text:
    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS v. Callie L. DOWNEY.
    Civ. 2089.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.

      George Cocoris, Gen. Counsel, Frank D. Marsh, Asst. Gen. Counsel, Montgomery, for Alabama Dept, of Industrial Relations.
    No brief filed for appellee.
   BRADLEY, Judge.

The State Department of Industrial Relations appeals from a judgment denying its motion for a directed verdict and awarding unemployment compensation to the claimant, Callie L. Downey. We reverse.

Mrs. Downey was terminated from her employment with Opelika Manufacturing Company in March 1979. She was disqualified for unemployment compensation by the Department of Industrial Relations, and the board of appeals confirmed this order on May 22, 1979. Mrs. Downey appealed to the circuit court where a trial de novo was held on August 23, 1979. The trial court found for Mrs. Downey and awarded her unemployment compensation.

The sole issue presented here is whether the trial court erred in awarding claimant unemployment compensation. Appellee did not favor us with a brief.

It is undisputed that all parties and the court approached a decision in this case on the basis that claimant would have to prove she was entitled to unemployment compensation under § 25-4-77 and § 25-4-78, Code of Alabama 1975.

Section 25 — 4-77 provides in part:

An unemployed individual shall be eligible to receive benefits with respect to any week only if the director finds that:
(1)He has made a claim for benefits with respect to such week in accordance with such regulations as the director may prescribe.
(2) He has registered for work at, and thereafter continued to report at, an unemployment office in accordance with such regulations as the director may prescribe; except, that the director may by regulation waive or alter either or both of the requirements of this subdivision (2) as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which he finds that compliance with such requirements would be oppressive, or would be inconsistent with purposes of this chapter.
(3) He is physically and mentally able to perform work of a character which he is qualified to perform by past experience or training, and he is available for such work either at a locality at which he earned wages for insured work during his base period or at a locality where it may reasonably be expected that such work may be available.

Section 25 — 4-78 provides in part:

An individual shall be disqualified for total or partial unemployment:
(5) FAILURE TO ACCEPT AVAILABLE SUITABLE WORK, ETC. — If he fails, without good cause, either to apply for or to accept available suitable work or to return to his customary self-employment when so directed by the director or when he is notified of suitable work or it is offered him through a state employment office or the United States employment service, or directly or by written notice or offer to any such employment office or employment service by an employer by whom the individual was formerly employed. Such disqualification shall be for a period of not less than one nor more than 10 weeks from the date of said failure.

In Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948), the supreme court said that:

[T]he burden of proof is upon plaintiff (claimant) to establish his rights to benefits under the unemployment compensation law. An unemployed individual is eligible to receive benefits only if it appears that the required conditions have been met and the burden is upon him to show that those conditions exist. The claimant assumes the risk of nonpersuasion.

We said in State Department of Industrial Relations v. Thomas, 55 Ala.App. 712, 318 So.2d 739 (1975) that:

After a very careful review of the record in this case we are unable to find any evidence to support a finding that claimant was able and available for work which she was qualified to do. Such proof was necessary to sustain claimant’s case and, in its absence, an essential element of her case fails. As a consequence, she would not be entitled to any benefits under the Alabama unemployment compensation law.

The record is devoid of any evidence that appellee was available for work as required by the statute, nor is there any evidence that appellee made any effort to comply with the unemployment qualification statutes. Thus, it is clear that appellee failed to carry the burden placed on her by the unemployment compensation law, and, as a consequence, her claim must fail. The trial court’s judgment awarding claimant compensation is reversed, and the cause is remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Charles Sherron LILES v. Mary Frances LILES.
    Civ. 2124.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.
    Michael F. Bolin, of Hanes, Hanes & Bo-lin, Birmingham, for appellant.
    J. H. McEniry, III, of McEniry, McEniry & McEniry, Bessemer, for appellee.
   WRIGHT, Presiding Judge.

After hearing, appellant was ordered committed to a mental institution by judgment of the Probate Court of Jefferson County. He has brought an appeal from that judgment to this court under § 22-52-15, Code of Alabama (1975) as amended by Act No. 670, Acts of the Legislature, Regular Session, 1977.

As pertinent, the statute is as follows: § 22-52-15. Appeals. An appeal from an order of the probate court granting a petition seeking to commit a person to the custody of the Alabama state department of mental health . . . lies to the circuit court for trial de novo unless the probate judge who granted the peti tion was learned in the law, in which case the appeal lies to the Alabama Court of Civil Appeals on the record. (Emphasis added.)

Appellant has brought his appeal here directly from probate court under the statute because the judge who heard the case and entered judgment was learned in the law. The only issue stated by appellant is that the statute under which he appeals denies him equal protection because it prevents him from appealing to circuit court for a trial de novo. He does not allege any error committed by the trial court. He presents a constitutional issue here for the first time.

This is an appellate court with authority to review or supervise the acts and orders of courts of original jurisdiction. The issue presented to us is original and not appellate. Our appellate courts do not consider issues, constitutional or otherwise, which were not first raised in a trial • court. McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978); Caylor v. Caylor, 344 So.2d 173 (Ala.Civ.App.1977).

For failure to charge error in the trial or judgment below, that judgment must be affirmed on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Clyde D. BAKER v. Carolyn Baker (INGRAM).
    Civ. 2126.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.
    Clyde D. Baker, pro se.
    M. U. Griffin, II, of Griffin & Griffin, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment determining amount due as alimony under a prior judgment of divorce and from denial of a motion for a new trial through operation of Rule 59.1, Alabama Rules of Civil Procedure.

In order that it be fully understood, we relate the history of this matter. The parties were divorced in 1967. The custody of three minor children was given to the mother, with the father required to make certain payments for child support and alimony and to be responsible for payment of necessary medical and hospital expenses of the children. In 1973 the mother brought a petition against the father alleging his failure to fully make payments as ordered by the court. The court was requested to determine the sums due and unpaid and to hold the father in contempt for failure to obey the prior judgment. Modification of the previous order was also sought by the mother. The petition, together with a rule to show cause, was set for hearing before the court for May 9, 1973. Nothing further is shown by the record until a judgment was entered June 28, 1979.

The judgment recites that it had come to the attention of the court that its findings after hearing on the petition filed March 28, 1973, were not reduced to writing. It therefore “finds that the wife should recover the sum of $3,188.98 plus $600 attorney fee” from the husband.

The husband, now an attorney, filed pro se a motion for new trial on July 17, 1979. It was presented to the judge on September 24. He set a hearing for December 4, 1979. That hearing date was much more than ninety days after the date of filing. There being no entry of an agreement for extension of time, the motion was deemed denied on October 17, 1979, by operation of Rule 59.1, ARCP.

The only issue is whether a delay of entry of judgment for more than six years after hearing requires the granting of a motion to set aside the judgment and set a new trial.

Appellant alleged no grounds in his motion for new trial challenging the correctness or fairness of the amount found to be due under the former decree. He charges that the judgment was not rendered in a reasonable time and, under the circumstances existing after the passage of time, is no longer equitable. He cites no statute, rule, or precedential decision. His original argument in brief is approximately one page. He presented no claim of prejudice or injury to himself other than the passage of time.

The denial or granting of a motion for new trial is a matter for the exercise of the discretion of the trial judge. Robertson Banking Co. v. Ebersole, 331 So.2d 278 (Ala.1976). Though this court does not approve of such delay between hearing and judgment, we know of no rule which renders such judgment void or per se prejudicial to a defendant. Our consideration of the sparse record convinces us that defendant’s substantial rights have in no way been injuriously affected. Rule 45, ARCP.

The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    ALSIDE SUPPLY COMPANY, New Orleans, Division of Alside, Inc., a corporation v. John MEEKS and Jaana F. Meeks, separately and severally.
    Civ. 2175.
    Court of Civil Appeals of Alabama.
    Feb. 13, 1980.

      Peter F. Burns of Gaston, Bryant, Gaston & Burns, Mobile, for appellant.
    Leo L. Crain of Brutkiewicz & Crain, Mobile, for appellees.
   BRADLEY, Judge.

Alside Supply Company, New Orleans, Division of Alside, Inc., A Corporation (hereinafter referred to as “Alside”) appeals from a summary judgment granted to John and Jaana Meeks. We reverse.

John Meeks is fifty-one years old. He is retired from the Air Force and receives a monthly retirement check of $456.00. This income is supplemented by bidding for home improvement jobs and then selling the contracts to local builders.

In August 1976 Mr. Meeks became indebted to Alside and a judgment was secured against him in August 1978. Alside has not received any payments from the debtor, John Meeks. In January 1978 Mr. Meeks transferred to his wife his one-half undivided interest in the jointly owned house and lot. This transfer occurred prior to the rendition of judgment in favor of Alside but after demand had been made on Mr. Meeks by Alside for payment of his indebtedness. It was this transaction which Alside sought to have set aside in the trial court. The court denied Alside’s motion for summary judgment but granted one in favor of the appellees. In its order the court found that John Meeks’ interest in the homestead was less than $2,000.00, thus exempt from creditors, and that the conveyance could not be set aside.

