text:
    Eddis I. WILSON v. D. E. WILSON.
    Civ. 2704-X.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.

      Roger H. Bedford of Bedford, Bedford & Rogers, Russellville, for appellant.
    Pat Nelson of O’Rear, Robinson & Nelson, Jasper, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were married on November 28, 1970, and separated April 20, 1979, a period of eight years and five months. Both had previously been married; those marriages lasted more than twenty years and produced children. No children were born of this marriage. Mr. and Mrs. Wilson worked in his business, D. E. Wilson Construction Company, during the marriage, apparently until he was injured in a fall in 1978. All real estate, including that acquired by each party before the marriage, was held in joint tenancy with right of survivorship. Their cash was kept in joint checking and savings accounts.

The original decree divided the property as follows:

Wife — real estate brought by her into the marriage consisting of a house on one and one-half acres and seven acres across the road valued at $24,400; her choice of either a 1979 Lincoln automobile or a 1975 Cadillac automobile, valued at $7,000 and $2,650, respectively; furniture that was stored in a building on the homeplace and not currently used by the parties in their residence, valued at $875; all her personal effects; jewelry valued at $7,500; and $10,000 from the joint savings account and/or certificates of deposit currently held by the husband. After several modifications, the $10,000 cash amount was finally raised to $50,000.

Husband — all remaining real and personal property of the parties including the current residence of the parties, valued at $107,200 (the home and land) along with a mobile home thereon valued at $13,600 and a shop building valued at $26,800; seventy-five acres known as the Drummond Lease, the balance owed thereon to Wilson being $112,000; property in Raccoon Creek subdivision, valued at $34,500, furniture in the homeplace, valued at $17,645; motor vehicles valued at $10,050 (if the wife chose the $7,000 Lincoln); insurance policies with face values of $100,000 total; business equipment and various other belongings. The husband was required to pay $6,000 to his wife’s attorney and court costs.

We note that this decree was rendered following a hearing ore ten us and that as such is presumed correct if supported by the evidence. Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980). The division of property and setting of alimony is within the sound discretion of the trial court and will not be reversed except for palpable abuse of that discretion. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

The division of property does not have to be equal, but only equitable. Each case must be decided on its own facts and circumstances. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980); Hudson v. Hudson, 391 So.2d 664 (Ala.Civ.App.1980). Factors to be considered in the division of property and award of alimony are the future prospects of the parties, their ages, sex, health, station in life, length of marriage, and in proper cases the conduct of the parties with reference to the cause of the divorce. Mack v. Mack, supra; Williams v. Williams, supra; Wicks v. Wicks, 379 So.2d 612 (Ala.Civ.App.1979).

The trial court in this case apparently relied heavily on the origin of the property when making the property division. This, however, is only one factor to be considered, and is not controlling. Mack v. Mack, supra. Where property acquired pri- or to the marriage is regularly used during the marriage for the common benefit of the parties, it is available for consideration in dividing property and awarding alimony. Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980). § 30-2-51, Code (1975) as amended in 1979. Though the court below made no finding under § 30-2-51, the husband testified that his business made little or no money during the marriage.

No periodic alimony was awarded to the wife. We do not find an abuse of discretion or palpable error by the trial court in failing to award periodic alimony. The failure to provide such an award could have been due to the evidence of the mental and physical condition of the husband, resulting in the diminished income from which such payments are to be derived. Hager v.Hager, 293 Ala. 47, 299 So.2d 743 (1974). The absence of a source for payment of periodic alimony may be considered as a reason for enlargement of division of capital assets of the marriage.

The $50,000 lump sum awarded is not designated either as alimony in gross or a property settlement. It is arguable that it is not alimony in gross since the funds from which it was ordered paid were already jointly in the names of both husband and wife. Schwaiger v. Schwaiger, 392 So.2d 1213 (Ala.Civ.App.1980); Body v. Body, 47 Ala.App. 443, 256 So.2d 184 (1971). It would more properly be designated a property settlement from the total marital assets.

Alimony in gross is the present value of the wife’s inchoate marital rights— dower, homestead and distributive share— which are being terminated by the divorce. To those factors may be added a division of the fruits of the marriage — assets accumulated or added to during the marriage through the joint efforts of the parties. The total value of all these factors is simply a property division when set aside. Hager v. Hager, supra.

We have previously said that the award of $50,000 in cash must be intended to be paid from a joint bank account. There was a total sum of approximately $85,000 in that account at the time the parties separated. The husband subsequently removed the assets of that account into his sole name. He testified that he paid $30,000 of it on marital debts. That was disputed by the wife. Regardless of the amount remaining in said account, the decree of the trial court vested in the husband assets of an approximate value exceeding $350,000. These were largely assets jointly owned by the parties at the time of separation. Thus it is seen that the award to the wife of $50,000 is somewhat less than one-seventh of that remaining to the husband.

In the absence of an award of periodic alimony and in view of the undisputed age of the wife and her lack of employable skills, it appears to this court that the division of property or alimony in gross, whichever it may be termed, is so inequitable as to constitute an abuse of discretion. In order to more closely adjust the equities, we direct the trial court to amend its judgment by granting to the wife an additional $25,-000 from the jointly-owned property, either in cash, real property or income therefrom as it may determine proper. So that such additional award may be made, the judgment is affirmed in part and reversed in part with directions as herein set out.

In response to the request of the wife, we hereby award to her for services on appeal the sum of $500 as attorney’s fees.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.

      . The husband points out in brief that the insurance policies have cash value of only $11,-271.50 and that two of the policies are encumbered by outstanding loans of $5,235.21 and $12,444.70.

      . In his testimony and in brief the husband pointed out that the business made little or no money. Also in brief, however, the husband tries to exempt himself from the prior acquired property exception of § 30-2-51 by stating that the couple did not live lavishly and lived primarily out of the construction business run by the husband during the course of the marriage. The conflict in these statements is apparent.

      . There is apt to be a time in the future when other or different factors will be appropriate in light of gender neutral considerations.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Julian Curtis BROWN v. MURRAY SECURITY GUARD COMPANY.
    Civ. 2750.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.

      James M. Sizemore, Jr. of Sizemore & Rea, Sylacauga, for appellant.
    Clark Carpenter of Dixon, Wooten, Boy-ett, Thornton, Carpenter & O’Brien, Tal-ladega, for appellee.
   HOLMES, Judge.

This is an appeal from a denial of a rule 60(b)(6), A.R.C.P., motion for relief from a consent settlement in a workmen’s compensation case.

The dispositive issue is whether the trial court abused its discretion in denying plaintiff-employee’s motion. We hold that it did and reverse.

The record reveals that the plaintiff, while within the line and scope of his employment, was injured in an automobile accident on May 12, 1972. In settlement of plaintiff’s workmen’s compensation claim, the plaintiff and defendant entered into a compromise agreement which was. approved by the Circuit Court of Talladega County on June 6,1974. The plaintiff was unrepresented at the proceeding approving the compromise settlement.

Fourteen months later in 1975 plaintiff, through counsel, filed a rule 60(b)(6) motion to set aside the approval of the workmen’s compensation settlement. A hearing on said motion was held on June 18, 1980. An order overruling the motion was entered on February 25, 1981. The plaintiff appeals from this order.

The employee’s motion is in part bottomed on the premise that the employee was “incompetent” to enter into a settlement. Supporting this contention, plaintiff produced three witnesses, his wife, daughter, and a family friend, all of whom testified that plaintiff was unable to understand the nature and effect of the workmen’s compensation settlement.

A psychologist, appearing through deposition, also concluded that the plaintiff could not understand the settlement when entered into in 1974. The psychologist based his opinion upon tests administered to the plaintiff by the psychologist in 1976. Of particular pertinence, is the Weschler Adult Intelligence Scale which consisted of simple money calculations and money word problems. The plaintiff scored in the lowest tenth percentile on the test. Additional testing indicated that the plaintiff had difficulty in perceiving complex visual stimuli. The psychologist concluded that the plaintiff had an I.Q. of 62 which is within the range of the mildly mentally retarded.

Opposing the plaintiff’s motion to set the agreement aside, the defendant, through able counsel who made an excellent presentation at oral argument, relies upon the plaintiff’s statement that he understood that the sum provided for in the agreement was all that the plaintiff would be receiving. The defendant’s lawyer, who presented the settlement to the court, also testified that, in his opinion, the plaintiff understood the settlement. The trial court, after diligently considering the record, the testimony, and the depositions held that the evidence was insufficient “to establish the Plaintiff’s mental incapacity to understand the nature and the amount of the settlement .. . . ”

Whenever a rule 60(b) motion is presented to a court it is faced with the task of balancing the need to insure the finality of judgments against the power under rule 60(b) to set aside final judgments. See 7 Moore’s Federal Practice ¶ 60.27[1] (2d ed. 1979). The trial court undoubtedly has broad discretion in striking this balance and will not be reversed absent abuse of its discretion. Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979). The trial court’s discretion in affecting this balance is perhaps at its greatest under rule 60(b)(6) which allows the court to set aside a final judgment for “any other reason justifying relief from the operation of the judgment.” Our supreme court has provided some guidance by interpreting rule 60(b)(6) broadly as a grant of power to courts to vacate judgments when justice so requires. Haskew v. Bradford, 370 So.2d 259 (Ala.1979). Additionally, both federal and state courts mandate that the rules of procedure be “liberally construed to achieve justice.” Smith v. Jackson Tool & Die, Inc., 426 F.2d 5, 8 (5th Cir. 1970). See Thomas v. Liberty National Life Insurance Co., 368 So.2d 254 (Ala.1979). Based upon the foregoing general principles we hold that, in this case, the learned and distinguished trial judge improperly drew the balance in favor of preserving the final judgment.

