text:
    Harold LAW v. Maurice LAW.
    Civ. 1860.
    Court of Civil Appeals of Alabama.
    Jan. 23, 1980.
    Rehearing Denied March 5, 1980.

      L. Merrill Shirley, Elba, for appellant.
    John B. Crawley, Troy, for appellee.
   BRADLEY, Judge.

The appellant, Harold Law, is appealing from a jury verdict rendered in favor of the appellee, Maurice Law.

George Law, the father of Harold and Maurice, died on March 22, 1970 leaving his entire estate, including one hundred fifty-two acres of land, to his wife, Denie P. Law. Mrs. Law had a separate estate consisting of two hundred forty-seven and one-half acres of land which she had inherited from her parents.

On June 3, 1971 Mrs. Law conveyed to Harold several parcels of land totaling three hundred nineteen and one-half acres. Two hundred seventy four and one-half acres of this conveyance was from Mrs. Law’s personal estate. However, this deed was not recorded until July 23, 1975. Before the recordation, Mrs. Law conveyed twenty-five acres of this land to David and Johnnie Seanor on May 19, 1973.

On January 16, 1975 Denie Law conveyed to her other son, Maurice, one hundred seven acres of land received from her husband’s estate.

Mrs. Law is a seventy-three year old woman who suffered a stroke on April 5, 1974. Her son Harold has lived with her most of his life even when his father was alive. There was testimony that he helped his mother work the farm for some years until she got too old to continue. He has, according to testimony, taken care of his mother before and after her stroke, doing such chores as washing and cleaning. He has also taken care of their finances as they have joint checking and savings accounts. Maurice Law is forty-six years old and lives within one mile of his mother and father’s homeplace. He is currently suffering from extremely bad health.

The event resulting in this lawsuit revolves around a meeting between Harold, Mrs. Law and Maurice on January 16, 1975. Apparently there has been a great deal of bitter feelings between the two brothers which worsened when Harold received the three hundred nineteen and a half acres from his mother. Maurice testified that he believed he was to receive forty-seven of the three hundred nineteen acres of land previously deeded to Harold by Mrs. Law. He realized the one hundred seven acres of land he was to receive had been his father’s. The misrepresentation alleged in the lawsuit arose when Harold told Maurice, upon being questioned, that George Law’s will had not been probated. If it had not been probated, then the one hundred fifty-two acres would pass by intestate succession, going equally to the two brothers. Harold denied in his testimony ever having made this statement to Maurice, or having any knowledge of what probating a will means. Mrs. Law, however, testified that she did hear Harold deny it. Maurice alleges that had Harold not misled him about the probate of the will, he would not have accepted the deed from his mother for the one hundred seven acres of land. Evidence was admitted that Maurice never received any notice of the probate, and that a waiver of notice existed which expert testimony showed was signed by someone other than Maurice. At the trial level, the jury rendered a general verdict in favor of Maurice for the amount of $10,000.00 based on the misrepresentation by Harold to his brother.

Several issues have been raised by the parties in this case, and the first to be considered is appellee’s motion to dismiss the appeal.

The basis for the motion to dismiss is that appellant failed to adequately set forth a full statement of facts relevant to the issues presented for review as required by ARAP 28(a)(4).

After carefully examining the statement of facts in appellant’s brief, we do not find the rendition of the pertinent facts in appellant’s brief to be so deficient as to leave this court with no basis for consideration of the issues presented by the appeal. In Thoman Engineers, Inc. v. McDonald, 57 Ala. App. 287, 328 So.2d 293 (1976), we said:

Formal inconsistency between the statement of issues and the argument of issues should not prevent us from reaching the merits of the argument unless the inconsistency is inexcusably pronounced, misleading, confusing, or otherwise prejudices an adverse party’s ability to frame a response to the argument. The determination of these factors lies with the court to whom the brief is presented.

We therefore deny the motion to dismiss.

The appellee further asserts that because the trial court did not make an express determination that there was no just reason for delay of a final judgment as to fewer than all of the claims of the parties, no decision was final, and thus there could be no appeal under ARCP 54(b).

The verdict was rendered against Harold Law under Count Six of the complaint. The jury was not charged as to Counts Three and Four. However, there was no decisive ruling as to whether Harold’s motion for a directed verdict to drop the counts was granted. Therefore, this court, pursuant to its own motion, remanded the case to the trial court for the rendition of a final judgment from which this court could decide an appeal. The appellant also filed a motion to remand for relief of judgment pursuant to ARCP 60, which states:

(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

The trial court in its order on remand stated that the parties had agreed to submit to the court the merits of Counts Three and Four. After hearing counsel’s arguments, the trial judge determined that the deed between Denie P. Law and her son, Harold Law, dated June 3, 1973, was void.

The trial court further determined that:

Count Four, which states a cause of action for sale for division is moot because the jury verdict ruled in favor of defendants on Count One, which Count attempted to set aside the last will and testament of George Law.

After the trial court ruled on the merits of Counts Three and Four, Harold Law appealed the ruling based on Count Three.

The basis of appellant’s complaint as to Count Three is that the trial judge misapplied the applicable law to the existing facts and erred in deciding that the conveyance between Mrs. Law and her son Harold was void. In the deed Mrs. Law conveyed a fee simple interest to Harold Law in the granting clause and then expressly reserved a life estate with the right to mortgage, pledge, or sell the property during her life. The trial court declared this conveyance completely void. We disagree.

The real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grant- or, and if that intention can be ascertained from the entire instrument, arbitrary rules should not be allowed to subvert that intention. Wilkins v. Ferguson, 294 Ala. 25, 310 So.2d 879 (1975). The duty of the court under this rule of construction is to reconcile the terms of the instrument if that may reasonably be done, to avoid a repugnancy in its provisions or terms. Wilkins v. Ferguson, supra.

In Mays v. Burleson, 180 Ala. 396, 61 So. 75 (1913), the Alabama Supreme Court held a deed valid wherein a grantor conveyed land to a grantee but reserved the right of possession and control during his life as well as the right to sell the property. The court stated that the reservation did not postpone the vesting of title in the grantee until the grantor’s death, but that the title vested upon execution of the deed, subject to divestment if the grantor exercised his reserved right to sell the land.

Applying the reasoning of Mays to the case at bar, we think the clear meaning of the deed before us, without applying the arbitrary rules of construction, is that a fee simple interest was conveyed to Harold Law, subject to that interest being divested should his mother, Mrs. Law, mortgage, pledge, or sell the property during her lifetime. As a matter of fact, she did convey a portion of that property to someone else subsequent to the conveyance to Harold. Therefore the judgment voiding the deed to Harold is reversed.

The final contention urged by appellant is that there was insufficient evidence to support the jury’s award of damages for fraud as alleged in Count Six of appellee’s complaint.

Appellant argues principally that the ap-pellee failed to prove actionable fraud, i. e. there was no evidence of compensatory or nominal damages incurred by appellee as a result of the alleged fraud, which is a necessary element of actionable fraud, and, as a consequence, the trial court erred by refusing the motion for a directed verdict and later by overruling the motion for a new trial.

Appellee replies that there is sufficient evidence of actionable fraud to support the jury’s verdict and, therefore, the trial court did not err in the various rulings on the question.. To support his contention, appel-lee points out that appellant did represent to him that he (appellant) had not probated their father’s will and that appellee, in reliance on this representation, did not attempt to prevent the transfer of his father’s land to someone else, and, as a result he was damaged.

It is well settled in Alabama that fraud is never presumed and when relied upon must be distinctly alleged and proven, and he who seeks relief on ground of fraud has the burden of proof. Mangina v. Bush, 286 Ala. 90, 237 So.2d 479 (1970). One of the essential elements of an actionable fraud case is proof of damages. Old Southern Life Insurance Co. v. Woodall, Ala., 348 So.2d 1377 (1977). Should the plaintiff fail to prove that the alleged misrepresentations caused him damage, an essential element of the cause of action is missing and the action must fail.

In the case at bar, the facts show that Mrs. Law had received as an inheritance from her parents about two hundred forty-seven acres of land, and she had received from her deceased husband by will about one hundred fifty-two acres of land. She had conveyed to appellee about one hundred seven acres of the one hundred fifty-two acres of land received from her husband’s estate; she had also purported to convey to appellant about three hundred nineteen acres of land. This deed was not recorded until July 1975. Prior to the rec-ordation of that deed and on May 19, 1973, Mrs. Law conveyed to David and Johnnie Seanor twenty-five acres of the three hundred nineteen acres previously conveyed to Harold Law.

