text:
    Jerry W. DOBBINS and Daniel W. Enfinger, et al. v. GETZ EXTERMINATORS OF ALABAMA, INC., a corp.
    Civ. 2071.
    Court of Civil Appeals of Alabama.
    April 16, 1980.

      James R. Fuqua, Ozark, Joel M. Nomberg of Nomberg & McCabe, Daleville, for appellants.
    Charles L. Woods, of Woods & Corbitt, Ozark, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Two employee defendants appeal from a circuit court judgment which granted in-junctive and other relief to their former employer for breach of a non-competition clause in their employment contracts. We affirm.

The employees had each signed written employment agreements and each contract contained a covenant not to compete with their employer in the pest control business for a period of two years after the termination of their employment in designated areas of Alabama.

The defendant Dobbins quit as Ozark area manager for Getz on May 31, 1978, while the defendant Enfinger continued to work until August or September 1978, when he too resigned from the plaintiff’s employment as their then area manager in Ozark.

Both employees had worked for many years in the exterminating business in the Ozark area and were very familiar with their employer’s routes and customers. They had first been in the pest control employ of Bob Warren, or one of his companies, which business, including goodwill, was totally purchased in 1977 by Getz, or one of its wholly-owned subsidiaries.

Getz had offices in several locations in Alabama, including Ozark and Dothan. On January 31,1979, they closed their office as such in Ozark, but maintained a telephone on the Ozark exchange that would ring and be answered by their employees in Dothan. Pest control services were still provided to the general public in the Ozark area by Getz administratively through their Dothan office. Their actual field exterminators who worked the Ozark area lived in Dale County.

On February 1, 1979, the defendants, in partnership with each other, opened a pest control business in Ozark in competition with Getz. The defendant Dobbins testified at the temporary injunction hearing on April 23, 1979, that from February 1 until April 23, their business had so expanded that his monthly income therefrom was $2,500, and that from sixty to seventy percent of their customers had previously been serviced by Getz.

On appeal several issues have been presented for our decision.

I

The defendants contend that they are professionals and, therefore, they are members of a lawful profession and have immunity from being so enjoined because of the provisions of § 8-1-1 of the Code of Alabama (1975) which provides:

(a) Every contract by which- anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.
(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.
(c)Upon or in anticipation of a dissolution of the partnership, partners may agree that none of them will carry on a similar business within the same county, city or town, or within a specified part thereof, where the partnership business has been transacted.

The defendants consider themselves as professionals and feel that they are so designated by the provisions of that chapter in our 1975 Code entitled “Entomology, Plant Pathology, Horticulture, Floriculture and Tree Surgery.” In such code chapter, certain code sections use phrases such as “persons engaged in professional services or work as defined in this chapter.” § 2-28-3, Code of Alabama (1975).

We disagree with such contentions. The word “profession” so used in said § 8-1-1 means much more than such terms utilized in said Title 2, Chapter 28. The defendants are engaged in a business not a profession. Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968); Chief Justice Torbert’s plurality special concurring opinion in Burkett v. Adams, 361 So.2d 1, 3 (Ala.1978). Each of them may be professionals in their business in the sense that they may have worthily attained excellence as to knowledge, skill, training, expertise, proficiency and experience in the pest control field; but this would not convert their pest control business into a profession. There are multitudes of businesses, but few professions.

II

Next, the defendants contend that the employer is estopped to enforce the covenant not to compete.

Estoppel is an affirmative defense which must be especially pled. Rule 8(c) ARCP. It was not pled in this case; indeed, we have searched the record and do not find that estoppel was raised in the circuit court. Hence, we do not consider such question which was raised for the first time in this court. Ala.Dig., Appeal & Error § 169.

III

This issue is stated by defendants’ counsel as, “Did the trial court err in deciding as a matter of law that the covenant not to compete was reasonable?”

Questions of fact were decided adversely to defendants by the trial judge. We are bound by his fact finding unless they were clearly and palpably wrong.

The record discloses through the judgments rendered as to the temporary injunction and as to the permanent injunction that certain express findings of fact were made by the circuit judge upon this issue, among such findings being the following:

(A) The employment contracts were valid binding contracts supported by a valuable consideration.
(B) The two-year restraint on competition by these employees was not an unreasonable restraint of trade.
(C) The territorial restraint was limited by the court from a larger territory to only Dale County.
(D) The employer was still actively engaged in the pest control business in Dale County.
(E) The restraint does not injuriously affect the public since others do compete and provide pest control services in Dale County. Any hardships imposed upon these employees as a result of the covenant were imposed on account of their conduct. The court expressly stated that there is not any likelihood that any of the employees will become a pauper or a public charge because of the enforcement of the covenant. The judge further found that the employer had a substantial pro-tectable right unique in the business.

We have reviewed the entire record and cannot reverse upon this point of contention since the evidence supports such findings or conclusions of facts as so ascertained by the trial judge.

IV

After the hearing on the temporary injunction, the trial court ordered, on April 24, 1979, that a temporary injunction issue against these two employees and others. This judgment did not mention a bond. On April 30, 1979, the judge ordered that the temporary injunction not take effect except and until Getz made proper bond in the amount of $20,000. Such bond was filed by Getz and duly approved on May 29, 1979. No bond was required when the injunction was made final after additional evidence was heard orally by the court.

The defendants contend that the court erred in ordering that the temporary and final permanent injunctions issue without bond.

From April 24 to April 30, the court was in error since Rule 65(c) ARCP requires the giving of security by the applicant before a preliminary injunction shall issue. Such error was cured by the action of the trial court on April 30 in requiring bond before the temporary-injunction became effective.

The six day error is now harmless at this stage of the litigation; it is error without injury, especially since the temporary injunction was subsequently ratified into a final permanent injunction. Rule 45, ARAP.

The appellants do not argue, nor do they cite any authority, that a bond was required of Getz when the judge rendered the final injunction. We know of no rule, statute or case which requires a bond by the winning party under such circumstances in controversies of this nature.

V

Damages were awarded by the court in favor of the employer and against the defendant Dobbins in the amount of $1,500 and against the defendant Enfinger in the amount of $750.

In awarding damages for the pre-inj miction breach of contract (from February 1 until the bond was approved), we cannot hold that the trial judge was clearly and palpably wrong. There was evidence (some of which being not before this court) upon which the trial court could readily base such judgments. Most damaging was the evidence of the defendant Dobbins heretofore referred to as his $2,500 monthly income from the young business, with sixty to seventy percent of their customers having been previously serviced by Getz.

Earnest and dedicated counsel for these two defendants have diligently presented learned argument to this court. We have duly considered each of the five issues raised and do not find error in any of them. We, therefore, must affirm.

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

AFFIRMED.

All the Judges concur.

      . This is permissible action by the trial court. Cullman Broadcasting Co. v. Bosley, 373 So.2d 830, at 835 (Ala. 1979).

      . Thus the court ascertained that the three elements existed which are necessary before a covenant not to compete is enforceable. Cullman Broadcasting Co. v. Bosley, supra, at 836.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Jack Quinton HALL v. Marie HALL.
    Civ. 2041.
    Court of Civil Appeals of Alabama.
    April 23, 1980.

      J. Scott Vowell, of Beddow, Fullan & Vowell, Birmingham, for appellant.
    Thomas E. Snoddy, Double Springs, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The issue before this court is whether the trial court abused its discretion first by awarding alimony to the wife and second by awarding an excessive amount of alimony.

Mr. and Mrs. Hall were married on January 15, 1944. They lived together as man and wife for twenty-nine years. They were divorced in October 1978, having been married approximately thirty-four years.

Mr. Hall retired from the Air Force in 1972 after having a thirty-one year career in the service. He is receiving approximately $1,300 per month from the Air Force in retirement pay. At the time of the hearing he was working at a Fort McClellan beverage store as manager earning approximately $202 per week. He testified, however, that his job with the store was terminating one week after the trial.

Mr. Hall is sixty-two years old and Mrs. Hall is fifty-nine years old. Mrs. Hall has only a ninth grade education. She has never held a job except for a short period when she sold Avon products. The rest of the time she has spent in the home as a housewife.

Mrs. Hall has been operated on for cataracts, which limits her side vision, though there is no restriction placed on her driver’s license. Before the cataract operation, Mrs. Hall had several falls and suffered injuries to her hand and to her clavicle. On top of this, she has high blood pressure and has to receive allergy shots.