Several factors combine to require reversal. First of all the overwhelming weight of the evidence indicates that the plaintiff is and convincingly was incompetent at the time he entered into the workmen’s compensation agreement. The trial court apparently recognized the validity of the evidence of incompetency, as well as the overall injustice of the situation, when, in the order overruling the plaintiff’s motion, he in part stated:

This is one of the most pathetic situations it has been [my] misfortune to have to preside over. The Court at this time finds that the Plaintiff is permanently and totally disabled as a result of the accident and injury complained of, and should have received compensation for permanent and total disability.

The weight of the evidence of incompetency is enhanced by the fact that the plaintiff was unrepresented at the time of the agreement. We do not mean to suggest that there is a right to counsel in workmen’s compensation cases such as the instant case, but we do think that, under these circumstances, it is a pertinent consideration.

Secondly, we take note of the relative lack of prejudice the defendant would have suffered had the rule 60(b)(6) motion been granted as compared to the prejudice the plaintiff suffered. See Smith v. Jackson Tool & Die, Inc., supra. The defendant merely paid the lump settlement.

The plaintiff, on the other hand, has been forced to live with a settlement he entered into without the aid of counsel and while mentally impaired. Additionally, we note that the plaintiff did not sit on his rights, but instituted his rule 60(b)(6) motion only fourteen months after the consent settlement.

Finally, we should not lose sight of the fact that the initial action was a workmen’s compensation settlement. Workmen’s compensation laws were designed to insure quick and efficient compensation for work related injuries. 1 A. Larson, The Law of Workmen’s Compensation § 1.10 (1978). The impetus for passage of such laws was the inequities of the common law system of costly and time consuming litigation. Under the common law system an injured workman was often required to compromise his claim in order to survive. W. Prosser, Law of Torts § 80, at 530 (4th ed. 1971). While settlements of workmen’s compensation claims are to be encouraged, in approving such settlements the court should not lose sight of the original purpose of workmen’s compensation laws.

Defendant argues that this action is not properly before this court on appeal. We note, however, that the issue before this court is the propriety of the trial court’s action regarding the plaintiff’s rule 60(b)(6) motion. This is not a review of the plaintiff’s workmen’s compensation claim. An appeal from a rule 60(b)(6) ruling is proper.

In summary, we hold that the combined factors of overwhelming evidence of incompetency, lack of counsel and consideration of the fact that this is a workmen’s compensation settlement require reversal of the trial court. We emphasize that the effect of this ruling is merely to require that a trial on the merits of plaintiff’s claim be held. We express no opinion regarding the validity of his claim.

In view of the above, this cause is due to be reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Floyd E. HUDSON v. Barbara V. HUDSON.
    Civ. 2753.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.
    Thomas E. Bryant, Jr. of Gaston, Bryant & Gaston, Mobile, for appellant.

      Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

A motion to set aside a final judgment on the basis of newly discovered evidence is here involved.

Barbara and Floyd Hudson were married in 1970. On December 2, 1980, the trial court divorced them, and, in the judgment, it approved their agreement. Twenty days later, Floyd filed a motion to set aside the divorce judgment, but, after an evidentiary hearing, the trial court on January 13, 1981 denied that motion. Floyd filed a motion to reconsider on January 16, and, on February 17, he filed another motion to reconsider, or, in the alternative to set aside the divorce judgment and grant a new trial based upon newly discovered evidence. He averred that, since the rendition of the divorce judgment, he discovered that the parties had never been legally married since, at the time of their marriage, Barbara was still married to one Goins.

Goins and his mother were the only witnesses to testify at the hearing before the trial judge upon the February 17 motion. In reviewing the tendencies of the evidence which lend support to the judgment of the trial court, we note the following. Goins and Barbara were divorced in Florida in 1965, but they lived together thereafter in Miami and later in Mobile. It does not appear from the evidence as to when such cohabitation commenced. On many occasions Goins asked Barbara to remarry him, but she consistently refused, saying “not at the present time.” They did not file joint income tax returns. In the Florida divorce, Barbara’s maiden name was not restored to her, and she had no other name to use but Goins, which was also the last name of her children. Goins stated that, when they were living together, he did not know whether Barbara considered that she was married to him. Goins does not now contend that Barbara is presently his wife although they were not divorced after 1965. Other evidence of Goins supported some aspects of Floyd’s motion. To Goins’ mother’s knowledge, Goins and Barbara had not remarried.

The trial court overruled Floyd’s motion, hence this appeal.

As a general proposition, three elements must exist in order to constitute a valid common-law marriage: there must be (1) capacity, (2) present agreement or consent to be husband and wife, and (3) consummation. Piel v. Brown, 361 So.2d 90 (Ala. 1978). That case discusses those components at length and it summarized the second element in this manner: “In all cases then, the question is whether the evidence discloses facts manifesting a mutual intention by the parties to be man and wife. This manifestation must show present intention, not an intention to marry in the future. (Citations omitted.)”

In this case, the evidence does not disclose a mutual intent by Goins and Barbara to marry after their 1965 divorce. To the contrary, she consistently refused to remarry him. There was no evidence of her present intent to remarry Goins. Even if she had an intention to marry in the future, that would be inadequate. A mere resumption of cohabitation between former spouses after their divorce does not, in itself, establish a common-law marriage, for the parties must also manifest a mutual intent to be man and wife. Humphrey v. Humphrey, 293 Ala. 118, 300 So.2d 376 (1974).

When testimony is taken ore tenus before the trial court, that court’s factual decision is presumed to be correct and will be sustained upon appeal unless it is either clearly and palpably wrong, without supporting evidence, or manifestly unjust. As was stated in Humphrey v. Humphrey, supra, “[f]rom these facts the trial Court’s ruling must be affirmed in light of the favorable presumption attending a trial court’s findings on competent evidence. (Citations omitted.)”

The granting or denial of a motion to set aside a judgment because of newly discovered evidence is a matter largely within the discretion of the trial court, and, unless it is plainly shown to have abused its discretion, that court’s decision upon such a motion will not be disturbed on appeal. Motions are not favored which seek to set aside judgments because of the discovery of new evidence. Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App. 1977), cert. denied, 348 So.2d 1065 (Ala. 1977). We find no abuse of discretion in this case.

Additionally, newly discovered evidence is that which was not known at the time of the trial and could not have been discovered by due diligence in time to move for a new trial. A.R.C.P., rule 60(b)(2). The burden is on the movant to prove not only that such newly discovered evidence is now available, but, also, that such evidence, through due diligence, was not discoverable in time to seek a new trial. Gallups v. United States Steel Corp., 353 So.2d 1169 (Ala.Civ.App. 1978). There is no evidence as to when the evidence was discovered by the husband, and naked factual allegations of such without proof thereof will not suffice.

We affirm.

The wife has requested an allowance of an attorney’s fee upon this appeal. Such request is granted and the appellant shall pay the sum of $350 to the attorneys of record for the appellee.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Maureene Bass DEES v. Morris S. DEES.
    Civ. 2819.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.

      Maury Smith and Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpep-per, Montgomery, for appellant.
    Vaughan H. Robison and David B. Byrne, Jr. of Robison & Belser, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This case appears here for the second time. It was first appealed by the wife upon the issue that the trial court erred in its award of alimony in gross for refusal to consider any of the husband’s estate acquired prior to the marriage. This court reversed the judgment below only in respect to its application of § 30-2-51, Code (1975) to the property of the husband, i.e., that the property acquired prior to marriage was not for consideration in determining an award of alimony. Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App. 1980). The judgment was affirmed in all other respects and remanded only for the purpose of reconsideration of the amount of alimony in gross awarded in light of our decision that the entire estate of the husband should be considered in making such an award.

Subsequent to our remand with directions, the trial court made certain new findings of fact, relating therein that in response to our remand it now determined that the conduct of the wife was the cause for the breakdown of the marriage. It further related substantial evidence as to the misconduct of the wife from which it now determines such fault as to require her total disqualification from any alimony in gross or share of the husband’s estate other than the personal property first awarded. The court then determined that the wife’s testimony in many instances was unworthy of belief and further that the estate secured by the husband prior to the marriage was not used in sufficient degree to qualify for consideration under the statute. The court then amended its original judgment, striking therefrom the award of $120,000 as alimony in gross and granting in lieu thereof periodic alimony in the amount of $2,000 per month for five years with termination upon remarriage. An award of alimony in gross was denied for “the misconduct of the wife which ultimately caused this divorce.” The latter statement is obviously intended to apply § 30-2-52, Code (1975) for the first time.