The dispositive issue in this appeal is whether' the trial court correctly awarded summary judgment for appellees.

Summary judgment is never proper if there is any evidence in support of the party opposing the motion. The presence of a scintilla of evidence favoring the party against whom the motion is sought requires that the motion be denied. Moreover, all reasonable doubts about the existence of a genuine issue of fact must be resolved against the party seeking the motion. Donald v. City National Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976); Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975).

The trial court held that the property conveyed by defendant, John Meeks, to his wife, and which conveyance appellant sought to have set aside as fraudulent, was Mr. Meeks’ homestead and was valued at less than $2,000.00; hence there was no genuine issue of fact as to Meeks’ defense of the action to set aside the conveyance.

Section 6 — 10—2, Code of Alabama 1975, provides:

The homestead of every resident of this state, with the improvements and appurtenances, not exceeding in value $2,000.00 and in area 160 acres, shall be, to the extent of any interest he or she may have therein, whether a fee or less estate or whether held in common or in severalty, exempt from levy and sale under execution or other process for the collection of debts during his or her life and occupancy .

Thus, if Mr. Meeks’ interest in the homestead is less than $2,000.00, the creditor could not levy on the house and lot nor could it question the conveyance to the wife.

The evidence shows that the trial court appointed an appraiser who valued the property at approximately $42,000. The ap-pellees testified the property was worth $37,500. The mortgage amount was about $36,000.

Appellant says that the trial record does not reflect the computation procedure used by the court in arriving at its decision but that if the court followed the formula adopted in Barber v. Beckett, 251 Ala. 569, 39 So.2d 17 (1949), error infected its ruling. Appellant says that Barber directs that the amount of the encumbrance be deducted from the value of the homestead and if the remaining amount exceeds $2,000.00 the homestead is not exempt to levy and execution to satisfy outstanding debts. Based on the rationale of Barber, appellant says if the court subtracted $36,000.00, the amount of the mortgage indebtedness, from $42,-000.00, the appraised value of the homestead, the result is an equity of $6,000.00. Mr. Meeks’ one-half interest in the property would be $3,000.00. The value of his interest in the homestead being more than $2,000.00, his interest in the property would be subject to levy and execution for the judgment held by appellant. This calculation is, of course, assuming that the correct value of the property is $42,000.00.

Appellees reply that this is not the correct way to compute Mr. Meeks’ interest in the homestead. They say that Brock Candy Co. v. Elson, 211 Ala. 244, 100 So. 94 (1924) describes the correct computation procedure for arriving at the interest of a person in real property for homestead exemption purposes. Appellees say Brock directs that the amount of the encumbrance be deducted from the value of the person’s interest in the property to obtain a figure that will be more or less than the $2,000.00 exemption. Assuming again for a moment that the property is valued at $42,000.00, under this formula the mortgage of $36,000.00 would be deducted from Mr. Meeks’ one-half interest in the property which would be $21,-000.00. It is obvious that use of this formula would result in Mr. Meeks’ interest in the homestead having no value; therefore the property could not be subject to levy and execution and the conveyance would not be set aside.

In Brock the interest in the property sought to be charged was a fee, i. e. the entire interest in the property was owned by one person, whereas in the case at bar the property is jointly owned.

We can conceive of no real difference between the rationale of Brock or Barber ; we think that both cases require that the amount of the indebtedness be subtracted from the value of the homestead to arrive at a figure representing the value of the owners’ interest. Applying this formula to the facts in the case at bar, we get an equitable interest of the joint owners of $6,000.00, i. e., $42,000.00 less $36,000.00 equals $6,000.00. This would mean that Mr. Meeks’ interest would be valued at $3,000.00. Thus, his homestead interest would not be exempt. However, this conclusion is based on a homestead value of $42,000.00, the figure brought in by the court appointed appraiser. There was evidence in the record, given by the owners, that the property was worth only $37,-500.00. Should this figure be used, the equity would be only $1,500.00, and Mr. Meeks’ interest would be $750.00, considerably less than the $2,000.00 exemption. Thus the property would not be subject to levy and execution.

Obviously, whether Mr. Meeks’ interest in the homestead is less than $2,000.00 or more than $2,000.00 depends on the value of the property, i. e. whether it is $42,000.00 or $37,500.00 or some figure in between. Under these circumstances it is clear that a material fact is in issue; therefore summary judgment would not be appropriate. The summary judgment is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

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


author: BRADLEY, Judge HOLMES, Judge

text:
    JEFFERSON COUNTY BOARD OF EDUCATION v. ALABAMA BOARD OF COSMETOLOGY, and Billie K. Jehle.
    Civ. 1909 and Civ. 2024.
    Court of Civil Appeals of Alabama.
    Feb. 20, 1980.
    Carl E. Johnson, Jr. of Bishop, Sweeney & Colvin, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for appel-lees.
   BRADLEY, Judge

This appeal involves two cases which were consolidated because they present substantially the same issues.

The first case is an appeal from the denial of a declaratory judgment against the Alabama Board of Cosmetology (Cosmetology Board). The Jefferson County Board of Education (County Board) sought the declaration to establish its authority to teach cosmetology to persons in the tenth grade and adults despite regulations promulgated by the Board of Cosmetology to the contrary. The trial court granted the Board of Cosmetology’s motion for summary judgment. The Cosmetology Board then filed a motion to enlarge the original order to ensure compliance with the court’s judgment. The court granted the motion to enlarge and the County Board filed its notice of appeal on the same day.

After receiving the court’s order granting the Cosmetology Board’s motion to enlarge the original order, the County Board filed a motion to set aside the order and a motion to stay execution of the judgment pending appeal. In response the Cosmetology Board filed a petition for supplemental relief and a complaint seeking permanent injunctive relief. The County Board’s motion to set aside the order was denied after a hearing. The County Board’s motion to stay execution of the judgment was consolidated and set for final hearing with the Cosmetology Board’s complaint for permanent injunctive relief.

This resulted in a second case, wherein the trial court denied the County Board’s motion for a stay of execution and permanently enjoined the County Board from teaching cosmetology to students that have not received a license and registered with the Alabama Board of Cosmetology. The County Board has also appealed this decision.

The Cosmetology Act was enacted by the legislature in 1961 to provide for the regulation of cosmetology in the State of Alabama. The Board of Cosmetology was created by the Act and charged with the licensing of students, teachers and schools of cosmetology as well as practicing cosmetologists. The Board promulgated admission regulations, standard curriculum requirements, and a prerequisite number of hours of cosmetology instruction for students who desired to take the cosmetology exam. Jefferson County was exempted from the provisions of the Act until 1977. However, the Cosmetology Act has contained the following exemption since its enactment in 1961:

[T]his chapter shall not apply to the teaching or practice of cosmetology in training public school or trade school pupils. Code of Alabama 1975, § 34-7-24.

In 1973 the Board of Cosmetology and the State Board of Education promulgated a joint resolution to require:

All public schools or trade schools offering cosmetology as defined in the Cosmetology Act shall meet the minimum requirements and specifications provided in the Alabama Cosmetology Act and the rules and regulations promulgated by the Board of Cosmetology, with respect to curriculum, physical facilities, teacher qualifications and student requirements prior to enrollment.

An amendment to the Cosmetology Act, Act No. 668, Acts of Alabama 1977, deleted language which had exempted counties with a population greater than six hundred thousand (Jefferson County) from the operation of the general statutory scheme for the regulation of cosmetology. The 1977 act applied “to all counties.” Prior to this amendment the Jefferson County Board of Education had offered instruction in the field of cosmetology to high school students in the tenth, eleventh and twelfth grades and to adults.

The sole issue for our determination is whether the Cosmetology Board can regulate the cosmetology instruction program offered in Jefferson County schools.

The Cosmetology Board contends that the 1973 joint resolution promulgated by the Cosmetology Board and the State Board of Education gave it the authority to regulate cosmetology classes in Jefferson County schools. We wish to point out here that the State Board of Education is not a party to this proceeding and is, therefore, not attempting to enforce its regulation. The Board of Cosmetology is, in reality, attempting to enforce the State Board of Education’s regulation.

The County Board argues in opposition that § 34-7-24, Code of Alabama 1975, exempts public schools from certain provisions of the Cosmetology Act and therefore the Cosmetology Board is without authority to regulate the teaching or training of cosmetology to students in the Jefferson County public schools. We are compelled to agree with the County Board.

Where a statute is unambiguous, it will be given its plain meaning. Quick v. Utotem of Alabama, Inc., Ala.Civ.App., 365 So.2d 1245 (1979).

Section 34-7-24 provides in no uncertain terms that the Cosmetology Act is not to apply to the teaching of cosmetology in public schools. Consequently, the resolution relied on by the Board of Cosmetology cannot give it the authority to regulate the teaching of cosmetology in the public schools. Otherwise, the clear pronouncement of the proviso contained in § 34-7-24 would be nullified.