As can be seen from the above, appellee received from his father’s estate one hundred seven acres of land by deed from his mother, Denie P. Law. Had the will not been probated and had he inherited a portion of his father’s estate by intestate succession, he would have been entitled to one-half of the one hundred fifty-two acres owned by the father at his death, or seventy-six acres. See § 43-3-1, Code of Alabama 1975. Thus, appellee received thirty-one acres more of his father’s land by deed from his mother than he would have received by intestate succession. Under these circumstances we fail to see how appellee has been damaged by the alleged misrepresentation of appellant.

There being no evidence of damage to appellee, the trial court erred in refusing to grant appellant’s motion for a directed verdict.

For the above reasons, the judgment of the trial court as to the validity of the deed to appellant is reversed, and the verdict and judgment of the court awarding damages to appellee is also reversed. The cause is remanded for further proceedings.

REVERSED AND REMANDED.

HOLMES, J., concurs.

WRIGHT, P. J., concurs in the result.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Carolyn J. HAGLER v. FORD MOTOR CREDIT COMPANY.
    Civ. 2027.
    Court of Civil Appeals of Alabama.
    Jan. 23, 1980.
    Rehearing Denied March 5, 1980.

      Edward Still, Birmingham, for appellant.
    Charles Cleveland, of Gordon, Cleveland & Gordon, Birmingham, for appellee.
   BRADLEY, Judge.

Ms. Carolyn J. Hagler purchased an automobile from Bart Starr Lincoln Mercury on January 19, 1976 and financed the purchase of the vehicle through Ford Motor Credit Company (hereafter FMCC). Ms. Hagler defaulted on her payment agreement in August 1976 and FMCC filed suit against her in February 1977 to recover the unpaid balance on the note. Ms. Hagler counterclaimed, contending FMCC had violated the disclosure requirements in the Truth in Lending Act, 15 U.S.C. § 1638(a) (1976), and Regulation Z, 12 C.F.R. § 226.8(b) (1979). The trial court held that the counterclaim was barred by the statute of limitations.

On appeal we held that the counterclaim was not barred by the statute of limitations and remanded the case for further proceedings. On remand the trial court proceeded to consider the three remaining issues in the case. The first issue was whether the counterclaim is barred by § 130(h) of the Truth in Lending Act. The court held that it was not barred. The second issue was whether the insurance provisions in the installment sales contract created a “security interest” and, if so, whether FMCC was liable for failure to disclose such interest. The court held that the insurance provision was not a security interest and therefore FMCC was not liable for its failure to disclose, or that if it was a “security interest,” it was adequately disclosed on the front page of the agreement. The third issue was whether FMCC adequately identified itself as a creditor to Ms. Hagler. The court held that under the facts of this case it had.

Ms. Hagler appeals the second and third rulings of the trial court. FMCC does not appeal the first ruling, and that ruling, consequently, will not be an issue in this case.

Ms. Hagler commences her argument by saying that the insurance provision, i. e. paragraph 18 of the contract in question, which is printed on the reverse side of the contract, is in practical effect a “security interest” which is required by § 128(a) of the Truth in Lending Act and Regulation Z to be disclosed on the front page of the contract. The “security interest” disclosure is set out in paragraph 13 of the contract and is as follows:

(13) Security Interest: Seller shall have a security interest under the Uniform Commercial Code in the Property (described above) and in the proceeds thereof to secure the payment in cash of the Total of Payments and all other amounts due or to become due hereunder. Paragraph 18 of the contract provides:
18. RISK OF LOSS — INSURANCE
The Property shall be at Buyer’s risk. If the original amount financed, exclusive of insurance charges, is $300.00 or more and the value of the Property is $300.00 or more, Buyer shall obtain and maintain at his own expense for so long as any amount remains unpaid hereunder insurance protecting the interests of Buyer and Seller against loss, damage or destruction of or to the Property in such forms and amounts as Seller may require. Buyer shall have the option of providing such insurance through an existing policy or a policy independently obtained and paid for by Buyer. The inclusion of a charge for insurance herein shall not relieve Buyer of such obligation but only authorizes Seller to attempt to obtain the requested coverages on Buyer’s behalf through an authorized agent; provided, if Seller is unable to obtain the requested coverages for the term indicated for the amount included herein, Seller may (i) obtain such coverages for such term, if any, as the insurance carrier to whom Seller shall apply therefor will provide for such amount, or (ii) credit such amount to the final maturing instalments hereunder in inverse order of maturity or as otherwise required by law.
If Buyer fails to obtain or maintain such insurance, or fails to furnish satisfactory evidence thereof upon request, Seller may, but shall not be required to, and without prejudice to his rights hereunder if he does not, obtain such insurance protecting either the interests of Buyer and Seller dr the interests of Seller only. In such event, Buyer agrees to reimburse Seller for the cost thereof forthwith upon demand together with interest thereon at the highest lawful contract rate.
Buyer hereby assigns to Seller any monies payable under such insurance, by whomever obtained, including returned or unearned premiums, and Seller hereby is authorized on behalf of both Buyer and Seller to receive or collect same, to endorse checks or drafts in payment thereof, to cancel such insurance or to release or settle any claim with respect thereto. The proceeds from such insurance, by whomever obtained, shall be applied toward replacement of the Property or payment of the indebtedness hereunder in the sole discretion of Seller.

FMCC correctly points out that the purpose of the Act is to require in a consumer credit transaction that the debtor receive from the creditor a disclosure statement containing certain information. Regulation Z, § 226.8(a) requires that the disclosures be made on the same side of one page. If the statute is not followed, a penalty of twice the amount of the finance charge plus a reasonable attorney fee is placed against the creditor and on any assignee who purchases a credit document that has an apparent Truth in Lending violation on the face of it. Truth in Lending Act § 128(a)(10) and Regulation Z, § 226.8(b) require also that any security interest held by the creditor must be disclosed. Thus, Ms. Hagler contends that the insurance proceeds and refunds provision on the reverse side of the contract created a security interest which was not disclosed to her, thus making FMCC a violator of the statute as a subsequent assignee.

The question raised is one of first impression in the state courts of Alabama; however there are federal decisions on the subject but they are in conflict. Ordinarily a decision of a federal appellate court on a federal question, absent a ruling by the United States Supreme Court, is binding on the state courts of Alabama. Dickey v. West Boylston Manufacturing Co., 251 Ala. 19, 36 So.2d 106 (1948). However, when the decisions are in conflict we believe that we are free to follow and apply the better reasoned decision. We consider the recent United States Fifth Circuit Court of Appeals case of Edmondson v. Allen-Russell Ford, Inc., 577 F.2d 291 (5th Cir. 1978) to be the better reasoned decision on the question now being reviewed.

In Edmondson, the factual situation was very similar to that in the case at bar. Edmondson purchased an automobile from Allen-Russell Ford, Inc. and entered into a retail installment contract. A few days later the contract was assigned to Ford Motor Credit Company. The contract included on its face a disclosure statement as required by the Truth in Lending Act. About a month after the contract was made, the purchaser filed suit against Allen-Russell and FMCC claiming that defendants had failed to comply with the Truth in Lending Act and Regulation Z in several respects, one of which was that FMCC had failed to disclose that it was asserting a security interest in returned or unearned premiums of the automobile insurance. FMCC contended that the assignment created by paragraph 18 of the contract, i. e. the automobile insurance provision, did not create a security interest and did not have to be disclosed.

The Fifth Circuit said:

“The Truth-in-Lending Act requires a creditor to disclose a ‘description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit.’ 15 U.S.C. § 1639(a)(8). Regulation Z, promulgated by the Federal Reserve Board pursuant to authority granted in the Act, defines ‘security interest’ and ‘security’ to ‘mean any interest in property which secures payment or performance of an obligation.’ 12 C.F.R. § 226.2(gg). The definition also lists some interests in property that are security interests. The assignment in this case, although not specifically listed, is a security interest because it is an interest in property which secures payment of an obligation.”
570 F.2d [1248] at 1249. Regulation Z itself provides that the terms “security interest” and “security” “include, but are not limited to, security interests under the Uniform Commercial Code . . .” 12 C.F.R. 226.2(gg). We stressed in Elzea [Elzea v. National Bank of Georgia, 570 F.2d 1248 (5th Cir. 1978)] that technical characterizations “are not determinative of whether a creditor holds a security interest under Regulation Z’s definition.” Id. at 1249-50. Rather, “[t]his question should be answered by examining the rights which the creditor has.” Id. at 1250. We noted as significant factors whether the creditor has an interest in property and whether “the assignment helps to secure payment of the obligation.” Id. Even property which “cannot presently be identified and may not yet exist” may be the subject of a security interest for Regulation Z purposes. “What is important is that the . privilege is valuable to the debtor and he has given up this valuable privilege to the extent of his debt.” Id.
. .. We think it clear beyond peradventure that the assignment of returned or unearned premiums of physical damage insurance confers on the creditor an interest in property which helps to secure payment or performance of contractual obligations. [Footnotes omitted.]