Mrs. Hall testified that Mr. Hall had started spending a lot of time over at her sister’s house after work hours until he eventually moved most of his personal belongings into Mrs. Hall’s sister’s home. Mrs. Hall alleged adultery on Mr. Hall’s part in her complaint; however, the divorce was granted on the ground of incompatibility.

The trial court divorced the parties for incompatibility of temperament, and awarded the wife $450 per month, plus requiring the husband to pay the wife’s medical, hospital and dental expenses.

In determining whether to award alimony and, if so, how much, the criteria to be considered by the trial court include the earning ability of the parties, their future prospects, their age, health, and station in life, the duration of the marriage, and the conduct of the parties relative to the cause of the divorce. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974); Jernigan v. Jernigan, Ala.Civ.App., 344 So.2d 778 (1977). Also the decision to award periodic alimony or to refuse such alimony depends upon relevant facts in each case. Hardwick v. Hardwick, 55 Ala.App. 156, 314 So.2d 76 (1975). Furthermore, the trial court is not prohibited from considering evidence of fault as it may be pertinent in determining proper award of alimony in a divorce case based on incompatibility. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. den. 292 Ala. 721, 298 So.2d 260 (1974).

In the instant case the facts show that the parties had been married thirty-four years. The husband was retired from the Air Force but was in good health and was employed. His gross income at the time of the hearing was about $2,100 a month. There was testimony that his employment at Fort McClellan would end in about two weeks.

The wife was fifty-nine years old and in poor health. She has a ninth grade education and, except for a short time when she sold Avon products, she has not been employed outside of her household duties.

The wife testified that her husband spent most of his time since 1972 at her sister's house; that he went by her sister’s house when he got off work and would not arrive at their house until late at night. The husband had moved most of his personal belongings, including his clothes, to her sister’s house. There is also testimony that the husband had established a joint bank account with the wife’s sister.

Applying the above guidelines to the facts of the present case, we do not find that the trial court abused its discretion in-awarding alimony to the wife nor in the amount that was awarded.

The husband contends in brief that the amount of alimony awarded to the wife exceeds one-half of the husband’s net income and is therefore excessive. In support of his contention the husband relies on the case of Brady v. Brady, 144 Ala. 414, 39 So. 237 (1905). Although we do not concede that the alimony award in the case sub judice is more than half of the net income of the husband, it is true that the supreme court said in Brady that the allowance to the wife should not exceed one-half of the husband’s net income; however, Brady was not a divorce case; it involved separate maintenance for an undivorced wife. We believe there are factors to be considered by a court in a divorce case that are not available for consideration in a separate maintenance action. Consequently we do not consider Brady to be apt authority in deciding the limits of an alimony award in a divorce case.

To avoid any misunderstanding, however, we recognize that we said in Self v. Self, 49 Ala.App. 665, 275 So.2d 345 (1973) that the Brady case indicates that an alimony award to the wife alone should not exceed one-half of the husband’s net income. But we went on to say that each case must depend upon its own facts and there is no mathematical formula for determining such an award. And, we did not consider, even in Self, that Brady established a hard and fast rule for alimony awards in divorce cases. Consequently,- we do not consider that the trial court is limited in its award of periodic alimony to one-half of the husband’s net income in all cases. Furthermore, as previously stated, we do not view the evidence as supporting the husband’s contention that the alimony award exceeded one-half of the husband’s net income.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: LEIGH M. CLARK, Retired Circuit Judge. BOWEN, Judge

text:
    Edward Albert SEIBOLD v. STATE.
    5 Div. 473.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Feb. 5, 1980.

      Richard D. Lane, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., C. Lawson Little, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

By this appeal appellant seeks to review and reverse two judgments of the trial court, one rendered and entered on May 14, 1979, and the other on June 4,1979. By the judgment of May 14, 1979, the court denied appellant’s pro se petition for writ of error coram nobis filed on April 11, 1979; by the judgment of June 4, 1979, the court denied appellant’s second pro se petition for writ of error coram nobis filed May 23, 1979, an accompanying pro se.petition for rehearing of the first petition for writ of error eoram nobis and appellant’s motion for the trial judge to recuse himself. For this appeal an attorney was appointed to represent appellant, and he has filed a comprehensive brief.

By the two petitions for writ of error coram nobis, petitioner sought to vitiate his conviction and sentence to life imprisonment for murder in the first degree in each of three cases, and his conviction of assault with intent to murder and a sentence to twenty years imprisonment, all of which occurred after entry of a plea of guilty by defendant and the hearing thereon, at which he was represented by an employed attorney and an attorney appointed by the court. From the judgments of conviction and sentence, defendant appealed and was represented on appeal by an attorney appointed by the court. The judgment of conviction and sentence in each case was affirmed in Seibold v. State, 50 Ala.App. 613, 281 So.2d 667 (1973), cert. denied 291 Ala. 797, 281 So.2d 668 (1973).

The judgments from which the appeal in these proceedings was taken were rendered by Honorable L. J. Tyner, former Presiding Judge of the Seventh Judicial Circuit, now a retired Circuit Judge of said circuit, to whom the case was assigned by the present Presiding Circuit Judge, by virtue of authority vested in him by order of the Chief Justice of the Supreme Court of Alabama on January 23, 1978. Judge Tyner, while a regular circuit judge, presided and rendered the judgments of conviction and sentence that were affirmed in Seibold v. State, supra. He also presided and rendered judgments of conviction and sentence in two cases in which appellant herein had been found guilty by a jury of murder in the first degree, wherein his punishment in each case was fixed at death. In one of the cases, Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970), the judgment was affirmed, but in a habeas corpus proceeding the judgment was vacated in Seibold v. Daniels, 337 F.Supp. 210 (M.D.Ala.E.D. 1972). Judge Tyner presided also on the trial of this appellant which resulted in a jury verdict finding him guilty of murder in the first degree of another victim and fixing his punishment at death, and a judgment accordingly, which judgment was reversed and the cause remanded in Seibold v. State, 287 Ala. 693, 255 So.2d 53 (1971).

An attorney was appointed by the trial court to represent appellant on this appeal. From the time of the appeal and the appointment of the attorney until the first part of September 1979, there was a proliferation in this Court of pro se motions and other pro se documents by appellant, including correspondence between him and his appointed attorney, who filed a brief on behalf of appellant on August 29, 1979. In a part of the documents filed by appellant pro se, appellant expressed dissatisfaction with the method by which his appointed counsel was handling the matter on appeal. His complaints, requests and motions for relief are apparently supplanted by his pro se motion of September 4, 1979, entitled “MOTION TO BE ALLOWED TO DISCHARGE ATTORNEY-OF-RECORD, OR, IN THE ALTERNATIVE, MOTION THAT BRIEF AND ARGUMENT OF ATTORNEY-OF-RECORD BE STRICKEN FROM THE RECORD.” In the meantime, on August 21, 1979, he had filed a pro se brief.

In compliance with the objective of appellant’s said motion of September 4, 1979, although the writer has read the brief of appellant’s counsel, said brief will, insofar as such action is possible, be disregarded.

We first consider that part of the judgment of June 4, 1979, in which the court denied appellant’s motion that the trial judge recuse himself. Appellant's pro se brief does not bring forward the contentions set forth in his motion for a recusal. There is no relation between the point and any of the seven propositions of law he relies upon in his brief for a reversal. The motion to recuse consists of a congeries of vague imputations of partiality, in which no greater specificity is found than the allegation that petitioner “can produce witnesses who will swear under oath that they believe the trial judge . . . was biased against the petitioner and lacking in impartiality.” No reference is made in the motion to recuse to any conduct of the judge other than that which transpired in open court relative to one or more of the cases in which he presided. The motion to recuse does not show any merit on its face, and it was properly denied. Disqualifying prejudice or bias of a judge toward a party litigant must be of a personal nature. Johnson v. State, Ala.Cr.App., 335 So.2d 663 (1976); Slinker v. State, Ala.Cr.App., 344 So.2d 1264 (1977); Panned v. State, Ala.Cr. App., 356 So.2d 219, 221 (1978); Canon 3, A(5), Alabama Canons of Judicial Ethics.

