text:
    Everett P. JOHNSON v. MERRILL LYNCH, PIERCE, FENNER & SMITH, a corporation.
    Civ. 2386.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.
    Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellant.
    Richard H. Gill, Copeland, Franco, Screws & Gill, Montgomery, for appellee.
   BRADLEY, Judge.

Plaintiff appeals from a judgment rendered in favor of defendant.

Everett P. Johnson was employed by Merrill Lynch, Pierce, Fenner and Smith as an account executive for the period August 1969 to March 1978. Although no written contract of employment was entered into by the parties, Merrill Lynch did periodically publish and distribute manuals and brochures which, among other things, described the methods of compensation of account executives. These publications were made known to all account executives of Merrill Lynch, including Johnson.

One of these manuals was issued in 1974 and provided that account executives were to receive a salary plus semiannual incentive compensation based among other factors on the account executive’s performance during the year. This policy specifically provided that Merrill Lynch does not pay commissions to its account executives. The incentive compensation is a reward not only for production but also for many other reasons, both tangible and intangible, such as new responsibilities, new accounts, absence of errors, expenses and quintile rankings. In 1977 Merrill Lynch published a new manual styled “Account Executive Compensation Plan” apparently as a supplement to the other manuals and brochures relating to total compensation for account executives. It is provided in the 1977 compensation plan that the total compensation of account executives contains five elements, two of which are base salary and incentive compensation. An account executive is not to receive incentive compensation unless it is earned. Furthermore an account executive leaving the employ of Merrill Lynch will not have any claim to incentive compensation distributed after the date of his or her departure.

Plaintiff was fired by Merrill Lynch on March 16, 1978 for exercising “time and price discretion” in trading commodities. Johnson had been made aware that such activity by an account executive was contrary to Merrill Lynch policy and that it was a termination offense. No incentive compensation was given to Johnson for the January-March 1978 quarter as a result of his termination.

Johnson filed suit against Merrill Lynch contending that he was entitled to $8,278.03 as incentive compensation for the last quarter of his employment.

After a hearing, the trial court, sitting without a jury, held that Johnson had violated company policy by exercising “time and price” discretion and was therefore not entitled to incentive compensation for the period in question. From this judgment Johnson appeals.

Johnson contends here that he had a contract of employment and that his compensation was to be paid in accordance with the “1977 Account Executive Compensation Plan.” He further contends that he is entitled to receive the incentive compensation provided therein unless he should voluntarily “leave” Merrill Lynch’s employ before the incentive compensation is distributed. He says that he was fired and thus did not leave voluntarily.

Merrill Lynch replies that incentive compensation is not a commission to be paid after it is earned but is a reward not only for production but also for compliance with its rules and other factors. The determination of how much incentive compensation an account executive is to receive is left to the discretion of the local manager and in this instance the local manager decided that Johnson should not receive any incentive compensation because of the failure to comply with company rules.

The trial court found that incentive compensation was to be paid, if at all, by the local manager based on criteria set out in the various policy manuals and brochures issued by Merrill Lynch; that one of the factors that could be considered in making such a decision was compliance with the rules promulgated by Merrill Lynch for trading in commodities; that plaintiff un-disputedly violated the rule against discretionary transactions and was terminated; and that the account executive compensation plan which permits Merrill Lynch to refuse to pay incentive compensation to an account executive who leaves its employ before distribution is made includes either involuntary leaving or voluntary leaving.

Findings of fact made by a trial court after an ore tenus hearing will be presumed correct absent an abuse of discretion and if supported by the evidence. State v. Matthews Electric Supply Co., 284 Ala. 9, 221 So.2d 126 (1969). The evidence is sufficient in the case at bar to support the trial court’s finding.

The record reveals that two former managers of the local Merrill Lynch office testified that the award of incentive compensation to an account executive was discretionary based on the criteria set out in the various manuals and brochures circulated to its employees. They further stated that the 1977 compensation plan was only a supplement to the other policy manuals relating to compensation and that a local manager had complete discretion in giving incentive compensation and the amount, based on the various criteria already mentioned. One of those criteria was compliance with Merrill Lynch rules relating to commodities trading. There was also testimony to the effect that the word “leave” in the 1977 compensation plan covered employees leaving voluntarily or involuntarily.

