text:
    Bobbie Sue COFFELT v. Morris Ray COFFELT.
    Civ. 2320.
    Court of Civil Appeals of Alabama.
    Nov. 5, 1980.

      Michael L. Roberts, of Floyd, Keener & Cusimano, Gadsden, for appellant.
    Rowan S. Bone and Hubert L. Taylor, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The wife claims that the trial judge erred in the division of the property of parties, that support for their seventeen-year-old daughter of $40 per week to be paid by the husband is inadequate, that the wife should have been awarded alimony, and that the judgment failed to dispose of an extra lot which adjoins the home of the parties.

No different, unique or novel law would be expanded if we burdened this decision by a detailed account of the property accumulated by the parties and the division thereof as directed by the circuit court. However, we assure the appellant and her learned counsel that we have diligently studied the entire trial record and the briefs and do not find any error in that regard.

The husband is employed at Goodyear and his take home pay, including credit union deductions, approximates $1,250 per month. On the other hand, the wife has been employed as a dental assistant-dental hygienist for ten or more years with her 1979 monthly net income having averaged slightly over $1,000. Evidence was offered as to certain living expenses and debts of the parties, and the needs of their child were itemized. The parties are in their mid-forties and enjoy excellent health.

The division of property, alimony for either spouse and the amount of child support, in cases which are heard ore tenus by the trial judge, each fall within his sound judicial discretion. On appeal, the circuit court’s judgment on such issues can only be disturbed if it was so unsupported by the evidence as to be clearly unjust and palpably wrong. Edison v. Edison, 384 So.2d 1118 (Ala.Civ.App.1980); Lindsey v. Lindsey, 380 So.2d 880 (Ala.Civ.App.1980); Miller v. Miller, 361 So.2d 577 (Ala.Civ.App.1978). We find no abuse of discretion as to either of those issues.

The parties jointly own a lot which is adjacent to the home of the parties. The judgment did not mention such lot. Therefore, each party presently retains the same right, title, claim or interest therein which they were granted by the conveyance to them. When the trial judge did not alter ownership, that, in and of itself, disposed of the issue. In a divorce action, there is no requirement that the joint ownership of property by the parties be abolished and that title be vested in only one spouse. In such cases, an equitable and open division of jointly-owned property might well be no division thereof with the title to that particular property being left undisturbed by the judgment.

We affirm.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Charles C. ETHRIDGE v. Mildred I. ETHRIDGE.
    Civ. 2361.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1980.
    George M. Higginbotham, Bessemer, for appellant.
    J. Clewis Trucks, Fairfield, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment denying modification of a prior judgment ordering payment of alimony. The judgment requiring defendant-appellant to pay alimony at the rate of $90 every two weeks was entered by the trial court on November 11, 1976. At that time defendant was employed as a mine foreman making about $20,000 per year. He was discharged from his job on March 31, 1979.

On April 17, 1979, a hearing was held on a rule nisi filed by plaintiff and a petition filed by defendant to terminate or modify the alimony provisions of the 1976 order. After hearing, judgment was entered finding defendant in contempt for failure to pay $1,800 in past due alimony. The petition of defendant to terminate or modify the alimony provision was denied. Defendant appealed to this court upon the issue of refusal to terminate.

By opinion entered October 10, 1979, this court affirmed the trial court in its refusal to terminate the alimony on the basis of § 30-2-55, Code of Alabama (1975). However, we reversed upon the issue of changed circumstances relating to the financial ability of defendant to pay the amount of $90 every two weeks. We held there had been a material change in circumstances. We remanded for further consideration by the trial court to determine what amount the defendant was able to pay under the changed circumstances.

On January 30, 1980, the court heard additional testimony and took judicial knowledge of the prior testimony and proceedings. On February 1, 1980, the court entered judgment again denying modification of the order requiring defendant to pay alimony to plaintiff in the amount of $90 every two weeks. Defendant again appeals.

. The primary issue is whether there is legal evidence to support the refusal to modify the existing order for payment of alimony. This court found from the evidence on the previous appeal that there had been a change of circumstances since the order of 1976. The income of defendant in 1976 was near $1,800 per month. Defendant had lost that job and in April 1979 was receiving only $90 per week in unemployment compensation.

The matter was not again considered by the trial court until January 30,1980, three and one-half months after our order of remandment.

The evidence at that time showed defendant to be a 53-year-old, unemployed man suffering from high blood pressure and gout. His unemployment compensation ended in July 1979. He worked for three or four weeks in July or August of 1979 as a painter, but was unable to continue working. He owns no real estate, has no bank account and lives off of his wife’s bounty. He has applied for Social Security disability and Black Lung benefits. He has heard nothing from either. He owns a 1972 Ford pickup and a fishing boat and motor. He has had these items for several years.

The evidence heard in the first hearing in April 1979 was again considered by the court in reaching the judgment of February 1, 1980. That evidence is also in the record before us. In refusing modification the court stated two premises for doing so. It said first that “alimony can be paid from assets as well as income and the defendant can pay the alimony to his former wife of twenty-four years, who is the mother of six children, from the $6,000 which he sought to remove his name from on the day of the trial in April 1979 to avoid paying alimony.” On April 30, after denying defendant’s motion for new trial, the court amended the February 1 judgment and stated a second ground for denying modification. It said: “[T]he court notes that the defendant has established a record of a substantial earning capacity, and the court is authorized to take into account in fixing periodic alimony the husband’s earning capacity.... The Court further notes that the defendant earns outside income by selling scrap iron and tin.”

Thus, it is shown by the judgment as amended that the trial court denied modification of the alimony requirement because it determined that defendant had assets in his present wife’s name from which to pay alimony and that he had earning capacity which he was failing to use. Our examination of the testimony fails to disclose reasonable support for either of those statements.

There was testimony in the hearing of April 1979 that on the morning of the hearing defendant removed his name from a checking account held jointly with his wife. The only evidence as to the amount of that account was that it contained $200. There was testimony from defendant’s wife that she had a savings account solely in her name containing $5,000. She stated the money therein came from the sale of five acres of land to her father. She related how it had been paid to her in payments. The land was undisputedly hers before her marriage to defendant.

The trial court refers in its judgment to a $6,000 bank account from which defendant removed his name. The only evidence of record concerning the removal of defendant’s name from an account is a $200 checking account. The only other account in the record is the savings account in the name of the wife in the amount of $5,000. The trial court found the testimony of the wife as to how she obtained the money in that account “unworthy of belief.” However, there is no evidence to the contrary. No attempt was made by plaintiff to impeach the wife’s testimony by bank records or by testimony from her father. Without any support in the evidence, the court found there must remain (a year later) an account, which is in fact the property of the defendant and from which he can meet the alimony payments.

We find no support in the record" for the finding of the court that “defendant has established a record of substantial earning capacity.” To the contrary, it is undisputed that defendant has no job, is unable to work, has no material assets, is suffering from high blood pressure and gout, and is awaiting determination of permanent total disability. The trial court recognized and states these facts in its judgment.

This court can understand the need of the former wife for assistance by way of alimony. We understand the desire of the trial court to supply that need. However, the statute authorizing the award of alimony (§ 30-2-51, Code of Alabama (1975)) provides that alimony is to be taken from the estate of the other party. The evidence here is without dispute that the husband has neither estate, income nor physical ability to work. There was ample opportunity for plaintiff to have introduced evidence to the contrary. The court may only judge from the evidence presented.

Considering the state of the record, the trial court erred in denying modification of the prior judgment requiring payment of alimony by defendant.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: SCRUGGS, Retired Circuit Judge.

text:
    Anthony M. WILGER v. STATE DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 2403.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1980.

      Anthony M. Wilger, pro se.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp, Clyde P. McLendon and Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.
   SCRUGGS, Retired Circuit Judge.

Mr. Wilger, who, then and now, represents himself, filed his petition for the permanent custody of six of his children, who were alleged to be under the guardianship, care and custody of the State Department of Pensions and Security (DPS). In substance, he stated therein that there had been a change of circumstances because of the alleged mistreatment or neglect of another daughter by DPS.

No responsive pleading or motion as to his petition was filed by DPS; but, on the trial date, they argued orally that permanent custody of the children had been awarded by the court to DPS in 1976. To allow Mr. Wilger to renew the whole process and retry the issue of custody would be contrary to the principle of res judicata. The learned trial judge opined that there must be some finality to all litigation and the court had no right or choice but to deny the petition without an evidentiary trial. Accordingly, Mr. Wilger’s petition was dismissed and he timely appealed.

In their respective briefs, both parties have appendixes which contain factual matters which are not included in the record. This court is bound by the record which was made by the litigants in the trial court, and we cannot consider such extraneous material. Wilson v. Crosby Lumber Co., 386 So.2d 1173 (Ala.Civ.App.1980).

Nothing appears in the statutes controlling juvenile courts nor in the Alabama Rules of Juvenile Procedure as to procedures governing the defense of res judicata. Therefore, the Alabama Rules of Civil Procedure apply. ARJP, Rule 1. Normally, res judicata is an affirmative defense that must be especially pleaded in writing under ARCP, Rule 8(c). Should such a pleading have been filed, DPS would have had the burden of proof to reasonably satisfy the trial judge from the evidence as to the sufficiency of the defense of res judicata. Even if the statement of counsel as to this matter is considered as a denial of the averments of the petition, the petition could not have been summarily dismissed without an evidentiary trial on the petition. § 12-15-65(c), Code of Alabama (1975). Allegations without proof cannot prevail.

In some instances, res judicata may be properly raised by means of a motion to dismiss or, more commonly, through a motion for a summary judgment. However, we find no authority to validly present such affirmative defense verbally as was here done by DPS.

Although the parties have largely argued this matter as if it were appealed upon its merits, this court cannot reach that issue upon this appeal. Nothing which is stated herein applies to the merits of any issue, for this decision is most limited in scope. We merely hold that the record does not contain the necessary pleadings and proof to support the judgment of dismissal entered by the trial court. We, therefore, reverse and remand this case for further proceedings in the family court, which, when produced in a record upon appeal, will indicate procedural due process.