Propositions of Law IV, V, VI and VII of appellant’s pro se brief relate to his claimed insanity, or mental incompetence to stand trial, and his alleged resultant inability to enter a guilty plea and be sentenced in each of the four cases. In passing upon such question, the trial court had before it, and apparently fully considered, the entire record and the court reporter’s transcript of the entire proceedings that resulted in the judgments of conviction and sentence from which the consolidated appeal was taken in the last reported Seibold case, 50 Ala.App. 613, 281 So.2d 667 (1973), cert. denied, 291 Ala. 797, 281 So.2d 668 (1973). Post-conviction judicial relief is not to be extended to such an extreme as to set aside that which has been fully considered and determined in an adversary proceeding at least twice by the trial court, on original submission and on rehearing by the Court of Criminal Appeals, and on petition for certiorari, by the Supreme Court of Alabama. And we may add that it has been correctly determined, in our view, after consideration of the record and the transcript of the proceedings in the four cases in which defendant was convicted and sentenced on his plea of guilty in each case.

Propositions of Law I, II, & III in appellant’s pro se brief raise a point not raised in the basic proceedings in which appellant was found guilty and sentenced, and was not raised in appellant’s first petition for writ of error coram nobis in the instant proceeding. By such propositions of law and arguments made in the pro se brief in support of such propositions, appellant contends that the trial court was in error in the three cases of murder in the first degree, in determining, without the intervention of a jury, that defendant was guilty of murder in the first degree and in fixing his punishment at life imprisonment. He supports his contention by references to the provisions of the Code applicable at the time of said convictions and sentences, Code of Alabama, Recomp.1958, Tit. 14, §§ 317, 318, and Tit. 15, § 277, as follows:

“When the jury find the defendant guilty under an indictment for murder, they must ascertain by their verdict whether it is murder in the first or second degree; but if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon examination of the testimony and pass sentence accordingly.” Tit. 14, § 317
“Any person who is guilty of murder in the first degree, shall, on conviction, suffer death, or imprisonment in the penitentiary for life, at the discretion of the jury; and any person who is guilty of murder in the second degree shall, on conviction, be imprisoned in the penitentiary for not less than ten years, at the discretion of the jury.” Tit. 14, § 318 “If a defendant upon arraignment or pri- or to trial pleads guilty, the court, without the intervention of a jury, shall determine the degree of the offense and fix the punishment therefor the same as a jury might fix or impose it if the case was being tried by a jury, unless in the discretion of the trial judge a jury should be empanelled to determine the degree of the offense or to fix the punishment therefor or unless the defendant at the time of entering such plea demands in writing a jury. The court shall not in any event, however, impose capital punishment without the intervention of a jury. Whenever in the discretion of the trial judge a jury should be empanelled or a jury is demanded, in the manner and at the time prescribed above, no special ve-nire need be drawn, but the court must cause the punishment to be determined by a jury, except where the punishment is required by law to be fixed by the court. The court may in all cases in which a plea of guilty is entered, cause witnesses to be examined to ascertain the character of the offense. Nothing herein contained shall be construed as authorizing an accused who has entered a plea of guilty to demand a jury to determine any issue or to fix punishment in regard to any offense unless the right to have a jury determine such issue or fix the punishment in regard to the offense with which he is charged is granted under some other applicable provision of law.” Tit. 15, § 277, as amended by Acts 1969, No. 1061, p. 1981.

Also pertinent to the question is Code of Alabama, Recomp.1958, Tit. 30, § 70:

“At any time before a special venire has been drawn for the trial of any capital case, if the defendant enters a plea of guilty or in writing waives the right of a special venire, such plea of guilty or such waiver of special venire shall be entered of record, and, in either event, no special jury or venire shall be necessary for the trial of such case; but the trial of the cause shall be had and the question of the degree of guilt must be ascertained and the punishment fixed by a jury to be selected from the panel of regular petit jurors organized by the court during the week such case is set for trial, in the same manner as juries are organized for the trial of felonies not capital. And the state and the defendant shall be allowed the same number of peremptory challenges as they are respectively allowed in the trial of felonies not capital.”

That the fertile mind of appellant or his counselor, whoever he is, has raised an important question, i. e., whether the determination by the judge, without the intervention of a jury, that one, on his plea of guilty, is guilty of murder in the first degree and that his punishment should be fixed at imprisonment for life, was proper practice as to capital cases generally, prior to the effective date of the Death Penalty and Life Imprisonment Without Parole Act of Alabama (Acts 1975, No. 213), is emphasized by the attention given to the question in Prothro v. State, Ala.Cr.App., 370 So.2d 740. Appellant’s position in this particular respect is largely in accord with the majority opinion in Prothro, which was seriously questioned in the specially concurring opinion therein.

In adhering to what was stated in the majority opinion in Prothro on the subject, we observe that appellant is correct in his insistence that, in accordance with the law as it appeared at the time appellant was convicted and sentenced to life imprisonment in the three cases for murder in the first degree, a jury should have been utilized to determine whether he was guilty of murder in the first degree and fix his punishment, even though he had entered a plea of guilty. Irrespective of this conclusion, however, we are of the opinion that the fact that no jury was so utilized does not, in correct logic or in applied justice, work a reversal of the judgments of the trial court in the instant proceedings.

The judgments in the proceedings now being reviewed were rendered on June 12, 1972. Ten days thereafter, June 22, 1972, the Supreme Court rendered its opinion in Furman v. Georgia, and companion cases, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, which necessitated a reversal by the courts of Alabama of its preceding consistent course in endeavoring to uphold the will of the Legislature in capital cases where discretion was vested in the jury to determine whether the punishment should be that of death or imprisonment. Ten days before the opinion in Furman, neither the trial court nor the attorneys in the Seibold cases had any reasonable way of knowing when or what the opinion in Furman would be. It is obvious that before Furman was announced neither the trial court nor any of the attorneys would have seriously questioned the likelihood that if defendant continued to plead not guilty in the three, (then apparently capital) cases he would have been ultimately executed. No one, including defendant could be blamed for that view in the light of what the law then appeared to be. There was clearly no failure on the part of defendant’s counsel to measure up to the utmost fidelity and intelligence in cooperating with him in his efforts to dispose of the cases against him by rendition of the final judgments he then desired, from which the appeals were taken, and as to which appellant belatedly (six years thereafter) complains anew.

Although the apparent statutory law governing capital offenses in Alabama was not followed to the extent of utilization of a jury in the determination of appellant’s guilt and of the punishment to be imposed, it can now be clearly seen, by the rear view light of Furman, that such was not the law at the time of the judgments on June 12, 1972. The effect of Furman has been that such then apparently existing capital punishment laws of Alabama did not actually exist, for Furman was not merely prospective in application, it was retrospective as to all capital crimes, like Furman and the two companion cases, and like the three appellant committed. As to all of them, the crimes and the cases, the opinion in Furman removed their capital nature except as to those in which the sentence of death had been executed. As we look retrospectively upon the crimes involved in the proceedings under review and follow, as we must, what the Supreme Court held in Furman v. Georgia, the crimes were not capital crimes. Therefore, the law that appeared to apply as to the necessity for a jury determination did not actually apply. It follows necessarily that as none of the offenses involved was a capital offense, the provisions of statutory law applying to capital crimes were not violated by the court’s proceeding as it did without a jury.

We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

HARRIS, TYSON, DeCARLO and BOOKOUT, JJ., concur.

BOWEN, J., concurs specially.

BOWEN, Judge

concurring specially.

This case brings to mind the words of Chief Justice J. Ed Livingston in Cooper v. Wiman, 273 Ala. 699, 700-701, 145 So.2d 216, 217 (1962).

“(T)he criminal of today makes a mockery of our judicial system. Finality of a criminal judgment and sentence today is as outmoded as the Model-T. State and federal courts are now being besieged by prisoners who want a rehearing or a new trial, or any type of hearing which will set them free. Guilt or innocence is no longer the paramount question to be resolved. Indeed, in most of the applications for extraordinary writs by these incarcerated prisoners, they make no claim of innocence, and the allegations of error which they set forth know no bounds except those of their own imagination. Nowhere in this proceeding does appellant assert, or even intimate, that he is not guilty of murder, to which he pleaded guilty.”
“The petitioners take great comfort in the fact that no matter how frivolous their allegations or how utterly deficient their pleadings may be, the state must respond to these ofttimes unintelligible pleadings letters or memorandums, and/or proceed to costly and time-consuming hearings. The petitioners have nothing to lose, for they know that the very least they can obtain is a day away from their prison surroundings.”


author: BEATTY, Justice. MADDOX, Justice

text:
    Ex parte Edward Albert SEIBOLD. In re Edward Albert Seibold v. State of Alabama.
    79-366.
    Supreme Court of Alabama.
    May 9, 1980.
    Richard D. Lane, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., C. Lawson Little, Asst. Atty. Gen., for appellee.
   BEATTY, Justice.