Rules and regulations and administrative action cannot subvert nor enlarge upon statutory policy. Alabama State Board of Optometry v. Busch Jewelry Co., 261 Ala. 479, 75 So.2d 121 (1954).

The Cosmetology Board cannot be allowed to do indirectly that which it is specifically prohibited from doing directly, i. e. it cannot regulate the teaching of cosmetology in the public schools of Alabama by the authority of a rule promulgated by the State Board of Education where the legislature has specifically said that such schools are exempt from regulation by the Cosmetology Board. However, we are not to be understood as holding that the State Board of Education may not establish minimum course requirements for the training of public school students in the field of cosmetology.

The judgments of the trial court in both cases are reversed and the cause remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., concurs.

HOLMES, J., concurs specially.

HOLMES, Judge

(concurring specially).

I concur in the majority opinion authored by Judge Bradley. For interested parties and for whatever benefit, if any it might be, I express the following:

If the State Board of Education, in this instance, were attempting to ensure that the Jefferson County Board of Education complied with the 1973 joint resolution, a different result would, in my opinion, be reached. As I view the- law, the State Board, under its general powers conferred by §§ 16-3-1, et seq., Code of Ala. 1975, has the prerogative to enter into such a resolution as is before the court in this case.

The State Board possesses broad power to control and supervise the public schools of the state and advise county boards of education. § 16-3-11. It may investigate the educational needs of the state, § 16-3-17, and prescribe the minimum contents of courses of study. § 16-3-15. It may make such rules and regulations as will give full force and effect to any or all of its provisions. § 16-3 — 13.

Thus, it has been held that the State Board has authority to exercise general control and supervision over county boards of education. See, Opinion of the Justices, 276 Ala. 239, 160 So.2d 648 (1964); Keller v. State Board of Education, 236 Ala. 400, 183 So. 268 (1938).

However, the State Board is not a party in the instant appeal. Rather, it is the Board of Cosmetology seeking enforcement of the resolution against the County Board. This, as indicated, is not proper. Put another way, the State Board, in appropriate circumstances, has the statutory authority to prescribe a course of study in the public schools of this state. The Board of Cosmetology, because of the clear dictates of § 34-7-24, does not.


author: HOLMES, Judge.

text:
    Thomas F. HEATHCOCK v. Ruby Lee Findley HADLEY.
    Civ. 2030.
    Court of Civil Appeals of Alabama.
    Feb. 20, 1980.

      Charles C. Partin, of Stone & Partin, Bay Minette, for appellant.
    C. LeNoir Thompson, Bay Minette, for appellee. •
   HOLMES, Judge.

The plaintiff, as administratrix of the decedent, sued the defendant for the recovery of certain personal property or its alternate value. The trial court entered judgment in favor of the plaintiff for $4,350 and the defendant appeals.

The dispositive issue on appeal is whether the evidence supports a judgment in favor of the plaintiff. We find that the evidence does not support the judgment and reverse.

At the outset, we note that it is not clear from the pleadings nor the record before this court whether the theory of recovery was one of detinue or conversion. Under either theory, the plaintiff has the burden of proof to show that the plaintiff had legal title to the property or right to possession at the time of the action and that the defendant had wrongfully taken possession of the property. See, Johnson v. U-Haul of Southern Alabama, Inc., Ala.Civ.App., 357 So.2d 665 (1978); Galleon Industries, Inc. v. Lewyn Machinery Co., Inc., 50 Ala.App. 334, 279 So.2d 137, cert. denied, 291 Ala. 779, 279 So.2d 142 (1973).

Keeping in mind the above principle of law, a review of the record reveals the following:

The decedent was the mother of the plaintiff and defendant. At her death, the decedent left a number of U.S. savings bonds and other personal property. For thirteen months prior to the decedent’s death, the defendant lived with the decedent in her home. Following her death, the defendant moved out of the home, taking certain personal property with him.

The plaintiff claimed that a number of savings bonds, having a face value of $2,275, were wrongfully taken by the defendant. The only legal evidence relating to the wrongful taking of the bonds by the defendant was the plaintiff’s testimony. This testimony was that plaintiff was “locked out” of the bank vault for several minutes while the defendant opened the decedent’s safety deposit box. After entering the room, two equal amounts of bonds were divided between the plaintiff and the defendant.

The plaintiff claimed that the decedent had more bonds than were divided in the bank and that the defendant took them. There was no evidence to indicate how many savings bonds were kept in the safety deposit box by the decedent. Additionally, the plaintiff testified that she did not see the défendant take any of the bonds. As indicated, there was no further evidence tending to prove that the defendant took any bonds.

This evidence, when considered most favorably to the plaintiff, at best shows that the defendant had access to the contents of a safety deposit box, that some bonds were kept in the safety deposit box, and that some bonds were found in the box. The evidence does not establish that the defendant wrongfully took possession of any bonds nor that the items were in fact in his possession, wrongfully or otherwise. Thus, the plaintiff has failed to meet her burden of proof and cannot recover on this portion of her claim. Galleon Industries, supra.

Next, the plaintiff claimed that the defendant wrongfully took a number of silver coins and other currency with a face value of approximately $500 from the home of the decedent. The plaintiff testified that she had last seen this money in the decedent’s home in January, 1977, and that the defendant had lived in the decedent’s home for approximately thirteen months, until the decedent’s death in July, 1977. The plaintiff was unable to find the money after the decedent’s death and therefore claimed that the defendant wrongfully took it. Considered most favorably to the plaintiff, this evidence does not establish that the defendant wrongfully or otherwise took possession of the money but merely shows that the defendant had access to the home where the money was allegedly kept. For ought that appears, the decedent could have spent the money before her death. Thus, again the plaintiff is precluded from any recovery thereon because she has not met her burden in showing wrongful possession of the goods by the defendant. Galleon, supra.

The plaintiff next claimed that the defendant wrongfully removed a number of items of household furniture from the decedent’s home which belonged to the decedent. The plaintiff testified that the decedent owned various articles of furniture and other household goods and that some of these items were missing upon taking an inventory of the premises.

The defendant claimed no knowledge as to some of the items and claimed that other items were brought by him when he moved into the decedent’s house and were thus his own personal property.

As to the items which the defendant claimed he knew nothing about, there is, again, a total lack of evidence that the defendant wrongfully took possession. The plaintiff did not see the defendant remove any of the items nor is there evidence to show the items were in fact in the possession of the defendant. The evidence, at best, showed that the defendant lived in the home prior to the decedent’s death and that some items, according to the plaintiff, were missing from the home after the death of decedent. Clearly, this evidence does not meet the plaintiff’s burden of proof in showing wrongful possession by the defendant. In fact, the evidence again fails to prove possession. Galleon, supra.

In view of the above, that is the failure to prove possession of the items as indicated, it is clear that the evidence fails to support a judgment of $4,350. It necessarily follows the case is due to be reversed.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    McDade BUMPERS v. Annie Massey BUMPERS.
    Civ. 2038.
    Court of Civil Appeals of Alabama.
    Feb. 20, 1980.
    Walter L. Davis, Prichard, for appellant.
    Edward B. McDermott and Constance S. Aune of McDermott, Deas & Boone, Mobile, for appellee.
   PER CURIAM.

This is an appeal from a divorce granted on the ground of incompatibility. The sole issue on appeal is whether the trial court abused its discretion in its disposition of the homeplace. This portion of the judgment required the homeplace sold, net proceeds divided equally, with right of either party to purchase from the other one-half the equity. We affirm this action by the trial court.

The husband challenges the disposition of the homeplace on two grounds: first, the wife abandoned the home by leaving and should not be entitled to any portion of it; second, the trial court abused its discretion in its order of disposition of the home by not properly taking into account the wife’s misconduct.

The relevant undisputed facts reveal that the husband made arrangements for the purchase of the homeplace approximately one month prior to the marriage which occurred in June, 1966. The deed was in husband’s name, but the wife has contributed toward its purchase by placing money into the family bank account during the marriage. This homeplace has continued to be the homeplace throughout the marriage. The wife filed for divorce in June, 1978, and moved out in July.

Additionally, the wife testified that the apparent reason for the breakdown of the marriage was her decision to change church membership from the church she grew up in, got married in, and which became the family church to another local church of the same denomination. This decision was made in April, 1978. The husband substantiated this in his testimony by stating that he resented his wife changing churches because it “wasn’t family-like.” Shortly thereafter, the husband resumed smoking in the home, a practice he had foregone due to the wife’s asthmatic condition. In the next several months, the wife testified she had to make several trips to the emergency room of the hospital for respiratory attacks. She also testified that about this same time he told her he could make things so unbearable that she would be glad to leave. He testified that he took a car away from her which he was buying, and she testified she had to go out and buy another. After about two months from her decision to change churches, she filed for divorce and, one month later, she moved out of the home, taking the two children of the marriage with her.