We agree with the Fifth Circuit’s conclusion that the assignment of returned and unearned premiums on the automobile insurance gave to the creditor an interest in property that helped secure its loan. Such an interest is a security interest within the meaning of Regulation Z and should have been disclosed.

The appellee relies on the cases of Rounds v. Community National Bank, 454 F.Supp. 883 (S.D.Ill.1978) and James v. Ford Motor Credit Co., No. 78-647 (D.Colo., filed August 21, 1978), which hold that the term “security interest” as used in the Truth in Lending Act and Regulation Z is limited to those rights which create a lien upon a debtor’s property or impose some risk to the debtor’s assets.

We conclude that the interpretation placed on the term “security interest” by these two federal district court cases is too restrictive of the language employed in the Truth in Lending Act and especially in Regulation Z. The language of Regulation Z requires that any interest which secures the payment or performance of the obligation is a security interest. The application of returned or unearned automobile insurance premiums to the payment of the purchase agreement certainly helps to secure its payment or performance. Any other interpretation unduly limits or restricts the language of Regulation Z and should not be followed. Thus, we conclude that the trial court erred in holding that the automobile insurance provision of the contract, i. e. paragraph 18, did not reflect the assignment of a security interest which had to be disclosed. Further, such an interest was not disclosed on the front page of the contract as required by § 128(a)(10) of the Truth in Lending Act and Regulation Z, § 226.8(b).

The final issue is whether the trial court erroneously found that FMCC was adequately identified as a creditor of Ms. Hagler.

Ms. Hagler claims that she is entitled to the statutory penalty, as FMCC must disclose itself to her as a creditor and that FMCC’s name was printed on the contract below her name and not above her signature as required by Regulation Z, § 226.8(a). However, Ms. Hagler is relying on § 226.-6(d) which provides that if there is more than one creditor each of them must be “clearly identified.” Nevertheless, the trial court found that “the defendant testified she knew at the time she executed the contract with Bart Starr, ‘that the vehicle was being financed by and through F.M.C. C.\”

The identification issue was considered by the United States District Court for the Northern District of Alabama in Childs v. Ford Motor Credit Co., 470 F.Supp. 708 (N.D.Ala.1979), and it had this to say:

This Court considers the better reasoning to be found in the cases holding that. Ford Motor Credit Company is clearly identified. The distinguishing rationale can be found in Grey v. European Health Spas, [428 F.Supp. 841 (D.Conn.1976)]. The requirement that a creditor be identified is not to be equated with a requirement that a' creditor be disclosed. In Grey the Court is dealing with the identification requirement of § 226.8(a), but the analogy to § 226.8(d) seems proper. Section 226.8(a) requires that the “creditor shall furnish the customer with a duplicate of the instrument or a statement by which the required disclosures are made and on which the creditor is identified.” Hence, the regulations consider the identification of the creditor as something other than a required disclosure. If the identity of the creditor were to constitute a disclosure, then under § 226.6(a) “annual percentage rate” and “finance charge” would be required to be more conspicuous than any identification of the creditor. Finance companies would have to be careful that the name of the company at the top of the page does not exceed the level of emphasis of these two terms further down on the page. Also, when federal disclosures must be separated from state law disclosures under § 226.6(c), the name of the creditor must appear below the caption stating that the disclosures are made in compliance with federal law. Clearly, such anomalous results go beyond the intention of the drafters of the regulations.
Since the identification of the creditors does not constitute a disclosure, § 226.6(a) does not require the identification to be conspicuous. An identification can be clear, i. e. unambiguous and not obscure, and yet not be conspicuous. Cf. Official Staff Interpretation of Regulation Z, 41 Fed.Reg. 41908 (1976).
The identification of the defendant on the face of the contract is hardly conspicuous, but then neither is it ambiguous or obs.cure. It appears only an inch from the place for the buyer’s signature, and it clearly identifies the defendant as the assignee of the contract. Identification of the defendant as the assignee is accurate and adequately informs the purchaser of the nature of his relationship with the Ford Motor Credit Company. The regulations do not require that the defendant be identified as a “creditor”; merely that it be identified. [Emphasis theirs.]

The trial court found as a fact that FMCC was a creditor and that it was adequately identified as such. Furthermore, Ms. Hagler admitted that she knew the vehicle was being financed through FMCC. We agree that FMCC was adequately identified as a creditor on the contract. No error here.

That aspect of the trial court’s judgment holding that the automobile insurance provision of the contract was not a “security interest” that had to be disclosed and that if it was a “security interest” it was adequately disclosed on the first page of the agreement is reversed, and that aspect of the judgment holding that FMCC was adequately identified as a creditor of Ms. Ha-gler is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR ENTRY OF JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


text:
    William J. DAVIS, as Director of the State of Alabama Department of Industrial Relations and Alan Mills, Inc. v. Versie PRESTWOOD, Otelia Kelly, Dorine R. Cushen.
    Civ. 2061.
    Court of Civil Appeals of Alabama.
    March 5, 1980.
    Robert B. French, Jr., Fort Payne, for appellants.
    W. M. Beck, Sr., of Beck & Beck, Fort Payne, for appellees.
   BRADLEY, Judge.

This is an unemployment compensation case.

The Board of Appeals of the Department of Industrial Relations granted the employees’ claim for benefits. Pursuant to § 25-4-95 of the Alabama Code 1975, the employer appealed to the Circuit Court of De-Kalb County. After a de novo hearing, the trial court awarded benefits and the employer appealed.

The facts in this case are not in dispute. The employees were seamers in the employer’s plant. The employer instituted a new sewing method which changed the production rate of the employees and caused a reduction in their pay. The reductions in pay for the three employees ranged from $100.00 a month to $132.00 a month. After being informed of the change in production rate, the three employees quit their jobs.

At the outset, we note that when a case is heard orally before the court sitting without a jury, the court’s findings are presumed correct unless shown to be clearly contrary to the great weight of the evidence. Department of Industrial Relations v. Lynch, Ala.Civ.App., 370 So.2d 1050 (1979).

The employer argues that the employees should be statutorily disqualified from receiving benefits because the employees voluntarily left work without good cause. Code of Alabama 1975, § 25-4-78.

The law in Alabama is settled that a substantial reduction in earnings is regarded as good cause for leaving one’s employment. Tombigbee Lightweight Aggregate Corp. v. Roberts, Ala.Civ.App., 351 So.2d 1388 (1977).

In Roberts, the employee’s earnings were reduced from at least $165 per week down to a maximum of $130 per week. We found this to be a substantial reduction in pay.

In the present case, the reductions in pay for the employees varied, the lowest reduction being $100 and the highest $132 per month. We think such a reduction could constitute a substantial reduction.

The trial court found that the employees had good cause for leaving their jobs, and we cannot say that the great weight of the evidence preponderates against such a finding. We therefore affirm the judgment of the trial court.

AFFIRMED.

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


text:
    Wesley PIPES, Elizabeth Pipes, Walter Cook, Jr. and Dee Cook v. L. G. ADAMS.
    Civ. 2062.
    Court of Civil Appeals of Alabama.
    March 5, 1980.

      William H. McDermott of McDermott, Slepian, Windom & Reed, Mobile, for appellants.
    Maury Friedlander of Marr & Friedlan-der, Mobile, for appellee.
   BRADLEY, Judge.

This is a zoning case.

Complaining residents appeal from a judgment of the Circuit Court of Mobile County granting a variance from the city zoning ordinance. The subject property had been zoned “single family residential.” The trial court, contrary to a prior ruling of the zoning board, granted a variance for the purpose of allowing the operation of a doctor’s office.