It is the judgment of this court that its mandate to the trial court upon remandment was explicitly clear. The original judgment was affirmed in all respects except for the award of alimony in gross. We made factual findings that the conduct of the parties during the marriage was so equally condemnable that the element of fault should be disregarded and such conduct not iterated in our opinion. We also found that the evidence preponderantly established that the estate of the husband and the income therefrom was regularly used for the common benefit of the family.

The trial court failed to follow our mandate merely to reconsider, in light of our findings of law and fact, the amount to be equitably awarded to the wife from the entire estate of the husband. In addition, it has made findings of fact contrary to those of this court and has applied statutes not previously considered.

The trial court has grievously erred in failing to understand and comply with the mandate of this court. For its consideration in this and cases in the future, we refer the trial court, without quotation herein, to comments of our supreme court in similar instances in the following cases: Herstein v. Walker, 90 Ala. 477, 479, 7 So. 821 (1890); Lyon v. Foscue, 60 Ala. 468, 480 (1877).

We therefore reverse and set aside the denial of alimony in gross and/or property division to the wife from the estate of the husband. As there was no appeal by the husband from the judgment granting periodic alimony to the wife, that provision of the judgment below is hereby affirmed.

Having largely undisputed testimony before us that the estate of the husband, partly composed of tax-free bonds valued at $1,825,000 and real estate valued at more than $600,000, and various other valuable property such as stocks, is of total value in excess of $2,500,000, it is the judgment of this court that the wife should receive from such estate as alimony in gross and property division tax-free bonds of the fair and reasonable market value of $200,000 or other property — real, personal or mixed — of equal value as may be agreed upon between the parties. For the purpose of entering such judgment and no other as to any matter now or previously before this court, this cause is remanded for immediate entry of judgment as herein directed.

We find no merit in the cross-appeal of the husband from the order of the trial court denying his motion to supplement the record by adding thereto information relating to the alleged separate estate of the wife obtained since the original decree entered on September 26, 1979. The judgment of the trial court in denying such motion is affirmed.

In response to the request of the wife, we award to her the sum of $2,000 for services of her attorney on appeal.

APPEAL: AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

CROSS-APPEAL: AFFIRMED-.

BRADLEY, J., and SCRUGGS, Retired Circuit Judge, concur.

HOLMES, J., recuses himself.

      . We do not deem it appropriate to consider the applicability of § 30-2-52, Code (1975) in this case.


text:
    ASSOCIATED MILK PRODUCERS v. ALABAMA DAIRY COMMISSION (Barber Pure Milk Company, Inc., et al, Appellees-Intervenors).
    Civ. 2826.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.

      Henry C. Chappell, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
    Robert M. Alton, Jr. of Alton & Leavell, Montgomery, for appellee Alabama Dairy Commission.
    Oakley Melton, Jr. of Melton & Espy and Curtis Springer, Montgomery, for appellee-intervenors.
   HOLMES, Judge.

This is a dairy commission case.

Associated Milk Producers, Inc. (A.M.P.) filed this action in the Circuit Court of Montgomery County, seeking to have Alabama Dairy Commission (A.D.C.) Order R — 21 set aside. The circuit court affirmed the dairy commission’s order and A.M.P. appeals from that decision.

The dispositive issue is whether the trial court erred in affirming the dairy commission’s order.

We find no error and affirm.

This action was spawned by the Alabama Supreme Court’s decision in Delview Meadow, etc. v. Alabama Dairy Commission, 383 So.2d 511 (Ala.1978), cert. denied, 449 U.S. 975, 101 S.Ct. 385, 66 L.Ed.2d 237 (1980), which declared A.D.C. Order 2-76, the so-called buttermilk regulation, unconstitutional. As succinctly stated by this court in Alabama Dairy Commission v. Baker & Son, et al, and Hall Brothers, et al, Civ. 2783 and 2783-X (Ala.Civ.App., 1981), the effect of the buttermilk regulation was to require:

“those milk distributors who manufacture buttermilk by using milk powder rather than fluid milk to pay the producer the difference between the cost of the milk powder and the equivalent portion of the producer’s surplus milk at the Class I price. Milk producers are paid a Class I price for that portion of their milk sold for consumption as fluid milk. A lower Class II price is paid for milk that is used for other purposes, such as in the making of cheese, sour cream, cottage cheese, yogurt, etc.”

The distributors made the payments to the producers as required by the buttermilk regulation until the Delview decision declared the regulation unconstitutional. After Delview, the distributors attempted to recover the payments they had made to the producers under the unconstitutional regulation. The controversy before this court concerns the manner by which the distributors attempted to recover these payments.

The distributors have attempted to recover the payments made under the unconstitutional buttermilk regulation by offsetting the amount of such payments against current debts owed by the distributors to A.M.P. The distributors first proposed this method of recovery in letters to A.M.P. shortly after Delview. As a result of such letters, A.M.P., on May 30, 1980, filed a complaint with A.D.C. seeking a cease and desist order barring the distributors from withholding the monies due A.M.P. Upon failure to receive immediate action from the A.D.C., A.M.P. filed a motion for a temporary retraining order and preliminary injunction in the Circuit Court of Montgomery County seeking the same relief as it had in the A.D.C. complaint. The trial court, in an order issued June 10, 1980, denied A.M. P.’s motion and stated, “the Defendants are entitled to deduct or offset the amount of such compensatory payments from their indebtedness to the Plaintiff.” Only after this order did the distributors begin to deduct monies from the account they owed to A.M.P.

Subsequent to the aforementioned trial court’s order, hearings were held before the A.D.C. based upon A.M.P.’s complaint of May 30. After hearings the A.D.C. issued Order R-21 on July 22,1980. Within Order R-21 the A.D.C. denied the relief requested by A.M.P. and stated further that “the right to the monies withheld is already the subject of litigation and is not properly a matter of arbitration but is a legal matter to be decided by the courts.”

A.M.P. filed a complaint in the Montgomery Circuit Court pursuant to the provisions of § 2-13-63, Code of Ala. 1975, for review of A.D.C. Order R — 21. While such review was pending, A.M.P. obtained a rehearing before the trial court of its earlier order denying A.M.P.’s motion for a temporary restraining order. The trial court again denied relief. On May 1, 1981, the circuit court, via a different judge, affirmed Order R-21. A.M.P. appeals from this order.

The Alabama Supreme Court in Alabama Jersey Cattle Club v. Alabama State Milk Control Board, 274 Ala. 611, 613, 150 So.2d 711, 713-714 (1963), set forth the applicable standard of review for administrative orders of the A.D.C. In that case, our supreme court held that:

(1) Matters for the judicial tribunal are whether the order is unlawful, and what should be the legal conclusion from the facts found. (2) The review by certiorari includes a determination by the circuit court of whether the order is unreasonable based on the facts so found, but not a determination of whether the facts found by the board are true upon a consideration of the evidence. (3) Where there is some evidence on which to base such a finding, this satisfies the rule of review, as contemplated by the statute.

Our review is on the same basis as that of the circuit court. Alabama Jersey Cattle Club v. Alabama State Milk Control Board, supra. Applying the foregoing standards we affirm.

The general function of the A.D.C. is to regulate the production and marketing of milk. § 2-13-41, Code of Ala. 1975. The Alabama legislature specifically granted to the A.D.C. the power to act as mediator and arbitrator in any controversy related to the fluid milk industry. § 2-13-47(18), Code of Ala. 1975. In Order R-21 the A.D.C. exercised its power to, in effect, allow the distributors to offset the monies they had paid to A.M.P. under the unconstitutional buttermilk regulation against current debts the distributors owed to the A.M.P. The validity of Order R-21 depends in part upon whether the effect of Order R-21 is lawful.

The United States Supreme Court in The Bank of the United States v. The Bank of Washington, 31 U.S. (6 Pet.) 8, 17, 8 L.Ed. 299 (1832), stated that:

On the reversal of the judgment, the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost. And the mode of proceeding to effect this object must be regulated according to circumstances.... ”

Among the circumstances facing the A.D.C. was our supreme court’s holding in Delview that the buttermilk regulation was retroactively void. In practical effect our supreme court held in Delview that the monies the distributors had paid to A.M.P. was not and never had been the property of A.M.P. A.M.P. does not question the right of the distributors to recover the money the distributors paid out in reliance on the unconstitutional regulation. Yet, A.M.P. would have the distributors continue to pay money to it and then sue for the return of part of the monies so paid. This would appear to be a most inefficient and unjust method of arriving at a result no one contests. We believe that the requirement that courts act in such a manner so as to promote the efficient administration of justice (see Emerson v. State, 30 Ala.App. 248, 4 So.2d 183 (1941), rev’d on other grounds, 241 Ala. 383, 4 So.2d 186 (1941)), applies equally in this case where an administrative agency is performing a quasi-judicial function. Based upon the foregoing we hold that Order R — 21 does not produce an unlawful effect. In arriving at our decision we also note that .the A.D.C. must be given wide latitude in order to carry out its purpose. Dixie Dairies-Dairy Fresh Corp. v. Alabama State Milk Control Board, 286 Ala. 198, 238 So.2d 551 (1970).