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

REVERSED AND REMANDED.

All the Judges concur.


author: HOLMES, Judge.

text:
    John H. ROBERSON, Jr. v. PERSONNEL BOARD OF the STATE OF ALABAMA and Richard Forester, Director Department of Conservation and Natural Resources.
    Civ. 2440.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1980.
    Edward L. Hardin, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and R. Frank Ussery, Asst. Atty. Gen., for appellee State Personnel Board.
    Robert A. Macrory, Asst. Atty. Gen., for appellee Richard Forester.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Montgomery County’s action affirming the State Personnel Board’s dismissal of a state employee. The employee appeals and we affirm the circuit court.

The dispositive issue is whether the State Personnel Board, in sustaining the dismissal of the employee, complied with the requirements of § 36 — 26-27(a), Code of Ala. 1975, and Rule III, § 8(F) of the Rules of the State Personnel Board.

‘ The record reveals the following pertinent facts:

The employee was a Conservation Enforcement Officer with the Marine Police Division of the Alabama Department of Conservation and Natural Resources. In October, 1977, the employee was dismissed from his employment by the Commissioner of the Department of Conservation. The stated basis for the dismissal was the employee’s involvement in a public fight and his subsequent conviction on a charge of assault and battery.

The employee appealed his dismissal to the State Personnel Board pursuant to § 36-26-27(a), Code of Ala. 1975. The board sustained the dismissal after hearing the testimony of the employee and several witnesses who testified on behalf of the employee. The board concluded that it was “of the opinion that conviction of a law enforcement official for an offense involving force and violence may be cause for termination and that the Commissioner of the Department of Conservation was acting within his authority in terminating Mr. Roberson. Therefore, it is ordered that the termination be sustained.”

The employee through able counsel contends § 36-26-27(a), Code of Ala. 1975, and Rule III, § 8(F), of the Rules of the State Personnel Board require the board to make an independent decision on all the evidence as to whether the charges under which an employee was dismissed were warranted or unwarranted. The employee further contends the above quoted language does not constitute a decision on the issue that was before the board in this case, i. e., whether these charges against this employee were warranted or unwarranted. In other words, it is argued that § 36-26-27(a) requires the board to specifically find either that the charges against the employee were warranted or that the charges against him were unwarranted.

Section 36-26-27(a) in pertinent part provides:

The board shall, if demand is made in writing by the dismissed employee within 10 days after notice of discharge, order a public hearing and, if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the board may determine.

In Hilyer v. Blackwell, Ala.Civ.App., 377 So.2d 1090, 1091, writ denied, 377 So.2d 1092 (1979), this court in construing § 36-26-27(a) said:

It appears that the legislature intended that dismissal by the appointing authority for the good of the service be reviewed by the Personnel Board only to determine if the reasons stated for the dismissal are sustained by evidence presented at the hearing. It is only “if the charges are proved unwarranted” that the Board may order reinstatement ....
In this case, the Board found the charges brought sustained but ordered reinstatement because dismissal was too harsh a punishment. A finding of “sustained” is contrary to “unwarranted.”

Put another way, an order of the board sustaining the termination of an employee is the equivalent of a finding that the charges against the employee were warranted and were not unwarranted. See also, Stewart v. Hilyer, Ala.Civ.App., 376 So.2d 727 (1979).

We also note § 36-26-27(a) does not require the board to make specific findings of fact and conclusions of law. As indicated above, the board’s duty under § 36-26-27(a) is to review the employee’s dismissal to determine if the reasons stated for the dismissal are sustained by evidence presented at the hearing. Hilyer v. Blackwell, supra. We find that the board has in this case fulfilled its duties under § 36-26-27(a).

Additionally, counsel for employee contends the board did not comply with Rule III, § 8(F), of the Rules of the State Personnel Board. In pertinent part that rule provides:

On the basis of its findings after hearing all testimony and receiving all evidence, the Board may sustain the dismissal of an employee or order his reinstatement ....

The employee asserts the board failed to comply with Rule III, § 8(F), by-failing to hear and review all available evidence and testimony before reaching, its decision. Essentially, it is argued that there was evidence and testimony that was not introduced at employee’s hearing and that Rule III, § 8(F), imposes on the board a duty to seek out through independent investigation and interrogation of witnesses all available evidence. Put another way, employee contends that under Rule III, § 8(F), the board in making its decisions cannot rely solely on the evidence presented by the parties.

We cannot agree. There is nothing in Rule III, § 8(F), that imposes such a duty on the board. Nor can we find anything in § 36-26-27(a) or any other provision of the Merit System Act, §§ 36-26-1 et seq., Code of Ala. 1975, that requires the board in all cases of this nature to seek evidence beyond that which was introduced at the hearing.

The board in the instant case heard the testimony of the employee, the employee’s immediate supervisor, the Director of the Marine Police Division, and two persons who witnessed the fight. In addition, the court record showing the employee’s conviction of assault and battery was received into evidence.

The employee also contends the board failed to consider all of the evidence presented to it at the hearing. This contention is apparently grounded on his belief that the board’s decision was contrary to the great weight of the evidence. The standard for review of a denial of certiorari in cases of this nature is for this court to determine whether there was any legal evidence before the board to sustain its findings. It is not this court’s prerogative to pass upon the truthfulness of conflicting testimony or to substitute its judgment for that of the board. Chavers v. State Personnel Bd., Ala.Civ.App., 357 So.2d 662 (1978). With this in mind we cannot say that the board failed to consider all of the evidence before it. Further, we find there was evidence before the board to sustain its decision.

For the above stated reasons, this case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Ralph P. EAGERTON, Jr., as Commissioner of Revenue of the State of Alabama v. Henry E. PERRY and Annie Mae Perry.
    Civ. 2481.
    Court of Civil Appeals of Alabama.
    Nov. 19, 1980.

      Charles A. Graddick, Atty. Gen., and Herbert I. Burson and Ron Bowden, Asst. At-tys. Gen., for appellant.
    W. L. Chenault of Chenault, Chenault & Hammond, Decatur, for appellees.
   BRADLEY, Judge.

This is a tax case.

Henry E. Perry and Annie Mae Perry filed a declaratory judgment action in the Circuit Court of Morgan County on April 10, 1980 seeking to have a tax lien filed against them by the State Department of Revenue canceled and expunged from the records in the county probate judge’s office. The Department opposed the cancellation by way of an answer. On May 6, 1980 taxpayers filed a motion for summary judgment along with a supporting affidavit. The Department filed an affidavit in opposition to the motion for summary judgment. On July 31,1980 the trial court granted the summary judgment for taxpayers. The Department appeals. We affirm.

The undisputed facts show that the Department filed a tax lien against taxpayers for their failure to pay income taxes for the years 1964 and 1965. Some money was paid toward reducing the amount of income taxes owed the State but not enough to eliminate the tax indebtedness. There was outstanding at the time of trial an amount of $8,668.52 due on the 1965 assessment.

The taxpayers filed their action in 1980 asserting that the five year statute of limitation as set out in § 6-2-35, Code of Alabama 1975 had run on the State’s claim against them for the 1965 income taxes and that the certificate of lien should be shown as satisfied and canceled on the records in the Morgan County Probate Office.

The trial court agreed with the taxpayers and held that not only does § 6-2-35 bar, after five years, the recovery of the amount deemed to be owed as delinquent income taxes, but also bars any effort to enforce the lien imposed against taxpayers.

The State concedes that the expiration of the five year limitation period prevents the collection of the income taxes owed by taxpayers but says that it does not necessarily follow that the lien is invalid and should be canceled.

Section 6-2-35, Code of Alabama 1975 provides:

The following must be commenced within five years:
(2) Except as otherwise specifically provided for, all actions by the state or any subdivision thereof for the recovery of amounts claimed for licenses, franchise taxes or other taxes.

Taxpayers say here that if the State cannot collect the taxes owed because of the bar of the statute of limitation-and the State concedes that-then it would be wrong for the lien to remain of record in the probate office. They suggest that the trial court’s decision holding that § 6-2-35 applies equally to the tax lien as to the tax indebtedness and that the lien should be canceled of record should be upheld and cite us to the case of Howell & Graves, Inc. v. Curry, 242 Ala. 122, 5 So.2d 105 (1941).

In the cited case the State had assessed an out-of-state corporation with foreign -corporation franchise taxes and under the applicable statutes the assessment became final and enforceable unless there had been an appeal filed to the courts. No appeal had been filed and the State sought execution on this assessment. The taxpayer objected on the ground that the five year limitation statute had run for collecting this assessment and the State was barred from collecting it. The State argued that the limitation statute used the word “actions” and thus the limitation statute could not be used to bar the execution because an execution is in no sense an action within the meaning of the statute.

The supreme court said the purpose of the limitation statute was to lay to rest all claims by the State for the recovery of taxes after five years. The court went on to say that an execution is a substitute for an action to enforce the collection of the franchise tax owed by the taxpayer and that the word “actions” as used in the limitation statute “embraces all civil proceedings instituted or set on foot to enforce the tax liability.” The court held the execution effort barred by the five year limitation period.

The State replies that the statute and cited case apply to the recovery of unpaid taxes but they do not apply to the cancellation of a tax lien. In support of its argument, the State relies on § 6-2-2(d), Code of Alabama 1975 which provides in part, “This chapter shall not apply to any liens to secure the payment of taxes.” Section 6-2-35 is in the same chapter of the Code as is § 6-2-2(d), and would appear to be a very specific legislative directive that the five year limitation period applicable to “actions” to collect delinquent taxes is not to apply to tax liens. Taxpayers have not argued nor have they cited any authority to the contrary.

Whether § 6-2-2(d) would be decisive of this controversy need not be decided because the statutory requirements of § 40-1-2, Code of Alabama 1975 determine the outcome of this case.

Section 40-1-2 provides in pertinent part as follows:

(a) If any person liable to pay any tax neglects or refuses to pay the same the amount, including any interest, penalty, additional amount or additionto such tax, together with any costs which may accrue in addition thereto, shall be a lien in favor- of the state of Alabama upon all property and the rights to property, real or personal, belonging to such person. ... [T]he lien .. . shall continue until the liability for such amount is satisfied or becomes unenforceable by reason of the lapse of time.