The husband’s first ground for reversal is that, because the wife left the home, she abandoned any marital rights in that property. We disagree. The right of either spouse to any marital property is left to the sound discretion of the trial court, based on the unique facts and circumstances of each case. Kabaci v. Kabaci, Ala.Civ.App., 373 So.2d 1144 (1979). In this ease, where the wife left the home after filing for divorce under circumstances which indicate considerable acrimony, we will not say the trial court abused its discretion in allowing the wife an interest in the home-place as part of an equitable adjustment of marital property. See, Burson v. Burson, Ala.Civ.App., 363 So.2d 778 (1978).

The husband’s second ground for reversal is that the trial court abused its discretion in awarding the wife an interest in the homeplace by failing to properly take into account the gravity of the wife’s misconduct. The apparent basis for this claim is the wife’s decision to change church, membership. The court granted the divorce without a finding that either party was at fault. Regardless, fault is only one of several factors to consider when attempting to adjust the equities of the marital property. Goodwin v. Goodwin, Ala.Civ.App., 364 So.2d 678 (1978); Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 298 So.2d 260 (1974); 8 Ala. Digest Divorce ⅜=»252.2. Where, as here, the alleged fault is a change of church membership, such conduct, while certainly causing a tension in the marriage, does not rise to a level of misconduct as to preclude the trial court from exercising its discretion to award the wife a share of the homeplace. Particularly is this so when the other factors to be considered are taken into account. The trial court did not abuse its discretion.

The wife asks for a reasonable attorney’s fee, and it is granted in the sum of $500.

This case is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur.


text:
    John A. JACKETT v. Sharon M. JACKETT.
    Civ. 2046.
    Court of Civil Appeals of Alabama.
    Feb. 27, 1980.

      Thomas A. Smith, Jr., Cullman, for appellant.
    Tom Drake, Stephen L. Skipper, Cullman, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were married on August 15, 1975. The wife filed a complaint for divorce on March 12, 1979. The wife was employed by Decatur General Hospital and the husband worked for Buettner Brothers Lumber Company as a construction contractor. There were no children.

The parties owned one parcel of real estate which had been given to the wife by her father.

The parties had constructed a shop building on the property and made their home there in a mobile home. They also owned some personal property.

After an ore tenus hearing, the trial court entered a judgment on June 28, 1979, granting the wife’s request for divorce and making a division of the parties’ real and personal property. The husband filed a motion for new trial which was denied. The husband appeals.

The husband argues that the division of real property by the trial court was not supported by the evidence and constitutes an abuse of discretion. We see no need to set out the specific provisions of the judgment or the evidence in the record supporting those provisions. It suffices to say that viewing the evidence in the record with the attending presumption, we find no abuse of discretion. Marks v. Marks, 365 So.2d 1231 (Ala.Civ.App.1979).

The husband contends that the trial court erred in granting relief different from that in the prayer for relief made by the wife. In support of this contention he cites Carden v. Penney, 362 So.2d 266 (Ala.Civ.App.1978).

Under the provisions of Rule 54(c), ARCP, it is the duty of the trial court to grant relief to which a party is entitled, even if the party has not demanded such relief in his pleadings, unless it appears that the failure to ask for the particular relief granted has substantially prejudiced the opposing party. Carden v. Penney, supra.

As this court stated in Carden :

[Wjhere an opposing party has no notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. 362 So.2d at 269.

Clearly the pleadings in this case constituted notice to the husband that division of the parties’ property would be an issue at trial and the record shows that he challenged the wife’s claim and presented evidence in opposition to it. The rights of the husband were not prejudiced by» the trial court’s judgment.

The wife’s request for attorney’s fee on appeal is granted in the amount of $500.

The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    W. W. SKIPPER v. Merle H. SKIPPER.
    Civ. 2065.
    Court of Civil Appeals of Alabama.
    Feb. 27, 1980.
    Maury Friedlander, of Marr & Friedlan-der, Mobile, for appellant.
    Desmond B. Toler, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case.

The dispositive issue is whether the trial court abused its discretion in the award of periodic alimony. We find no such abuse as to require reversal and affirm.

This court does not deem it necessary or prudent to set out in detail the facts of this appeal. Viewing the record with the attendant presumptions, the following is pertinently revealed: The parties were married for approximately twenty-five years. The husband has been employed for over twenty years by International Paper Company. He earns approximately $18,000 per year. The wife has worked most of the time during the marriage. At the time of the divorce she held what might best be described as two “part time jobs.” She earned approximately $6,000 per year from these jobs. One child was born of the marriage. This child is no longer a minor. The parties acquired during the marriage a home and certain other assets.

After an ore tenus hearing, the trial court divorced the parties, made a division of property, and ordered the husband to pay to the wife the sum of $250 per month as periodic alimony.

As able counsel for the husband states in brief: “Plaintiff (husband) on appeal contests only the alimony award; it being the straw that will economically cripple the plaintiff.”

It is axiomatic in divorce cases that where the evidence is heard ore tenus by the trial court, its findings are presumed correct and will not be overturned without a showing of an abuse of discretion. This rule has particular application in the amount of alimony awarded. See, Malkove v. Malkove, Ala.Civ.App., 349 So.2d 52 (1977); Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974); 8 Ala.Digest Divorce «=> 286(2) and (3).

In this instance, considering the length of marriage, the earnings of the respective parties, and the type of employment, we cannot say the trial court erred to reversal. To do so would be to substitute our own judgment for that of the trial judge. This the law will not allow. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The wife has requested an attorney’s fee for representation on appeal. A fee of $500 is awarded.

The case is due to be affirmed.

AFFIRMED.

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


text:
    John Hilton LAMBETH, alias, v. STATE.
    1 Div. 902.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.
    Chris N. Galanos and Neil L. Hanley, Thomas M. Haas and Beth Marietta, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen. for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for assault and battery. The alleged victim was Ernest Cole Bohannon. The jury returned a verdict of guilty, but did not impose punishment. The trial court sentenced him to six months imprisonment. This appeal was timely taken.

Appellant asserts that the trial court committed reversible error in refusing his written charges (1) and (5). We quote these charges.

“DEFENDANT’S REQUESTED CHARGE NO. 1
“I CHARGE YOU, MEMBERS OF THE JURY, THAT ANY VERDICT YOU REACH MUST BE UNANIMOUS, AND IF ANY JUROR HAS A REASONABLE DOUBT OF THE DEFENDANT’S GUILT ARISING FROM ALL THE EVIDENCE A PART OF THE EVIDENCE, OR A LACK OF EVIDENCE, THEN THE DEFENDANT CANNOT BE CONVICTED.
“DEFENDANT’S REQUESTED CHARGE NO. 5
“IF YOU HAVE A REASONABLE DOUBT OF DEFENDANT’S GUILT GROWING OUT OF THE EVIDENCE OR ANY PART OF IT, YOU MUST ACQUIT HIM.”

The trial court failed to charge the jury in its oral charge (which incorporated some written charges) that a reasonable doubt might arise from a part of the evidence. The refusal of the aforementioned charges constituted reversible error. Rakestraw v. State, 211 Ala. 535, 101 So. 181(4); Bryant v. State, Ala.Cr.App., 348 So.2d 1136(3), cert. den., Ala., 348 So.2d 1138; Richards v. State, Ala.Cr.App., 358 So.2d 488, cert. den., Ala., 358 So.2d 490.

We pretermit considering other asserted errors for the reason that like rulings may not recur during the next trial if any.

The judgment is reversed and the cause is remanded.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte State of Alabama. In re: John Hilton LAMBETH v. STATE of Alabama.
    78-318.
    Supreme Court of Alabama.
    Aug. 17, 1979.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for petitioner.

      Thomas M. Haas, Mobile, for respondent.
   EMBRY, Justice.

We granted the writ of certiorari in this case to review the decision of the Court of Criminal Appeals which reversed defendant’s conviction of assault and battery because the trial court refused to give his requested written charges one and five:

“Defendant’s Requested Charge No. 1
“I charge you, members of the jury, that any verdict you reach must be unanimous, and if any juror has a reasonable doubt of the defendant’s guilt arising from all the evidence, a part of the evidence, or a lack of the evidence, then the defendant cannot be convicted.” (Emphasis added).
“Defendant’s Requested Charge No. 5
“If you have a reasonable doubt of the defendant’s guilt growing out of the evidence or any part of it, you must acquit him.” (Emphasis added).

The appellate court found that defendant’s requested charges one and five were not covered in other given written charges or in the court’s oral charge. It reversed, citing Rakestraw v. State, 211 Ala. 535, 101 So. 181 (1924). We are compelled to reverse in light of King v. State, 356 So.2d 1220 (Ala.1978) and Dillard v. State, 371 So.2d 947 (Ala.1979).