Johnson argues, however, that he was promised a bonus or commission by the 1977 compensation plan and that when he performed the conditions of his employment a contract was created which entitled him to the incentive compensation even though his employment had been terminated. For this position Johnson relies on Mutual Savings Life Insurance Co. v. Montgomery, Ala., 347 So.2d 1327 (1977) and James A. Head & Co. v. Rolling, 265 Ala. 328, 90 So.2d 828 (1956). We do not consider either case applicable here. Both of the cited cases are concerned with sales commissions which were earned prior to discharge.

Although Johnson contends that he earned the $8,278.03 in commissions before he was terminated and was therefore entitled to be paid, production is not the only factor involved in being paid incentive compensation in the present case. Here there are many more factors to be considered other than production before the decision is made to pay incentive compensation. Furthermore all of the criteria to be considered in arriving at the amount of incentive compensation are subjective, /. e., the local manager has the sole discretion in deciding how much compensation he will pay an account executive after a consideration of the criteria listed in the policy manuals. That is what happened here; the manager decided that Johnson had failed to comply with the rules of the company and had been terminated therefor and, as a result, was not entitled to incentive compensation. We find no abuse of discretion in such holding and find the following from American Security Life Insurance Co. v. Moore, 37 Ala. App. 552, 72 So.2d 132 (1954) to be supportive of this conclusion:

The question of the right to a bonus by an employee whose employment is terminated before the bonus becomes payable is said to depend upon such matters as whether there is a contract for a definite period of employment, whether the termination of the employment is by the employer for sufficient cause, or is wrongful, or is the result of a voluntary abandonment of the service by the employee.

The judgment of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    PRICE CEILING, INC., a corporation, and United States Fidelity and Guaranty Company, a corporation v. Napoleon RAY, Jr.
    Civ. 2439.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.

      N. T. Braswell, III of Rushton, Stakely, Johnston, & Garrett, Montgomery, for appellants.
    Euel A. Screws, Jr., Montgomery, for ap-pellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

On August 14, 1979 Napoleon Ray, Jr. filed a petition claiming workmen’s compensation benefits for a job related accident occurring on August 15,1978. A judgment was rendered in circuit court for Ray and against Price Ceiling, Inc. and United States Fidelity and Guaranty Company on May 1, 1980. This judgment awarded Ray temporary total disability benefits, permanent partial disability benefits and medical expenses. Price and United filed a motion for new trial on May 29, 1980, such motion being denied on June 4, 1980. Appeal is from the judgment below, modification of the judgment and denial of a motion for new trial.

The record reveals the following facts. The employee, Napoleon Ray, Jr., is fifty-two years old. He has a fifth grade education. His primary occupation is that of an installer of sheetrock and acoustical ceiling in the construction industry.

On August 15,1978, while performing his job for Price Ceiling, a ladder on which Ray was standing broke and he fell striking his back on an exposed plumbing pipe. The accident was witnessed by co-workers Ronnie McCord and Ricky Cooper. Both coworkers witnessed the scraped skin and deep bruise in the lower part of Ray’s back.

The next day McCord reported the accident to Roy Randall Price, a supervisor and secretary-treasurer of Price Ceiling, Inc. McCord told Roy Randall Price that Ray had fallen and hurt his back at the Brew-baker School job. Roy Randall Price testified that he did not recall the conversation.

Ray continued to work after the accident. He testified that he continued to do so even though he was in pain. During this time he did not file any written notice with Price Ceiling nor did he orally inform them of his accident. In fact it is not contended on appeal that Ray gave any written notice of his injury to his employer.

Ray sought medical help on his own. He lived near Clanton, Alabama at the time of his accident and he had several Clanton doctors treat him. Ray was being treated for a kidney infection and pleurisy, but the treatments proved unsuccessful and his back ailment intensified. In the latter part of March 1979 Ray sought the help of Dr. Jackson Bostwick, a Montgomery back specialist. Ray was hospitalized the next day. The myelogram performed on Ray revealed a herniated disc. This was the first time that Ray’s back problem had been diagnosed as a spinal injury. Nevertheless, Ray continued to work off and on until April 18, 1979, but, during this time, Ray wore a back brace and used traction. Surgery was performed in June 1979 and again on January 15, 1980. Ray testified that his wife informed Price Ceiling by telephone that Ray had seen Dr. Bostwick. This conversation was on March 31, 1979.