Section 40-1-2 provides for the imposition of a lien and also clearly provides that the lien shall remain in effect until the amount owed is satisfied or “becomes unenforceable by reason of the lapse of time.”

In the case at bar it is conceded that the claim for the unpaid taxes is barred by the limitation period and is unenforceable. Since the amount owed is uncollectible, the lien, by the very terms of the statute, cannot continue in effect and is, therefore, subject to being expunged from the record.

The trial court acted properly in holding that the lien was no longer valid and should be removed from the records of the Morgan County Probate Office. Its judgment is affirmed.

AFFIRMED.

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


author: DeCARLO, Judge.

text:
    Curtis Gene BEHEL v. STATE.
    No. 8 Div. 196.
    Court of Criminal Appeals of Alabama.
    Oct. 30, 1979.
    Rehearing Denied Dec. 18, 1979.

      Donald E. Holt and Joe M. Patterson, Jr., of Holt, McKenzie, Holt & Patterson, Florence, for appellant.
    Charles A. Graddick, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for appellee, the State.
   DeCARLO, Judge.

Burglary, first degree; sentence; forty years.

Curtis Gene Behel was arrested on May 24,1978, at his trailer. An investigation by law enforcement officers had revealed that his description was similar to the description given by the victim who had been raped after a burglar had broken into her trailer.

Behel was indicted by the Lauderdale County Grand Jury and charged with burglary in the first degree with intent to rape. He was represented by an attorney at his arraignment where he pleaded not guilty and not guilty by reason of insanity. After trial by jury he was found guilty and later sentenced. The appellant was provided with a free transcript and is represented by appointed counsel on appeal.

On May 23, 1978, the victim lived in the Green Hill community of Florence, Alabama with her husband and a three-year-old son. At approximately 11:20 P.M., after she had locked the doors to the house, she went to bed. Her husband was working at Reynolds and Company and usually arrived home between 12:30 and 12:45 A.M.

She recalled that after she had gone to bed someone grabbed her by the shoulders and told her to “get up.” She explained: “First I thought it was my husband and maybe something was wrong and I kept saying ‘what is wrong?’ and he kept telling me to get up and I turned over to see what was wrong and I saw a man with a stocking over his head.” She testified that the man had a knife in his hand and told her if she screamed he would kill her and her son.

According to the victim, the man dragged her from the bed to the back door of the trailer. She explained that the man had her right arm pinned behind her and had placed a knife at her throat. She became aware of the knife when the man attempted to unlock the back door. Describing the knife, she testified that the blade “wasn’t very long,” and that he was holding it to her throat.

While her assailant was trying to unlock the back door, the victim managed to get away. She stated that she ran to the bedroom and turned on the light, but he “flipped it off and hit me in the face.” Her nose began to bleed and she started crying and screaming. The man grabbed her and pulled her toward the back door. She recalled that, at that point, he threatened to kill both her and her son.

According to the witness, the man unlocked the back door, shoved her down the back steps, and dragged her into a wooded area beside the trailer. She described the wooded area as consisting of nothing but trees and “saw-briars and vines” and testified that her assailant kept “shoving me through it until a clearing on the other side.”

After reaching the clearing, she asked the man what he was going to do. According to the witness, he replied “that he had been in prison for two years and that my husband had got his wife on dope and that he was out to revenge him and I asked him why he had me instead of him and he said he would get him later.” At that point, the man had sexual intercourse with the victim against her will. She testified that she could see and feel the assailant’s mustache when he pulled the stocking over the top of his nose and forcibly kissed her.

After the attack, the victim ran to her trailer and checked on her son. In a few minutes her husband arrived home. She stated that she informed her husband of the attack and told him to call the police.

Rick Singleton, a deputy sheriff, arrived at the trailer and talked with the victim. The victim recalled that she told the officer her attacker wore boots, bluejeans and a plaid shirt. Subsequent to the interview with the deputy, she went first to the hospital, then to the sheriffs department where Bill Price made photographs of her. The victim testified that, while in Bill Price’s office, she overheard a voice “from the opposite room next to us,” and recognized the voice as being that of the man who had raped her.

During the trial, she identified a number of photographs, some being the photographs showing her physical appearance immediately after the assault. Also, there were photographs indicating that the front door of the trailer had been pried open. The victim identified photographs of the appellant’s trailer and stated that his trailer was located directly across the street from the trailer in which she and her family lived.

During cross-examination, she described her attacker as being “about Mike Jemi-son’s height.” [Mike Jemison was the State Trooper who investigated the offense.] Further, she informed the officer that the man who had attacked her was taller than her husband, who was five feet nine inches in height. She said her attacker had a mustache which was lighter in color than that of Deputy Lanny Jackson. She explained that the man who had attacked her was not as heavy as Sgt. Mike Jemison but that her assailant appeared to be a “pretty good sized man.” During further questioning, she stated that she detected the smell of alcoholic beverages on her attacker’s breath.

Rick Singleton, a deputy sheriff of Laud-erdale County, recalled that on May 24, 1978, the victim and her husband came to the sheriff’s office. He testified that he was in the room with the victim and her husband while Deputy Bill Price was interviewing the appellant, Curtis Gene Behel, in the next room. Singleton said that he could hear the appellant’s voice and according to Singleton’s testimony, when the victim first heard the appellant speak, “She just looked up and just a few seconds later when he began talking a little bit, she looked at me and said, ‘that’s him.’ ”

During cross-examination, Singleton acknowledged that, between 12:30 and 12:40 A.M., he received a call to report to victim’s residence. He and Deputy Dwight Angel arrived there some seven minutes later. The witness admitted that the victim was very upset emotionally and was crying. According to Singleton, the victim described her attacker as being taller than her husband and having a mustache. She told Singleton that the attacker wore bluejeans and a plaid shirt, and had a stocking over his face. Singleton recalled that Deputy Jackson arrived later, as did State Trooper Mike Jemison and other law enforcement personnel.

Doctor Andrew David Jamieson testified that he examined the victim and said that a vaginal wash showed “active swimming motiles spermatozoa present.”

Deputy Dwight Angel testified that he and Bill Hendrix, a St. Florian Police Officer, went to Behel’s trailer at approximately 1:30 A.M. Upon their arrival, the appellant invited the officers inside his home. Hendrix informed Behel of a problem at the victim’s residence and “asked him if he had heard things or was aware of anything next door.” According to Angel, appellant said, “the only thing he had heard was around 10:30 or 11:00 he had heard a car go by, and since that time he had been asleep and he hadn’t noticed any problem as far as that goes.” Deputy Angel recalled that the shower was wet, and small puddles of water were on the floor, and that a wet towel was on the sink.

During cross-examination, Angel acknowledged that he never saw any cowboy boots anywhere in the trailer, nor did he see any pantyhose or stockings.

Sgt. Mike Jemison, an Alabama State Trooper, testified that two sets of footprints were found leading from the victim’s back yard into a swampy area “dense with briars and thickets.” One set of prints was of a person wearing boots “and the other one seemed to be barefooted.” The boot footprints were traced from the scene of the rape across a field to the road. Jemison testified: (Tr. p. 231)

“We found one piece of mud on the road and it was just smeared into the road... . The grass was real wet and it was about a little over knee high all up and down the road.”

According to Jemison, they found no evidence that a vehicle had been used by the suspect. The witness stated; “We could find no place on the road where any vehicle had pulled off.”

Jemison recalled that between 3:30 and 4:00 A.M., he and Deputy Jackson went to the appellant’s trailer and knocked on the door. When the appellant asked “Who is it?” Jemison identified himself and said that he needed to talk with him [the appellant]. Jemison described appellant’s dress as “a pair of jockey shorts underwear and a sheet wrapped around him.” He said that the appellant, who had been drinking, invited the officers to come in.

Jemison testified that he sat on the couch next to the appellant and informed him that he was a suspect in the rape of the victim. Jemison explained to Behel that this determination was based on previously gathered information, including the description given by the victim. At that point, Jemison told the appellant that his rights should be read to him because Jemison “felt like he [appellant] was a suspect.”

According to Jemison, Behel was immediately given his Miranda warnings and was not promised any reward nor threatened in any manner. After his rights were explained to the appellant, he responded that he understood them and told the officers he would talk with them.

Prom the record:

“Q. All right, what happened next, if you recall?
“A. At that time I asked him if he had any weapons, any guns or knives, in the house, that I didn’t want him to hurt me or me have to hurt him and he said, ‘Yes, sir, I have a knife right there on the table.’
“Q. Did he point to it?
“A. Yes, sir, it was setting on the coffee table in front of us.
“Q. A1 right, then what was said next?
“A. I asked him if there was anybody else in the trailer and he told me ‘no,’ his wife and him were separated and she had been gone for about two weeks and he was living by himself.
“Q. Well, did you see anybody else there in the trailer that night?
“A. No, sir, I did not.
“Q. All right, after that what did you do next, Sgt. Jemison?
“A. Either myself or Deputy Jackson, I’m not sure which one asked, one of us asked him did he own a pair of cowboy boots, and he said ‘yes’ and pointed down the hall to our right, which he was on my left and he pointed across me and said, ‘They’re down in the bedroom.’ And I turned around and looked and you could see them setting in the bedroom. Right at that same point and time I asked him if he minded us looking around and he told us, ‘No, I don’t have anything to hide. You can look for anything you want to.’ And I believe then was when I asked him about the cowboy boots and he said, ‘right down here.’ And Deputy Jackson walked down and picked them up and brought them back up where we were.
“Q. All right, did you examine the boots at that time?
“A. Yes, sir, I did.
“A. The boots were solid water inside and out. The soles, where the soles meet the leather, there was mud inside the-on the edge of the soles of the boots and like I said there was water actually inside the boots.
“Q. They appeared to be freshly washed?
“A. Yes, sir.
“Q. All right, after you saw the boots and examined them and found them to be in that condition, what did you do next, Sgt. Jemison?
“A. I took the boots and laid them on top of the table in the kitchen. I set them on top of the table and came back over and asked Curtis if he minded if we searched the rest of the house.
“Q. In other words, you asked him for permission to search the house?
“A. Yes, sir.
“Q. And what did he say at that time?
“A. He said, ‘Go ahead and search for anything.’
“Q. He gave you permission to search the house?
“A. Yes, sir.
“Q. Then, what did y’all do?
“A. I talked to him about where he had been and how long he had been home and that type thing while Deputy Jackson walked back and looked through the bedrooms and the bathroom and all. Deputy Jackson called me back to the bedroom and I walked back there and he lifted up the mattress and between the mattress and the springs was a pair of bluejeans.
“Q. All right, did you examine the blue jeans at that time?
“A. The bluejeans were wet from above the knees all the way to the bottom of them. There was mud all over the legs and the knees especially had mud all over them and they were real wet.
“Q. All right, what else did you find on that occasion?
“A. A plaid shirt.
“Q. Anything else besides the plaid shirt?
“A. As we were leaving we found a pair of pantyhose.
“Q. And where did you find those?
“A. Under the cushions on the couch.
“Q. Is that the couch that he was sitting on?
“A. Yes, sir, the couch both of us were sitting on when we found them.”