In this case, the trial court in its oral instruction to the jury, stated, among other things, the following:

“ * * * Now, what does beyond a reasonable doubt and to a moral certainty mean? The term reasonable doubt is a substantial doubt, a real' and substantial doubt that you will have in your mind as reasonable individuals after consideration of all of the evidence or based on the fact that there was a lack of evidence. That is the type of doubt that would entitle the defendant to an acquittal. The substantial doubt or reasonable doubt that we refer to is not a speculative type doubt or guessing doubt. That type of doubt would not require an acquittal of the defendant, or a conjectural type of doubt, but the doubt that would entitle the defendant to an acquittal would be a real and substantial doubt that you would arrive at from the evidence or based on the fact that there was a lack of evidence. Some judges charge juries that the doubt that is required for the reasonable doubt element could be ascertained this way, if after considering all the evidence presented, you have an abiding conviction of the guilt of the defendant, you would, in effect, be believing the defendant guilty beyond a reasonable doubt. As I said, the responsibility of proof is on the State. The proof, of course, refers to proof beyond a reasonable doubt and to a moral certainty. You might wonder what that really means. It means the same thing as beyond a reasonable doubt. If you find the defendant guilty as to a moral certainty, it would be likewise finding the defendant guilty beyond a reasonable doubt. They are legal equivalents, they are legally the same thing. Where you fail to find the State has proven the guilt of the defendant beyond a reasonable doubt and to a moral certainty, you must acquit the defendant. * * * ” (Emphasis added).

In King, supra, this court recognized there were inconsistencies in previous decisions and opinions of this court concerning refusal of charges on reasonable doubt arising from “part of the evidence.” See also Sanford v. State, 37 Ala.App. 603, 75 So.2d 109 (1954). In King this court followed Rakestraw v. State, 211 Ala. 535, 101 So. 181 (1924), and expressly overruled that portion of Cagle v. State, 211 Ala. 346, 100 So. 318 (1924), covering the refusal of the charge on reasonable doubt arising from “part of the evidence.” This court again in Dillard, supra, granted certiorari in light of King and discussed the standard to be applied to jury instructions regarding reasonable doubt.

The principle of law as stated in King, and restated in Dillard, is “the refusal of it [requested jury instruction] by the trial court will not constitute prejudicial error if the principle of law expressed therein was substantially and fairly covered elsewhere in the trial court’s charge to the jury.” (Emphasis added.) Dillard, supra at 371 So.2d 948.

The effect of King is that, if by the oral charge or by other requested jury instructions, the jury is presented a discussion of the reasonable doubt standard as applied to the evidence in its totality, then the failure to give instructions similar to defendant’s charges one and five is not error to reverse. Code 1975, § 12-16-13.

The trial court in its oral instructions to the jury discussed the reasonable doubt standard as applied to the evidence in its totality and substantially and fairly covered that standard. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand to that court for decision not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.


text:
    John Hilton LAMBETH, alias v. STATE.
    1 Div. 902.
    Court of Criminal Appeals of Alabama.
    Nov. 20, 1979.
    Rehearing Denied Dec. 18, 1979.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant’s motion for a rehearing has merit and is granted. The opinion and judgment of affirmance entered following remand by the Supreme Court is vacated and held for naught. We now address issues pretermitted in the original opinion.

At the close of the state’s evidence at nisi prius the defendant moved to exclude the evidence because inter alia the prosecution was barred by the statute of limitations applying to misdemeanors as here involved. § 15-3-2, Code of Alabama 1975. The evidence shows without dispute that the alleged assault and battery, charged in the indictment that was returned on July 1,1977, occurred on April 22, 1976. Thus, it appears that more than twelve months had elapsed between the date of the alleged offense (a misdemeanor) and the return of the indictment. The prosecution was barred. Harris v. State, 54 Ala.App. 10, 304 So.2d 252; Calvert v. State, 26 Ala.App. 189, 155 So. 389. Defendants in criminal cases need not specially plead the limitation statute. Harris and Calvert, supra. The motion to exclude properly raised the issue. There is no evidence in the record that interdicts or suspends the operation of the statute of limitations, supra. The judgment should be reversed and the cause remanded.

We find that the trial court gave a very elaborate and comprehensive oral charge that adequately covered applicable law. The multiple refused written charges were either covered by this oral charge, were abstract, or were incorrect statements of law. § 12-16-13, Code of Alabama 1975; Barnes v. State, Ala.Cr.App., 361 So.2d 390. We are unwilling to say that the refusal of any charge constituted error.

We reverse and remand because of the error at nisi prius in refusing to exclude the evidence.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, 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.

APPLICATION FOR REHEARING GRANTED.

REVERSED AND REMANDED

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. In re John Hilton LAMBETH, alias v. STATE.
    79-267.
    Supreme Court of Alabama.
    Feb. 29, 1980.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Woodrow Wilson KELLER, Jr. v. STATE.
    4 Div. 629.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.

      Joseph W. Smith, Phenix City, for appellant.
    William J. Baxley, Atty. Gen. and Karen Neal Daniel, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

The appellant was convicted under Count II of a two count indictment for the capital felony of robbery when the victim was intentionally killed by the defendant. Punishment was fixed at death and, after a hearing on aggravating and mitigating circumstances, the trial judge sentenced the appellant to death.

A summary of the facts of the case are set out in the trial court’s findings:

“FINDINGS OF FACT FROM THE TRIAL
“On October 15,1977,- during the morning part of the day, the defendant, together with one Marty Deal (an indicted co-defendant) discussed the need for money. Co-defendant Deal, a former employee of a convenience store chain known as Ma-Jik Market, suggested a store located on Stadium Drive in Phenix City, Russell ■ County, Alabama, as being an easy target for robbery. Deal had previously worked in this store and was familiar with its routine, location of stock, and personnel. Deal and Keller then left the Deal residence in Columbus, Georgia, and rode over to the suggested location, looked over the store together, and returned to the Deal residence in Columbus, Georgia. Another discussion was had between the two and plans were made to rob the store sometime before midnight of that date. Keller had stolen a .45 caliber automatic from a friend, and during the afternoon hours, the two defendants test fired the gun in a secluded area to be sure of its firing capability, since this was the weapon to be used during the robbery. In the early evening hours the two were riding around in Deal’s car, a 1966 Ford Futura, maroon in color. They ran across a friend of Keller’s named Robert A. Boyd, III (an indicted co-defendant). Boyd was informed of the proposed robbery and he said he wanted in on it. The three men then discussed details of how the robbery would be carried out. Essentially plans were to get the manager into the back stockroom and kill him in order to leave no witnesses, then take the money from the register. This would prevent any later identification.
“The three men left Deal’s home again, in Deal’s car, with Deal driving. They arrived at the store around 11:00 P. M. on October 15, 1977, but had to wait for routine customers entering and leaving the store to clear. To avoid suspicion over their continued presence, they pretended the car was unable to start and pushed it around the parking area until customer traffic cleared. The State called a witness who observed this activity and later identified both Keller and Deal. Customer traffic cleared shortly before midnight and Deal entered the store with the .45 caliber automatic. He was unable to lure the manager into the stockroom, was unable to shoot him, and went outside. Boyd then entered to shoot the manager. He, too, could not do it and also went back outside. In the meantime Deal had gone back inside to the telephone and pretended to call for a wrecker or repair service for his car. Keller then entered the store with the .45 caliber automatic, fired one shot into the manager, which proved to be fatal, and told Deal to get the money. They left and returned to the Deal residence where they split the proceeds of $131.00. They learned later of a description to police of the three, plus a description of Deal’s car. They took Deal’s car on October 16, 1977, to a remote area in Stewart County, Georgia, and burned it in the futile hope of avoiding discovery that this car matched descriptions given to police by witnesses. On Monday, October 17, 1977, all three, together with Deal’s wife, left Columbus, Georgia, to drive to Dallas, Texas. They remained one night in Dallas, discussed going to Canada, but returned instead to Columbus, Georgia. Arrest followed shortly from leads discovered through Deal’s burned vehicle.
“Defendant Deal testified for the State and jury was permitted to know of plea agreement entered into by him with the State, whereby in exchange for Deal’s testimony, the State would reindict him on a charge of murder first degree under 1975 Code of Alabama, Title 13-1 — 70.
“FINDINGS OF FACT FROM SENTENCE HEARING
“The defendant is a white male, aged 25 years. He was born with a cystic condition or growth just below his right jaw, which will persist during his entire life. He dropped out of high school during his junior year. Although he has never married, the defect has not hampered his social activities.
“At this hearing co-defendant Boyd as well as Deal testified for the State. Boyd had entered into an agreement with the State identical to the one entered into by Deal. The co-defendants each now testified essentially as Deal testified at trial to a jury. Each confirmed that during discussion of robbery details in the early evening hours, Keller was insistent that the manager would be killed regardless because ‘dead men don’t talk,’ and it was necessary ‘to kill the man.’ At the time of the robbery, neither Deal nor Boyd could shoot the manager and each came out of the store without firing. Keller took the gun from Boyd, entered the store with it, fired one shot into the manager, which proved fatal, while he was not even looking at Keller, nor was he given opportunity to back off and give the money to Keller in return for his life. In fact, the man died without even knowing he was being robbed.
“Keller has a history of violence. During the summer and fall of 1977 he dated a woman who was separated from her husband, but who has now returned to him. Keller has tried to have the husband killed by trying to hire one man and persuade another to shoot him.
“In July 1974, Keller and a companion tried to pick up two girls in Columbus, Georgia. The girls got in their car and locked it. The defendant tried to kick out the windows and doors. When others tried to come to the girls’ aid, Keller and his friend beat them, got back in their car and tried to ‘run down' those who tried to offer assistance. Keller’s father, in the bonding business, talked to the Muscogee County, Georgia, district attorney, and charges were reduced from aggravated assault to simple assault with punishment at one year probation.
“Three months earlier, in April 1974, a Columbus police officer at a Columbus night club had to call for assistance to arrest Keller and a friend. Keller was in the outside parking lot of the club swinging a six-foot logging chain at two cars and also at the owners who were trying to stop him. There was an attempt to take the arresting officer’s gun. Fines were paid on disorderly charges and again the father intervened and the criminal damage charges were nolle prossed.
“The Court, therefore finds that defendant Keller intentionally killed Arley C. Davis during a robbery and that such killing was willful, deliberate, premeditated, and malicious. He personally fired the fatal shot after his two accomplices were unable to do so. His was the part of the plan to kill the store manager, regardless of whether resistance to the robbery developed or not because ‘dead men don’t talk.’ This was as conscienceless and pitiless a crime as can be conceived. A cold-blooded killing was perpetrated solely to prevent possible identification by the victim of the three participants in the robbery.
“The following aggravating circumstances are therefore found by the Court to support imposition of the death sentence:
“1. That the capital felony of first degree murder was intentionally committed by Woodrow Wilson Keller, Jr., while he engaged in the robbery of his victim.
“2. That the capital felony was especially heinous or hateful.
“The following mitigating circumstances are found:
“1. None.
“IT IS, THEREFORE, ORDERED AND ADJUDGED BY THE COURT that no reason can be found to refuse to accept the death penalty and that such death sentence shall, therefore, be imposed upon jury verdict rendered.”