The foregoing discussion applies equally to any argument that Order R-21 is unreasonable. We thus hold that Order R-21 is not unreasonable.

We also hold that A.D.C. Order R-21 is supported by sufficient evidence. The A.D.C. had before it the Delview decision which declared the buttermilk regulation void retroactively. It also had before it the Montgomery Circuit Court’s interpretation of Delview. As stated before, the result reached by the A.D.C. was not unlawful.

Based upon the foregoing we hold that the decision of the Circuit Court of Montgomery is due to be and is affirmed.

AFFIRMED.

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

      . A.M.P. appealed the order of the circuit court to the Alabama Supreme Court which dismissed the appeal without opinion. Associated Milk Producers v. Meadow Gold Dairies, 386 So.2d 215 (Ala.1980). A.M.P. also filed with the Alabama Supreme Court a motion for stay or, in the alternative, a petition for writ of mandamus. The supreme court denied both of these motions. Ex parte Associated Milk Producers, Inc., 386 So.2d 215 (Ala.1980).

      . A.M.P. again appealed to the Alabama Supreme Court which dismissed the appeal without opinion. Associated Milk Producers v. Meadow Gold Dairies, 399 So.2d 844 (Ala.1981).


author: TYSON, Judge.

text:
    James Earl CARPENTER v. STATE.
    6 Div. 154.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied July 29, 1980.

      Richard S. Jaffe, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

James Earl Carpenter was indicted by the grand jury for the December 21, 1978, first degree murder of Mountain Brook Swim and Tennis Club security guard Oscar Car-den. Trial was had on August 27, 1979. The appellant was convicted and sentenced to life imprisonment. From that conviction he now appeals in forma pauperis.

Mrs. Ruby Lee Carden, the victim’s wife, testified that her husband had worked at the Mountain Brook Swim and Tennis Club as a security guard for approximately three years. She stated that he worked the 10:00 p. m. to 6:00 a. m. shift. Mrs. Carden identified the victim’s pistol.

Mr. Jay Glass, Chief Medical Investigator for the Jefferson County Coroner’s Office, performed an autopsy upon the victim. He testified that the cause of death was a gunshot wound to the head. Mr. Glass stated that the bullet entered the rear of the victim’s head and exited through the right eye orbit. He testified that the gun was held some distance away as no evidence of powder burns was found.

Mr. Paul Shands, a bartender for the Mountain Brook Swim and Tennis Club, testified that he was working the evening of the killing and left the club around 10:05 p. m. He stated that he was the last person to leave, and the victim followed him to the door and locked it. Mr. Shands stated that later his fingerprints were taken.

On cross-examination Mr. Shands testified that he knew Stanley James (one of the four co-conspirators). He stated that James had once worked at the club as a busboy. He testified that another co-conspirator and the brother of the appellant, Billy Carpenter, had also worked there.

Mr. Thomas Slaughter, maintenance man for the club, testified that on December 22, 1978, he arrived for work around 6:00 a. m. He stated that he normally was the first to arrive and had a key to get in. He stated that the victim and he would have coffee together every morning. On December 22, Mr. Slaughter stated that when he arrived the door was unlocked. He entered, found a liquor bottle on the stairs, and called the victim. Mr. Slaughter proceeded into the club, turned on some lights, and found the victim. After checking for a pulse and finding ’ none, he called the police. Mr. Slaughter stated that he waited in his car for the police to arrive, and no one entered the club until they arrived. Mr. Slaughter testified that the victim’s holster was empty. He stated that the bar and office had been broken into. He testified that both Stanley James and Billy Carpenter had been fired and that he had seen the appellant a few times when he had come to pick up Billy. Mr. Slaughter identified several photographs of the scene which were properly admitted into evidence.

Irondale Police Officer Oscar Sorrell testified that on December 22, between 6:15 and 6:30 a. m. he answered a call from the Mountain Brook Swim and Tennis Club. He stated that upon arriving he saw Mr. Slaughter and the liquor bottle on the stairs. Officer Sorrell secured the scene of the crime.

Mrs. Grace Harrison, manager of Mountain Brook Swim and Tennis Club, testified that on December 1978 she was receptionist and treasurer for the club. She stated that she made an inventory of the liquor and, testifying from such, indicated that $210.50 of liquor was stolen. Mrs. Harrison stated both Stanley James and Billy Carpenter had been hired in May or June 1978 and had worked through the summer. She stated that both had kitchen duties and access to it.

Chauncey Simmons, one of the four who had participated in the December 21 killing, was called as a witness for the State. Simmons was a juvenile at the time of the killing and had had the charges against him dropped. Simmons testified that on December 21, 1978, he, together with Billy Carpenter and the appellant, went in Billy’s car to the Shoney’s restaurant in Hoover and picked up Stanley James who worked there. He stated that James had an unloaded .22 caliber pistol with him. He testified that James asked them whether they wanted to get some cash, to which they affirmatively replied. James said they could get it at Mountain Brook Swim and Tennis Club. Simmons testified that James conceived the plan whereby they would fake having a flat tire in order to use the telephone inside the club and thereby gain entrance. Simmons stated that James said he would go and ask the guard to let him use the phone, and once he got inside would draw his pistol on the guard, tie him up, and lock him in a room. Simmons stated they drove to the club, and the appellant and he got out and went to the rear while James went to the front door. Shortly thereafter James opened the back door, and the appellant and he entered. James had taken the victim’s gun and had it pointed toward his back when he opened the back door. Simmons stated they went inside, and James told the victim to sit down and asked him to hold the .22 pistol on the victim. Simmons said that he was going to look for something, so James asked the appellant to hold the pistol on the victim which he did. Simmons testified that James and he went to the kitchen, broke in, got a meat cleaver, went to the bar, and using the cleaver broke into it. Simmons stated that James went to another room, kicked the door in, and looked for the money. During this time, Simmons said Billy was outside in the car. He stated that he found a liquor storage room and began to remove cases of beer. He carried some to the car and told Billy to come and help. Simmons testified that he dropped a bottle of liquor on the stairs while carrying some of the liquor. He stated that James went back to the room where the victim and the appellant were. Simmons said that Billy moved the car, and he got in and waited on James and the appellant. Simmons testified that he heard a thump-like sound and shortly thereafter saw James and the appellant run out of the club. The appellant had the .22 pistol in his hand and said that James had shot the guard. Simmons stated that Billy asked James whether he had shot the guard, to which James said that he shot him in the head because the guard knew him. Simmons testified that they drove toward home and, after fixing a flat, attempted to sell some of the beer. Simmons said he did not know what time they left the club, but arrived at Billy’s house the next morning around 2:00 or 2:30 a. m. Simmons stated that on December 22 they attended a party at the home of James Evans. Simmons testified that they drank some of the stolen liquor. He stated that James had brought both guns to Evans’ home.

On cross-examination, Simmons admitted knowing that James had pled guilty to the killing. He stated that while in the club the appellant had taken the victim’s glasses off. Simmons testified that on his last trip down the stairs, he had dropped a bottle of liquor and had looked up and saw the appellant at the top of the stairs. He stated about twenty seconds afterwards, he heard the thump-like sound. Simmons stated that they were mad at James for shooting the guard. He testified that when they could not sell the beer, James fired the victim’s .38 caliber pistol at their prospective buyer. Simmons stated that the next night they were at James Evans’ house and that James had both pistols with him. He stated that when they were leaving James fired the .38 pistol, and Evans acted as if he had been shot. Simmons identified several photographs of the club which were admitted into evidence.

On re-direct examination, Simmons stated that he had been prosecuted by the district attorney’s office. He testified that about eight to ten seconds after getting to the car he heard the thump-like sound and about four seconds later saw James and the appellant running from the club. He stated he could not see the door becáuse the car had been moved. Simmons testified that before going to the club, he knew that both James and Billy had previously worked at the club.

Jefferson County Sheriff’s Department Evidence Technician David Guthrie testified that on December 22 around 7:30 a. m he went to Mountain Brook Swim and Tennis Club, saw Officer Sorrell, and took several photographs. The photographs were properly, admitted into evidence. Deputy Guthrie also found a spent bullet on the floor of the room wherein the victim was shot.

Walter Lewis, uncle of both Billy and the appellant, testified that he was at James Evans’ house on December 22 and saw both the .22 and .38 pistols. He stated that he talked to Billy about them, and took the .38 pistol home with him. The next day, after talking to the Sheriff’s Department, he gave the gun to Sergeant Paul Couch.

James Evans testified that on December 22, Simmons, James, Billy, and the appellant were at his house. He stated that he saw the .22 and .38 pistols in a bedroom. He testified that James and Billy were there with him. Evans put the guns in a closet and later gave the .38 to Walter Lewis and the .22 to James. Evans stated that James gave it to Evans’ brother who returned it to him. Evans later gave the .22 pistol to Sergeant Couch.