During cross-examination, Jemison was asked:

“Q. All right, now, he cooperated with you in every way in this investigation, didn’t he?
“A. He didn’t give me any trouble at all.
“Q. And he gave you the consents that you have already testified about?
“A. Yes, sir.
“Q. Now, did you ever explain to him, or did you explain or did Mr. Jackson explain anything to him about the fact that he could require a Search Warrant for the search of his trailer?
“A. No, sir, I didn’t.
“Q. Did he give you any permission to remove any of the items from his trailer?
“A. No, sir, I didn’t ask for it.
“Q. But you did take and remove all those items that you mentioned finding that in your mind were connected with the case?
“A. Yes, sir, that’s right.”

Sgt. Jemison said all the items that he had taken from the appellant’s residence were later turned over to Bill Price.

Bill Price, Chief Investigator for the Lauderdale County Sheriff’s Department, testified that during an examination of the victim’s trailer he “found the front door to be damaged and the door jam to be damaged.” Further, he said “there were some jimmy marks on the front door.” During the trial, he identified photographs of the door depicting what he had described in his oral testimony.

Price testified that the items turned over to him by Sgt. Jemison and, a blood sample from the appellant were taken to the receptionist at the crime lab. Officer Price also stated that the appellant did not have any scratches on his hands or on any part of his body.

John Kilbourn, State Toxicologist, testified that he examined the items turned over to the crime lab by Officer Price. On the knife he found a small quantity of soil, but he did not perform any test on the boots. Kilbourn said that he noted on the bluejeans the presence of foreign material which included soil and bloodstains. He made “a cutting” of the bluejeans, then sent them to Bill Landrum.

Kilbourn testified that blood samples taken from the appellant and from the victim, as well as saliva samples, were sent to Mr. Landrum. During cross-examination, Mr. Kilbourn admitted that he had found no blood on the knife and that he had found no briars nor green plant substance on the bluejeans.

Kilbourn testified that none of the tests made on the pantyhose revealed any hair belonging to Behel. Also, the comparison test with the pubic hairs from the bodies of the appellant and the victim was negative.

William H. Landrum, a criminalist forensic serologist with the Department of Toxicology and Criminal Investigation, stated that he conducted tests on blood samples taken from the appellant and from the victim. He testified that the blood type from samples on the appellant’s pants matched the blood type determined from the sample taken from the victim.

During cross-examination, Landrum acknowledged that approximately twelve percent of the white population has the same blood type as that of the victim. Further, he said that he had not been furnished with any blood samples from any of the appellant s family and could not say that the blood sample turned over to him originally came from the victim.

At the conclusion of Landrum’s testimony, the State rested its case. Counsel for the defense submitted a motion to suppress, along with a motion to exclude and a motion to dismiss. After the motions were overruled, the appellant called the following witnesses.

Warren Stewart, a radio dispatcher for the Lauderdale County Jail, testified that, on May 23 and 24, 1978, he made entries in a record giving the time period he was on duty and the calls and messages that had come in during that time period. He acknowledged that at 1:07 A.M., on the day in question, he received a communication regarding the case being tried. The communication identified the suspect as a “white male, 5'10", stocky build with a dark mustache.”

During cross-examination, Stewart admitted that he could not identify the source of the message, but added it was not the victim.

Sheldon Carroll testified that he owned and operated the “43 Lounge in Tennessee.” He recalled seeing the appellant at his place of business on Tuesday night, May 23,1978. The witness stated that the appellant was there just prior to closing at 11:45 P.M.

Judy Corn testified that on the night in question she had worked at the “43 Lounge,” where she remembered seeing the appellant. According to Corn, she locked the door of the lounge at 12:00 o’clock. She acknowledged seeing the appellant on the premises at the time the front door was being locked. She testified that he was standing outside the door talking to Sharon and Jimmy Black and was wearing a “short-sleeved, red checked shirt” and trousers that were “a light color, either-they were either a Levi type or a khaki col- or.... ”

Sharon Black testified that she had met Behel, whom she knew, at the “43 Lounge” on the night of May 23, 1978. She stated that her husband and the appellant had a conversation outside the lounge during the early morning hours of May 24, 1978. According to Black, in her best judgment she and her husband left the parking lot of the lounge about five or ten minutes after twelve o’clock.

During cross-examination, Black admitted that the appellant and her husband were good friends whose families once farmed together. Further, she acknowledged that she and her husband lived about four miles from the appellant. She stated that in her best judgment, the drive from the “43 Lounge” to appellant’s home would take about fifteen minutes.

Felton Ray Jones testified that he had seen the appellant at the “43 Lounge” on the night of May 23, 1978, and that appellant was wearing a loudly colored shirt and light pants. Also, he stated that, when he left at approximately 12:15 A.M., appellant was still in the parking lot of the lounge.

Nina Reed testified that she was working at the “43 Lounge” on the night in question. She last saw the appellant that night at 11:25.

Tommy W. Morgan, a medical technologist at the Shoals Medical Lab in Florence, Alabama, testified that an examination of a blood specimen taken from the appellant’s wife revealed her blood type was group A, RH positive. He stated that he was familiar with blood classification as AM, but his facilities were not “set up [to] further break the group test down to that classification.” He could not verify that the blood test taken from appellant’s wife had or did not have the “M factor.”

At the end of Morgan’s testimony, counsel for appellant moved to continue the case until the following day because the appellant was not present and an opportunity to find the appellant was needed. The defense counsel explained that they intended to present the appellant as a witness on his own behalf. The court, at that time said, “In view of the fact that we have been searching for him all day and have had the sheriff looking for him and his efforts have failed and since the jury is sequestered we deny your motion.”

I

The appellant contends that consent to search his trailer was not knowingly and intelligently given; therefore, all the evidence submitted as a result of that search should be suppressed.

In Barclay v. State, Ala.Cr.App., 368 So.2d 579, this court considered the question of whether a proper consent may constitute a waiver of Fourth Amendment rights, such waiver making a search warrant unnecessary. There the court said:

“. .. Proper consent may constitute a waiver of Fourth Amendment rights, Zapp v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946), and makes a search warrant wholly unnecessary. Toston v. State, 333 So.2d 161 (Ala.Cr.App.1976). The voluntariness of consent to search is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Smith, 543 F.2d 1141 (5th Cir. 1976). “The failure to inform the accused of his right to refuse is a factor to consider in determining voluntariness but is not to be given controlling significance. United States v. Smith, 543 F.2d 1141, 1143 (5th Cir.1976). ‘While the knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.’ Schneckloth, 412 U.S., at 227, 93 S.Ct. at 2048. The burden of proving that the consent was, in fact, freely and voluntarily given rests upon the prosecution. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). ‘The State must prove that there was no duress or coercion express or implied. The consent must be unequivocal and specific, and freely and intelligently given. There must be clear and positive testimony.’ Hardy v. State, 53 Ala.App. 75, 78, 297 So.2d 399, 402 (1974).”

The United States Court of Appeals (5th Cir.) in United States v. Jones, 475 F.2d 723, recognized that Miranda warnings given prior to permission to search were properly considered as a circumstance in determining whether consent was freely given, even though such warnings would not insulate the prosecution from claims that the consent was coercively obtained.

The cases cited to this court in support of appellant’s contention are clearly distinguishable. Those cases were Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Henderson v. State, 49 Ala.App. 275, 270 So.2d 822; Hardy v. State, 53 Ala.App. 75, 297 So.2d 399, and Perkins v. Henderson, 5th Cir., 418 F.2d 441.

In the instant case, the appellant was given Miranda warnings by Sgt. Jemi-son shortly after the appellant let the officers into his trailer. Throughout Sgt. Jemi-son’s testimony, the permission by appellant to search his trailer is emphasized. Although the officers did not explain to the appellant that he had a right to refuse permission to search without a search warrant, the voluntariness of appellant’s permission was indicated when he said to the officers “go ahead and search for anything, I don’t have anything to hide.”

After an examination of the total circumstances, we are of the opinion that the testimony of Troopers Jemison and Jackson sufficiently established that appellant’s consent to search was voluntarily given after he had been advised of his constitutional rights. Therefore, it is our judgment that the motion to suppress was properly denied and that the items seized were properly introduced into evidence.

II

The appellant insists that the trial court committed reversible error by “receiving the jury verdict and having it announced in a capital felony without the defendant being present . . .. ” Counsel argues, “to receive the verdict not only reversible error but also puts the defendant in jeopardy and he is entitled to be discharged on the charge for which the verdict is received.”

In Berness v. State, 263 Ala. 641, 83 So.2d 613, the Supreme Court of Alabama, when considering the method by which an appellant’s clear and unequivocal right to be present at every stage of his trial may be waived, said:

“We are of the opinion that a criminal defendant in a non-capital felony case may waive his continuous presence at the trial. But that this waiver must be of an affirmative and positive nature and made by him personally, as for example when he voluntarily absents himself from the courtroom during the conduct of his trial. Our holding that such conduct constitutes an affirmative and voluntary waiver of the constitutional right, personal to the defendant, is consistent with the holding in McNutt v. State, 25 Ala.App. 129, 142 So. 773.”