I

Appellant contends that the trial court committed reversible error in overruling his demurrer to Count II of the indictment in that such count failed to charge him with robbery as required in § 13 — 11— 2(a)(2), Code of Ala.1975. The offense is described in that section as:

“Robbery or attempts thereof when the victim is intentionally killed by the defendant;”

Count II of the indictment reads as follows:

“The Grand Jury further charge that before the finding of this indictment, Woodrow Wilson Keller, Jr., did unlawfully, intentionally, and with malice aforethought kill Arley C. Davis by shooting him with a pistol while the said Woodrow Wilson Keller, Jr., was engaged in the commission of or in an attempt to commit a robbery of the said Arley C. Davis, to-wit: on October 15, 1977, during the nighttime, at a location known as Ma-Jik Market, Stadium Drive, Phenix City, Russell County, Alabama, the said Arley C. Davis, an unarmed attendant at said Ma-Jik Market, was shot with a pistol, in violation of Act Number 213, Section 2, Sub-section b; and Section 6, Sub-sections d and h (Act No. 213, Sections 2(b), 6(d) and 6(h)) Acts of Alabama 1975 Regular Session, in that the said killing was committed while the said Woodrow Wilson Keller, Jr., was engaged or was an accomplice in the commission or (sic), or an attempt to commit robbery, and in that the said killing was especially heinous, atrocious or cruel.”

Count II of the instant indictment is almost identical in its essential averments to Count III of the indictment in Evans v. State, Ala.Cr.App., 361 So.2d 654 (1977), affirmed, Ala., 361 So.2d 666 (1978). Justice Beatty’s learned dissent to the contrary notwithstanding, the Alabama Supreme Court held the indictment in Evans to be valid, stating:

“. . . We cannot agree that the indictments are insufficient or defective. Specifically, we cannot agree with the dissent that the State must allege in the indictment that the defendant was engaged in robbery and, while robbing, the victim was intentionally killed, but that the State cannot allege that the victim was intentionally killed while defendant was engaged in robbing him. We think either allegation sufficiently apprises the defendant of that with which he is charged. To adopt any other rationale would, we think, constitute a rather narrow construction, neither called for, nor required, in our judgment, by our statutory rules of construction.”

Therefore, pursuant to the Alabama Supreme Court decision in Evans, we find Count II of the instant indictment to be valid.

The appellant likewise contends that the verdict of the jury was improper in that it did not find him guilty of robbery or an attempt thereof when the victim is intentionally killed by the defendant. The verdict was:

“We, the jury, find the defendant guilty of intentionally killing Arley C. Davis while engaged in a robbery of Arley C. Davis and fix his punishment at death.”

Here we find no material variance between the indictment and the verdict. The same rationale used by the Alabama Supreme Court in Evans, supra, would apply to a verdict phrased in substantially the same terminology as the indictment. That is, to state that the defendant intentionally killed the victim while robbing him means the same as stating that while robbing the victim the defendant intentionally killed him. The instant case and Evans are distinguishable from the recent holdings in Clements v. State, Ala., 370 So.2d 723 [1979] and Watters v. State, Ala., 369 So.2d 1272 [1979]. In both Clements and Watters, the indictments charged the offense of robbery when the victim was intentionally killed by the defendant. In Clements, the jury returned a verdict of “guilty of first degree murder with aggravated circumstances.” (Emphasis supplied.) In Watters, the verdict was “guilty of murder as charged in the indictment.” In neither case was the verdict for a crime charged in the indictment, while in the instant case there is no variance between the indictment and the verdict.

II

Appellant contends that the Alabama death penalty act is unconstitutional in violation of the Eighth and Fourteenth Amendments to the United States Constitution “in that it is a mandatory death sentence act which does not permit consideration by the jury of mitigating circumstances.”

The Alabama death penalty statute, Act No. 213, Acts of Alabama 1975, approved September 9, 1975 (now codified as § 13-11-1 through § 13-11-9, Code of Ala.1975) has been conclusively declared to be constitutional. Jacobs v. State, Ala.Cr.App., 361 So.2d 607 (1977), affirmed, Ala., 361 So.2d 640 (1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 [1979].

III

Appellant contends the trial court erred in excusing James Brindley from the jury because of his opposition to capital punishment. The colloquy resulting in Brindley’s excusal is as follows:

“THE COURT: Do you have reservations concerning the imposition of the death penalty?
“JAMES BRINDLEY: I sure do.
“THE COURT: Would that opinion you hold, then, prevent you from an impartial consideration of guilt or innocence?
“JAMES BRINDLEY: No, I couldn’t pass on guilt.
“THE COURT: You hold such reservations that you could not return a verdict of guilty under any circumstances, regardless of the evidence presented to you? That’s what I’m trying to get to.
“JAMES BRINDLEY: If the death penalty is required, yes sir.
“THE COURT: In such a case as I have described to you, where I mentioned robbery or attempted robbery and the victim is intentionally killed, you hold such reservations that even though you were convinced beyond a reasonable doubt of the truth of the complaint against the defendant, you just couldn’t impose it, you just couldn’t impose it, it would prevent you from really making a determination of his guilt?
“JAMES BRINDLEY: Yes.
“THE COURT: You could not make such a determination of guilt?
“JAMES BRINDLEY: (Shaking head in the negative.)
“THE COURT: Now, would you go further and say that you would refuse to ever vote as a juror to impose the death penalty?
“JAMES BRINDLEY: (Nodding in the affirmative.)
“THE COURT: Would you refuse, then, to even consider voting to impose the death penalty?
“JAMES BRINDLEY: (Nodding in the affirmative.)
“THE COURT: You would refuse even to consider it, then?
“JAMES BRINDLEY: (Nodding in the affirmative.)
“THE COURT: All right, sir. What says the state?
“MR. BENTON: The state asks that he be struck, your Honor.
“THE COURT: The motion will be granted. You will be excused from the trial of this case. You would no longer need to respond to any questions.”

Section 12-16-152, Code of Ala.1975, provides:

“On the trial for any offense which may be punished capitally or by imprisonment in the penitentiary, it is a good cause of challenge by the state that the person would refuse to impose the death penalty regardless of the evidence produced or has a fixed opinion against penitentiary punishment or thinks that a conviction should not be had on circumstantial evidence, which cause of challenge may be proved by the oath of the person or by other evidence.”

The United States Supreme Court has held that unless a venireman is “irrevocably committed, before the trial has begun, to vote against the penalty of death, regardless of the facts and circumstances that might emerge in the course of the proceedings,” he may not be excused. Witherspoon v. Illinois, 391 U.S. 510, at 522 n. 21, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).

We believe the test set out in Wither-spoon, supra, was fully met before the trial judge excused the venireman in question. The above quoted colloquy could hardly be any stronger to the effect that James Brindley was irrevocably committed prior to trial to vote against the death penalty regardless of the evidence presented. His excusal therefore was without error.