In its decree the trial court found as a fact that to deny the variance would work an unnecessary hardship on the subject property and to grant the variance would not downgrade the neighborhood.

The dispositive issue on appeal is whether the judgment so preponderates against the evidence as to be plainly and palpably erroneous. We find that the trial court did not commit reversible error and affirm.

A review of the record reveals the following:

The plaintiff’s house is an old frame dwelling located on the corner of a heavily traveled street. The property had been occupied by the plaintiff’s mother until her death, approximately six years prior to application for the variance. This property and the immediate area is zoned to permit single family dwellings. However, the plaintiff’s house and numerous others in the area have been converted into multi-family units. In fact, the adjoining lot to the east has five apartment units, a duplex apartment is on the lot to the south and many other multi-family dwellings exist in the immediate vicinity. The subject property itself has been divided into four apartments and leased in that fashion for approximately twenty years. A few hundred feet away from this residential zone is a substantial amount of commercial property.

The plaintiff’s house is in a bad state of repair. There was evidence that a very substantial sum of money would be required to restore the house or renovate it for use as a single family residence.

The plaintiff has attempted to sell the property as a residence subsequent to his mother’s death and has listed it with several local realtors. However, no buyer has been found. The plaintiff testified that the total income derived from full occupancy from the property is $445 per month, but the costs of maintaining the yard and house, and property taxes render the venture unprofitable.

In a zoning situation, such as we have here, the pivotal and primary question or issue is whether, due to special conditions, a literal enforcement of a zoning ordinance establishing a residential district will result in unnecessary hardship. Priest v. Griffin, 284 Ala. 97, 222 So.2d 353 (1969).

As indicated above, the trial court found that to deny the variance would work an unnecessary hardship on the subject property-

We note that when evidence is heard ore tenus, the findings of the trial court are presumed correct and will not be set aside except for plain and palpable abuse of discretion. Dyer v. Board of Zoning Adjustment & Appeals, 45 Ala.App. 696, 236 So.2d 705 (1970). In this instance, we cannot say that the trial court erred in finding that a denial of the variance would work an unnecessary hardship on the plaintiff. Clearly, the subject property is presently unfit for conforming use as a single family dwelling. A great amount of time and money would be required to renovate the property for use as a single family dwelling. The plaintiff does not live in the house and has attempted to sell the house as a residence for a number of years. These factors, and the facts stated above, when taken together, indicate that the subject property cannot reasonably be put to a conforming use and thus the trial court’s finding was not erroneous. See Priest.

The trial court also found, as indicated above, that granting the variance would not downgrade the neighborhood. The interest of the public as affected by the contrary interest of the people within a district is a factor to be considered in determining whether to grant a variance. Priest.

The record reveals that the area is presently noisy during the day and at night because it abuts a main thoroughfare, children walk through the area on their way to and from school and the people living in the apartments come and go continually. There was testimony by a real estate appraiser that it would be better for the neighborhood to have a doctor’s office on the subject- property than it would be to continue the apartment leasing. Additionally, there was testimony that a variance would have no adverse effect on property values.

The proposed buyer, a cardiologist, testified that the subject property is large enough to provide adequate off-street parking for all patients and that no more than twenty patients would be seen on any one day. Additionally, he testified that office hours would be limited to four days during the week. Thus, there would be no nighttime traffic as has existed from the multifamily use.

We. think it significant that the trial court’s order reflected the testimony of the doctor in placing restrictions on the variance. That is, the order requires that all parking must be on the subject property. In addition the character of the building must be kept consistent with the present structure and a fence must be erected to provide privacy to the adjoining owners.

Again, the trial court’s finding will not be set aside except for plain and palpable error. Dyer. In this instance there was no error in finding that the variance would not downgrade the neighborhood. Clearly, the evidence indicates that there would be very little increase in traffic or noise. The variance will not depreciate property values. The restrictions on the variance will insure the adjoining owners’ privacy and that the neighborhood will retain its architectural character. Thus, the public interest in allowing the property to be used for a needed and necessary use, a doctor’s office, is not outweighed by any considerations of a contrary interest of the people within the restricted zone.

This case is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Barbara L. MARINO v. Don C. MARINO.
    Civ. 2075.
    Court of Civil Appeals of Alabama.
    March 5, 1980.
    David D. Wininger and Robert Wyeth Lee, Jr. of Wininger & Associates, Birmingham, for appellant.
    J. Gary Pate and Charles J. Najjar, Najjar & Najjar, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

The parties were divorced in 1977. The divorce decree incorporated an agreement of the parties providing for division of property, child custody, support and alimony.

In 1979 the wife filed a petition in the trial court seeking an interpretation of certain provisions of the agreement. Those provisions as pertinent read as follows:

5. F. Husband is entitled to receive a credit from the proceeds of sale of said premises for any amounts expended by him for said repairs, redecoration or assessments provided for hereunder. Said amounts shall be reimbursed to husband from the proceeds of sale, prior to an equal division of the remainder of the net proceeds between the parties.
G. Wife will make the mortgage payments due in the month of November, 1977. The wife has custody of two joint savings accounts of the parties. Wife will use the proceeds of said accounts to pay the entire mortgage balance due on said premises. The balance of the proceeds of said joint accounts shall be the sole property of wife. Wife shall not be obligated to make such payment prior to December 7, 1977. (R.19)
7. Each party is vested with the sole right, title and interest in and to all savings accounts, checking accounts, stocks, bonds, and other personal property standing in the name of that respective party, except for the joint savings accounts,, which are the sole property of wife. (R.20)

The court determined that under the terms of the agreement the wife was to withdraw a sum necessary to satisfy the unpaid mortgage on the residence from the joint savings accounts which were in her custody and satisfy the mortgage. All remaining funds in the accounts became the property of the wife. By the provisions of paragraph 5(F) the net proceeds of the sale of the residence were to be divided equally between the parties.

We find the construction of the court to be correct. The wife’s contention that these provisions are contrary to law and invalid comes too late. The agreement merged into and became part of a judgment in 1977 by which she is bound for failure to file a timely appeal. Johnston v. Johnston, 374 So.2d 357 (Ala.Civ.App.1979). She cannot charge the trial court with an erroneous judgment when it merely incorporated therein her own agreement. McKinley v. McKinley, 277 Ala. 471, 172 So.2d 35 (1965).

The husband’s request for attorney’s fee on appeal is denied. We also deny his request for sanction under Rule 38, ARAP.

The order of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Rachel MITCHELL v. DEXTER INTERIORS.
    Civ. 2107.
    Court of Civil Appeals of Alabama.
    March 5, 1980.
    W. Stephen Graves of Alton & Leavell, Montgomery, for appellant.
    Robert D. Segall of Hobbs, Copeland, Franco & Screws, Montgomery, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The parties shall be referred to as plaintiff and defendant as they existed in the lower courts.

The plaintiff sued the defendant for account and account stated in the district court. A judgment was rendered in plaintiff’s favor on June 19, 1979, and the defendant immediately filed her notice of appeal and bond for costs to appeal to the circuit court. The defendant did not file a supersedeas bond.

In the circuit court the plaintiff filed a motion to require the defendant to file a supersedeas bond relative to the plaintiff’s district court judgment against the defendant. An additional plaintiff’s motion sought to dismiss the appeal because of the defendant's failure to file such supersedeas bond. She still did not file such bond, and the circuit court granted the motion to dismiss, hence this appeal.

The plaintiff argues the correctness of the dismissal of the appeal because of the provisions of § 12-12-73, Code of Alabama 1975, which originated from § 4-111 of the Judicial Article Implementation Act, Act No. 1205, which was enacted by the 1975 legislature. It provides as follows:

A supersedeas bond in twice the amount of the judgment shall be required of the appellant in any civil appeal to the circuit court. Upon the filing of such supersedeas bond and the timely filing of a notice of appeal, execution of the judgment shall be stayed pending final judgment on appeal.

To the contrary, the defendant contends that ARCP 62(dc) governs because of this language therein:

Rule 62 applies in the district courts except that ... (5) the provision for a supersedeas bond in Rule 62(d) is deleted and Rule 62(d) is modified so as to require only a bond for costs or affidavit of substantial hardship, approved by the court, in lieu of said bond. [Emphasis supplied.]

By order dated November 23,1976, over a year after the enactment of said Act 1205, the Supreme Court of Alabama amended the Alabama Rules of Civil Procedure so as to include Rule 62(dc).

