewing court from considering oral testimony given before an issuing magistrate is but to engraft an additional state requirement on the already strict federal search and seizure rules now made mandatory on state courts.”

Thus it appears that the trial court in the instant case did not commit error in his consideration of the oral testimony presented to the district judge or in his denial of the defendant’s motion to suppress the evidence seized from the truck.

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, except TYSON, J., who concurs with opinion.

TYSON, Judge,

concurring.

I concur in the foregoing opinion as prepared by Judge Harris.

I wish to point out, however, that the matter of allowing into evidence, before the trial court, of oral testimony, before the issuing magistrate, in support of the affidavit and warrant, was laid to rest by this Court in Funches v. State (1974), 53 Ala. App. 330, 299 So.2d 771, cert. denied, 293 Ala. 752, 299 So.2d 778, cert. denied, 419 U.S. 1114, 95 S.Ct. 793, 42 L.Ed.2d 813.

The party giving the oral testimony in support of the affidavit and warrant should have “first hand knowledge” of the matters shown upon which such testimony is based.


text:
    Ex parte Harvey Leroy GRIFFITH. (Re: Harvey Leroy Griffith v. State of Alabama).
    79-733.
    Supreme Court of Alabama.
    Aug. 22, 1980.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J, and FAULKNER, SHORES and EMBRY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Quinton Dexter HARVILLE v. STATE.
    8 Div. 339.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Donald R. White, Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted for the first degree murder of his five year old daughter by causing her suffocation. A jury found appellant guilty of second degree murder and fixed his punishment at twenty years in the penitentiary. Appellant was properly arraigned in the presence of his attorney and interposed a plea of not guilty and not guilty by reason of insanity. The special plea of not guilty by reason of insanity was subsequently withdrawn. After sentence was imposed, appellant gave notice of appeal and was determined to be indigent. Appellant has been furnished a free transcript-and his trial counsel was appointed to represent him on appeal.

The evidence was conflicting and as such presented questions for the jury to resolve. McBryar v. State, Ala.Cr.App., 368 So.2d 568, cert. denied, Ala., 368 So.2d 575; May v. State, Ala.Cr.App., 335 So.2d 242; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

Viewing the evidence presented by the prosecution in its most favorable light, as we are required, Bass v. State, 55 Ala. App. 88, 313 So.2d 208; Livingston v. State, 44 Ala.App. 559, 216 So.2d 731, we find the evidence sufficient to prove appellant’s guilt beyond any reasonable doubt. The State’s evidence clearly supports the jury’s verdict.

Briefly, appellant and his wife took their five year old daughter, Denise, to the emergency room of the Lawrence County Hospital at approximately .7:25 p. m. on July 8, 1979. She was declared dead on arrival. Dr. Garland C. Hall, Jr. administered emergency resuscitation measures, but to no avail.

An autopsy later revealed that Denise's death was caused by “the aspiration of the stomach contents into the lungs.” Dr. Joseph Haden Embry, who performed the autopsy, testified that several mechanisms could have produced the aspiration. After ruling out epilepsy and drugs in Denise’s case, Dr. "Embry testified that another “common cause of aspiration is asphyxia, which may be produced either by smothering or choking or anything that cuts off air from the outside.” Dr. Embry gave his opinion that Denise “was probably smothered.”

Just prior to the Harvilles’ leaving for the hospital, Doris Nolen, a next door neighbor, testified that she heard appellant talking in a loud voice, that “he sounded like he was angry or mad or something.” Approximately a week later, appellant came to Mrs. Nolen’s house to use the telephone and told her “he might of did kill Denise, but if he did, it was an accident in getting her to the hospital.” Appellant also told her “that them was his children to do with as he pleased, and nobody had any say-so over the kids, because they belonged to him.”

Dennis Harville, Denise’s twin brother, testified that he saw “Daddy put his hand over her mouth and make her die.” Dennis stated that it happened in the bedroom of their house and that he rode with his parents carrying Denise to the hospital.

Mary Davis testified that she saw the Harvilles arrive at the emergency room with Denise. Dennis told her “that they were at his granny’s, and Denise had cried for water. He said that after they went home Denise still was crying. And he said that Denise cried and cried. He said, ‘Daddy put his hand over Denise’s mouth until Denise didn’t cry any more.’ ” Mrs. Davis further stated that she “could smell whiskey real bad” on appellant.