WRIT DENIED.

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

MADDOX, J., concurs specially.

BLOODWORTH, J., not sitting.

MADDOX, Justice

(Concurring in the result).

I concur in the result only. The trial court, by sentencing Seibold to life imprisonment without the intervention of a jury, did no more than this Court did in 1973, when it commuted all death sentences to life imprisonment. See Hubbard v. State, 290 Ala. 118, 274 So.2d 298 (1973). Whether this Court misconstrued the effect of Fur-man on our substantive death penalty laws is purely academic now; what this Court did cannot now be undone. At that time, this Court thought Furman mandated that all death sentences had to be commuted, and since Seibold is similarly situated with those prisoners whose sentences were commuted by this Court, he is entitled to the same treatment. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Dobbert has thrown much additional light on the extent of the Furman mandate. After reading Dobbert, I am personally convinced that Furman did not abolish capital punishment in Alabama, only the procedure Alabama followed under the old law in allowing the sentencing authority to exercise an unguided discretion. Because I am of this opinion, I cannot agree with the holding by the Court of Criminal Appeals that:

“. . . The effect of Furman has been that such then apparently existing capital punishment laws of Alabama did not actually exist, for Furman was not merely prospective in application, it was retrospective as to all capital crimes, like Furman and the two companion cases, and like the three appellant committed. As to all of them, the crimes and the cases, the opinion in Furman removed their capital nature except as to those in which the sentence of death had been executed.”

That holding by the Court of Criminal Appeals is obviously an incorrect statement. Dobbert involved a capital crime which Dobbert committed pre-Furman, but he was tried under a procedure which followed Furman guidelines. But for the fact that Seibold was in a class with other death row prisoners whose sentences were commuted, I think Seibold could be sentenced to death provided Alabama provided a procedure for the sentencing authority which followed Furman guidelines.


author: HARRIS, Presiding Judge.

text:
    Suzette ALLEN v. STATE.
    3 Div. 35.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      Calvin M. Whitesell, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was put to trial upon a two-count indictment which, omitting the formal parts, reads as follows:

“Count I: The Grand Jury of said County charge that, before the finding of this indictment, Suzette Allen, whose name is to the Grand Jury otherwise unknown, did, unlawfully, wilfully and feloniously possess cocaine contrary to the provisions of Act 1407, Section 401(a), Regular Session of the Legislature of Alabama, 1971. “Count II: The Grand Jury of said County further charge that, before the finding of this indictment, Suzette Allen, whose name is to the Grand Jury otherwise unknown, did, unlawfully, wilfully and felo-niously possess marijuana contrary to the provisions of Act 1407, Section 401(a), Regular Session of the Legislature of Alabama, 1971, against the peace and dignity of the State of Alabama.”

Throughout the trial proceedings appellant was represented by counsel of her choice and at arraignment pleaded not guilty. The jury found her guilty under both counts of the indictment. In finding her guilty under Count II of the indictment the verdict reads: “We, the jury, find the defendant guilty of possession of marijuana for her personal use and refuse to assess a fine.”

The trial court sentenced appellant to two years imprisonment in the penitentiary, suspended the sentence and placed her on five years probation conditioned upon her future good behavior. The Court further ordered that she serve three months in the County jail and pay a $1,000.00 fine and court costs. Another condition of her probation was that upon release from the jail sentence that she find a full time job. After sentence was imposed appellant gave notice of appeal and she is represented on this appeal by trial counsel.

The evidence was in sharp conflict and only a jury could unscramble the conflicting testimony and arrive at a verdict.

At the conclusion of the State’s case appellant made a motion to exclude the evidence on the ground the State had failed to make out a case against the defendant on reliable, relevant, admissible evidence. The motion to exclude the State’s evidence was overruled and denied by the trial court.

This is a search warrant case and appellant made a motion to suppress the evidence obtained pursuant to the search on the ground that the search warrant was not properly executed, was not properly served, and was not properly carried out, and that the fruits thereof would not be admissible. The Court overruled the motion to suppress after a lengthy hearing out of the presence of the jury.

The affidavit leading to the issuance of the search warrant reads as follows:

“State of Alabama )
City of Montgomery ) Affidavit in Support Montgomery County ) of a Search Warrant
“Before me, the honorable Newman C. Sankey, Judge of the District Court of Montgomery County, Montgomery, Alabama, the undersigned being first duly sworn deposes and says:
“That they are Police Officers in and for the City of Montgomery, Alabama and that they have reason to believe, probable cause to believe, and in fact do believe that Cocaine, a controlled substance, or any compound mixture or substance containing Cocaine is being kept, stored, and concealed in the residence of Suzette Allen located at 2409 East Sixth Street in Oak Park Montgomery, Alabama. This is in violation of the Alabama Uniform Controlled Substance Act of 1971.
“And the facts tending to establish the foregoing grounds for issuance of a day time search warrant are as follows:
“On or about March 31, 1978, Affiants C. M. Armstrong and J. A. Dorrill met in person with a confidential and reliable source hereinafter referred to as ‘A’. ‘A’ stated to the affiants in person that he had personally observed a quantity of Cocaine within the residence of Suzette Allen located at 2409 East Sixth Street in Oak Park, Montgomery, Alabama within the past two days. Upon checking the February, 1978 edition of the Montgomery Telephone Directory, Affiant Armstrong found a Suzette Allen listed with the address 2409 East Sixth Street and telephone number 265-3736. Upon checking with Alabama Power Company, Affiant Armstrong found that the power for the residence of 2409 East Sixth Street in Oak Park in Montgomery, Alabama is listed in the name of Suzette Allen.
“Further probable cause being that within the past two weeks, the affiants C. M. Armstrong and J. A. Dorrill have personally observed on more than one occasion numerous persons going and coming from the residence of Suzette Allen located at 2409 East Sixth Street Oak Park, Montgomery, Alabama. Those people would only stay for short time and then leave that residence.
“Further probable cause being that on March 15, 1978, affiant C. M. Armstrong went to the residence of Suzette Allen located at 2409 East Sixth Street Oak Park Montgomery, Alabama, in an attempt to make an undercover buy of one gram of Cocaine from Suzette Allen. Upon arriving, affiant Armstrong talked with a white female who identified herself as Suzette Allen. The white female who identified herself as Suzette Allen agreed to sell affiant Armstrong one gram of Cocaine for ninety (90) dollars. This sale was set to be made one hour after affiant Armstrong’s first contact with the white female. During that one hour period, Suzette Allen learned that Armstrong was a police officer and did not sell to him.
“Further probable cause being that there are numerous reports on file in the office of the Narcotics and Dangerous Drugs Detail of the Montgomery Police Department regarding the drug activities of Suzette Allen.
“Source ‘A’ has proven reliable in the past in that on or about December 10, 1977 affiant Armstrong received information from ‘A’ in person that resulted in the arrest of Bobby Lee Reynolds for sale of amphetamine and possession of amphetamine and Connie Marie Blackwell for Felony Possession of Marihuana and Possession of amphetamine. Both Reynolds and Blackwell have been indicted by the Montgomery County Grand Jury and are currently awaiting trial in Montgomery County Circuit Court.
“Source ‘A’ has further proven reliable in that ‘A’ has given affiants Armstrong and Dorrill information on other drug activity that is currently under investigation with arrest pending.
“This affidavit is based upon facts and personal observations of the affiants C. M. Armstrong and J. A. Dorrill and is made for the purpose of securing a day time search warrant for the residence of Suzette Allen located at 2409 East Sixth Street Oak Park in Montgomery, Alabama.
“Sworn to before me this the 1st day of April 1978.
"/a/ C. M. Armstrong /a/ J. A. Dorrill C. M. Armstrong, Police J. A. Dorrill, Police Officer Officer
Narcotics and Dangerous Narcotics and Dangerous Drugs Detail Drugs Detail
Montgomery Police Montgomery Police
Department Department
/s/ Newman C. Sankev Newman C. Sankoy, Judge District Court
Montgomery County, Alabama"