On cross-examination, Evans stated that he talked to James in the kitchen wherein James told him that he had killed a man to get the liquor. Evans testified that James said he had killed him because he knew him. Later that evening Evans and James talked again wherein James told Evans that he had told the other three to go outside and he would lock the victim in a closet.

Jefferson County Sheriff’s Department Sergeant Paul Couch testified in camera that the appellant was arrested a little after midnight on December 24. He stated that after transporting him to the Fairfield office and advising him of his rights, to which he signed a waiver of rights form, the appellant made a statement. After the proper voluntariness predicate was laid, Sergeant Couch recounted the appellant’s statement. The statement described the plan Stanley James had conceived. The appellant said that Chauncey Simmons held a gun on the victim as the others gathered the liquor. He stated that as he was leaving the club, he heard a gunshot. He said that only James was in the room with the victim when the shot was fired. The remainder of the appellant’s statement coincides with the testimony of Chauncey Simmons.

On cross-examination, Sergeant Couch stated that the appellant’s mother had brought the appellant to the Jefferson County Courthouse and turned him in.

On re-direct examination, Sergeant Couch stated that the order of arrest was: First, Stanley James; second, Billy Carpenter; third, the appellant; and last, Chauncey Simmons.

In the presence of the jury, Sergeant Couch repeated the above testimony. The trial court properly admitted the appellant’s statement.

Jefferson County Sheriff’s Department Evidence Technician James Howell testified that he lifted numerous fingerprints from the meat cleaver, .22 and .38 pistols, liquor bottle taken by Sergeant Couch from James Evans’ house, and file cabinet in the office at the club. He stated that he found Stanley James’ fingerprints on the meat cleaver, .38 pistol, and file cabinet. He stated the liquor bottle had on it the fingerprints of bartender Paul Shands.

Both parties entered into a stipulation whereby they agreed that the testimony of Lawdon Yates, a firearms expert with the State Department of Toxicology, would indicate that the spent bullet found in the club had been fired from the victim’s .38 pistol.

The State rested its case, and the appellant moved to exclude the State’s evidence on the grounds that no conspiracy, felony-murder, and homicide were proved.

The appellant’s defense was based on the idea that the killing of the guard was a frolic of Stanley James and totally unconnected with the purpose for which the others and he went to the club. The appellant admits hearing James’ plan and knowing beforehand that James had previously worked at the club. His testimony coincides substantially with that of Chauncey Simmons and his statement given to Sergeant Couch. The appellant admits holding the .22 pistol on the victim while the robbery was in progress, but states that he held it by his side and not directly at the victim. The appellant admits that they went to the club to steal liquor. He testified that their plan was to lock up the guard. He testified that as he was getting ready to leave, James told him he would have to kill the guard because he might be recognized. The appellant stated he told James that they had an agreement, to which James told him to go to the car and he would lock up the guard. While planning the crime, the appellant stated that James said that he did not think the guard would recognize him, but if he did he would lock him up so he would not see his face too long. The appellant stated that after the killing James and he walked to the car talking.

The evidence clearly illustrates that the killing occurred during the perpetration of a robbery. Consequently, it is first degree murder under § 13-1-70 Code of Alabama (1975). Woods v. State, Ala.Cr.App., 333 So.2d 178 (1976).

The evidence is equally as sufficient in proving the appellant an accomplice to the murder. § 13-9-1 Code of Alabama (1975). See also Conley v. State, Ala.Cr.App., 354 So.2d 1172 (1977); and cases cited therein.

I

Appellant contends that the trial court erred in failing to grant his motion for a mistrial, made before the jury was impanelled and sworn, concerning the manner in which the prosecuting attorney had utilized his peremptory strikes. Appellant asserts that the prosecuting attorney used such to remove only blacks from the venire. He argues that since he is black and charged with the murder of a white man such a scheme of striking violates his constitutional rights of due process and equal protection of the law. Appellant presented no testimony to support his allegation.

Although a motion for a mistrial is not the proper procedure for raising this issue, as a trial for double jeopardy purposes had not commenced, we will treat it as properly presenting the issue before us. See, Boswell v. State, 290 Ala. 349, 276 So.2d 592, cert. denied, 414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1973).

It is not error for the prosecuting attorney to strike a jury on the basis of race. Bascom v. State, Ala.Cr.App., 344 So.2d 218 (1977); Baker v. State, Ala.Cr.App., 340 So.2d 854, cert. denied, Ala., 340 So.2d 860 (1976); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972); and cases cited therein. Consequently, appellant’s contention is without merit.

II

Appellant contends that the trial court erred in sustaining the State’s objections to questions asked to a State and defense witness concerning statements made the night after the killing by co-conspirator Stanley James which were exculpatory to the appellant.

On December 22 the appellant and his partners in crime attended a party at the house of State’s witness James Evans. During the course of the party both State’s witness James Evans and defense witness Michael Averhart, who also attended the party, had separate conversations with Stanley James wherein, apparently, James stated that he killed the victim and no one was in the room when such occurred except the victim and him. Mr. Evans’ conversation with James appears to have taken place in the kitchen while Mr. Averhart’s was conducted in a bedroom. From the record, it appears that both witnesses were not together when both conversations occurred.

During the cross-examination of Mr. Evans, the appellant attempted to elicit testimony concerning such to which the State objected. The appellant made an offer of proof, in camera, asking Mr. Evans the following:

“MR. JAFFE: My question is did Stanley James say this to you and this in substance, I am the one that shot him and I was the only one in the room. . . .
MR. JAFFE: .. .Did he tell you he was the only one in the room?
THE WITNESS: Yes, sir.”

It appears that the appellant was not present during the conversation.

The State objected stating that such called for a hearsay answer and was inadmissible because the conspiracy had^ended when the statement was made. The State noted that during the direct examination of Mr. Evans they had not elicited any testimony concerning the conversation.

During the direct examination of Michael Averhart, the appellant attempted to discover the substance of the December 22 Stanley James conversation with the witness. The witness stated once that the appellant was not present when James and he talked, but later changed his testimony and stated that he was. The trial court sustained the State’s objection.

“It is a well-recognized rule that the incriminating acts or statements of one confederate after the ends of the conspiracy have been accomplished, and no longer exist, are not admissible against another in his absence and without his knowledge and consent.”

Dailey v. State, 233 Ala. 384, 171 So. 729 (1937). See, Edwards v. State, 279 Ala. 371, 185 So.2d 393 (1966); Cox v. State, Ala.Cr.App., 367 So.2d 535, cert. denied, Ala., 367 So.2d 542 (1979); Guntharp v. State, 54 Ala.App. 363, 308 So.2d 722, cert. denied, 293 Ala. 756, 308 So.2d 728 (1974); Macon v. State, 30 Ala.App. 276, 4 So.2d 439, cert. denied, 241 Ala. 675, 4 So.2d 442 (1941); and cases cited therein. See generally, Edwards v. State, Ala.Cr.App., 344 So.2d 807, cert. denied, Ala., 344 So.2d 812 (1977); White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972); and cases cited therein. Cf., Conley, supra, (wherein a statement made by a confederate to a third party was admissible as it occurred before the commission of the offense and indicated a common place plan or design).

Consequently, if declarations are made before or during the furtherance of the conspiracy, they are admissible. However, once the conspiracy has come to an end, by completion of the common plan or design, such declarations are inadmissible unless made in the presence of and with the knowledge and consent of the other confederate.

We see no logical reason why the above rules should not have equal application to incriminating and exculpatory statements.

In the instant case, the statements by James to both Evans and Averhart were made after the termination of the common enterprise. In addition, the appellant was not present during the conversation James had with Evans, and the testimony of Aver-hart is all too unclear to determine whether the appellant was present during his conversation with James. Furthermore, the characterization of the statement as exculpatory is tenuous at best since presence alone does not determine the existence vel non of a common plan or scheme. Based upon the facts recited in the record, we find no error in the trial court’s ruling.

Ill

Appellant asserts that certain comments made by the prosecuting attorney during the re-direct examination of a State’s witness and in its closing argument were so prejudicial that the jury was ineradicably influenced to his detriment.

A

The first comment complained of occurred during the re-direct examination of State’s witness Chauncey Simmons. On cross-examination, the appellant asked the witness if he knew that Stanley James had pled guilty to the crime, to which the witness affirmatively answered. The State, on re-direct examination, asked the following:

“Q By the way, Mr. Jaffe asked you if you knew that Stanley James pled guilty. Do you know that Stanley James pled guilty under the death penalty (act) to life without parole; did you know that?
MR. JAFFE: Your Honor, we object to that question.
MR. BLACK: The only reason I am asking that question is because the subject was brought up by Mr. Jaffe.
MR. JAFFE: We object to that.
THE COURT: Overruled.
MR. JAFFE: At this time we would move for a mistrial, based on the fact that the death penalty was mentioned.
THE COURT: Overruled.”