See also, Dixon v. State, Ala.Cr.App., 357 So.2d 690.

In the present case, the record clearly shows that the appellant’s absence from court was of his own choosing.

“THURSDAY, SEPTEMBER 21, 1978
“THE COURT: WE AGAIN CALL THE BEHEL CASE, AND MR. HOLT, BRING YOUR CLIENT AROUND.
“MR. HOLT: MAY I PLEASE THE COURT, THE DEFENDANT HAS NOT YET APPEARED HERE IN COURT THIS MORNING AND WE MOVE FOR A CONTINUANCE OR FOR A DEFERRING OF THE RECONVENING OF THE TRIAL UNTIL HE ARRIVES IN COURT.
“THE COURT: ALL RIGHT, IT IS NOW A QUARTER UNTIL TEN AND THE CASE WAS SET FOR 9 O’CLOCK THIS MORNING AND FROM CONFERENCE WITH YOU AND WITH THE DEFENDANT’S FATHER AND WITH MR. WALKER EARLIER, IT IS MY UNDERSTANDING THAT DEFENDANT’S WIFE HAS CALLED ONE OF THE ATTORNEYS AND STATED THAT MR. BEHEL WOULD NOT BE COMING TO COURT THIS MORNING, THAT HE SAID HE WAS LEAVING OR WORDS TO THAT EFFECT. IS THAT YOUR INFORMATION AT THIS POINT?
“MR. HOLT: THAT WAS WHAT MR. WALKER RELATED TO ME. I DID NOT RECEIVE THE PHONE CALL AND DID NOT TALK PERSONALLY WITH THE DEFENDANT’S WIFE.
“THE COURT: DO YOU HAVE ANY INFORMATION OTHER THAN THAT AS TO HIS ABSENCE?
“MR. HOLT: NO, SIR, MAY I PLEASE, THE COURT, EVERYTHING ' THAT WE HAD ANY DIRECT OR HEARSAY KNOWLEDGE ABOUT-WELL, EVERYTHING WE HAD WAS HEARSAY, BUT EVERYTHING WE HAD IN THE WAY OF INFORMATION WAS RELATED TO THE COURT BEFORE 9 O’CLOCK THIS MORNING IMMEDIATELY UPON IT HAVING BEEN CONVEYED TO US.
“THE COURT: AND THAT IS IN SUBSTANCE WHAT I HAVE RELATED FOR THE RECORD.
“MR. HOLT: YES, IT IS.
“THE COURT: WELL, WE WILL CONTINUE WITH THE CASE AT THIS POINT.
“MR. HOLT: WE OBJECT TO THE CASE CONTINUING AT THIS TIME AND THE ALTERNATIVE TO A MOTION FOR A CONTINUANCE OR A DELAY IN THE RECONVENING OF THE TRIAL. WE MOVE FOR A MISTRIAL ON THE GROUNDS THAT THE DEFENDANT IS NOT HERE, FOR WHAT REASON I DON’T KNOW OTHER THAN WHAT I’VE STATED AS CANDIDLY AS I KNOW HOW TO THE COURT AND WITHOUT THE DEFENDANT HERE, I’M COMPLETELY HANDICAPPED AS FAR AS PRESENTING ANY KIND OF A DEFENSE, IF ONE IS AVAILABLE ON HIS BEHALF.
“THE COURT: ALL RIGHT, IT’S MY UNDERSTANDING NOW THAT MR. WALKER AND MR. BEHEL’S FATHER HAVE GONE ON TO SEARCH FOR HIM, IS THAT CORRECT?
“MR. HOLT: YES, SIR.
“THE COURT: ALL RIGHT, THE MOTION IS OVERRULED.
“MR. HOLT: WE EXCEPT.”

Clearly, the appellant voluntarily absented himself from the courtroom; therefore, it is our judgment that the defendant waived his right to be in court. Berness v. State, supra. Also under the circumstances of the present case, the appellant’s argument that first degree burglary is a capital felony is not supported.

Ill

The appellant maintains that his sentence of forty years was illegal, improper and unauthorized by the law. He argues that under the Code of Alabama 1975, §§ 13-2-40 and 13-ll-2(a)(4), the only punishment provided for first degree burglary is either ten years “or the death penalty when a homicide is committed during the commission of the burglary in the first degree.”

Code of Alabama 1975, § 13-2-40 provides:

“§ 13-2-40. First degree.
“Any person who, in the nighttime, with intent to steal or to commit a felony, breaks into and enters any inhabited dwelling house, or any other house or building, which is occupied by any person lodged therein is guilty of burglary in the first degree, and shall, on conviction, be punished, by imprisonment in the penitentiary for not less than 10 years, or as otherwise specified by law. (Code 1852, § 149; Code 1867, § 3695; Code 1876, § 4343; Code 1886, § 3786; Code 1896, § 4417; Code 1907, § 6415; Code 1923, § 3479; Acts 1935, No. 100 p. 159; Code 1940, T. 14, § 85.)”

In the instant case the defendant was sentenced to forty years imprisonment. There is no provision in the statute giving a maximum number of years. The court was limited by statute to only a minimum of ten years. The court was limited only by its own discretion in assessing the maximum sentence for the appellant. Therefore, we hold the sentence is proper and is within the purview of § 13-2-40.

After a careful search of the record, we have found no error prejudicial to the appellant’s rights. Under the facts presented, the evidence was sufficient to justify the verdict; therefore, the judgment of conviction by the Lauderdale Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Curtis Gene BEHEL. (Re: Curtis Gene Behel v. State of Alabama).
    79-286.
    Supreme Court of Alabama.
    Feb. 8, 1980.
   JONES, Justice.

WRIT DENIED-NO OPINION.

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


author: TYSON, Judge.

text:
    Michael Rider JACKSON v. STATE.
    1 Div. 107.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Aug. 19, 1980.

      John W. Coleman, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Michael Rider Jackson was indicted by the Mobile County Grand Jury for the offense of rape. Following a trial, the jury returned a verdict of “guilty of rape as charged in the indictment.” The trial court set punishment at twenty-eight years imprisonment in the penitentiary.

The record indicates this offense occurred on the morning of March 29, 1979, at the home of the prosecutrix, a nine year old child. She and her thirteen year old brother, Jimmy, were staying home from school that day because of sickness.

A man, later identified as the appellant, appeared at the prosecutrix’s house that morning inquiring whether he could clean the carpets in the house and whether the prosecutrix’s parents were home. The pros-ecutrix stated her parents were not home and that she would have to check with Jimmy about having the carpets cleaned. The appellant then asked to use the telephone to call his boss. When the prosecu-trix returned with Jimmy, the appellant was pretending to use the phone when he suddenly pulled out a pistol. The appellant grabbed Jimmy, slapped him, and told them both to lie on the floor. Jimmy lay on his stomach. The appellant told Jimmy he would kill him if he looked up.

The appellant proceeded to take all of the prosecutrix’s clothes off and took off his pants and underpants. The appellant said “some cuss words” and threatened to hurt the prosecutrix. The prosecutrix then testified to the following:

“Q Now, after he took his pants off and his underpants off did you then see that part of his body that is different than yours?
A Sort of.
Q Let me ask you this, Allie, do you know if he took part of his body and put it inside your body?
A Yes.” (R.p. 137-138)

The prosecutrix testified the appellant was hurting her, she was bleeding, and she began to scream and yell. The appellant mouthed more cuss words and told Jimmy to make the prosecutrix “shut up.” The appellant then got up, went into a bedroom, came out, wiped the prosecutrix with a wash cloth, and “done (sic) it again.” Jimmy testified he could hear his sister screaming and moaning again but could not tell what the appellant was doing to her. When the appellant finished he told Jimmy that if anyone was told of this incident he would kill the prosecutrix. Jimmy testified he saw that his sister was bleeding in the area below the stomach.

The prosecutrix made an in-court identification of the appellant as the man who forcibly ravished her. In addition, she testified to picking the appellant’s picture from several pictures shown to her by the police as “The man that raped me.” Jimmy also made an in-court identification of the appellant as the culprit.

The appellant denied committing the offense. The evidence for the appellant attempted to establish an alibi. When there is a conflict between the State’s case and the appellant’s alibi a jury question is presented. Crow v. State, Ala.Cr.App., 365 So.2d 1254, cert. den., Ala., 365 So.2d 1256 (1979).

I

At the conclusion of the State’s evidence the appellant made a motion to exclude the evidence on the ground that penetration was not proven. He contends error from the denial of this motion.

An essential element of the offense of rape is an actual penetration of the female sex organ by the male sex organ. Reynolds v. State, 274 Ala. 171, 146 So.2d 85 (1962). “[Pjenetration to any particular extent is not required, . . . but some degree of entrance of the male organ within the labia pudendum is essential.” Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976). The question of whether such penetration is accomplished is a factual determination for the jury. Long v. State, Ala.Cr.App., 370 So.2d 354 (1979).

From the testimony of the prosecu-trix we find the following:

“Q Now, after he took his pants off and his underpants off did you then see that part of his body that is different than yours?
A Sort of.
Q Let me ask you this, Allie, do you know if he took part of his body and put it inside your body?
A Yes.
Q And when the man did that did it hurt you?
A Yes.”
Q After the man put that part of his body into your body were you hurt at all?
A Yes.
Q Were you bleeding?
A Yes.
Q Now, after this happened what happened next?
A He went back in the bedroom and he came out and done it again.
Q Now, while he was gone did you stay in here?
A Yes.
Q So all you know is he went back into this part of the house?
A Yes and got a washcloth and wiped me.
Q Did he wipe you off with a cloth?
A Yes.
Q Okay, and then you say he did it again?
A Yes.
Q And by doing it again you mean that he took part of his body and put it in your body?
A Yes.
Q Did he hurt you a second time?
A Yes.” (R.p. 137-139)

As previously pointed out in this opinion, the prosecutrix specifically testified that the appellant was “The man that raped me.”