This identical affidavit was approved by this court in a unanimous opinion written by Judge Bowen in Francis E. Travis v. State, 381 So.2d 97, which was released on December 4, 1979. In this opinion Judge Bowen held:

“This affidavit is sufficient to support a finding of probable cause to search the described residence despite the defendant’s several grounds of objection. The affidavit satisfies both the basis of knowledge test and the veracity test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
“The affidavit contains an express statement of time of the occurrence of the facts relied upon, i. e., within the past two days from March 81, 1978. A statement by the affiant that his informant observed the alleged offense ‘within’ a certain period of time is sufficiently clear and definite. 100 A.L.R.2d 525, Section 5(c) (1965). The affidavit need not state the exact time the informant observed •the events relied upon to show probable cause.
“The informant observed cocaine in the house ‘within the past two days’ from March 31,1978. The search warrant was obtained and executed on April 1, 1978. The information contained in the affidavit is not too remote.
“ ‘The requirement that an affidavit for a search warrant state the time of the occurrence of the facts relied upon is based on the necessity that there exist at the time the warrant is issued probable cause for believing that the facts relied upon still continue to exist. Simultaneity is, of course, normally impossible, but just how long a time may be permitted to elapse without destroying the basis for a reasonable belief as to the continuance of the situation set forth in the affidavit will vary according to the facts of the individual case. About all that may be stated by way of a general rule is thát the courts will require that no more than a “reasonable” time have elapsed, the nearer the time at which the facts occurred is to the time when the affidavit was made, the more probable it being that the affidavit will be held to justify a conclusion of probable cause.’ 100 A.L.R.2d 525, Section 6.”
“The informant need not state the quantity of controlled substance he observed. ‘(A)n assertion by an informant that he saw illegal drugs or the like at a certain place is regularly accepted without any showing as to how the informant was able to identify the substance.’ W. La-Fave, 1 Search and Seizure 539 (1978). “The affidavit contains a sufficient statement of facts from which either the inherent credibility of the informant or the reliability of his information on this particular occasion could be determined. Aguilar. While a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant, Aguilar, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the affidavit in the present case contains an ample factual basis for believing the informant.”

Allan Raymond Adair, a drug identification expert with the State Department of Forensic Science, whose qualifications were admitted, testified that, on April 5,1978, he received from Detective Joe Dorrill numerous articles of evidence to analyze and identify in this case. The following state’s exhibits were identified by Mr. Adair:

No. 1 — one clear plastic bag containing plant material identified as marijuana weighing 2.9 grams.
No. 2 — a small bag containing white residue was inconclusive for identification. No. 3 — one paperweight which was negative for a controlled substance.
No. 4 — two syringes that were negative for a controlled substance.
No. 5 — three clear plastic ziplock bags containing greenish brown plant material identified as marijuana weighing 303 grams.
No. 6 — one silver metal spoon containing a plug of cotton-like material and a white residue identified- as cocaine.
No. 7 — one clear plastic bag containing small amount of plant material identified as marijuana weighing .8 grams.
No. 8 — one clear plastic bag containing plant material consisting primarily of seeds; plant material was identified as marijuana, total weight was 100.7 grams. No. 9 — one clear plastic bag containing greenish brown plant material identified as marijuana weighing 8.2 grams.
No. 10 — four hand rolled cigarette butts in which trace amounts of marijuana were identified.
No. 11 — three hand rolled cigarette butts in which trace amounts of marijuana were identified.
No. 12 — one hand rolled cigarette butt in which a trace amount of marijuana was identified.
No. 13 — one hand rolled cigarette butt in which a trace amount of marijuana was identified.
No. 14 — one hand rolled cigarette butt in which a trace amount of marijuana was identified.

Mr. Adair testified that all of the exhibits have been continuously in his possession except for numbers one through six. On October 18, 1978, he relinquished possession of numbers one through six to the court in connection with another case growing out of the same search and regained possession of the exhibits on the morning of the appellant’s trial. He testified that there had been no change in the condition of the exhibits.

Joseph Dorrill testified that, on April 1, 1978, he was employed as a narcotics officer with the Montgomery Police Department. On that date he and other members of the narcotics squad, along with Deputy Dave Bryant of the Montgomery Sheriff’s Office, executed a search warrant on the residence of the appellant located at 2409 East 6th Street, Montgomery. At approximately 5:51 a. m. Officer Dorrill went to the front door of the appellant’s home. He knocked several times, stated that he was a police officer and had a search warrant for the residence. After a short pause this sequence was repeated two more times. When there was no response to the warning and movement was detected in the house, the officers gained entry to the house by forcing the front door open. In the meantime Officer C. M. Armstrong covered the rear of the house.

As they entered the house the appellant was standing directly behind the front door. Besides the appellant, the other occupants of the house were later identified to be Teresa Robinson, sister of the appellant, David Barron, and Frank Travis. They were gathered together and seated at the kitchen table where the search warrant was read to the appellant by Deputy Bryant.

Officer Dorrill was appointed the evidence technician for the search. All evidence found in the house was inventoried, sealed, and turned over to Mr. Adair at the State’s Toxicologist’s Office by Officer Dor-rill. The evidence was kept in Officer Dor-rill’s locker at the police department for approximately two days before being turned over to Mr. Adair. Officer Dorrill testified that state’s exhibits one through fourteen were found in the house.

Officer Dorrill also testified that he and Officer Armstrong had set up surveillance at the appellant’s house approximately three weeks before the search warrant was executed. They watched the house from a parked automobile during the afternoons.

James L. Tender, a narcotics officer with the Montgomery Police Department, testified that he participated in the search of the appellant’s residence. He and Officer Armstrong were stationed at the back of the house before entry. After entry was made through the front door they caught Frank Travis attempting to flee out the back door. Officer Tender searched Frank Travis and found on his person “hash” oil and a white powder residue in a plastic container. When the house was secured all the occupants were taken to the kitchen area. All evidence recovered was turned over to evidence technician, Officer Dorrill.

David Green, an officer with the Montgomery Police Department, testified that he participated in the search of the appellant’s house. He testified that, after he entered the front door he saw Frank Travis being escorted from the back of the house by Officers Tender and Armstrong.

Officer Green was appointed custody officer and retained custody of the suspects in the house during the search. He was later relieved by another officer and joined in the search. He testified that he found the following items of evidence:

1) a pair of white socks with blue rings around the tops, one sock contained a plastic bag with greenish-brown plant material inside, found on wooden bench in dining room area;
2) a purse found in the living room contained the driver’s license of Teresa Robinson; inside the purse was a small plastic bag containing greenish brown plant material.
3) in the living room area found a plastic bag containing seeds, recognized them as marijuana seeds.
4) in the living room found a brown shaving kit, inside were two hypodermic syringes or needles.
5) found a hand rolled partially burned cigarette butt in ashtray in living room;
6) in the back bedroom was a cardboard box covered with a few articles of clothing, inside the box were three large plastic bags containing greenish-brown plant material.

All the evidence found by Officer Green was turned over to the evidence technician, Officer Dorrill.

C. M. Armstrong testified that he was a narcotics agent with the Montgomery Police Department during the time of the investigation and arrest of the appellant. He testified that, on March 15, 1978, while acting as an undercover agent using the name “Mickey”, he attempted to buy a gram of cocaine from the appellant at her residence. Officer Armstrong used the pretext that he was referred to the appellant by a mutual friend named Richard Benoit with whom he had served time in the county jail. The appellant told Officer Armstrong to phone her in one hour, that she would have the cocaine and it would cost ninety dollars. He called back in an hour and she denied knowing anything about cocaine and said she did not know where to get any. Officer Armstrong testified that, during the time he was in the appellant’s house attempting to buy the cocaine, he did not see any drugs.