The following morning, after having recessed for the evening, the trial court, before the proceedings were resumed, instructed the jury that the disposition of the charges against Stanley James were not germane to the instant cause and should not be considered in any way or degree in reaching their decision. The jury was then polled to ascertain whether it could follow the above instructions, to which it affirmatively responded.

Even though the prosecutor’s inquiry may have been irrelevant to the issues before the trial court in the instant cause, the appellant’s initial inquiry was as equally incompetent. A party who has elicited irrelevant evidence cannot complain to his opponent’s further inquiry into such, albeit to explain, clarify or contradict it, when he previously inquired into such. Bickerstaff v. State, Ala.Cr.App., 369 So.2d 315 (1979); Brock v. State, 54 Ala.App. 310, 307 So.2d 707 (1975); Jones v. State, 52 Ala.App. 184, 290 So.2d 251 (1974); and cases cited therein.

Furthermore, since no answer was given to the question, no error prejudicial to the appellant occurred. Rupert v. State, Ala.Cr.App., 374 So.2d 451 (1979); Kennedy v. State, Ala.Cr.App., 373 So.2d 1274 (1979); Borden v. State, Ala.Cr.App., 371 So.2d 82 (1979); Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied, Ala., 358 So.2d 791 (1978); Calhoun v. State, Ala.Cr.App., 343 So.2d 1 (1977), and cases cited therein. Consequently, appellant’s contention on this ground is without merit.

B

Appellant complains of two comments made by the State during its closing argument. He asserts that the first comment improperly suggested that he had committed other crimes. The appellant made a timely, specific objection which the trial court overruled. In order to place the alleged improper comment into perspective, we quote from the record:

“MR. BLACK: Do you all realize what the defense is in this case? Why do they say it, that that man is not guilty, why, what is their reason? They tell you, yes, it is true that these people conspired to rob. Yes, they had a gun. Yes, they took Mr. Carden’s gun. Yes, my client held the gun on his back and held him hostage while they were robbing him. That’s true. That’s true. Yes. Would you please excuse my client?
MR. JAFFE: If Your Honor please—
MR. BLACK: Yes, my client went out to the party later that night and had him a good time on the blood whiskey.
MR. JAFFE: We have not asked—
THE COURT: Overruled, that is argument.
MR. JAFFE: We except.
THE COURT: All right.
MR. BLACK: All of that is true, but excuse my client. He has done nothing wrong.
MR. JAFFE: We object to that. I object to his saying nothing wrong, Judge, that is not what we said.
THE COURT: All right. Overruled, that is argument.
MR. BLACK: Excuse my client, don’t find him guilty. And, I submit to you that what he is charged with isn’t the only thing he can be charged with.
MR. JAFFE: We object to that, saying that is the only thing he could be charged with.
THE COURT: Overruled.
MR. JAFFE: We except.
MR. BLACK: Excuse my client, because —now, the reason — the robbery is over when Mr. Carden is killed. The robbery is over. My client has taken his gun off of Mr. Carden and walked ten feet when they blew his brains out.
MR. JAFFE: We object to the term—
MR. BLACK: Excuse my client—
MR. JAFFE: —they blew his brains out. He knows better and we object to it. THE COURT: Members of the jury, rely upon the evidence.
MR. BLACK: All the evidence you put on, the most you could do would be to connect James Carpenter to Stanley James the night after—
MR. JAFFE: We object to that, that is a misstatement because he told the police what happened—
THE COURT: Overruled.” (Emphasis added).

It is well established that no legal standard exists to judge the prejudical qualities of alleged improper comments by either party. Such must be scrutinized in light of the issues, parties, and general circumstances of the particular case. Hurst v. State, Ala.Cr.App., 356 So.2d 1224 (1978); Harrison v. State, Ala.Cr.App., 340 So.2d 849, cert. denied, Ala., 340 So.2d 854 (1976); Evans v. State, Ala.Cr.App., 338 So.2d 1033 (1976); and cases cited therein.

In the instant case, while the prosecutor’s comment appears to suggest that the appellant may have committed other crimes, its clear imputation is that the appellant could have been charged with a different crime for the same offense or incident. It does not suggest that the appellant committed more than one crime to more than one person, but rather that he could have been brought to trial on a different charge. This is different than the situations presented in Racine v. State, 290 Ala. 225, 275 So.2d 655 (1973), and McClary v. State, 51 Ala.App. 30, 282 So.2d 379, reversed, 291 Ala. 481, 282 So.2d 384 (1973), wherein the comments made by the prosecuting attorney suggested that the appellants had committed more than one offense to more than one person. We find no error in the trial court’s ruling.

The second comment complained of is:

“MR. BLACK: Then, when Chauncey Simmons was discharged we were able to use Chauncey Simmons as a witness against him. And believe me, he didn’t want to come in here and testify.
MR. JAFFE: Now, we object to saying that Chauncey Simmons didn’t want to come in and testify.
THE COURT: Well, I will sustain that.
MR. JAFFE: And we ask the jury to disregard that.
MR. BLACK: I will withdraw that.
MR. JAFFE: We ask the jury—
THE COURT: It is withdrawn.
MR. JAFFE: And we move for a mistrial.
THE COURT: Overruled.” (Emphasis added.)

We note that with the exception of overruling his motion for a mistrial no ruling adverse to the appellant was made by the trial court. In addition, the comment was withdrawn by the prosecuting attorney. Furthermore, both in its opening remarks to the jury and before the presentation of closing arguments, the trial court instructed the jury that the statements and arguments of counsel were not evidence. We find no prejudicial error in the comment or by the trial court’s action upon such. Summers v. State, Ala.Cr.App., 338 So.2d 533 (1976); Canada v. State, 56 Ala.App. 722, 325 So.2d 513 (1975), cert. denied, 295 Ala. 395, 325 So.2d 516 (1976); Paul v. State, 48 Ala.App. 396, 265 So.2d 180, cert. denied, 288 Ala. 747, 265 So.2d 185 (1972); and cases cited therein.

IV

Appellant’s last issue deals with the trial court’s refusal to give certain written requested charges to the jury. The appellant submitted seventy-two requested charges, but requested our review of ten refused charges. We have reviewed the remaining charges and find no error in their refusal as they were either abstract, argumentative, confusing, misleading, ungrammatical, not predicated upon the evidence, or substantially covered by the trial court’s oral charge.

A

Appellant’s first group of refused requested charges deals with the interest and credibility of witnesses and the effect to a witness’ bad character on the jury’s finding of a reasonable doubt:

“23. A reasonable doubt of the accused’s guilt may arise from the bad character or motives of the witnesses that testified against him, or from the evidence or failure of proof, or from the presumption of innocence which the law gives him.”
“31. When you determine the credibility of the witnesses, you should also consider the manner in which they testify, whether they have been convicted of crimes involving moral turpitude, the character of the particular witnesses and whether the witness has made statements inconsistent with his present testimony. If you believe any witness has impeached, it is your exclusive province to give his testimony such credibility, if any, as you may think he deserves.”
“36. If the jury believes from the evidence that any person was induced to testify in this case by any promise of immunity from further punishment, or that any hope was held out or entertained by him that he would be rewarded or any way benefit if he implicated the accused of the crime charged herein, the jury must take such fact into consideration in determining what weight should be given to the testimony, closely scrutinize it and unless they can reconcile it with truth, completely reject it.”

The trial court gave appellant’s requested Charge No. 35 below:

“35. If you find that any witness has willfully testified falsely as to a material fact, you are at liberty to either disregard his or her enitre (sic) testimony, or to believe such portions of that testimony as you see fit.”

Charge No. 23 above was properly refused as it is confusing, argumentative, and with the exception of its first portion, substantially covered by the trial court’s oral charge. § 12-16-13, Code of Alabama 1975. Furthermore, the trial court thoroughly and correctly instructed the jury as to the definition of “reasonable doubt.” For the trial court to have instructed the jury as the appellant requested would have been to invade their province as weighers of the evidence or finders of fact. No error was committed by the trial court’s refusal to give the requested charge. Kuczenska v. State, Ala.Cr.App., 378 So.2d 1182 (1979), cert. denied, Ala., 378 So.2d 1186 (1980); Doss v. State, 23 Ala.App. 168, 123 So. 237, cert. denied, 220 Ala. 30, 123 So. 231 (1929).

Charges No. 31 and 36 are ungrammatical and not predicated on the evidence. Consequently, their refusal was not error.

B

Appellant submits refused requested Charge No. 38, quoted below, should have been given.

“38. The evidence must be such as to exclude every single reasonable hypothesis except that of the guilt of the accused. In other words, all the facts proven must not only be consistent with and point to the guilt of the accused, but every fact must also be inconsistent with his innocence.”

The trial court properly refused the above requested charge as appellant’s guilt was predicated upon substantial direct evidence rather than solely circumstantial evidence and to have given the requested charge would have unduly emphasized the circumstantial evidence. See, Lewis v. State, Ala.Cr.App., 372 So.2d 882, cert. denied, Ala., 372 So.2d 885 (1979); and cases cited therein. See generally, Murrell v. State, Ala.Cr.App., 377 So.2d 1102, cert. denied, Ala., 377 So.2d 1108 (1979); and cased cited therein.