The State’s expert witness, Alilee Pill-man, Director of the Mobile Police Department Crime Laboratory, testified she performed several experiments and tests on evidence recovered from the crime scene. Her examination of a pair of panties disclosed the presence of large blood clots and semen stains. An examination of a washcloth also revealed the presence of semen stains and blood stains.

Dr. William Pasley, an obstetrician-gynecologist, testified he examined the prosecu-trix on the afternoon of March 29, 1979. She was experiencing vaginal bleeding at the time of the examination. Her injuries included a second degree perineal tear and a second degree vaginal tear. He explained these injuries as follows:

“And by second degree perineal tear I mean that the area between the posterior aspect of the vagina and the anus, that area between the vagina and the anus, there was a tear there. And by second degree, it was torn through the skin into the muscle.”
“And by a second degree (vaginal tear) I mean that the tear extended through the skin of the vagina into the muscle of the vagina and the tear started out at the vaginal introitus, which is the opening to the vagina, went up the left lateral sidewall of the vagina, up to the top on the left, extended past the top of the vagina into the left broad ligament.” (R.p. 165)

At the conclusion of the State’s direct examination of Dr. Pasley, the following occurred:

“Q Could you say that this particular penetration was the product of force?
A I don’t see how the patient could undergo these tears without force.” (R.p. 168)

A review of the facts clearly indicates that the jury in the instant case could reasonably infer that there had been a penile penetration.

II

A preliminary hearing was held for this case on Monday, April 30,1979. On the Friday before the hearing the district attorney took the prosecutrix and her family into the District Courtroom where preliminary hearings are held to familiarize the prosecutrix with the surroundings. The district attorney placed the prosecutrix in the witness chair and explained to her the procedures of a trial. He pointed out to her where the judge would-be sitting, that several people would be sitting at the tables in the courtroom, and the approximate area where the appellant would be sitting at those tables. From the record:

Cross-examination of the prosecutrix by the defense attorney.

“Q All right. And did not Mr. Galanos tell you that the man who raped you or did that to you was going to be sitting in a certain chair or one of two chairs in the courtroom?
A Yes.
Q All right, and when you came into the courtroom Michael Jackson was standing behind one of those chairs rather than sitting in it, is that correct?
A Yes.
Q ‘All right, did he tell you anything about where the man would stand or anything like that?’
Q ‘No, sir, we came over here yesterday at Friday and we practiced and Chris said he might be sitting over in those two chairs over there.’ ” (R.p. 142, 146-147)

The district attorney also explained to the prosecutrix that she would be asked questions and that she must answer those questions truthfully.

The appellant’s attorney made no objection to the prosecutrix’s in-court identification of the appellant at the preliminary hearing nor did he make any pre-trial motions or objections to the in-court identification.

During the trial of this case the prosecu-trix was called as the first witness. An examination was conducted to determine her competency as a witness. Just as the trial court was about to rule on her competency to testify the appellant’s attorney requested that he be allowed to conduct a voir dire examination of the prosecutrix and other witnesses out of the jury’s presence. The examination was to determine if the prosecutrix’s expected in-court identification of the appellant would be the result of the district attorney’s influence in the courtroom prior to the preliminary hearing. The appellant’s attorney stated in the alternative he would attack the prosecutrix’s credibility if he was denied the admissibility objection. The trial court denied the request stating that he would not disrupt the trial at this time but that he would allow him to challenge the weight and credibility of her testimony on cross-examination or on defense.

We believe the trial court’s ruling to be correct for several reasons. First, we find nothing wrong with the prosecutrix being taken into the courtroom prior to preliminary hearing to familiarize her with the surroundings and proceedings of court. It is natural for a child of tender years who has been subjected to a sex offensé to be frightened and under emotional stress. See: Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (1972). The fact that the prose-cutrix must relive this horrible experience at trial must be equally frightening and stressful. We believe any reasonable means employed to make the prosecutrix as comfortable as possible without suggesting to the prosecutrix what her testimony should be would be proper legal procedure.

Second, the trial court correctly submitted the weight and credibility of the prosecutrix’s testimony to the jury for their consideration. Strickland v. State, Ala.Cr.App., 348 So.2d 1105, cert. denied, Ala., 348 So.2d 1113 (1977). The request to voir dire the prosecutrix as to whether her in-court identification of appellant was influenced by the district attorney did not raise a legal question. It was a factual determination. As stated in Strickland, 348 So.2d at 1110:

“Had the trial judge passed upon the weight and credibility of the proposed testimony prior to letting the jury hear it, then he would have been invading the province of the jury. If a trial judge must hear the testimony of each witness in camera, where the weight and credibility of the expected testimony is challenged, then trials would become endless affairs. The already slow wheels of justice would grind almost to a standstill.”

The trial court gave the appellant ample opportunity to challenge the weight and credibility of the prosecutrix’s testimony through cross-examination. He also was allowed the opportunity to bring it up at the defense portion of the trial.

Finally, even without the prosecutrix’s in-court identification there was other evidence sufficient to identify the appellant as the guilty party. The prosecutrix picked the appellant’s picture from a picture spread shown to her by the police before she went to the preliminary hearing. The prosecutrix’s brother identified the appellant’s picture from five photographs shown to him by Detective Sergeant James Gill of the Mobile Police Department the day after the incident and before the prosecutrix made her picture identification of appellant.

In addition, Miss Cindy Stickey, a next door neighbor to the prosecutrix, testified that the appellant appeared at her house at approximately 7:30 a. m. on the day of this incident and attempted to gain entry to her house as a carpet cleaner serviceman. When she realized he had no uniform and no equipment she slammed the door in his face. Miss Stickey did not learn that the prosecutrix had been raped that morning until she returned home' from work that afternoon. She immediately contacted the police and gave them a description of the person who appeared at her house that morning. She also helped draw a composite of the culprit. Her description of the clothes the man was wearing was corroborated by several witnesses for the State who had seen and talked with the appellant at Shotgun Willie’s nightclub during the early morning hours of March 29, 1979. Although she could not positively identify the appellant in a picture spread or in a line-up, she was unwaivering in her in-court identification of the appellant.

For the reasons set out above this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur as to Part I.

HARRIS, P. J., and DeCARLO and BOOKOUT, JJ., concur as to Part II.

BOWEN, J., concurs in result only of Part II.

      . All of the above-mentioned was made known at the preliminary hearing.

      . At the conclusion of her testimony, Miss Cindy Stickey was referred to as Mrs. Cindy Eddy throughout the remainder of the transcript without explanation.


author: FAULKNER, Justice.

text:
    Ex parte Michael Rider JACKSON (Re: Michael Rider Jackson v. State of Alabama).
    79-907.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   FAULKNER, Justice.

WRIT DENIED-NO OPINION.

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


text:
    Carl E. ALLEN, alias v. STATE.
    6 Div. 232.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Aug. 19, 1980.

      Walter E. Braswell, Asst. Public Defender, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

The three-count indictment charged the appellant with forcibly assaulting the prose-cutrix with intent to ravish and with attempting to take immoral or indecent liberties with a child, and with seeking to commit a lewd or lascivious act upon the body of female child under sixteen years of age. The jury found the appellant guilty as charged, and the trial court fixed punishment at twenty years in the State penitentiary.

The State’s evidence proves beyond any reasonable doubt that the appellant is guilty as charged. Although the defense presented conflicting evidence after the State had rested, such questions were resolved by the jury. McBryan v. State, Ala.Cr.App., 368 So.2d 568, cert. denied, Ala., 368 So.2d 575. We are required on appeal to view the evidence presented by the State in its most favorable light. Bass v. State, 55 Ala.App. 88, 313 So.2d 208.

The thirteen year old prosecutrix in this case testified that she was babysitting for her aunt and uncle (appellant) on Saturday, January 13, 1979, the date of the incident. Her aunt and uncle lived in an apartment in Tuscaloosa. The prosecutrix stated that at approximately 2:30 p. m. her aunt left for work at the Zippy Mart leaving her with the couple’s two infant children. The appellant had already gone to his job at Western Sizzlin. The prosecutrix had certain telephone conversations during the afternoon and received a five minute visit from two friends, Barry and Jerome Townsend, at approximately 7:30 p. m.

The appellant came home from Western Sizzlin at approximately 10:00 p. m. and sat on the couch by the prosecutrix. After calling his wife at the Zippy Mart and watching television for a few minutes, the appellant asked the prosecutrix if she wanted “to screw.” The prosecutrix testified that she “told him to go on and leave me alone.” The prosecutrix stated that the appellant told her if she didn’t “he would force it on me.” The appellant then pulled the prosecutrix’s clothes off, forced her to lie on the couch and “took his penis out of his pants.” “He started kissing on me and all that. He kept holding my hands and kept kissing on me and I tried to get him off of me but he was too heavy ... He tried to get it in me ... He kept doing that and I couldn’t get him off me and so finally the phone rang.”

When appellant answered the telephone the prosecutrix stated “I got my panties and pants and ran to the bathroom and locked the door ... I cleaned myself up and went back out .. . Carl was still on the phone and he told the person on the phone that I was in the bathroom and I hollered out that I wasn’t.” The phone call was from Barry Townsend. The prosecu-trix stated that, after appellant’s telephone conversation ended, “I told him that he was going to pay for what he did” (R. pp. 16-20).

“Q What did he say?
A He said he would deny every bit of it and tell some stuff on me.
Q What kind of stuff did he say he would tell on you?
A That I asked him to screw me and all that.
Q And what did you say?
A I told him that they wouldn’t believe him.”

While the appellant was in the bedroom preparing to relieve his wife at the Zippy Mart, Barry Townsend called the prosecu-trix back. After a short conversation, the prosecutrix stated that “Carl got the phone out of my hand” and “said who in the hell is this [into the phone] ... didn’t he know he wasn’t supposed to be calling there that late.”

The appellant then left for work and the prosecutrix’s aunt came home. The prose-cutrix spent the night with her aunt and went back home the next day. On Sunday night the prosecutrix reported the incident for the first time to her uncle, Donnie Steward. She did not immediately tell her mother because “I was afraid someone might believe Carl instead of me and I didn’t want to hurt her.”