Officer Armstrong continued the investigation by talking to informers and sending informers to the appellant’s residence. He and Officer Dorrill set up surveillance on the house. He obtained a search warrant on April 1, 1978, and participated in the execution of the warrant. He was a search officer for the house. During the search he found three partially smoked marijuana cigarettes in a kitchen drawer, four partially smoked marijuana cigarettes in a kitchen trash can, and two spoons on top of the refrigerator — one of which was later revealed to contain a residue of cocaine. He found numerous other items that were not identified as being narcotics. All the evidence uncovered by Officer Armstrong was turned over to Officer Dorrill.

Officer Armstrong testified that after he arrested the appellant, she told him that she had smoked some marijuana. She told Armstrong that she was aware that cocaine had been in the house, that Frank Travis had been selling cocaine from the house and that she used cocaine. Armstrong also testified that he found numerous letters in the house from Richard Benoit to the appellant.

Teresa Robinson testified that she was the sister of the appellant and that she was living at the house in question at the time of the raid. She also testified that Frank Travis was living in the house. She testified that she had seen Frank Travis sell marijuana and shoot up with drugs but had never told her sister. At this point the trial judge stopped the proceedings and advised the witness of her right not to incriminate herself. She left the witness stand to confer with an attorney.

After several character witnesses testified, Teresa Robinson was recalled as a witness and testified that she had marijuana in her purse. She testified that she, the appellant, Frank Travis, and David Barron had all smoked marijuana the night before the raid; that Frank Travis had furnished the marijuana. She testified that she never knew Travis to sell drugs out of the house.

Teresa also testified that Jeff Coffin told her the night that Officer Armstrong attempted to buy cocaine from appellant that Armstrong was a “narc.” She testified that Jeff Coffin also told the appellant that Armstrong was a “narc.” Teresa Robinson testified that she overheard the appellant tell Officer Armstrong that she could not get him any cocaine, that he could call back if he wanted to, but she could not help him.

Appellant took the witness stand and testified that she lived at 2409 East 6th Street, Oak Park, Montgomery. She testified that Lee Ann and Jeff told her that Armstrong was an undercover agent for the police. They wanted her to talk to him and see what he wanted. The appellant stated that Armstrong told her that he was referred to her by a friend of hers that he had been in jail with, and that she could get him a gram of cocaine. No price was mentioned. She laughed at him and said she could not. Armstrong insisted on calling back and she told him it would do him no good.

The appellant testified that she never sold cocaine to anybody. She admitted smoking marijuana the night before the raid. She admitted that the spoons found on top of the refrigerator were hers but that she did not know they were there and that the cocaine found in the house was not hers. She denied using cocaine.

Appellant’s first contention questions the legal sufficiency of the state’s evidence in proving her possession of the cocaine. She claims that the state only proved that she had constructive possession of the cocaine and nothing more. Appellant cites Temple v. State, Ala.Cr.App., 366 So.2d 740 (1978), for the proposition that when constructive possession alone is relied upon the state must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. She contends that this case is on point with the Temple case and should be reversed as was that case.

The Temple case is easily distinguishable from this case. In Temple, cocaine was found in the freezer compartment of the refrigerator in the kitchen of the defendant’s home. The cocaine was in a Goody’s Headache Powder packet. The defendant was away from home at work when the search warrant was executed. The defendant’s wife and children were at home and the wife allowed police officers to enter the home peacefully. Although other areas of the house were searched no drugs were found. There was no evidence concerning the search warrant or the basis for probable cause introduced at trial. There was evidence that workmen remodeling the defendant’s home at the time did have access to the kitchen. This court in Temple stated that there was “not one single circumstance” to connect the defendant with the cocaine other than the fact it was found in the kitchen while he was at work.

The jury in this case had the following evidence before them to consider:

1) Officer Armstrong testified that on March 15, 1978, the appellant, at her house, agreed to sell him a gram of cocaine for ninety dollars. One hour after the agreement she denied any knowledge of cocaine.
2) Armstrong testified that he convinced the appellant to agree to sell him cocaine by using Richard Benoit’s name. Armstrong found letters in the appellant’s house from Benoit to the appellant.
3) After the “buy” fell through, the narcotics squad continued the investigation by setting up surveillance on the house, talking to informers, and sending informers into the house.
4) A search warrant was obtained to search the appellant’s house and was executed on April 1, 1978.
5) During the execution of the search warrant Officer Dorrill had to repeatedly state that he was a peace officer with a search warrant and eventually had to force his way into the house through the front door. When he gained entry to the house the appellant was standing directly behind the front door.
6) The appellant was in her home at the time of the search and the warrant was read to her in the kitchen.
7) Cocaine residue was found in a spoon on top of the refrigerator midway of the top and surrounded by several kitchen articles.
8) Drugs were found in other parts of the house.
9) Armstrong testified that the appellant admitted to him that she was aware that cocaine was in the house, that Prank Travis had been selling cocaine from the house, and that she used cocaine.

As can be seen from the above there is substantial evidence presented by the State in this case as compared to the Temple case. Guilty knowledge can be established by the surrounding facts and circumstances. Temple, supra. Taking the circumstances as a whole, the evidence presented by the state was sufficient to establish possession of the cocaine by the appellant. Temple, supra, Easley v. State, 56 Ala.App. 102, 319 So.2d 721 (1975).

Appellant’s specific contention on appeal is that the search warrant was signed by the issuing judge before the affidavit was signed in violation of § 15-5-4, Code of Alabama 1975, thus a search warrant was issued before the supporting affidavit was sworn to. Section 15-5-4, supra, requires that before a search warrant can be issued the official issuing the warrant must examine the complainant on oath, take his deposition in writing, and cause the complainant to sign the deposition.

From the record, cross-examination of Officer Armstrong by the appellant’s attorney:

“Q. What time did you go see Judge Sankey?
“A. It would have been approximately one hour, one to two hours prior to the executing of the search warrant. It was the early morning hours of the first of April.
“Q. Five o’clock in the morning?
“A. It was prior to five o’clock I'm sure.
“Q. Where did you see Judge Sankey, at his home?
“A. Yes, sir, we went to his residence. “Q. And made the affidavit at his residence?
“A. No, sir, the affidavit and the search warrant were filled out in our office at the Montgomery Police Department.
“Q. Did you sign them down there? “A. No, sir.
“Q. I mean the typed affidavit with your signature on it, where was it typed?
“A. The affidavit that is typed was typed in the office at the Police Department. The affidavit and search warrant were taken to Judge Sankey's residence where he read the affidavit and the search warrant and it was signed by himself, me and Officer Dorrill in his presence.
“Q. Who signed first?
“A. Judge Sankey.
“MR. WHITESELL: Your Honor, I move to exclude the whole thing because he said it was sworn to before him. If he signed it first it could not have been sworn to before him.
“THE COURT: Overruled. Did he swear you?
“THE WITNESS: Yes, sir, he did.
“THE COURT: And then in the process of signing and it all just took place together?
“THE WITNESS: That is correct. He would sign, we would sign and each of us signed in each other’s presence.”

An examination of the search warrant and the affidavit reveals that the issuing judge’s signature and the affiants’ signatures appear on both documents. It is not clear from the testimony which document the judge signed first. Without that knowledge we cannot rule on the issue. The burden is on the appellant to establish on the record all facts necessary for this court to make an intelligent ruling. We cannot consider statements contained in the appellant’s brief concerning circumstances not reflected by the record. Miles v. State, Ala.Cr.App., 366 So.2d 346 (1978).

We have examined the search warrant and the affidavit and all appears to be in order. It is made clear from the testimony that the issuing judge read the affidavit and administered an oath to the affiants. So it does appear that the judge conducted an inquiry before affixing his signature.

Appellant’s next contention is that the trial court committed reversible error by refusing to allow the appellant to show her innocence by proof of the guilt of another. During the cross-examination of state’s witness Officer Tender, the appellant’s attorney attempted to establish that one of the occupants of the house, Frank Travis, admitted to possessing or owning some of the drugs found in the house. Officer Tender was allowed to testify that drugs were found on the person of Frank Travis. Officer Tender also testified that Travis admitted in the presence of the appellant that he owned a small wooden locked box that was found in the back bedroom of the house. Later testimony revealed that this box contained drugs. The trial court would not allow Officer Tender to testify to any statements made .by Frank Travis to him that were not made in the presence of the appellant. The appellant contends that the statements excluded from the jury’s consideration “would have tended to prove the innocence of the appellant.”