C

Appellant asserts that the trial court erred in refusing to give requested Charges No. 50, 53, 54, 57, 66, and 70 dealing with conspiracy. The requested charges are quoted below:

“50. Before you can convict James Earl Carpenter, Jr., for the crime of murder of Oscar Carden, you must first find that James Earl Carpenter, Jr., entered into the agreement with others to take the life of Oscar Carden. You must find that James Earl Carpenter agreed to join in the plan of taking the life of Oscar Car-den. Mere aid or assistance given by any defendant by others is not sufficient to convict him of the crime of conspiracy to commit murder unless such aid was given by him for the purpose of carrying out the unlawful design of a conspiracy agreed to commit murder.”
“53. The proof shows that James Earl Carpenter, Jr. knew the other three people present at Mountain Brook Swim and Tennis Club. I charge you that a defendant cannot be convicted because of his acquaintance or association with some or all of the conspirators unless it is proven by the prosecution under reasonable doubt, that he had guilty knowledge of, and with such knowledge, participated in a conspiracy to commit murder.”
“54. You are instructed that there can be no conspiracy without a corrupt agreement or understanding. If you have a reasonable doubt as to the participation of James Earl Carpenter, Jr., in a common plan or conspiracy to commit murder, you must return a verdict of not guilty as to him.”
“57. You are instructed that you must view a defendant’s own actions, his own conduct, and his own declaration to determine whether he is a conspirator. If you believe from the evidence that James Earl Carpenter, Jr., did not conspire or plan nor did have knowledge that Stanley James would shoot Oscar Carden you must find him not guilty.
“66. The Court charges the jury that if Stanley James killed the deceased on a frolic of his own without the knowledge and consent of the other defendants and not while in the perpetration of the robbery than (sic) the other defendants cannot be found guilty of murder of the first degree in this case.
“70. The court charges the jury if you believe that Stanley James killed the deceased because the deceased recognized him from previous associations and that such killing occurred after the commission of the robbery and without the knowledge and consent of James Earl Carpenter, than (sic) James Earl Carpenter cannot be found guilty of murder.”

Charges No. 50, 53, 57, 66, and 70 are ungrammatical and were properly refused. Charge No. 54 was fairly and substantially covered by the trial court’s oral charge. Consequently, it was properly refused.

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

AFFIRMED.

All the Judges concur.


author: ADAMS, Justice.

text:
    Ex parte James Earl CARPENTER. (Re James Earl Carpenter, v. State of Alabama).
    79-846.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    Richard S. Jaffe, Birmingham, for petitioners.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Jr., Asst. Atty. Gen., for respondent.
   ADAMS, Justice.

Writ quashed as improvidently granted, 404 So.2d 89.

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

MADDOX, J., not sitting.


author: TYSON, Judge. BOWEN, Judge,

text:
    Sam Dawson BAKER, Jr., alias v. STATE.
    5 Div. 504.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.
    Michael Sundock, Opelika, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Sam Dawson Baker, Jr., was charged by indictment with the offense of assault with intent to ravish. A timely motion for treatment as a youthful offender was overruled, and at trial Baker was found guilty as charged, and sentenced to serve fifteen years in the state penitentiary. Baker brings this appeal in forma pauperis.

The State’s first witness was the victim, Shirley Ann Waters, a Jacksonville, Florida, native who was attending Auburn University. She testified that, on the evening of November 11, 1979, she drove to the A & P supermarket, located in Auburn, arriving there at a few minutes before 7:00 o’clock. Miss Waters stated that, after parking her car in the store parking lot, she proceeded to the front of the store; she remembered that there were people inside the store and in the parking lot, and that a single black male was standing near the front door. Upon reaching the front door, she discovered that it was locked, so she began to return to her car in the parking lot. At this point, she stated, the black male, who had been by the front door, began walking “across the front of the A & P, slowly” (R. 17), and then traced Miss Waters’ path back to her car, following her all the time.

Miss Waters then stated that, when she reached her car and was in the process of unlocking it, she turned and saw the black male “approaching me”; the man then pulled a knife with a blade length of “six inches” (R. 18). She testified that the man did not pull the knife until he was “a couple of feet away from me” (R. 18). She testified that the male was holding the knife with both hands, the blade being pointed upward. At this point, Miss Waters stated, she backed to her car, and the man followed, but got no closer to her than he had been initially. She then ran around the side of her car, and as the man continued his approach, she began screaming, at which point the man broke and ran. Miss Waters stated that she ran back to the grocery store, still screaming. The witness identified appellant as the black male she had seen that night.

When she returned to the front of the store, two employees of the A & P, identified as Keith Holloway and Robert Saxby, came out and chased the man. Miss Waters stated that she reported the incident to the police and later examined some photographs at police headquarters. On cross-examination, the following testimony was had:

“Q. Okay. When you walked by him to try the door and then turned back toward the parking lot, were any words exchanged at all?
“A. No, sir.
“Q. He didn’t say anything to you and you — didn’t say anything to him, you just turned and headed back towards your car when you found that the door was locked? As you headed back towards your car, were any words spoken?
“A. No, sir.
“Q. When you got to the vehicle itself, did anybody say anything, other than the fact that you screamed, and you were placed in fear, were any words spoken? “A. At my car?
“Q. Yes, ma’am.
“A. No, sir.”
(R. 25)

Miss Waters further stated that she had been very nervous during the incident, and that on the night of the incident, she had picked out a photograph of appellant from a group of pictures at police headquarters. She further stated that “I thought he wanted my purse” (R. 28). Finally the following testimony was elicited from Miss Waters:

“Q. Was the knife ever pointed at you?
“A. It was presented at me.
“Q. It was held up in front of him? “A. Yes.
“Q. But it was never advanced at you?
“A. No, sir.
“Q. Did anyone, other than the young men that came out of the store, touch you at all; did this man touch you at all?
“A. No, sir.
“Q. What was the closest that he came to you?
“A. Approximately two feet.
“Q. And he never said anything to you that you recall?
“A. No, sir.”

(R. 28)

Keith Holloway, a high school student in Auburn and a part-time employee of the A & P supermarket, testified that, on the night of November 11, 1979, he had been working at the A & P, preparing for the store’s 7:00 o’clock closing time. He stated that he heard a scream and followed Robert Saxby out of the store, where they discovered Shirley Ann Waters crying. He further testified that he and Saxby gave chase to an individual fleeing the scene, and, though the witness could not identify the individual, he did state that the person was wearing a light tan “cloth windbreaker type” jacket and dark pants, and had a “combed down” hair style. Later on the same night, the witness testified, he was in a Zippy Mart convenience store a few miles from the A & P store when he saw an individual he identified as appellant. He stated that the individual was dressed identically to the individual he had chased from the A & P parking lot earlier in the evening. Mr. Holloway stated that he walked around appellant to assure himself and noted the number on the license plate of the car as appellant left the store. This information was conveyed to the police.

Robert Saxby, an Auburn University student and also a part-time employee of the A & P, testified that, on the night of November 11, 1979, he had also heard the screams and had investigated with Keith Holloway. He stated that Shirley Ann Waters indicated the direction in which the individual had run and that he and Holloway gave chase. The witness stated that he did not see the individual again.

The final state witness was Lieutenant Edwin Downing, a member of the Auburn Police Department, who had been in the detective division of that department at the time of the events in question. The officer testified that he had not been one of the officers who had arrested appellant, but that he interviewed appellant at Police Headquarters two days later. He stated that he had read appellant his Miranda rights from a standard form, and that he further read the standard waiver form to appellant as appellant could not read or write. Lieutenant Downing stated that appellant said he understood his rights, and agreed to waive them, and that appellant signed his name to the waiver form (apparently this was the extent of appellant’s ability to write).

The witness testified that he then proceeded to interview appellant, though he could not tell if appellant understood his questions. Lieutenant Downing further stated that the statement of appellant, the result of questions propounded by Downing, was not recorded or transcribed, but that he (Downing) made notes as the interview progressed. The witness stated that, when asked, “Did he want to have sex with the girl,” appellant answered, “That’s all, I didn’t rape her” (R. 76). Further, appellant purportedly admitted having had a knife with a three inch blade, which he had discarded. Lieutenant Downing also testified that appellant said that “he told her to get into the car or he would cut her” (R. 76). The witness further testified that appellant had had on a light green jacket at the time of his arrest, which jacket had been retained by the Auburn police as evidence. He stated that he interviewed Miss Waters and that she stated to him that appellant had said nothing to her; on the basis of this interview, the witness stated, he made the decision to charge appellant with assault with intent to ravish. At this point the State rested, and appellant’s motion for a directed verdict was overruled.