Mrs. Floy LouAllen also testified that she talked with Dennis at the hospital when Denise was brought in. “Dennis said that she was crying, and that him placed — him did this. (Indicating) He put his hands over her mouth. And he said that her went like this, . . and he dropped his head to his shoulders and closed his eyes. . And he said that mama tried to give her a drink of water and her wouldn’t take it.” Mrs. LouAllen stated that the odor of alcohol was strong on appellant and that she heard him say, “Blame me, it’s all my fault.”

E. D. Montgomery, a cell-mate of appellant’s in the Lawrence County Jail, testified appellant told him in conversation that “he killed his baby.”

Robert Wingo, another cell-mate of appellant’s, testified: “We never had any open conversation about it, but one night Quinton had made a statement that he placed his hand over the child’s mouth to keep it from crying. . . And he went on to say that all he did was put his hand over the child’s mouth to keep it quiet.”

Mrs. Melvie Stout testified that she overheard a conversation between appellant and his sister at the funeral home. “I was seated across from them, and Quinton came into the room and he knelt — stooped down to Earlene, and he said, ‘They are wanting to talk to me.’ . . . ‘What am I going to say?’ and she said, ‘You are going to say what you said you were going to, that you were in the yard. . . . ’”

After the State rested and appellant’s motion to exclude the State’s evidence was overruled, appellant presented the following testimony. Fred Harville, appellant’s father, testified that Denise had been complaining with a stomach ache and that he heard Denise crying before “they left out and went to the doctor.” The essence of Mr. Harville’s testimony was “I didn’t even speak to them any more after they left out of my house there. I didn’t know what got wrong with her in there.” Mr. Harville stated his son “wouldn’t have killed her.”

Dr. Willard Irwin testified that he had treated Dennis Harville for a respiratory infection on May 12, 1979, and that he had last treated Denise Harville for a respiratory infection in February of 1975.

Appellant testified in his own behalf that, while his wife, Annette, was cooking supper for Dennis and Denise, he had stepped outside to roll up the car windows and to use the bathroom. He heard Annette holler, “Quinton, something is wrong with Denise.” Appellant stated that he ran into the house and Annette had Denise in her arms. “[S]he said she couldn’t get her mouth open, and so I had to take my finger and prize her mouth open.” It was appellant’s story that, after they failed to revive Denise, “We got in the car and took her to the hospital.” Appellant denied harming his child in any way. Annette Harville’s testimony was substantially similar to her husband’s.

The State presented additional evidence on rebuttal, which, again, was in direct conflict with appellant’s version.

Prior to the reception of any evidence, and in accordance with Ala.Code § 12-21-165 (1975), the trial court conducted a hearing on appellant’s motion to suppress the testimony of five year old Dennis Harville. It is alleged by appellant that Dennis could not understand the nature of an oath and was therefore incompetent to be a witness.

Omitting a number of preliminary questions which the trial judge asked Dennis, we quote from the record:

“THE COURT: All right. Dennis, do you know what it means to tell the truth?
THE WITNESS: Uh-huh.
THE COURT: Can you tell the truth?
THE WITNESS: Uh-huh.
THE COURT: Do you know what it means to tell a lie?
THE WITNESS: Uh-huh.
THE COURT: Which is the best, to tell the truth or to tell a lie?
THE WITNESS: To tell the truth.
THE COURT: Do you know what happens to little boys that don’t tell the truth?
THE WITNESS: What?
THE COURT: I am asking you; do you know what happens to you? What happens to you when you tell a story?
THE WITNESS: I am fibbing and fibbing.
THE COURT: You are fibbing?
THE WITNESS: Uh-huh.
THE COURT: What happens to you if you fib?
THE WITNESS: I am going to have to tell the truth and not tell a lie.
THE COURT: You are going to what?
THE WITNESS: I am going to have to tell the truth. When you tell a lie, you are going to have to start over and tell the truth.
THE COURT: In other words, do you tell the truth all the time?
THE WITNESS: Uh-huh.
THE COURT: Okay. Do you know what this hearing is about, Dennis?
THE WITNESS: Uh-huh.
THE COURT: What is it about?
THE WITNESS: It’s about telling the truth and not telling a lie.
THE COURT: About telling the' truth?
THE WITNESS: Uh-huh, and not telling a lie.
THE COURT: All right. Do you always tell the truth?
THE WITNESS: Yes.
THE COURT: Okay. Have you been sick recently?
THE WITNESS: I was sick.
THE COURT: When were you sick?
THE WITNESS: One time when I was at my house and I was with my mama and I got sick and I went to the hospital.
THE COURT: You were up at your house and you got sick?
THE WITNESS: Uh-huh.
THE COURT: That was before you started going to Mrs. Betty’s, wasn’t it?
THE WITNESS: Uh-huh.
THE COURT: All right.
THE WITNESS: Before Richard Walker came and picked me up.
THE COURT: Before Richard Walker came and picked you up?
THE WITNESS: Uh-huh.
THE COURT: Are you six years old now?
THE WITNESS: No, I am still five.
THE COURT: When will you be six?
THE WITNESS: When I get big I will be six years old.
THE COURT: All right. (To Mr. Litt-rell) What does the record show his birthday is?
MR. LITTRELL: July the 1st, 1974.
THE COURT: So he was six July the first?
MR. LITTRELL: No, five.
THE COURT: Five?
MR. WHITE: Uh-huh.
THE COURT: All right. I don’t have any other questions concerning him. Dennis, who is your Sunday School Teacher, son?
THE WITNESS: Mr. Beaty.
THE COURT: Miss Betty?
THE WITNESS: No, Mr. Beaty at the church teaches me.
THE COURT: All right. (To Mr. White) Do you have any other offering you want to make?
MR. WHITE: No, except to renew our Motion to Suppress. He has shown no knowledge of God, and that God awards for the truth and avenges for falsehood. He has no comprehension of the solemnity of the oath, and simply—
THE COURT: Okay. Dennis, do you know what it means to tell the truth? (NO ANSWER FROM THE WITNESS)
THE COURT: Do you know what it means to swear to tell the truth and to take an oath?
THE WITNESS: Uh-huh.
THE COURT: What do you do when you swear to tell the truth?
THE WITNESS: When you tell the truth you have got to tell the truth.
THE COURT: Okay. Anything else from the State?
MR. LITTRELL: I don’t have any thing.
THE COURT: All right, come down. (WITNESS LEAVES THE WITNESS STAND)
THE COURT: Okay, I am going to overrule your Motion. I am going to allow him to testify.”

This exact question has been recently answered by this court in Roberson v. State, Ala.Cr.App., 384 So.2d 864 [1980], an opinion authored by Judge Bowen. From Roberson, which also involved the competency of a five year old, we quote:

“At common law the oath was regarded as a ‘summoning of divine vengeance upon false swearing, whereby when the spectators see the witness standing unharmed they know that the divine judgment has pronounced him to be a truth-teller.’ 6 Wigmore, Evidence, § 1816 (Chadbourn Rev.1976). The oath involved ‘a belief in a superhuman (and therefore inevitable) retribution to follow false swearing’. 6 Wigmore, § 1817. This belief is inherent in the very definition of an oath, Blackburn v. State, 71 Ala. 319, 321-322 (1882); Goolsby v. State, 17 Ala.App. 545, 546, 86 So. 137 (1920), and was required at common law before a witness could testify under oath. C. Gamble, McElroy’s Alabama Evidence, § 94.02(1). Under the common law rule the lack of such religious training and instruction as ‘excited a hope of future reward to the good and fear of punishment to the wicked’ disqualified and rendered one incompetent as a witness. Jones v. State, 145 Ala. 51, 40 So. 947 (1906).
“ ‘By the common law no particular form of religious belief was insisted on as the test of competency, other than that there should be a belief in an omniscient Supreme Being as the rewarder of truth and the avenger of falsehood.’
Marshall v. State, 219 Ala. 83, 86, 121 So. 72 (1929).
* * * * * *
“‘Our Constitution, Section 3, does not seem to have been considered in connection with this principle, and we find that the state of the record in this case does not require a decision of its effect on the common-law rule.’
“Section 3 of the Alabama Constitution of 1901 guarantees that ‘no preference shall be given by law to any religious sect, society, denomination, or mode of worship’ and that the ‘capacities of any citizen shall not be in any manner affected by his religious principles’. The Alabama Supreme Court has not, in formal opinion, decided the effect of this constitutional provision upon the common law rule requiring a belief in a Supreme Being as the avenger of falsehood as the test for the competency of a witness. However, in Wright v. State, 24 Ala.App. 378, 135 So. 636 (1931), the Alabama Court of Appeals considered this very question. There, a majority of the Court (Bricken, P. J., and Rice, J., with Sam-ford, J., dissenting) held that Section 3 of the Constitution ‘completely abrogates the common-law rule’. See 6 Wigmore, Evidence, § 1828(b) (Chadbourn Rev. 1976). Consequently, testimony from an atheist must be admitted into evidence. Rodgers v. State, 42 Ala.App. 660, 177 So.2d 460, cert. denied, 278 Ala. 712, 177 So.2d 464 (1965).
“Although dicta, this Court in Conner v. State, 52 Ala.App. 82, 87, 289 So.2d 650 (1973), cert. denied, 292 Ala. 716, 289 So.2d 656 (1974) stated:
“ ‘We do not think that our eases call for a religious test in contravention of the Alabama Constitution, § 3, nor of the First Amendment to the Constitution of the United States. Wright v. State, 24 Ala.App. 378, 135 So. 636 (witness was an atheist).
“ ‘The important enquiry is the morality of speaking truthfully. McGuff v. State, 88 Ala. 147, 7 So. 35; Wigmore, supra, §§ 495(2) and 1828; Code 1940, T. 7, §§ 363 and 364.
“Under Wright, a witness’s religious beliefs are immaterial. Consequently, we find that the trial judge did not err in failing to qualify the witness in this regard.
“The primary burden of qualifying a witness is upon the trial judge. Defense counsel never made any request that he be permitted to cross examine the youth on his religious beliefs.
“ ‘Whether a child is qualified to take a witness’ oath is a matter that is lodged necessarily in the discretion of the trial court because, among other things, the trial court has the opportunity of observing the manner and appearance of the child while being examined, an opportunity which the appellate court does not have.’
C. Gamble, McElroy’s Alabama Evidence, § 94.02(3) (3rd ed.1977).
“See also Godau v. State, 179 Ala. 27, 60 So. 908 (1913). The record does not show that the witness was disqualified to testify. ‘(U)pon the objector to competency rests the burden to sustain it.’ Birmingham Railway L. & P. Co. v. Jung, 161. Ala. 461, 478, 49 So. 434, 440 (1909). “ ‘The discretion of a trial judge as to the competency of a witness is of a well nigh irrevisable nature.’ Trammell v. State, 53 Ala.App. 246, 247, 298 So.2d 666, 667 (1974). It is only in strong cases that the ruling of the trial court admitting the testimony of a witness should be reversed. Beason v. State, 72 Ala. 191 (1882).”

From the record we do not think that we are authorized to say that the trial judge committed error in permitting Dennis Harville to testify. As in Hacker v. State, 31 Ala.App. 249, 250, 15 So.2d 336, 337, cert. denied, 244 Ala. 649, 15 So.2d 339, “(W)e are of the opinion if any doubt of the correctness of said ruling prevailed or existed, all such doubt was fully dissipated and rendered innocuous by the straightforward manner in which this child of tender years gave (his) testimony as a witness.”

In Jackson v. State, 239 Ala. 38, 193 So. 417, the Supreme Court held that a four year old child was a competent witness.

There was testimony that appellant’s wife had six children by a previous marriage. The six children were taken from her and her ex-husband by the Department of Pensions and Security and they were placed in foster homes.

After the death of the little girl in this case the five year old boy was taken from appellant and his wife by the Department of Pensions and Security. The mother was permitted to see this child on only one occasion. Her request to see this child on a second occasion was refused. This tells us, loud and clear, that the mother was unfit to even be around the surviving child for a few minutes much less that she was entitled to custody or visitation rights. Such is the background of this family. Only a depraved mind could have caused the death of this helpless child. The jury was extremely lenient in fixing appellant’s sentence at twenty years in the penitentiary.