The appellant cites three cases for the proposition that statements of third persons at the time and place of the commission of a crime are admissible as an exception to hearsay under the doctrine of res gestae. For res gestae to be applicable it must shed light on the main fact or be incident to what was done. Williams v. State, 291 Ala. 213, 279 So.2d 478 (1973). For a multitude of cases on res gestae see: Vol. 5B Alabama Digest, Criminal Law <§=>. # 363. This offense being a possessory offense is a continuing offense, and, as such, acts and statements made at the time of a raid or search for illegal drugs are included within the res gestae doctrine. Tillison v. State, 248 Ala. 199, 27 So.2d 43 (1946).

Even though one accused of a crime may show his innocence by proof of the guilt of another, provided the evidence relates to the res gestae of the offense, such evidence must exonerate the accused. As stated in Blevins v. State, 51 Ala.App. 214, 283 So.2d 664 (1973):

“ ‘While it is always proper and relevant for accused to show that someone else committed the crime without his aid or participation, the admissibility of evidence offered to establish such fact depends on the circumstances of the case as well as the character of the evidence offered; but in general competent evidence which tends to prove that another committed the crime for which the accused is being tried is admissible if it is inconsistent with the guilt of the accused.’ (Emphasis supplied).” (283 So.2d 670)

In this case any guilt on the part of Frank Travis would not be inconsistent with the guilt on the part of the appellant. Possession of illegal drugs is susceptible of joint commission. The guilt of an accused does not necessarily depend on proof of his ownership of the drugs. Radke v. State, 292 Ala. 290, 293 So.2d 314 (1974).

At the conclusion of the hearing on the motion to suppress the search warrant, the appellant requested an instanter subpoena for records at the Montgomery Police Department concerning the surveillance of the appellant’s house and for any reports involving the appellant in any drug activity. The trial court ordered the records to be produced and, after an in camera examination, ruled that the appellant was not entitled to see them because 1) they were the work product of the law enforcement officer and 2) revealing the documents would disclose the identity of the informant. The appellant claims the trial court abused his discretion by refusing to seal the documents and preserve them so that they could not be revealed but that they might be included in the record as an exhibit for appeal.

If an exhibit is going to be included in the record it must be admitted into evidence. We know of no authority to include secret evidence in a trial record that was not admitted into evidence.

Communications between the government and its agents are privileged when disclosure of the communications would reveal the identity of an informant. Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948); Davis v. State, 46 Ala.App. 45, 237 So.2d 635, affirmed 286 Ala. 117, 237 So.2d 640 (1970). An exception to this rule is where the innocence of the defendant can be shown. That is not the case here. The appellant had asked for the documents because of alleged discrepancies in time frames between the testimony of Officers Dorrill and Armstrong concerning the surveillance. The record reveals that both officers testified that they watched the appellant’s house during the afternoon hours. There is no discrepancy. We believe the trial court correctly exercised its discretion in excluding the documents.

In Parks v. State, 46 Ala.App. 722, 248 So.2d 761, this court held:

“The offense of possession of illegal drugs is susceptible of joint commission, Green v. State, 30 Ala.App. 94, 2 So.2d 324; Gunnels v. State, 21 Ala.App. 648, 111 So. 320. Further the guilt of the accused does not necessarily depend upon proof of his ownership of the drugs. Womack v. State, 34 Ala.App. 487, 41 So.2d 429; Thompson v. State, 32 Ala. App. 402, 27 So.2d 55. However, there must be evidence from which the jury might conclude beyond a reasonable doubt that defendant knew of the presence of the drugs. Such guilty knowledge may be established by circumstantial evidence. Womack v. State, supra; Thompson v. State, supra.”

Appellant admitted the spoon in which the Toxicologist found a trace of cocaine belonged to her. At the time of her arrest she admitted to Officer Armstrong that she had used cocaine. Conflicting evidence is always a matter for the jury to resolve. The quantity of the drug possessed is immaterial. Hare v. State, 53 Ala.App. 596, 302 So.2d 569.

The evidence in this case leaves no lingering doubt that appellant was fully aware that her house was completely saturated with marijuana, smoked and unsmoked, and she admitted smoking marijuana the night before she was arrested.

Where the jury fails to impose a fine, the trial judge is without authority to do so. Osner v. State, 54 Ala.App. 520, 310 So.2d 241, certiorari denied, 293 Ala. 769, 310 So.2d 247; Section 15-18-40. Code 1975. It should be noted here that this section was repealed by the new Criminal Code, effective January 1, 1980, (Act 1977, No. 607, page 812), but the repeal has no application to this case.

The judgment of the court below to the extent that it imposed a fine of $1,000.00 in addition to the sentence of two years in the penitentiary must be treated as surplusage. Carpenter v. State, 50 Ala.App. 543, 280 So.2d 804; Osner v. State, supra.

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

AFFIRMED.

All the Judges concur.

      . Quinn v. State, 21 Ala.App. 459, 109 So. 368 (1926); Erskine v. State, 21 Ala.App. 307, 107 So. 720 (1926); Pate v. State, 20 Ala.App. 358, 102 So. 156 (1924)

      . As far as we can determine, in each of these cases the defendant was present when the in-culpatory statements were made.


author: JONES, Justice.

text:
    Ex parte Suzette ALLEN. In re Suzette Allen v. State of Alabama.
    79-412.
    Supreme Court of Alabama.
    May 2, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Kay CARDEN v. STATE.
    6 Div. 160.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    James K. Davis, of Fite, Davis & Fite, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Kay Carden was charged with the first degree arson of the dwelling house of Leon Long and Shirley Long. The jury found the appellant “guilty of attempting to commit arson in the first degree, as charged,” and the trial court sentenced the appellant to two years imprisonment. Following the denial of an application for probation, the appellant prosecutes this appeal.

Debbie Joyce Johnson stated that she was eighteen years of age and was asked by the appellant, Kay Carden, on a Sunday in November, 1978, to set fire to the home of Shirley Long and Leon Long, and she would pay her $100.00 and would give her a thirty-eight caliber snub-nosed pistol to do it.

Debbie Joyce Johnson stated that she agreed to do so, and later Kay Carden came by her house and picked her up. She stated that her mother asked her as she left, “Are you going to burn the house,” and she, Debbie, replied, “No,” but left with Kay Carden. She stated that Kay Carden drove a Ford pickup truck out the Hamilton Highway toward Haleyville and let her out a few feet from the Long household.

Debbie Johnson testified that she entered the house, looked around, and saw no one at home. She then took some wooden matches which she had brought with her and set fire to a bunch of garbage sacks in the backyard by a refrigerator. She stated that she then went into the house and set fire to the drapes in the kitchen, and as she was doing this Shirley Long walked in and yelled, “What are you doing?” Debbie testified she then started putting out the drapes and saw Shirley Long run out the front door, calling for Leon Long, and that she, Debbie, ran out the door behind her and hid in a ditch.

Debbie Johnson testified that Kay Car-den picked her up and drove her by the house of Shirley Berline, where she saw a man named Britten, a friend of Shirley’s. She stated that on Tuesday following, while at the home of Carol Richardson, they had a discussion and agreed to meet at a bootlegger’s place, known as “Mamie” Hamby’s. She stated that on this Tuesday Leon Long, the husband of Shirley- Long, was present with the appellant, Kay Carden, together with herself and Carol Richardson. She stated that the following took place (R. pp. 34-35):

“Q. Then what discussion took place there, if any, about the burning?
“A. Nothing. I asked her for the money-
“Q. All right, you said you wanted your money. Did you say for what reason you wanted the money?
“A. For burning this house.
“Q. You used those words, for burning the house? All right, and what happened when you told her that you wanted the money?
“A. She walked around and got in the truck, and Leon got the $100.00 bill out of his billfold, handed it to her. She got out of the truck, walked around and handed
it to Carol; Carol put it on the dash, I picked it up.
“Q. You told the Defendant you wanted the money and she went over to the pickup?
“A. Yes.
“Q. How close was the car to the pickup?
“A. (No response).
“Q. When you told her you wanted the money for burning the house, did Leon say anything?
“A. No, sir.
“Q. Did Leon hear your conversation? “A. I can’t say. I don’t know.
“Q. But, he produced a hundred dollars? “A. Out of his billfold.
“Q. And who did he give it to?
“A. To the Defendant, Kay.
“Q. And who did the Defendant give it to?
“A. Carol Richardson.”