Appellant’s case was one of alibi. Appellant first took the stand in his own behalf and stated that he could neither read nor write. He denied having been at the A & P on the day in question, stating instead that he had been at his aunt’s house watching television. He further testified that, as it was his responsibility to pick up his mother from her place of work at 7:00 o’clock, he had left his aunt’s before 7:00. After picking his mother up, he stated, he accompanied her to a Zippy Mart to buy some cigarettes. He testified that he was later picked up by the police and taken to the police station, but was not told why. Although he identified his signature on the police “waiver of rights form,” he stated that he could not understand the remainder of the writing, did not remember having it read to him, and did not understand anything that might have been read to him by Lieutenant Downing. He denied attacking Miss Waters or any girl, or having a knife in his possession. While he stated that he may have told Lieutenant Downing certain things, he denied stating that he told the girl to get into the automobile.

Margaret Richardson, appellant’s aunt, testified that the appellant generally stayed over at her house on Sundays, and that he had been present on Sunday, November 11, 1979. She stated that she told appellant to leave to pick up his mother around 7:00 o’clock that evening, and that he left wearing a green windbreaker and blue jeans. She found out about appellant’s arrest later, but failed to inform anyone of her story.

The final defense witness, Jossie Mae Tol-bert, mother of appellant, testified that appellant had picked her up from her place of employment on November 11, 1979. She stated that appellant arrived at 7:05 p. m., and that they left at 7:30 p. m. They later drove to a Zippy Mart and were stopped by the police during the return trip. She stated that appellant had been dressed in a green windbreaker on the night in question. The defense rested, and Shirley Ann Waters was called in rebuttal by the State. She again positively identified appellant as the man in the A & P parking lot, but positively stated that appellant did not threaten her, or in fact speak to her on the night of the incident in question.

We find that the dispositive issue on this appeal is whether the State proved a prima facie case of assault with intent to ravish or rape against appellant on the evidence as set forth above. As we note from the record that appellant moved for a directed verdict at the close of the State’s evidence, averring that the State had not proved the charge against appellant, the issue of sufficiency of the evidence is properly before this Court. Kontos v. State, Ala.Cr.App., 363 So.2d 1025 (1978).

The indictment returned against appellant charges that he “did assault Shirley Ann Waters, a woman, with the intent forcibly to ravish her, against the peace and dignity of the State of Alabama” (R. 145). The statutory basis for the offense stated in this indictment is found in § 13-1-46, Code of Alabama 1975, which states:

“Any person who commits an assault on another with intent to murder, maim, rob, ravish or commit the crime against nature, or who attempts to poison any human being, or to commit murder by any means not amounting to an assault, shall, on conviction, be punished by imprisonment in the penitentiary for not less than two nor more than 20 years.”

From the language of this statute, it is obvious that the State in the instant case must have proved an assault and the requisite intent to ravish or rape. The failure of proof as to either element necessitates a reversal of conviction. Cf. Brown v. State, 48 Ala.App. 456, 265 So.2d 898 (1972). In Brown, involving a conviction under this statute for assault with intent to rob, this Court had occasion to examine a number of authorities relating to the concept of assault and what is sufficient to show an assault. We noted the decision of our Supreme Court in Johnson v. State, 35 Ala. 363 (1860), wherein it is stated:

“An assault is an attempt, or offer, to do another person violence, without actually accomplishing it. A menace is not an assault; neither is a conditional offer of violence. There must be a present intention to strike. On the question, how far the intention must be carried into actual execution, before the assault becomes complete in law, the authorities do not agree. Holding a gun in a threatening position without an attempt to use it, or intention to do so, unless first assaulted by an adversary, is not an assault . . . Drawing a pistol, without presenting or cocking it, is not an assault.. .. ”

Conceding on the facts of the instant case that appellant did present a deadly weapon, i. e., the knife, and was in a position to use it, Stoutmire v. State, Ala.Cr.App., 358 So.2d 508 (1978), we still find it to be a “close question” as to whether the State proved an assault by appellant. The victim testified that appellant held the knife pointed upwards, said nothing to her, did not touch her, and did not get closer than two feet away. He neither lunged at her nor harmed her in any manner. Our inclination is, based upon these facts, that appellant did not have the requisite intention to effect an assault.

However, assuming arguendo, the presence of an assault (which, as noted above, we are not constrained to do), we feel that, under these facts, the State has wholly failed to carry its burden in showing an intent to ravish, or rape on the part of appellant. It has been often stated by this Court that the elements of assault with intent to rape or ravish include all of the elements of the offense of rape, including the intent to have sexual intercourse with a woman by force or fear, against her consent, but without consummation of the sexual act. Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975), and cases therein cited; Kelsoe v. State, 50 Ala.App. 378, 279 So.2d 549, cert. denied, 291 Ala. 786, 279 So.2d 552 (1973). In Hogue v. State, supra, it is stated:

“The intent to rape has also been described as a condition of mind coupled with an effort of force to carry out the desire over the physical resistance of the victim. The evidence must be sufficient to show that such acts of the defendant were of the nature that there will be no reasonable doubt of his intentions to gratify his lustful desires against the consent of the female and that the act would have been carried out but for the resistance of the female or some outside force which caused him to desist. Curry v. State, 23 Ala.App. 140, 122 So. 303; and Lewis v. State, 35 Ala. 380. To justify a conviction of assault, with the intent to ravish, the evidence must show that the acts and conduct of the defendant leave no reasonable doubt of his intention to gratify his lustful desires against the consent of the female not withstanding resistance on her part. Gilbert v. State, 28 Ala.App. 206, 180 So. 306; and Wilson v. State, 22 Ala.App. 554, 117 So. 615.”

We have carefully reviewed the evidence as contained in this trial record,' and conclude through application of the above stated principles that the State has failed to prove beyond a reasonable doubt that appellant had any intent to ravish or rape Shirley Ann Waters. Cf. Toulee v. State, 100 Ala. 72, 14 So. 403 (1893); Taylor v. State, 20 Ala.App. 161, 101 So. 160 (1924); McCollum v. State, 34 Ala.App. 207, 38 So.2d 291 (1949). As this point is disposi-tive of this appeal, we express no opinion on the merits of appellant’s second argument.

The judgment of conviction rendered below is reversed, and the cause remanded for a new trial.

REVERSED AND REMANDED.

DeCARLO, J., concurs.

HARRIS, P.J., concurs in result.

BOWEN, J., concurs in result and files opinion in which BOOKOUT, J., joins.

BOWEN, Judge,

concurring in result only.

I can concur only in the result reached by the majority.

I

There appears to be a conflict in the law of this State as to what constitutes an assault. The principles were expressed in Stoutmire v. State, 358 So.2d 508 (Ala.Cr.App.1978) and I continue to adhere to the view I there expressed. Under such view, I find that the State’s evidence, at best, shows only a conditional assault which, in this State, is no assault at all.

However, in Brown v. State, 48 Ala.App. 456, 265 So.2d 898 (1972), there was a conditional assault when a robber, armed with a handkerchief over his right hand, told his victim to give him the money or he would kill her. The court there found an assault had been committed.

This conflict is recognized in R. Perkins Criminal Law (2nd ed. 1969) p. 131-32.

“A conditional offer of violence without justification or excuse is sufficient to constitute an assault. It is no answer to a charge of assault in such a case that the victim could avoid the threatened harm by complying with the unlawful command, nor that he did actually so avoid it. Thus, it is an assault to double the fist and run at another, saying, ‘If you say that again I will knock you down’; to draw a pistol and point it at another with the threat, ‘If you do not pay me my money I will have your life’; or to point a weapon in this manner and tell the other to take off his overalls and quit work or be shot.
“It should be noted that none of these three examples involves an attempt to commit a battery and hence none of them would seem sufficient to constitute an assault in a state limiting the offense to this basis alone.” Citing Johnson v. State, 35 Ala. 363, 365 (1860).

The weight of authority and the modern trend does not limit assault to merely the “attempted-battery type” but includes the “intent to frighten type”. This is the civil-assault situation of the intentionally-caused apprehension of injury. W. LaFave and A. Scott, Criminal Law (1972), p. 609; see also LaFave, p. 611.

Under the principles of Stoutmire, there can be no question that the defendant’s actions in this case do not constitute an assault. However, some argument could be made that these same actions do constitute an assault within the broadened definition of the “intent to frighten type”.

II

Apart from this issue is the question of the defendant’s intent. The majority finds no evidence of any intent of any kind. I disagree.

There was some evidence that the defendant intended to “have sex” with the victim. This evidence is found in Lieutenant Downing’s testimony that when he asked the defendant, “Did he want to have sex with the girl?” the defendant answered, “That’s all, I didn’t rape her.” A logical interpretation of this question and answer is found in the brief filed by defendant’s appellate counsel: “He (defendant) stated that he wanted to have sex with [the] girl but did not rape her... . ”

Because, in my opinion, there was no assault, as presently defined in this State, I concur in the reversal.

It must be noted that under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), the defendant cannot be retried.


author: EMBRY, Justice.

text:
    Ex parte State of Alabama, ex rel., Attorney General. (Re Sam Dawson BAKER, Jr., alias v. STATE of Alabama).
    80-101.
    Supreme Court of Alabama.
    Aug. 28, 1981.
   EMBRY, Justice.

Writ quashed as improvidently granted.

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