On cross-examination, the prosecutrix testified that her uncle, Donnie Steward, had come by the apartment on Saturday around 6:30 or 7:00 p. m., before the incident occurred. She stated that she was crying on the occasion because the two infants “were hollering and carrying on and I couldn’t get them to shut up.” The prose-cutrix gave a further account of her struggles against the appellant during his attack and described the white substance she found on her upper legs when she went to the bathroom.

The prosecutrix testified that she didn’t tell her aunt what had happened when she got home from the Zippy Mart. She saw the appellant the next morning around 8:00 a. m., but didn’t speak to him. The prose-cutrix testified that she did not return to babysit after the incident.

On re-direct examination, the prosecutrix stated that she told her mother about the incident on Monday of the week following the assault. The prosecutrix’s mother carried her to the Tuscaloosa Police Department where she reported the incident to Sergeant Shirley Fields. On further re-direct the prosecutrix stated that she told her aunt what happened in a telephone conversation before reporting the matter to the police. “She found out some how what happened that night over there at the apartments and she called me and asked me did it happen and I told her no and she finally got it out of me and I told her yeah, it did happen and I told her what happened that night.”

On recross-examination the prosecutrix testified that the conversation with her aunt occurred on Monday night following the incident. The prosecutrix stated that the appellant had called her first that night and had asked why she had told her “Uncle Donnie those things.” The prosecutrix then had the conversation with her aunt, and her aunt came to her (the prosecutrix’s) house later that night.

Barry Townsend testified that he and his brother, Jerome, visited the prosecutrix at appellant’s apartment for “about five or ten minutes” at approximately 7:30 p. m. on January 13, 1979. Barry testified that he later telephoned the prosecutrix at approximately ten that night. “[W]hen I called her the first time, her uncle answered the phone and I asked if [the prosecutrix] was there and he said yes, but she is in the bathroom and to call back in about ten minutes.... ” Barry stated that he heard the prosecutrix’s voice in the background, but could not understand what she was saying.

Barry testified that he “called back fifteen or twenty minutes later” and that the prosecutrix answered the phone. “[S]he whispered and said bye and I didn’t quite understand her and I said what and Mr. Allen got on the phone and started you know raving a little about calling over there.... ” Barry stated that the appellant “hung the phone up” after telling him the prosecutrix “ain’t supposed to be talking on the damn phone” while she was babysitting.

On cross-examination, Barry stated that the prosecutrix was “sort of cheerful” when he talked to her at the appellant’s apartment around 7:30 p. m., but that she sounded upset when he talked to her later on the telephone.

At the conclusion of Barry Townsend’s testimony the State rested its case. The appellant made no motions to exclude the evidence.

The appellant called as his first witness his wife, Linda Allen. Mrs. Allen testified that the prosecutrix was her niece. She stated that on January 13, 1979, she was employed at the Zippy Mart from three in the afternoon until eleven at night, and that her husband came in to work the eleven to seven shift in her relief. “[T]his night he came early because he got off at Western Sizzlin.” Mrs. Allen testified that when she arrived home the prosecutrix was asleep and that she had no conversation with her. She further stated that the prosecutrix made no reference to the incident the following morning and did not seem upset. Mrs. Allen said that her husband argued with the prosecutrix about her staying “on the phone too much when she was at the house babysitting.”

Mrs. Allen testified that she first learned about the incident from her husband. “About three or four days later when Carl told me she had accused him of it, I called her on the phone and asked her if Carl done it .. . She said he didn’t do it ... [S]he changed her story before we got off the phone.” According to Mrs. Allen, the pros-ecutrix told Donnie Steward (Mrs. Allen’s brother) that the incident occurred between 6:30 and 7:00 p. m. on January 13.

On cross-examination, it was established that Mrs. Allen talked with Lieutenant Shirley Fields of the Tuscaloosa Police Department on January 25, 1979, at approximately 9:50 a. m. concerning the incident. We note the following exchange from the record (R. p. 104):

“Q At that time and on that date, did you tell him you thought your husband was guilty?
MR. CORNWELL (Defense Counsel): Your Honor, we object to what she thought.
THE COURT: I will overrule the objection. He has the right to lay a predicate.
MR. CORNWELL: But what she thought, anybody coming off the street could say they thought he was guilty.
THE COURT: Well, he has the right to lay a predicate.
MR. CORNWELL: He can’t lay a predicate-
THE COURT: I say he can and that settles it. I am the judge ruling on the objections in this case. I am the judge trying the case. Overrule, I will overrule the objection.
Q Did you make the statement?
A No.”
Mrs. Allen also admitted talking with Lieutenant Fields on March 6, 1979, after the appellant had cut her with a straight razor. Mrs. Allen admitted, without objection, that on that date she told Lieutenant Fields the appellant had said “if I am going to go to prison for rape I might as well go for murder” and that he had threatened to kill her, the prosecutrix and the prosecu-trix’s mother. Mrs. Allen further admitted, without objection, that the appellant had made the statement to her “because he thought” she was “going to go against him in court.” Then, after this testimony had come in without objection, defense counsel objected to the admission of State’s exhibit one, which was the actual written statement Mrs. Allen had made to Lieutenant Fields. This statement contained the same information to which she had previously testified.
On re-direct examination, Mrs. Allen testified that she did not believe her husband raped or attempted to rape the prosecutrix.
Lieutenant Shirley Fields testified that the prosecutrix and her mother advised him of the incident on January 21, 1979, and that a warrant was issued for appellant’s arrest on January 23. He stated that during his investigation he received information from Donnie Steward concerning the incident. From the record we quote (R. pp. 115-117):
“Q Did Donnie Steward tell you that [the prosecutrix] had told him of this incident?
A Yes, sir.
Q And on what date did he say she had told him of that incident?
MR. SUMMERFORD: We object. Again he is going into the making of the report.
THE COURT: Sustain the objection. I think that would all be hearsay at this point. Sustain the objection to anything Donnie Steward said or when.
MR. CORNWELL: Your Honor, may we approach the bench?
THE COURT: Yes, sir, take the jury back to the jury room, Mr. Sanders.
(The jury then retired to the jury room out of the presence and hearing of the Court at which time proceedings were as follows:)
THE COURT: You are asking about a particular statement made, is that right?
MR. BRASWELL: Yes, sir, it is my understanding of the law regarding statements made by the prosecutrix in a rape case that while the details of the incident she gave are not admissible but the facts and circumstances surrounding the giving of the report are admissible and it would seem to me the Court has limited our ability to go into the making of the report through this witness who is the only witness available to the defense, that Mr. Shirley Fields who is the investigating officer in his capacity in this case did take a statement and Mr. Steward is not available to the State or the defense. He is not within the State of Alabama as I understand it and if we are not allowed to use this witness for that purpose I believe the defense will be severely hampered.
MR. SUMMERFORD: You are asking if [the prosecutrix] made a report to Donnie Steward. Is that what you are asking?
MR. BRASWELL: And when she told him of the alleged incident.
THE COURT: Well, I think that might be all right but I don’t think we can go into any details made by Donnie Steward.
MR. BRASWELL: I simply want to fix the time.
MR. SUMMERFORD: Can you show Shirley knows that?
THE COURT: Go ahead and examine Shirley then. Ask Shirley anything you want to and let’s see.
Q (By Mr. Braswell) Lt. Fields, did Mr. Steward make a statement to you regarding this incident?
A Yes, sir.
Q When did he tell you [the prosecutrix] first reported this incident to him?
A He said it was on Sunday after the incident occurred.
Q That would be on the 14th of January of this year?
THE COURT: This was supposed to have happened on Saturday. I don’t think you can go any further beyond that really. I am sorry the other witness is not here. Do you have any idea where he is?
MR. SUMMERFORD: No, sir.
THE COURT: How old a person is this?
MR. SUMMERFORD: Probably twenty-eight, around that.
THE COURT: I will permit you to go that far with Mr. Fields but I don’t think we can go any further unless the State opens it up but I don’t think we can go any further into any statement made by him.
Q Did Mr. Steward tell you that he had seen the prosecutrix shortly after the alleged incident?
MR. SUMMERFORD: We object.
MR. BRASWELL: Again I believe the circumstances of the making of the report by the prosecutrix would be admissible, Your Honor.
MR. SUMMERFORD: We object to that. They can only show one when she reported it, complained about the incident and when she reported the complaint.
THE COURT: That is all we can go into.
MR. BRASWELL: I believe this clearly falls within the verbal acts doctrine. If he saw her shortly after this alleged incident anything he observed in the way of physical acts, her demeanor would be admissible. The digest is full of eases.
THE COURT: What this witness said about her demeanor?
MR. BRASWELL: Yes, sir.
THE COURT: Overrule the objection.
MR. CORNWELL: We except. Did you overrule the objection or sustain it.
THE COURT: I will let him say about that business about the time and that is as far as he can proceed.”

While the jury was still retired from the courtroom, Lieutenant Fields was permitted to testify that Donnie Steward had told him that the prosecutrix had told him (Steward) the incident occurred at approximately 6:30 p. m. on January 13. Steward, it must be remembered, had visited the prosecutrix at approximately 7:00 p. m. on the 13th and had seen her crying. When the prosecutrix reported the incident to Steward on the 14th, she used Steward’s observation of her crying the day before to lead in telling him about the incident which actually occurred later, at approximately 10:30 p. m. In other words, according to the report Steward made to Lieutenant Fields, the prosecutrix had originally told Steward that the assault had occurred at 6:30 p. m. instead of 10:30 p. m. and used her crying episode at 7:00 p. m. to lead into telling him. The prosecutrix had told Steward that she was crying at 7:00 p. m. because the appellant had assaulted her at 6:30 p. m.