The supreme court was granted the power, authority and responsibility by § 6.11 of the Alabama Constitution’s “new” judicial article to make and promulgate rules governing practice and procedure in all courts, but they were expressly prohibited from abridging, enlarging or modifying the substantive law. Section 6.11 is the source of their authority to pronounce rules of procedure as to the district courts.

The plaintiff argues that the supreme court exceeded its authority, its contention being that Rule 62(dc) changes substantive law. We disagree. The legal requirements which are required in order to perfect an appeal are matters of procedure and are well within the rule-making powers granted to our highest court. For excellent examples, see the Alabama Rules of Appellate Procedure.

Furthermore, Rule 62(dc) was promulgated subsequent to the enactment of § 4-111 of Act No. 1205, thereby supplanting the statute; however, the provisions of § 4-111 were reenacted by the legislature in the 1975 Code as § 12-12-73. Notwithstanding the reestablishment of the requirement of a supersedeas bond in § 12-12-73, the legislature made it clear in § 12-1-1 that § 12-12-73 would apply only if the procedure therein prescribed was not governed by the ARCP, ARAP or any other rule of procedure adopted by the Supreme Court of Alabama. And, of course, the procedure in question is governed by the ARCP.

We, therefore, hold that the law did not require the defendant to file a superse-deas bond as to the district court’s judgment in order to perfect her appeal. The circuit court therefore erred in dismissing the defendant’s appeal.

This result is bolstered by King v. Sikora, Ala., 368 So.2d 10 (1979), where it was impliedly stated in an unlawful detainer proceeding on defendants’ appeal from the district court to the circuit court that, under Rule 62(dc), the circuit court correctly denied the plaintiff’s motion to compel the defendants to file a supersedeas bond. That decision further stated that the defendants “legally enjoyed the protection of Rule 62 which had the effect of automatically staying the District Court judgment, as a matter of law, upon the filing of the notice of appeal.”

The judgment below is hereby reversed and this case is remanded to the circuit court for further proceedings.

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

REVERSED AND REMANDED.

All the judges concur.


author: BOWEN, Judge.

text:
    Jerry HILL and Donna Hill v. STATE.
    3 Div. 74.
    Court of Criminal Appeals of Alabama.
    Aug. 21, 1979.
    Rehearing Denied Oct. 2, 1979.

      John A. Henig, Jr., Montgomery, for appellants.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

By complaint, the defendants, husband and wife, were charged with causing the delinquency, dependency, or need of supervision of their seven year old son Jason, Alabama Code Section 12-15-13 (1975), in that they “failed to provide for said child’s educational benefits as required by the Alabama Compulsory School Attendance Law”. Alabama Code Section 16-28-3 (1975). A jury found the defendants guilty and declined to assess a fine. The trial court sentenced Mr. Hill to six months’ imprisonment, three months of which were to be served in the county jail with the remaining three months suspended for twelve months. Mrs. Hill was sentenced to four months’ imprisonment with one month being served and the remaining three months being suspended for twelve months. The suspended sentences of both defendants were contingent on their future good behavior including their causing Jason to attend school in compliance with the Alabama Compulsory School Attendance Law.

I

The defendants contend that the Alabama Compulsory School Attendance Law violates their right to freedom of religion under both the State and Federal Constitutions.

It is undisputed and admitted by the defendants that they removed their seven year old child from the second grade in the public school system of Montgomery County because “the Lord told (them) to” in a “personal revelation”. The defendants teach their son “to use his common sense” and “everything the Lord wants him to know”. Mr. Hill admitted that he was not teaching his son reading, spelling, or mathematics. He was teaching him that world history was “evil”. There was no program of vocational education.

The pertinent part of Alabama Code Section 16-28-3 (1975), reads as follows: “Every child between the ages of seven and 16 years shall be required to attend a public school, private school, denominational school, parochial school or be instructed by a competent private tutor for the entire length of the school term in every scholastic year.” The Alabama Supreme Court, in Ogle v. Ogle, 275 Ala. 483, 486, 156 So.2d 345 (1963), held that the object of the compulsory education law is that all children shall be educated to a minimum educational level.

In Wisconsin v. Yoder, 406 U.S. 216, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the United States Supreme Court recognized the power of a state to impose reasonable regulations for the control and duration of basic education of its citizens.

“Providing public school ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, [Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070] made to yield to the right of parents to provide an equivalent education in a privately operated system. . . . Thus, a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, ‘prepare (them) for additional obligations’. 268 U.S., at 535, 45 S.Ct. at 573.” 92 S.Ct. at 1532.
******
“(T)he very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” 92 S.Ct. at 1533.
******
“To be sure the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince (Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944)) if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” 92 S.Ct. 1542.
******
“It cannot be overemphasized that we are not dealing with a way of life and mode of education by a group claiming to have recently discovered some ‘progressive’ or more enlightened process for rearing children for modern life.” 92 S.Ct. 1543. (Emphasis added).

The record strongly indicates that accommodating the religious objections of the defendants by allowing them to continue the “education” of their child would result in the child’s inability to be self-supporting or to discharge the duties and responsibilities of citizenship. If allowed to continue, concern must also be expressed over the serious potential for the impairment of the child’s mental health. Not only would this type of education, if permitted of those who desired to exercise it, materially and substantially detract from the welfare of society, it has the potential for social disruption and broad abuse.

In Yoder, the Supreme Court held that the First and Fourteenth Amendments prevent a state from compelling Amish parents to cause their children, who have graduated from the eighth grade, to attend formal high school to age sixteen. The facts in that case are vastly different from those here presented. For the same reasons expressed in Yoder, we conclude that the Alabama Compulsory School Attendance Law does not violate any constitutional right of freedom of religion belonging to the defendants.

II

Secondly, the defendants contend that their constitutional rights of due process were violated by the failure of the school attendance officer to give them written notice prior to bringing a criminal prosecution against them under Alabama Code Section 16-28-16 (1975). That section provides:

“It shall be the duty of the county superintendent of education or the city superintendent of schools, as the case may be, to require the attendance officer to investigate all cases of nonenrollment and of nonattendance. In all cases investigated where no valid reason for nonenrollment or nonattendance is found, the attendance officer shall give written notice to the parent, guardian or other person having control of the child. In the event of the absence of the parent, guardian or other person having control of the child from his or her usual place of residence, the attendance officer shall leave a copy of the notice with some person over 12 years of age residing at the usual place of residence, with instructions to hand such notice to such parent, guardian or other person having control of such child, which notice shall require the attendance of said child at the school within three days from date of said notice. In the event the investigation discloses that the nonenrollment or nonattendance was without valid excuse or good reason and intentional, the attendance officer shall be required to bring criminal prosecution against the parent, guardian or other person having control of the child.” (Emphasis added)

Betty Ellis, the Attendance Supervisor with the Montgomery Board of Education, testified that she went to the defendants’ home on January 8, 1979, and advised both defendants of the compulsory school attendance law. In response, the defendants informed Mrs. Ellis “(t)hat the world was coming to an end and they wanted Jason home with them”. The defendants stated that they did not plan to enroll their son in any other school.

Mrs. Ellis testified that Mr. Hill telephoned her at her office one day, before the initiation of any criminal prosecution, and asked if she was going to sign a warrant against him and his wife. Mrs. Ellis told him that she was if Jason was not enrolled in school. Although not specifically admitted by the defendants this testimony was not contradicted. Mrs. Ellis testified that she did not give the defendants written notice that she intended to bring charges, but that she did send them Sections 16-28-2 and 16-28-3 of the Code. “I sent him what I thought was applicable.” The two sections which were sent to the defendants define the purposes of Alabama’s Compulsory School Attendance Law and specify the ages of children required to attend school.

In light of the conversations Mrs. Ellis had with the defendants, specifically her informing Mr. Hill that she would have a warrant signed against him and his wife if they did not enroll Jason in school, and the fact that she supplied the defendants with the applicable Code sections, we hold that her failure to give written notice in this case was harmless error at most. A.R.A.P., Rule 45. The defendants made it perfectly clear that they intended to keep Jason “at home” regardless of any state law of which they might be in violation. Error which has resulted in no substantial injury will not cause a reversal. Courington v. State, 20 Ala.App. 581, 104 So. 341, cert. denied, 213 Ala. 163, 104 So. 343 (1925).

After carefully considering the issues presented by the defendants and searching the record as required by law, we find no error which would prejudice their right to a fair trial. Therefore, the defendants’ judgments of conviction are affirmed.