Appellant next contends that the trial court erred in admitting the testimony of Mary Davis and Floy LouAllen concerning the statements Dennis Harville made at the hospital. There is no merit to this contention as Dennis’ statements to the above witnesses come within the “spontaneous exclamation or res gestae exception” to the hearsay evidence rule. This subject is treated comprehensively, with citation of supporting authorities, in C. Gamble, McElroy’s Alabama Evidence, § 265.01(1) (3rd ed.1977):

“Generally, a person’s statement concerning a startling occurrence made while he is perceiving the occurrence, or soon after his perception thereof, and while he is under the stress of a nervous excitement created by such perception, is admissible as tending to prove the truth of the matter asserted. A statement of this kind is frequently referred to as a spontaneous exclamation or excited utterance and is an exception to the hearsay evidence rule. “The statement must be the apparently spontaneous product of that occurrence operating upon the visual, auditory, or other perceptive sense of the speaker. The declaration must be instinctive rather than deliberative. In short, it must be the reflex product of the immediate sensual impressions, unaided by retrospective mental action.”

Applying the above principles of distinction to the present facts, our findings are in accord with the findings so succinctly expressed by Judge Clark writing for this court in Bass v. State, Ala.Cr.App., 375 So.2d 540, 543:

“That the occurrence was of a most startling nature is beyond question; that the witness was under the stress of nervous excitement while seeing, and immediately after seeing, such startling occurrence, is beyond reasonable doubt; the evidence indicates that. the startling occurrence was still in progress; what he said, as well as what he did, was patently intuitive and not reflective .
“The occurrence the witness said he saw would have been startling to a person of any age and probably would have produced spontaneous words and action. However, it is significant to note that the first illustration of spontaneity in Webster’s Third International Dictionary is ‘the spontaneity of a child.’ ”

Indeed, it is difficult to imagine a five year old child more intelligently relating such a shocking occurrence witnessed just minutes earlier. The utterances clearly were not the product of deliberation or retrospection. There can be no question but that Dennis’ statements were spontaneous exclamations.

Furthermore, it does not matter that the reported exclamations are not those of the victim or the appellant, but those of a third party. The rationale of the exception to the hearsay rule is not limited to exclamations of the appellant, the victim, or anyone else. Bass, supra.

“The spontaneous exclamation of a by-standing observer is admissible the same as if he had been a participant in the exciting occurrence.” C. Gamble, McEl-roy’s Alabama Evidence, § 265.01(8) (3rd ed.1977).

We find the trial court acted well within its limits of discretion on the subject in admitting the testimony of the five year old child. Bass, supra; Jones v. State, 53 Ala.App. 690, 304 So.2d 34, cert. denied, 293 Ala. 761, 304 So.2d 38.

Since appellant did not submit any requested written charges it was not error for the trial court to fail to instruct the jury on first and second degree manslaughter as being lesser included offenses of first degree murder. Hall v. State, Ala.Cr.App., 375 So.2d 537.

Where a trial court’s instruction to the jury is not as full as counsel desires, his remedy is to request written charges covering the matter omitted. Smith v. State, 262 Ala. 584, 80 So.2d 307. An exception to the failure of a court to charge on a matter is not necessary where a requested written charge is refused. An exception reaches only what the court did say. Grisham v. State, 147 Ala. 1, 41 So. 997. Here, appellant’s exception in no way pertained to any misstatement of the law. Thus, there is nothing for this court to review.

We have examined each issue raised in brief. In addition, 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.

      . “In Rogers v. State, 264 Ala. 500, 88 So.2d 685 (1965), a nine year old witness stated that he knew what it meant to tell the truth, that he was going to tell the truth, and that ‘little boys who tell lies — go to hell’. Although the issue we face was not presented in Rogers, the Alabama Supreme Court noted:
      ‘The trial court properly ruled the witness sufficiently qualified. The foregoing indicated a knowledge on the part of the witness that he knew what it meant to tell the truth and knew what telling the truth was and that if he did not tell the truth, he would be punished. This suffices to satisfy the rule. Noble v. State, 253 Ala. 519, 45 So.2d 857.’ ”