IV

Appellant contends he was unconstitutionally subjected to an identification lineup without the presence of counsel. The record shows, and appellant concedes in brief, that the lineup was prior to indictment. Counsel for appellant likewise concedes in brief that United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) apply to the right to counsel at post indictment lineups. However, counsel argues in brief that, “since dangers which the Court pointed out as the reason for the rule [requiring counsel] would be equally, if not even more, applicable at this critical stage, this principle must be available in any lineup, particularly in a case such as ours where the appellant has been arrested and is being held without bond.”

We fail to see the rationale that being held without bond gives rise to any greater need for counsel at a preindictment lineup. Unless modified by higher authority, we will continue to adhere to the current standard that it is unnecessary to require presence of counsel before “the initiation of adversary judicial, criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). The lineup in the instant ease was conducted after appellant’s arrest but before the initiation of any adversary judicial criminal proceedings and thus appellant was not constitutionally entitled to counsel at that time.

V

The appellant contends that the trial court committed reversible error by charging the jury that malice may be presumed from the use of a deadly weapon, thus improperly injecting the felony-murder doctrine into the case which reduced the State’s burden of proof.

The appellant failed to reserve an exception to that portion of the trial court’s oral charge dealing with a presumption of malice arising from the use of a deadly weapon. As stated by this court in Jacobs, supra, at 625:

“It has been firmly established by both this Court and the Supreme Court of Alabama that in the absence of an exception to the Court’s oral charge nothing is presented for review on appeal. The rule applies with equal force under our Automatic Appeal Statute in death cases. . . .”(Citations omitted.)

The same contention made by the appellant was made in the Jacobs appeal concerning the presumption of malice lessening the State’s burden of proof. In addition to pointing out that no proper exception to the court’s oral charge had been made in that case, this court stated that “the court’s oral charge to the jury on the presumption of malice from the use of a deadly weapon was correct in every respect.”

VI

At the end of the State’s case in chief, counsel for the appellant filed a written motion to exclude the State’s evidence setting forth the following grounds:

“1. The State of Alabama has failed to prove the Defendant committed a robbery in violation of Act Number 213, Section 2, Subsection b (Act Number 213, Section 2(b), Acts of Alabama 1975, Regular Session) and in violation of said Act Number 213, Section 2, Subsection b, and Section 6, Subsections d and h (Act Number 213, Section 2(b), 6(d) and 6(h), Acts of Alabama 1975, Regular Session).
“2. The State of Alabama has failed to prove that there were any taking or attempted taking by the Defendant, Woodrow Wilson Keller, Jr., of any property of the alleged victim, Arley C. Davis.
“3. The State of Alabama has failed to prove that the Defendant, Woodrow Wilson Keller, Jr., feloniously took or attempted to take any property of the person or presence of the alleged victim, Arley C. Davis.
“4. The State of Alabama has failed to prove that the Defendant, Woodrow Wilson Keller, Jr., feloniously took or attempted to take any property of any description or of any value of the alleged victim, Arley C. Davis, from his person or presence or against his will, by violence to his person or putting him in such fear as unwillingly to part with the same.
“5. The State of Alabama has not shown that there was any taking or attempted taking by the Defendant of any property of any value from the person or presence of the alleged victim, Arley C. Davis.
“6. The State of Alabama seeks, attempts or intended to charge the Defendant with robbery or attempt thereof when the victim is intentionally killed by the Defendant in violation of Act Number 213, Section 2, Subsection b (Act Number 213, Section 2(b), Acts of Alabama 1975, Regular Session), and in violation of said Act Number 213, Section 2, Subsection b, and Section 6, Subsection d and h (Act Number 213, Sections 2(b), 6(d) and 6(h), Acts of Alabama 1975, Regular Session); and said charge of robbery or attempt thereof is not set forth in code form in said indictment.
“7. Said Act Number 213, Acts of Alabama 1975, Regular Session, punishes but does not define robbery or attempt thereof when the victim is intentionally killed by the Defendant, and hence, common law averments setting out the offense of robbery or attempt thereof are not dispensed with, but instead are required.
“8. Said indictment does not allege that the Defendant feloniously took or attempted to take any property of any description of any value of the alleged victim, Arley C. Davis, from his person or presence and against his will by violence to his person or placing him in such fear as unwillingly to part with the same.
“9. The allegations of the indictment do not charge this Defendant with any offense under said Act Number 213, Section 2, Subsection b (Act Number 213, Section 2(b), Acts of Alabama 1975, Regular Session).
“10. The allegations of the indictment do not charge this Defendant with any offense under said Act Number 213, Section 2, Subsection b, and Section 6, Subsections d and h (Act Number 213, Section 2(b), 6(d) and 6(h), Acts of Alabama 1975, Regular Session).
“11. Section 2 of the said Act Number 213 of the Regular Session of the Alabama Legislature, 1975, states as follows:
“ ‘If the jury find the Defendant guilty they shall fix the punishment at death when the Defendant is charged by indictment with any of the following offenses and with aggravation which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses; . . . ’ (Emphasis supplied.)
“Count II of said indictment charges this Defendant with murder in the first degree and not robbery when the victim is intentionally killed by the Defendant, as required by Section 2(b), Acts of Alabama 1975, Regular Session, Act No. 213.”

The matter covered in grounds 6 through 11 has been sufficiently covered in part I of this opinion, supra. Grounds 1 through 5 of the motion to exclude the State’s evidence are to the effect that the State failed to prove that Woodrow Wilson Keller, Jr., the appellant, personally robbed, attempted to rob, or feloniously took or attempted to take any property from the victim.

According to the testimony of the appellant’s accomplice, Marty Deal, after the appellant shot the victim, Deal went behind the counter and took the money from the cash register. It makes little difference whether the appellant took the money after shooting the victim or whether one of his accomplices took the money. The appellant, Deal and Boyd were all engaged in a conspiracy to not only rob the Ma-Jik Market, but also to kill the manager.

Section 13-9-1, Code of Ala.1975 (formerly Title 14, § 14) states:

“The distinction between an accessory before the fact and a principal, between principals in the first and second degrees, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals, as in the case of misdemeanors.” (Emphasis supplied.)

The accomplice statute has been applied to all felonies, both capital and non-capital in the past. It has been applied to charge an accomplice as a principal likewise in cases where specific intent to commit a crime must be charged on the part of the principal. In order to convict an accomplice of a traditional murder charge pursuant to that statute, it has been necessary to show that the accomplice had a previous understanding to kill or injure the deceased, or had a knowledge of the intent to kill on the part of the co-defendant. In Jordan v. State, 81 Ala. 20, 1 So. 577 (1886), our Supreme Court stated:

“. . . When a particular intent or formed design is requisite to constitute an offense, knowledge of its existence and a common purpose to perpetrate the offense must be shown before a person can be convicted of aiding and abetting. We so held on the former appeal. Jordan v. State, 79 Ala. 9; State v. Hildreth, 51 Amer.Dec. 369, and notes.”

In Tanner v. State, 92 Ala. 1, 9 So. 613 (1890), the court stated:

“. . . The accomplice, as we have seen, is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy formed. He is not responsible for any special act, not within the scope of the common purpose, but grows out of the individual malice of the perpetrator. 1 Wharton Crim.Law, § 397.”

It is the opinion of this court that the accomplice statute brings an aider and abettor within the purview of the capital felony statute. The capital felony statute allows the trial judge to consider as an aggravating circumstance that “the capital felony was committed while the defendant was engaged or an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit rape, robbery, burglary, or kidnapping for ransom.” It likewise allows a trial judge to consider as a mitigating circumstance the fact that “the defendant was an accomplice in the capital felony committed by another person, and his participation was relatively minor.” Those references within the capital felony statute, coupled with § 13-9-1, supra, (the accomplice statute), convince this court that an accomplice may be tried, convicted and sentenced to death under the capital felony statute. The evidence would support a finding by the jury that the appellant intentionally killed the victim while the appellant was an accomplice in robbing, or attempting to rob the victim. In fact, Deal testified that the appellant told Deal to “get the money” immediately after appellant shot the victim. Then in the get-away car, on appellant’s demand, Deal gave the proceeds of the robbery to the appellant.

VII

Title 15, § 307, Code of Ala.1940 (now § 12 — 21—222, Code of Ala.1975) provides:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

The proper test to determine if there was sufficient corroboration of the testimony of an accomplice is to first set aside the accomplice’s testimony and then determine if other evidence of an inculpatory nature exists tending to connect the defendant with the commission of the offense. Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947); Lindhorst v. State, Ala.Cr.App., 346 So.2d 11, cert. denied, Ala., 346 So.2d 18 (1977). In the instant case, testimony from witnesses other than the accomplice established the robbery and killing of the victim. The date, location and approximate time of the offense were likewise established by such testimony. The State’s witness, Henry Barber, placed the appellant at the scene of the crime on the date and within minutes of the discovery of the victim’s body. He testified that he saw the appellant pushing a car at that time and place, and that Marty Deal was one of the men in the car.