Debbie Johnson stated that she then handed the $100.00 back to Carol Richardson and asked her to buy a case of beer, which she did, and that she, Debbie, used the balance to pay her bills.

On cross-examination, Debbie Johnson testified that she put out the fire on the drapes, and, therefore, the house itself did not catch on fire, but that the garbage did burn.

Further, on cross-examination, Debbie Johnson stated that Kay Carden and Leon Long told her that if she “ratted” she would be “knocked off” (R. p. 37).

Debbie Johnson further testified that she had plead guilty to this offense, and that, as she was seventeen years of age at the time, it was being handled through the Juvenile Court.

Shirley Long testified that, on November 27, 1978, she entered her home, just off Highway 29 in Marion County, Alabama, and saw Debbie Johnson setting fire to some drapes. She testified that she called to her, "“What are you doing,” and then ran out of the house, calling for her husband, Leon Long. She stated that she had been separated from Leon prior to this time, and that her husband had been living with Kay Carden, the appellant. She stated that, subsequently, her husband had left her again, and that she had filed for divorce. She stated that later, after she saw Debbie Johnson in their home, she had been present when her husband confronted Kay Carden, and Kay Carden denied having anything to do with Debbie Johnson’s setting fire to their house.

Joyce Bahena stated that she was the mother of Debbie Johnson. She stated that Debbie was seventeen years of age on November 27, 1978, and that she remembered one Sunday when Kay Carden came by her house and picked Debbie up. She stated that as they were leaving, she asked Debbie, in Kay Carden’s presence, “Are you going to burn the house,” and Debbie replied, “No.” She stated that her daughter had told her that Kay Carden had asked her to burn the Long house.

Carol Sue Richardson stated she was twenty-one years of age and was a friend of Debbie Johnson. She stated that she rode with Debbie Johnson in early December, 1978, to the residence of a bootlegger, known as Louise “Mamie” Hamby. She stated that she was driving an El Camino. She stated that she was bringing some clothes belonging to Kay Carden, and that Kay met them in a blue and white pickup truck belonging to Leon Long. She stated that she saw Leon Long take a $100.00 bill from his wallet and hand it to Kay Carden, and that Kay said, “I will give it to her,” and handed the $100.00 bill to Carol Richardson. Carol stated that she then laid the $100.00 bill in front of Debbie on the dashboard and that Debbie handed it back to her and asked her to buy a case of beer, which she did, and then gave the change to Debbie Johnson. Carol Richardson stated that later both Leon Long and Kay Carden came to her and asked her to talk with their lawyer.

The appellant moved to dismiss the charges at the close of the State’s evidence.

The appellant did not testify, nor present any evidence at trial.

I

The appellant first assigns as error the following, which appears on Record, page 15A:

“STATE OP ALABAMA ) CASE NO. CC-79-60 )
VS. ) IN THE CIRCUIT COURT OF
)
KAY CARDEN ) MARION COUNTY, ALABAMA
“8 — 6—’79: Came this day the Defendant with her attorney and made known to the Court that she desires to plead guilty as charged.
“Upon taking the witness stand and testifying as provided by law and stating her intentions to plead guilty it was determined by the Court that her testimony was insufficient to accept a plea of guilty. “THEREFORE said cause was put on jury trial docket for trial during the week of August 6, 1979.
“Filed 8-6-79
Pride Gann, Clerk”

Specifically, the appellant cites us to Amendment 37 to the Constitution of Alabama 1901 and states that the trial judge erroneously refused to allow the appellant to plead guilty in this cause.

All that is before this Court on appeal concerning this issue is the above entry. The record does not reflect any testimony concerning this matter whatsoever, nor does the above entry indicate that the same was executed by the circuit judge.

The record in this cause does not show that the appellant is an indigent.

In Orum v. State, 286 Ala. 679, 245 So.2d 831 (1971), we find this statement:

“The appellant is under the duty of seeing that his appeal is perfected according to the requirements of statutes and rules of court. Jefferson Iron & Metal Co. v. Bethune, 263 Ala. 131, 81 So.2d 674; Graham v. State, 30 Ala.App. 179, 2 So.2d 463; Dorough v. State, 30 Ala.App. 181, 2 So.2d 465.
“In Seals v. State, 282 Ala. 586, 213 So.2d 645, we said:
“ ‘We do not recede from the position so often stated in our opinions to the effect that it is the duty of counsel for appellants to see that records pertaining to appeals are timely filed. * * * ’ ”

Appellate review is limited to only those matters appearing in the record. Graham v. State, 30 Ala.App. 179, 2 So.2d 463 (1941); Hargrove v. State, Ala.Cr.App., 344 So.2d 823, cert. denied, Ala., 344 So.2d 826 (1977); and Heard v. State, Ala.Cr.App., 351 So.2d 686 (1977).

Inasmuch as this record fails to show the testimony or other evidence pertaining to the attempt to plead guilty by the appellant in this cause, we are unable to pass upon this issue because the matter is not properly or sufficiently presented by this record.

II

The appellant next asserts as error the following colloquy which took place during closing argument in this cause (R. p. 82):

“9:00, A. M., August 8, 1979: Court commences.
“THE COURT: Ready for the State? “MR. GUYTON: Yes, sir.
“THE COURT: Ready for the Defendant?
“MR. DAVIS: Yes, sir.
“THE COURT: I believe the State has rested.
“MR. DAVIS: The Defendant rests. “THE COURT: Are you ready to argue to the jury?
“MR. GUYTON: Yes, sir.
“MR. DAVIS: Yes, sir.
“ARGUMENTS TO JURY:
“(By Mr. Guyton) * * * No one has taken the stand to deny this * * * “MR. DAVIS: Defendant moves for a mistrial on the grounds that the prosecutor has commented on the fact or has stated, ‘No one has taken the .stand to deny this.’ It is prejudicial, improper, and grounds for a mistrial.
“THE COURT: Overruled, or denied
“Argument by Mr. Davis.
“Argument by Mr. Guyton.”

Appellant assigns as error the trial court’s overruling his motion for a mistrial.

To begin with, the objection and motion are fragmentary in nature, and the full context of the argument is not properly set forth for our review. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973).

Judge Bowen, in Robinson v. State, Ala. Cr.App., 352 So.2d 11 (1977), set forth the controlling principle of law, as follows:

“The general rule is that statements by the prosecutor to the effect that the state’s evidence is undenied or uncontro-verted are merely indirect references to the defendant’s failure to testify and thus do not violate the statute prohibiting comment upon the failure of the defendant to testify. Title 15, § 305, Code of Alabama 1940, Recompiled 1958; Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972). However, ‘(t)he trial court may allow remarks of this tenor so long as the defendant is not the only witness capable of contradicting the State’s proof. If the prosecutor’s remarks can be interpreted as referring to the failure of the defense to produce as witnesses existing persons other than the defendant who should be in a position to testify in his favor, and who are known to him, then the general rule stated above applies and there is no violation of the statute. See Street v. State, 266 Ala. 289, 96 So.2d 686; Broadway, [Broadway v. State, 257 Ala. 414, 60 So.2d 701] supra; Gore [v. State], supra [45 Ala.App. 131, 226 So.2d 674]; Padgett v. State, 45 Ala.App. 56, 223 So.2d 597; Williams [v. State], supra [43 Ala.App. 343, 190 So.2d 556]; Littlefield v. State, 36 Ala.App. 507, 63 So.2d 565; cf. King v. State, 45 Ala.App. 348, 230 So.2d 538.’ Sellers, supra, 48 Ala.App. 187, 263 So.2d 165.”

As may be seen in examining the above colloquy, the reference is to the fact that “no one has taken the stand to deny this.” Since such is an indirect reference, and the full context of the argument is not fully before us, we cannot make the foregoing the basis of reversible error.

There being no direct reference attributable to the fragmentary statement, we do not believe the principles of Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975), are here applicable. See Earley v. State, Ala. Cr.App., 358 So.2d 494, cert. denied, Ala., 358 So.2d 501 (1978), and cases cited.

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Kay CARDEN. In re Kay Carden v. State of Alabama.
    79-408.
    Supreme Court of Alabama.
    May 2, 1980.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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