“MR. BRASWELL: Your Honor, do I understand the Court to be ruling in that the observation of the prosecutrix crying coupled with her later statement that the reason she was crying was because her uncle had just attempted to rape her that the Court will not allow that evidence to come in?
THE COURT: I am sorry the witness is missing but I just don’t know of any rule of law that permits me to let Mr. Fields come in and testify what may have been said. ... I am sorry this witness is not here really. We could all have some benefit from his testimony but I just can’t let you reconstruct his testimony from Mr. Fields’ testimony. . . . ”
“MR. BRASWELL: We simply want to show that the prosecutrix was viewed by her other uncle, the witness Donnie Steward on Saturday evening about seven o’clock and that she was crying; that on the day following on Sunday she told Donnie Steward she said do you know when you saw me Saturday I was crying that was because Uncle Carl tried to rape me ... now if he was at work this thing never happened. That is the gist of our defense. It has been from the beginning and if we are not allowed to show this because the main witness is out of town and because we can’t use the police report then the defense is severely handicapped.
MR. SUMMERFORD: Your Honor, what they are asking for constitutes gross hearsay and nothing else.
MR. BRASWELL: How is it hearsay?
THE COURT: I say it is hearsay. That settles it.. .. I just cannot allow this testimony to be rebuilt. I am sorry the witness is not here but I can’t help it.”
(The jury then returned to the courtroom in the presence and hearing of the Court at which time proceedings were as follows.) (R. pp. 119-124)

Lieutenant Fields then testified that appellant worked at Western Sizzlin from 10:00 a. m. to 9:30 on the 13th.

On cross-examination, Lieutenant Fields testified that on January 25, 1979, Mrs. Allen told him in the appellant’s presence that “she believed [the prosecutrix] was telling the truth” and that the appellant had committed the alleged incident. This evidence was admitted over objection for the purpose of impeaching Mrs. Allen’s testimony.

The appellant next took the stand in his own behalf. He denied making any advances toward the prosecutrix. He admitted he received a telephone call for the prosecutrix while she was in the bathroom and to later taking the phone away from her and telling “the boy ... I was going to cut off those late night phone calls.”

The appellant then recalled the prosecu-trix who testified that on the 14th she told Donnie Steward the reason he saw her crying at 7:00 p. m. on the 13th was because “the kids was hollering and everything and I couldn’t get them to be quiet.” The pros-ecutrix denied telling Steward the reason she was crying was because the appellant had tried to rape her at that time. Following this testimony the defense rested. There was no rebuttal from the State.

I

The appellant first alleges that it was error for the State to ask Linda Allen on cross-examination if she had told Lieutenant Fields she thought her husband was guilty. The appellant maintains the question solicited an opinion from the witness which she was not competent to give.

It must be initially pointed out that Mrs. Allen answered the question complained of in the negative. It has been held many times that even if questions asked on cross-examination exceed the right to a free cross-examination, answers' to those questions are not harmful if the witness answers in the negative. Barton v. State, 376 So.2d 756, 760 (Ala.Cr.App.), cert. denied, 376 So.2d 761 (Ala.1979); Hurst v. State, 54 Ala.App. 254, 307 So.2d 62 (1974); Bowman v. State, 35 Ala.App. 420, 47 So.2d 657 (1950). Overruling an objection to a question answered favorably to the objector is not prejudicial error. Stephens v. State, 250 Ala. 123, 33 So.2d 245 (1947); Green v. State, 151 Ala. 14, 44 So. 194 (1907). Thus, even if the question had been improper, and we believe that it was not, the negative answer cured any error.

It is our opinion that the objected to question was proper for the purpose of impeachment. On direct examination Mrs. Allen testified that nothing about the appellant’s demeanor appeared unusual when he relieved her at the Zippy Mart on the night in question. She further stated that she had no conversation with the prosecu-trix when she arrived home and that the prosecutrix did not appear upset or make reference to the incident the next morning. In addition, Mrs. Allen testified that nothing seemed “unusual or strange” in the appellant’s and the prosecutrix’s relationship “after we all got up” that morning. Mrs. Allen stated that her husband and the prosecutrix only argued about her “smoking” and “talking on the phone.” Moreover, Mrs. Allen said that the prosecutrix did not seem “particularly anxious” to leave the next day and did not mention the incident when she and the prosecutrix were alone, and that the prosecutrix did not seem anxious to be left alone with the appellant when he took her home.

The clear inference from Mrs. Allen’s direct examination was that nothing appeared out of the ordinary after the incident took place and that she had no reason to suspect her husband had committed the alleged offense. What she, in fact, told Lieutenant Fields, it was later learned, was inconsistent with this testimony as noted above.

The testimony of a witness may be impeached by presenting proof showing that he has made statements inconsistent with or contradictory of his testimony. Lewis v. State, 44 Ala.App. 319, 208 So.2d 228 (1968). See also C. Gamble, McElroy’s Alabama Evidence, § 155.02(1) (3rd ed. 1977) for this general rule. “Evidence of such contradictory statements is admitted only to discredit the witness; it is not affirmative evidence of the facts stated.” 4 Jones on Evidence, § 932 (5th ed. 1958).

“It is axiomatic that a witness may be impeached by showing prior statements which are at variance with those deposed at the trial of the cause. The adopted procedure is to lay a predicate to the witness and, if the prior contradictory statement is denied, proof may be made that the witness did make the previous assertion.” Jackson v. State, 35 Ala.App. 542, 50 So.2d 282 (1951) citing Bridges v. State, 225 Ala. 81, 142 So. 56 (1932) and People’s Shoe Co. v. Skally, 196 Ala. 349, 71 So. 719 (1916).

More specifically, we refer to C. Gamble, McElroy’s Alabama Evidence § 155.02(2) (3rd ed. 1977) for the following proposition:

“There is a generally recognized principle, known as the Opinion Evidence Rule, that a witness cannot testify to his opinion but rather must only relate the facts observed by him and allow the jurors to arrive at their own opinions. However, this rule does not prevent impeachment by proof of a previous opinion expressed by a witness that is inconsistent with his present testimony.”

We believe this proposition to be correct and applicable in the instant case. Lest we be misunderstood, while it would have been patently erroneous for Mrs. Allen to have been cross-examined as to her present opinion of the appellant’s guilt, it was proper for the State to show, for purposes of impeachment, that on a past occasion she had expressed such an opinion. This evidence is in no way admissible to affirm the truthfulness of the previously asserted opinion (that the appellant was guilty) but only to show that such previously asserted opinion had been given by the witness and that that previously asserted opinion is at odds with the witness’ present testimony. See Bates v. Chilton, 244 Ala. 297, 13 So.2d 186 (1943) for an analogous holding.

It cannot be seriously questioned that Mrs. Allen’s testimony on direct examination consisted of material facts. It is competent to introduce evidence to impeach witnesses by showing prior contradictory statements made to a material matter. Gentry v. State, 35 Ala.App. 627, 51 So.2d 558 (1951). Mrs. Allen gave explicit and comprehensive testimony concerning the casual demeanor of the prosecutrix and the appellant both prior to and subsequent to the assault. Her testimony concerning their demeanor subsequent to the assault was especially relevant because of the proximity of the assault to her observation and because of the reaction such an assault would naturally be expected to engender in both the prosecutrix and the appellant. The material as well as central facts to be proved or disproved from Mrs. Allen’s observation of their demeanor was, of course, whether the appellant had in fact made the revolting advances toward the prosecutrix, as alleged, or whether nothing out of the ordinary had occurred in Mrs. Allen’s absence. This was the central question the jury had to resolve. That Mrs. Allen told Lieutenant Fields after the assault that she thought the appellant had committed the offense is inconsistent with her otherwise innocuous testimony concerning her observations of the prosecutrix’s and appellant’s behavior soon after the incident. That Mrs. Allen made such an inconsistent statement to Lieutenant Fields was a fact the jury had a right to know.

Thus, while Mrs. Allen’s present opinion of appellant’s guilt would have in no way been material to the issues or admissible in evidence, the fact that she on a prior occasion asserted her opinion that appellant was guilty was inconsistent with certain material facts she had established on direct examination, and was, therefore, admissible for the sole purpose of impeachment.

II

Although not raised in brief, we hold that Lieutenant Fields’s testimony on cross-examination that Mrs. Allen told him on January 25, 1979 she believed the prose-cutrix was telling the truth and that the appellant committed the alleged acts was admissible for the purpose of impeachment as it was inconsistent with the testimony of Mrs. Allen. C. Gamble, McElroy’s Alabama Evidence, § 157.01(1) (3rd ed. 1977) reads as follows:

“When a witness, on cross examination, denies that he made a statement out of court which is inconsistent with his testimony on direct examination, the only available move for the impeaching party is to bring on an impeaching witness who can testify as to the prior inconsistent statement of the witness being impeached.”

See Blackwell v. State, 264 Ala. 553, 88 So.2d 347 (1956); Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975) and authority cited.

III

Appellant contends that the admission of State’s exhibit one, the March 6, 1979 statement Mrs. Allen made to Lieutenant Fields, was reversible error. There is no merit to this contention. As noted above, Mrs. Allen admitted to every material fact contained in the statement, without objection, prior to the statement being introduced. Thus, the admission of Mrs. Allen’s March 6 statement was harmless at most. It is not error to allow facts to be shown over objection when they have already been proven without objection. Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968); Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960).

IV

The appellant finally argues that the trial court committed reversible error when it refused to allow him to question Lieutenant Fields concerning what Donnie Steward had told him the prosecutrix had said to Steward about the incident. This discussion from the record is fully set out above. What Steward told Lieutenant Fields that the prosecutrix told him is rank hearsay and was properly excluded. Had Steward been available as a witness his testimony possibly could have shed light on this matter, but such is not the case before us. We find no error in the trial court’s ruling.

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

AFFIRMED.

All the Judges concur.

      . In Bates v. Chilton, 244 Ala. 297, 13 So.2d 186 (1943) a county witness testified in a condemnation proceeding that certain land was just as valuable after the taking as before; the court held that the landowner was then entitled to prove, by asking the witness on cross-examination, whether the witness had previously asserted his opinion that the running of the highway through the land was “literally going to ruin them.” It was specifically recognized in Bates, supra, that such evidence was admissible for the purpose of impeaching the credibility of the witness. 13 So.2d at 189.