Wendy Deal, the wife of Marty Deal, testified that on the night following the robbery the appellant admitted that he shot the victim. From the record:

“Q. Did anybody ever tell you in Woodrow Keller’s presence who shot Arley Davis?
“A. Yes.
“MR. SMITH: Now, we object to any leading question like that. He can place the time and place.
“THE COURT: Overruled.
“Q. Where were you at when they told you, Wendy?
“A. At my home.
“Q. Who told you?
“A. Woodrow.
“Q. When did he tell you?
“A. Sunday night.
“Q. Who did he say shot Arley Davis over there in the robbery?
“A. He said he did.
“Q. Did you see any kind of weapons on that Saturday night whenever you say that they were all in your house — or Sunday night? I may have gotten the wrong night. Excuse me.
“A. He always wore that gun on his side
at all times.
“Q. Who is‘he?’
“A. Woodrow.
“Q. Do you know what kind of gun it was?
“A. A .45 caliber.”

The fact that at or about the time of the commission of an offense with which an accused is charged, he and the accomplice were together, in or near the place where the crime was committed, may in conjunction with other facts and circumstances sufficiently tend to connect the accused with the commission of the crime to furnish the necessary corroboration of the accomplice. Lindhorst, supra, and cases cited therein. In the instant case, the appellant’s presence with the accomplice at the scene of the crime on the date and approximate time of its commission was established by Barber and admitted in the appellant’s own testimony. The appellant, however, contended that he did not know one of his companions had shot Davis. He testified that after he found out about the killing he fled to Texas with his companions and that they tried to destroy evidence because he was frightened. Such circumstances, coupled with the testimony of a non-accomplice, Wendy Deal, that the appellant admitted to her that he shot the victim is sufficient corroboration of the accomplice’s testimony as a matter of law without going into other evidence or further detail. The credibility and weight to be accorded the testimony of the wife of accomplice Marty Deal was properly within the province of the jury.

VIII

After the jury found the appellant guilty and fixed punishment at death, the trial court held a hearing to determine whether the appellant should be sentenced to death or to life imprisonment without parole, pursuant to § 13-11-3, Code of Ala.1975. During the course of that hearing, evidence was taken concerning the prior criminal history of the appellant. Both hearsay testimony of police officers and “rap sheets” from the Columbus, Georgia, Municipal Court were introduced at that hearing. The trial judge related some of those incidents in his “Findings of Fact from Sentence Hearing” set out at the beginning of this opinion. The testimony and rap sheets introduced in evidence show that from one altercation involving the appellant on April 16, 1974, the police placed the following four charges against him: “drunk,” “resisting arrest,” “disorderly conduct,” and “criminal damages.” The record shows that on the first three charges, the appellant paid fines in municipal court of $17, $102 and $102, respectively. On the fourth charge, the appellant was bound over to “the State Court under a $500 bond.” The record shows no disposition of that case.

The second altercation brought out in the hearing occurred in July 1974 and resulted in charges against the appellant of aggravated assault, striking a fixed object, reckless driving, and leaving the scene of an accident. The aggravated assault was reduced to simple battery, a misdemeanor, with the appellant being placed on twelve months probation. The remaining three charges show sentences in the municipal court of $32 or sixteen days, $250 or ninety days with suspension of driver’s license, and $27 or twenty-seven days, respectively. A notation on the docket sheet seems to indicate those cases were nol-prossed in state court on October 31, 1974.

A criminal trespass charge dated September 30, 1977, was dismissed in municipal court. The other offenses listed on the rap sheet are traffic related, i. e. improper lights, speeding, “Red Light,” and following too close. Those traffic offenses cover a period from February 1973 through May 1976. The record likewise shows a charge on November 4, 1972, for second degree “criminal damage” which was “no billed” fourteen days later.

The only aggravating circumstances which may be considered under the capital felony statute relating to a defendant’s pri- or criminal history are set out in § 13-11-6(2): “The defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person.” The record in the instant case shows no prior felony convictions.

The trial court found two aggravating circumstances:

“1. That the capital felony of first degree murder was intentionally committed by Woodrow Wilson Keller, Jr., while he engaged in the robbery of his victim.
“2. That the capital felony was especially heinous or hateful.”

The first aggravating circumstance describes the crime charged in the indictment and cannot be used as both the criminal charge and the circumstance aggravating that charge. Cook v. State, Ala., 369 So.2d 1251 [September 15, 1978, opinion corrected on rehearing, Ms. February 9, 1979].

A finding by the trial judge of only one aggravating circumstance is sufficient to sustain the death penalty. That the capital felony was especially heinous would be sufficient. That it was “hateful” is not an aggravating circumstance set out in the statute. We recommend that State v. Dixon, Fla., 283 So.2d 1 (1973) be studied by trial judges concerning definitions of “especially heinous, atrocious or cruel” before making such a finding. It is likewise imperative that trial courts in setting out aggravating circumstances follow as closely as possible the strict wording of § 13-11-6, supra. An inclination to gradually broaden the scope of aggravating circumstances beyond the strict wording of the statute will eventually lead to an unconstitutional application of the capital felony statute.

The Alabama Supreme Court in Cook, supra, stated:

“. . . Cook’s background presents even less of an admissible criminal history than the trial judge believed. At the hearing the trial judge improperly considered evidence of a pending robbery charge and in effect decided that case without benefit of a trial by jury. Of course, it could not seriously be contended that evidence could be presented of a prior acquittal even though the defendant had clearly escaped justice on the most technical of technicalities. Consequently, a pending charge cannot be considered either. Cook may well be convicted at some future date of this robbery, but then again he may not be convicted for any number of reasons. Until the State proves him guilty of this charge in accordance with appropriate legal procedures Cook is presumed innocent. This fundamental tenet of our system of justice prohibits use against an individual of unproven charges in this life or death situation.”

Further, commenting on the trial judge’s consideration of a 1972 charge against Cook for assault with intent to murder which was reduced to malicious destruction of property resulting in a $100 fine, the Supreme Court stated:

“. . . the court must rely on the prior judge’s decision that Cook’s acts were most appropriately treated as malicious destruction of property. Once judgment is entered the original charges become irrelevant. Thus it is apparent that of Cook’s prior criminal history, the only thing that could properly be considered is a 1972 conviction for malicious destruction of property with a $100 fine and costs . . . .”

While we affirm in part, we nevertheless remand this cause to the trial court with directions to conduct another sentencing hearing in strict compliance with the mandate of the Alabama Supreme Court as enunciated in Cook v. State, supra, and to transmit a full transcript of such proceedings to this court.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

All the Judges concur, except HARRIS, P. J., concurs in the result only.


text:
    Woodrow Wilson KELLER, Jr. v. STATE.
    No. 4 Div. 629.
    Alabama Court of Criminal Appeals.
    Oct. 16, 1979.
   After Remandment

BOOKOUT, Judge.

On remandment the trial court, in conformity with our opinion in this case, supra, conducted another sentencing hearing and resentenced the appellant. The trial court, giving full consideration to Cook v. State, Ala., 369 So.2d 1251 (1978), and Dixon v. State, Fla., 283 So.2d 1 (1973), found none of the statutory aggravating circumstances to have existed. After a reconsideration of the mitigating circumstances, the trial court found that “the death penalty recommended by the jury should be refused.” The appellant was then sentenced to life imprisonment without parole.

AFFIRMED.

All the Judges concur.

Writ denied, Ala., 380 So.2d 938.


text:
    Ex parte Woodrow Wilson KELLER, Jr. (In re: Woodrow Wilson KELLER, Jr. v. STATE).
    79-194.
    Supreme Court of Alabama.
    Feb. 22, 1980.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and' ALMON, JJ., concur.


text:
    Ronnie Gene HOUSE v. STATE.
    8 Div. 122.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.

      Michael E. Sparkman, Hartselle, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

An indictment against appellant charged him with unlawfully assaulting Edward Wilburn with a deadly weapon, “at which time the said Edward Wilburn was engaged in the active discharge of his lawful duty or duties as a Deputy Sheriff for Morgan County, Alabama.” Appellant, with the aid of an accomplice, was attempting to escape from jail. A jury convicted “as charged” and the court fixed punishment at fifteen years imprisonment.

The violation charged in the indictment is referable to Acts 1967, No. 746, p. 1600 § 3, now Section 13 — 1—42, Code of Alabama 1975.

We have carefully checked the record and fail to find any evidence supporting the allegation in the indictment that the victim of the alleged assault was at the time a Deputy Sheriff of Morgan County. He was employed as a jailer. There was no proof, essential to the indictment, that he was a Deputy Sheriff as alleged.

Absent such proof, the evidence was not sufficient to sustain the verdict of the jury. The trial court erred in not sustaining appellant’s motion for a new trial.

Because of the insufficiency of the evidence, appellant cannot be retried for the offense. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1. He is due to be discharged. It is so ordered.

In conclusion we quote from Burks, supra, at p. 18, 98 S.Ct. at p. 2150, as follows:

“. . . Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only ‘just’ remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.”

The judgment is reversed and the cause is rendered.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND RENDERED.

All the Judges concur.