AFFIRMED.

All Judges concur.


author: JONES, Justice.

text:
    Ex parte Jerry HILL and Donna Hill. (In re: Jerry Hill and Donna Hill v. State of Alabama).
    79-56.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      John A. Henig, Jr., Montgomery, for petitioners.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for the State.
   JONES, Justice.

Our grant of the Petition for Writ of Certiorari is confined to the narrow “first impression” ground relating to the written notice requirement of the Alabama Compulsory School Attendance Act under which Defendants were charged, tried, and convicted. For a full and complete statement of the facts, see the opinion of the Court of Criminal Appeals, 381 So.2d 91 [1979].

Although the criminal statute under which Defendants were charged is § 12-15-13, Ala.Code 1975 (“causing the delinquency, dependency, or need of supervision of their 7-year-old son”), the underlying statute which Defendants are accused of violating is the Alabama Compulsory School Attendance Act. § 16-28-16 of that Act provides in pertinent part:

“It shall be the duty of the county superintendent of education ... to require the attendance officer to investigate all cases of nonenrollment and of nonattendance. In all cases investigated where no valid reason for nonenrollment or nonattendance is found, the attendance officer shall give written notice to the parent ... of the child. . [This] notice shall require the attendance of said child at the school within three days from date of said notice. In the event the investigation discloses that the nonenrollment or nonattendance was without valid excuse or good reason and intentional, the attendance officer shall be required to bring criminal prosecution against the parent ... of the child.”

THE ISSUE: Is the written notice requirement of § 16-28-16 met when the attendance officer personally visits the parents of a nonattending 7-year-old child, advises them of the compulsory school attendance law, and subsequently mails them the “applicable” sections of the Act (§§ 16-28-2 and 16-28-3)? Or, more simply stated: May a criminal conviction for the violation of the Alabama Compulsory School Attendance Act be affirmed where the notice provision of that Act has been substantially, but not literally, complied with? We hold that literal, not substantial, compliance is the test; therefore, we reverse and remand to the Court of Criminal Appeals for an order rendering judgment for the Defendants.

The State recognizes, and candidly admits in brief, where a criminal statute provides both notice and the mode of that notice as a prerequisite to the instigation of prosecution for its violation, the notice requirement must be strictly complied with.

The State contends, however, “the statute, § 16-28 — 16, should be divided, as it is written, into two parts, both parts assuring that notice is given.” The first part “is ‘where no valid reason for nonenrollment or nonattendance is found’ upon investigation. This requires written notice to the parent . . [T]he second situation is where ‘the investigation discloses that nonenrollment or nonattendance was without valid excuse or good reason and intentional’. . [W]here parents intentionally prohibit their child from going to school, written notice would not accomplish what such notice was meant to accomplish, that is, to give parents a chance to prevent legal process from issuing against them.”

In sum, it is the State’s position that the Act requires written notice as a prerequisite to prosecution under its “no valid reason” standard, but only actual notice under its “without valid excuse or good reason and intentional” standard. This interpretation necessarily envisions an election on behalf of the State to proceed against the accused upon one of two different standards of culpable conduct — the less culpable of which (“no valid reason”) requires written notice, while the more culpable (“intentional”) does not.

We reject this interpretation and hold the written notice requirement applies to the only standard of criminal culpability contemplated by the Act — ” . . . that the nonenrollment or nonattendance was without valid excuse or good reason and intentional . . . .” The Statute, though inartfully drafted, clearly specifies, through its use of the word “intentional,” guilty intent — mens rea — as an essential element of the proscribed criminal conduct. Because only one standard of criminal culpability is prescribed by the Act, the written notice requirement is necessarily a prerequisite to the instigation of criminal prosecution under the Act.

The reason for the application of a rule of strict compliance of the notice requirement (as well as our rejection of the harmless error rule) is amply demonstrated by the facts before us. The acts of the attendance officer, which the State relies upon for substantial compliance (or, alternatively, for error without injury), include the mailing to the Defendants of the “applicable” sections of the Act— §§ 16-28-2 and 16-28-3.

While stating the purpose of the Act and prescribing the ages of children required to attend school, neither " of these sections (§§ 16-28-2 or 3) makes any reference to criminal prosecution as a sanction for noncompliance with its provisions. Nor would the written notice requirement have been satisfied by the inclusion of § 16-28-16; and this for the reason that the receipt of this section would have informed the Defendants not only of their entitlement to a written notice but also of the requirement that the notice allow them three additional days to comply with the Act in order to avoid criminal prosecution.

Because of the failure of the attendance officer to give written notice in accordance with the strict and literal requirement of the Statute, we hold that an essential element of the State’s case against each of these Defendants is missing; therefore, we reverse the Court of Criminal Appeals’ judgment affirming each Defendant’s conviction and sentence; and we remand this cause to that Court with directions to enter an order rendering judgment for each of the Defendants.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur except ALMON, J., who dissents.

      . For a parallel rule in civil cases involving property rights, see Chavers v. State Personnel Board, 357 So.2d 662 (Ala.Civ.App.1978), cert. denied 357 So.2d 664 (Ala.1978).


text:
    Jerry HILL and Donna Hill v. STATE.
    3 Div. 74.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
   After Remandment from the Supreme Court of Alabama

BOWEN, Judge.

This case is reversed and remanded on authority of the decision of the Alabama Supreme Court in Ex parte Hill v. State, 381 So.2d 94 (1980).

REVERSED AND REMANDED.

All Judges concur.


text:
    Francis E. TRAVIS v. STATE.
    3 Div. 20.
    Court of Criminal Appeals of Alabama.
    Dec. 4, 1979.
    Rehearing Denied Jan. 22, 1980.

      Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Virginia A. Johnston, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the felonious possession of marijuana. Alabama Code (1975), Section 20-2-70. Sentence was three years’ imprisonment. The major issue on appeal is whether the affidavit is sufficient to support a finding of probable cause to search.

I

The substance of the affidavit is as follows:

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

This affidavit is sufficient to support a finding of probable cause to search the described residence despite the defendant’s several grounds of objection. The affidavit satisfies both the basis of knowledge test and the veracity test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The affidavit contains an express statement of time of the occurrence of the facts relied upon, i. e., within the past two days from March 31, 1978. A statement by the affiant that his informant observed the alleged offense “within” a certain period of time is sufficiently clear and definite. 100 A.L.R.2d 525, Section 5(c) (1965). The affidavit need not state the exact time the informant observed the events relied upon to show probable cause.

The informant observed cocaine in the house “within the past two days” from March 31, 1978. The search warrant was obtained and executed on April 1, 1978. The information contained in the affidavit is not too remote.

“The requirement that an affidavit for a search warrant state the time of the occurrence of the facts relied upon is based on the necessity that there exist at the time the warrant is issued probable cause for believing that the facts relied upon still continue to exist. Simultaneity is, of course, normally impossible, but just how long a time may be permitted to elapse without destroying the basis for a reasonable belief as to the continuance of the situation set forth in the affidavit will vary according to the facts of the individual case. About all that may be stated by way of a general rule is that the courts will require that no more than a ‘reasonable’ time have elapsed, the nearer the time at which the facts occurred is to the time when the affidavit was made, the more probable it being that the affidavit will be held to justify a conclusion of probable cause.”
100 A.L.R.2d 525, Section 6.

The informant need not state the quantity of controlled substance he observed. “(A)n assertion by an informant that he saw illegal drugs or the like at a certain place is regularly accepted without any showing as to how the informant was able to identify the substance.” W. LaFave, 1 Search and Seizure 539 (1978).

The affidavit contains a sufficient statement of facts from which either the inherent credibility of the informant or the reliability of his information on this particular occasion could be determined. Aguilar. While a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant, Aguilar, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the affidavit in the present case contains an ample factual basis for believing the informant.

A declaration that the informant’s past information has. led to convictions is a sufficient showing of the informant’s credibility, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

“It should not be concluded, however, that for an informant to have an acceptable ‘track record’ it must appear that his prior information has resulted in one or more convictions, for this clearly is not the case. As explained in People v. Arnold, 186 Colo. 372, 527 P.2d 806 (1974):
“ ‘To impose the more stringent requirement that the information led to convictions would impose an undue restriction on law enforcement officers. The information previously furnished may be in connection with cases not yet tried or may relate to prosecutions dismissed for reasons unrelated to the reliability of the informant’s information. Of course, the fact that the information previously supplied has resulted in convictions would strengthen the reliability factor of the informant.’ ” LaFave, Yol. 1 at 510.

In Keller v. State, 54 Ala.App. 127, 305 Sc.2d 402 (1974), this Court held that an assertion in the affidavit that the informant’s prior information led to three arrests stated sufficient facts upon which to base the credibility of the informant. While the better view is that a bald assertion that the informant’s past information prompted the police to make one or more .arrests will not suffice to establish the informant’s credibility (because it does not indicate the information was thereby shown to be correct), a determination of credibility can properly be made where it is revealed not simply that arrests were made, but rather that the prior information led to “arrests and prosecutions” or to arrests followed by “a finding of probable cause”. LaFave, Vol. 1 at 514-515. Also an informant need not be shown to have been reliable any particular number of times. Bates v. State, 51 Ala.App. 338, 285 So.2d 501, cert. denied, 291 Ala. 773, 285 So.2d 506 (1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1940, 40 L.Ed.2d 289 (1974).

Additionally, it must be noted that the partial corroboration supplied by the personal observations of the police officers lends support to both the informant’s basis of knowledge and his veracity. Here the independent corroboration was incriminating (the proposed sale of drugs) and also consisted of circumstances which were unusual and inviting explanation (the frequent traffic to and from the described residence). The police observed activity which reasonably suggested efforts directed to the carrying out of criminal activity. Generally see LaFave, Vol. 1 at 558.

Our independent review of the affidavit convinces us that the district judge properly made a finding of probable cause and issued the search warrant.

ii

It is a settled principle that a warrant to search designated premises will not authorize the search of every individual who happens to be on the premises. Smith v. State, 292 Ala. 120, 289 So.2d 816 (1974). Here the officers had probable cause to believe that evidence which might be concealed or destroyed was to be found upon the defendant. They acted within the lawful limits of their authority in searching his person.

The search was conducted at 5:51 in the morning. The first police officer to the front door, Officer Joe Dorrill, knocked on the door and stated that he was a police officer and had a search warrant. He did this “approximately three different times”. During this time police officers heard a “ruckus going on in the back” of the residence. After several attempts, Officer Dorrill forced open the front door. Under these circumstances this type of entry was proper. Laffitte v. State, 370 So.2d 1108 (Ala.Cr.App.), cert. denied, Ex parte Laffitte, 370 So.2d 1111 (Ala.1979).

Because they had difficulty in gaining entrance, Officer C. M. Armstrong ran around to the back door of the house. As he “was going to the back door the defendant, Frank Travis, was trying to come out the back door”. The defendant was searched for weapons and inside his shirt pocket were found two small vials, one of which contained hashish. The second vial contained a residue that was inconclusive for cocaine.

The officers had information that Suzette Allen, in whose name the residence was listed, “had been dealing in drugs for sometime”. They knew that the defendant was a “frequenter of her residence” although they did not expect the defendant to be present when they executed the search warrant. Officer Dorrill also “had heard of the drug activities of the defendant” although “not in connection with the present search warrant”. Although guilt by mere association is not part of our jurisprudence, McDonald v. State, 53 Ala.App. 394, 396, 300 So.2d 837, cert. denied, 293 Ala. 766, 300 So.2d 838 (1974), reputation, when combined with other factors, may help to support a finding of probable cause. Hatton v. State, 359 So.2d 822, 828 (Ala.Cr.App.1977), cert. quashed, 359 So.2d 832 (Ala.1977).

The items sought in the search warrant were of such a nature that they could easily be concealed on the person. The defendant had an opportunity to conceal these items. Under these circumstances, the police had probable cause to search the defendant.

The police also had a right to “frisk” the defendant for weapons in order to protect themselves. However, such a search “is limited in scope to a ‘pat-down’ of the suspect’s outer clothing and to seizure of hard objects whose size and shape give the officer probable cause to believe they are weapons”. Smith, 292 Ala. at 122, 289 So.2d at 818; Thomas v. State, 353 So.2d 54, 57 (Ala.Cr.App.), cert. denied, 353 So.2d 59 (Ala.1977). The largest “vial” or “tube” found in the defendant’s pocket was “Turn-size”. Because the officer frisking the defendant for weapons specifically stated that he “didn’t conceivably think they were any type of weapons in particular”, we do not base our finding of the lawfulness of the search of the defendant upon the theory that it was justified as a search for weapons. Under our present decision such a finding is unnecessary to the merits of the issue. However, we must note that it “is generally known by the police and others that those who traffic in large quantities of narcotics are often armed”, and the “mere presence of a person or persons in such an environment presents that reasonable suspicion and belief, which gives rise to sufficient and legal justification to frisk all present for weapons.” People v. Finn, 73 Misc.2d 266, 340 N.Y.S.2d 807, 816 (1973).

We have searched the record as required by law and found no error prejudicial to the defendant. The evidence is sufficient to support the verdict. The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

We have reviewed the conclusions of this case in light of the recent opinion of the United States Supreme Court in Ybarra v. Illinois, 26 Crim.L.Rep. (B.N.A.) 3017 (November 28, 1979). There a police search of a bar patron, conducted without probable cause to believe that he was violating the law, during the execution of a warrant authorizing the search of the bar and the bartender for narcotics and related items, violated the patron’s Fourth Amendment right. Our decision does not conflict and is consistent with Ybarra.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Francis E. TRAVIS. In re Francis E. Travis v. State.
    79-336.
    Supreme Court of Alabama.
    March 14, 1980.
    Charles M. Law, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., for respondent.
   PER CURIAM.

WRIT DENIED.

All the Justices concur.


author: BOOKOUT, Judge.

text:
    Jacob McCRANEY v. STATE.
    1 Div. 97.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.

      Charles N. McKnight and Joseph M. Ma-tranga, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Possession of controlled substances (heroin and marijuana); sentence: fifteen years imprisonment.

On the morning of June 7, 1979, Baldwin County Deputy Sheriff Roland Howell received a telephone call from the manager of Woody’s Motel concerning illegal drugs. The manager informed Deputy Howell that while one of his maids was cleaning a motel room she discovered a suitcase under a bed that she believed to contain drugs. Howell was a narcotics agent for the Sheriff’s Department.

Deputy Howell arrived at Woody’s Motel shortly after 11:00 a. m. Woody’s Motel is located on Battleship Parkway (the causeway) in Baldwin County. The manager advised Deputy Howell that the daily check-out time for the motel is 11:00 a. m. The manager did not believe the people who had stayed in the room in question (No. 10) were coming back because the room did not appear to have been slept in and no money had been received by him for an additional day’s rental. He then invited Deputy Howell to observe the suitcase in Room No. 10. Once inside the room, the manager pulled the suitcase out from under the bed, and Deputy Howell observed a plastic bag containing plant material that appeared to be marijuana sticking out the side of the suitcase. • Howell instructed the manager to shove the suitcase back under the bed and they left. Deputy Howell testified that a casual look of the room revealed no articles of clothing or anything else.

At approximately 11:35 a. m., Jacob McCraney, Beverly Ann Russell, and an unidentified male drove up to the motel. They proceeded to the office and requested to rent the same room (No. 10) they had rented the previous day and also requested an adjoining room (No. 11). Charles Thomas registered for No. 10 and the appellant registered for No. 11.

Meanwhile, Deputy Howell along with Officers Bobby Stuart, Walter Crook, and Jim Anderson had set up surveillance on the motel. They observed the three subjects take clothing and other “stuff’ into both rooms from the automobile. Shortly thereafter the appellant and the other male left in the automobile heading west toward Mobile. Beverly Ann Russell stayed in Room No. 11 while the others were gone.

The appellant and the other male returned to the motel at approximately 2:00 p. m. The appellant went into Room No. 11. All three subjects frequently went back and forth between the two rooms. Deputy Howell testified that they appeared to be nervous and “very skiddish acting.” They would occasionally come to the doors of the rooms and look up and down the walkway.

At approximately 3:45 p. m., the two male subjects left the room and walked toward the automobile. One of the subjects was carrying a brown paper bag which he appeared to be trying to hide. They put the bag in the trunk and left. About one mile down the road, Deputy Howell and the other officers stopped the vehicle. The appellant was a passenger in the vehicle. The officers identified themselves to the two males, stated they had reason to believe drugs were in the automobile, and asked for permission to look in the automobile. Consent was given by the two occupants. A search of the trunk revealed a paper bag containing smaller paper bags of plant material, later identified to be 71.5 grams (2.52 oz.) of marijuana. The appellant and the other subject were placed under arrest and taken back to the motel.

During the surveillance of the motel and before the two male subjects had left the motel for the last time, Deputy Howell had contacted Assistant District Attorney Thomas Norton in reference to obtaining search warrants for Rooms No. 10 and 11. Upon returning to the motel after making the arrests, the search warrants were delivered to Deputy Howell. The warrants were delivered shortly after 4:00 p. m. and executed at approximately 4:40 p. m. Prior to the execution of the search warrants, Beverly Ann Russell was lured out of Room No. 11 on a pretext.

A search of Room No. 10 revealed approximately five pounds of marijuana recovered from the suitcase. From Room No. 11 approximately two ounces of heroin was recovered.

Baldwin County Chief Investigator Bobby Stuart testified that Charles Thomas and the appellant had two adjoining rooms (Nos. 207-208) rented at the Holiday Inn-East on Battleship Parkway at the same time they had rooms rented at Woody’s Motel. He picked up their receipts for the rooms on June 7, 1979, at approximately 1:00 p. m. just minutes after they checked out.

This case was tried without a jury. There was no motion to exclude the evidence at the end of the State’s case in chief, no request for the affirmative charge, and no motion for a new trial, thus the sufficiency of the evidence is not reviewable. Youngblood v. City of Birmingham, Ala.Cr.App., 338 So.2d 526 (1976).

I

The appellant contends on appeal that the affidavits in support of the search warrants for the motel rooms failed to state sufficient probable cause for the issuance of the warrants. The appellant did not raise the sufficiency of the affidavits and warrants either in his pretrial motion to suppress or at the hearing on the motion to suppress. As this issue has been raised for the first time on appeal, it is not subject to review. Slinker v. State, Ala.Cr.App., 344 So.2d 1264 (1977). Any attack on the affidavits or warrants could only be inferred and would be collateral to appellant’s contention that the initial, warrantless entry into Room No. 10 tainted all further police actions. We disagree. The initial entry into Room No. 10 was not illegal. Our reasons for this conclusion are set out in Section III, infra.

II

The appellant in his motion to suppress, at the hearing on the motion and on this appeal, contends the warrantless search of the automobile lacked probable cause. However, the threshold question that we must address that was not addressed in the motion or at the hearing is whether the appellant had standing to challenge the search.

The appellant was a passenger in the automobile. He has asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. The United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), has specifically rejected the “target” theory of standing which, “would in effect permit a defendant to assert that a violation of the Fourth Amendment rights of a third party entitled him to have evidence suppressed at his trial.” Fourth Amendment rights are personal rights which may not be vicariously asserted. The burden was on the appellant to establish that his own Fourth Amendment rights were violated by the challenged search and seizure. The trunk of an automobile is not an area in which a passenger would normally have a legitimate expectation of privacy. Rakas v. Illinois, supra. We, therefore, do not believe that the instant disputed search and seizure has infringed an interest of the appellant which the Fourth Amendment was designed to protect.

Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), established a rule of “automatic” standing to contest an allegedly illegal search where possession of the seized evidence is itself an essential element of the offense for which one is charged. This ruling came about because of the dilemma faced by defendants in pos-sessory crimes of coerced self-incrimination. Although the automatic standing rule has not been directly overruled, we believe the dilemma for which it was created to overcome has been eliminated by the later decisions of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Quoting from Brown, supra:

“ . . . Mr. Justice Frankfurter, writing for the Court in Jones, emphasized the ‘dilemma’ inherent in a defendant’s need to allege ‘possession’ to contest a seizure, when such admission of possession could later be used against him. Id., at 262-264, 80 S.Ct., at 731-732. Mr. Justice Frankfurter quoted the words of Judge Learned Hand:
“ ‘Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.’ Connolly v. Medalie, 58 F.2d 629, 630 (CA2 1932).
“The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in Simmons v. United States, supra, we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence. 390 U.S., at 389-394, 88 S.Ct., at 973-976. For example, under the Simmons doctrine the defendant is permitted to establish the requisite standing by claiming ‘possession’ of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial. Thus, petitioners in this case could have asserted, as to the pretrial suppression hearing, a posses-sory interest in the goods at Knuckles’ store without any danger of incriminating themselves. . . . ” (411 U.S. 227-228, 93 S.Ct. 1568-1569)

In Rakas v. Illinois, supra, we find the following:

“Conferring standing to raise vicarious Fourth Amendment claims would necessarily mean a more widespread invocation of the exclusionary rule during criminal trials. The Court’s opinion in Alderman, [394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176] counseled against such an extension of the exclusionary rule:
“ ‘The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.’ 394 U.S., at 174-175, 89 S.Ct., at 967.
“Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected. See United States v. Ceccolini, 435 U.S. 268, 275, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268 (1978); Stone v. Powell, 428 U.S. 465, 489-490, 96 S.Ct. 3037, 3050, 49 L.Ed.2d 1067 (1976); United States v. Calandra, 414 U.S., [338] at 348-352, 94 S.Ct., [613] at 620-622, [38 L.Ed.2d 561]. Since our cases generally have held that one whose Fourth Amendment rights are violated may successfully suppress evidence obtained in the course of an illegal search and seizure, misgivings as to the benefit of enlarging the class of persons who may invoke that rule are properly considered when deciding whether to expand standing to assert Fourth Amendment violations.” (99 S.Ct. 427)

We believe the danger of coerced self-incrimination was eliminated by the decision of Simmons v. United States, supra. The appellant has asserted none of the following:

1. A property interest in the automobile searched.

2. A possessory interest in the automobile searched.

3. An interest in the property seized.

4. A legitimate expectation of privacy in the area of the automobile searched.

Therefore, the appellant has no standing to contest the search.

Even if the appellant had proper standing to challenge the search, there are other reasons that his contention lacks merit. First, we believe the officers had probable cause to search the automobile. During the surveillance of the motel, the officers-had reasonable cause to believe that marijuana was located in Room No. 10 because of the personal observation of Deputy Howell. Within one hour after the three subjects had let the rental of Room No. 10 expire, they returned to rent the very same room and an additional room. It was also learned during the course of the surveillance that the subjects had two other rooms rented at a different motel on the same day.

The fact that the three subjects went back and forth between the rooms acting suspiciously and carried a paper bag to the automobile would not by itself constitute probable cause for a search. But when all the circumstances are taken together as a whole, coupled with the experience of the officers in investigating narcotics, we believe the officers had probable cause to believe illicit activity was taking place. When the appellant and the other subject left in the automobile, the officers had not yet received the search warrant they had requested. This was an emergency situation in which the officers had to act without delay. Sufficient exigent circumstances existed coincidental with probable cause to stop and search the vehicle. See: Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); Rickman v. State, Ala., 361 So.2d 28 (1978).

Additionally, both occupants of the automobile consented to the search. Although the only evidence of consent was given by Deputy Howell, this evidence was never contested or objected to either at trial or on appeal.

Ill

At the suppression hearing hearing, the appellant objected to the original search of Room No. 10 without a warrant that was conducted by Deputy Howell shortly after 11:00 a. m. on June 7, 1979. He contends that any evidence later discovered was a direct result of this search and should have been excluded from evidence. He cites Duncan v. State, 278 Ala. 145,176 So.2d 840 (1965) for the proposition that a person’s motel room is protected against unreasonable searches and seizures. We agree. But in this case the room had been abandoned at the time of the search. The search was at the instigation and approval of the manager of the motel. A manager of a motel has proper charge of the rooms during the times they are not rented. For additional reasons stated in Part II of this opinion, the appellant has no standing to object to that search.

AFFIRMED.

All the Judges concur.

      . This rule allows one to assert the Fourth Amendment rights of another.

      . Rakas v. Illinois, supra, partially overruled Jones, supra, but the court there stated they did not have occasion to decide whether the automatic standing rule was made unnecessary by Simmons, supra, and Brown, supra.


text:
    Beverly Ann RUSSELL v. STATE.
    1 Div. 98.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Charles N. McKnight and Joseph M. Ma-tranga, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Possession of controlled substance (heroin and marijuana); sentence: ten years imprisonment.

Affirmed on the authority of McCraney v. State, Ala.Cr.App., 381 So.2d 102 (1980).

AFFIRMED.

All the Judges concur.