The trial court found, after observing Ray in the courtroom and hearing expert testimony, that Ray had suffered a permanent partial loss of his earning capacity in the amount of fifty-five percent; that Ray had suffered a temporary total disability from April 19,1979 until April 8,1980; that Ray was injured while acting within the line and scope of his employment; that his employer was subject to workmen’s compensation laws of Alabama and that United was its insurer; that on the day following the accident Price Ceiling had actual knowledge of the injury to Ray’s back, the place of the accident and the nature of the accident; and that all medical expenses were necessary and a proximate result of Ray’s accident.

I

The first issue presented for our consideration is whether there is any evidence to support the trial court’s finding that Price Ceiling had actual notice of Ray’s injury. We hold that the record contains evidence of actual notice on the part of the employer.

Section 25-5-78, Code of Alabama 1975 states:

Every injured employee or his representative shall, within five days after the occurrence of an accident, give or cause to be given to the employer written notice of the accident, and the employee, if he fails to give such notice, shall not be entitled to physician’s or medical fees nor any compensation which may have accrued under the terms of this article and article 2 of this chapter, unless it can be shown that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, other than minority, fraud or deceit, or equal good reason, but no compensation shall be payable unless such written notice is given within 90 days after the occurrence of the accident or, where death results, within 90 days after the death.

There is no dispute that Ray failed to give written notice. However, it has long been the rule in Alabama that actual notice is the equivalent of statutory notice. B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 287 Ala. 726, 253 So.2d 45 and 287 Ala. 726, 253 So.2d 46 (1971); Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756 (1925). Moreover, the current trend of authority appears to excuse lack of statutory notice whenever the employer acquires actual knowledge of the accident, no matter how acquired. 3 Larson, The Law of Workmen’s Compensation § 78.31(a) (1976). Our supreme court has said that “[i]f the injury occur under the eye of the employer, or if all the facts are brought to his knowledge [how is not stated] within the time written notice is required, he [the employer] can suffer no injury .... ” Ex parte Stith Coal Co., supra.

There is authority for the proposition that actual knowledge does not necessarily mean that an accident must be seen firsthand by the employer. Sloss-Sheffield Steel & Iron Co. v. Foote, 231 Ala. 275, 164 So. 379 (1935); American Radiator Co. v. Andino, 217 Ala. 424, 116 So. 121 (1928). The court in Sloss-Sheffield Steel & Iron Co. v. Foote continued by saying, “[b]ut if some other employee of defendant witnessed the occurrence and at once reported it to one in authority, and he acted on it, the cases seem to agree that defendant had knowledge sufficient to dispense with written notice.” Likewise, in C. E. Adams & Co. v. Harrell, 257 Ala. 25, 57 So.2d 83 (1952), the supreme court pointed out that the president of C. E. Adams & Company obtained knowledge of its employee’s death from undisclosed sources and that the vice-president of the company obtained his knowledge of the employee’s death from “the company’s employees.” The court concluded that the company had actual knowledge of the employee’s death while on the job.

The trial court found in the case at bar that notice of the accident was made by McCord, a fellow employee, to Roy Randall Price, a supervisor for the employer. As noted in the above authorities, actual knowledge of an accident and injury suffered by an employee while on the job may be obtained from fellow employees who witnessed the accident.

In the instant case the evidence shows that the employer, Price Ceiling, Inc., through its supervisor, obtained actual knowledge of the accident suffered by the employee-plaintiff from a fellow employee who witnessed the accident.

Price and United argue, however, that mere verbal notice to an employer is not sufficient to meet the actual knowledge exception to the statutory requirement of written notice. We agree. Republic Steel Corp. v. Willis, 243 Ala. 127, 9 So.2d 297 (1942). But this is not the case here. Price was given the name of the person injured, where he was injured, the specific injury incurred, and that the injury arose in the course of employment. This meets the test set out in Ex parte Stith Coal Co., supra and followed since. See Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (1975); Republic Steel Corp. v. Willis, supra.

We find no error in the trial court’s finding that Price Ceiling, Inc. had actual knowledge of Ray’s injury.

II

The second issue for review is whether the trial court erred in entering judgment for workmen’s compensation benefits against United States Fidelity and Guaranty Company absent proof of the filing and posting requirements of § 25-5-8(f)(4), Code of Alabama 1975. We find no error.

Section 25-5-8(f)(4) reads:

(4) Direct actions against insurers. — If the employer shall insure to his employees the payment of the compensation provided by this chapter and according to the full benefits thereof and with full coverage under this chapter in a corporation or association authorized to do business in the state of Alabama and approved by the director of the department of insurance of the state of Alabama, and if the employer shall post a notice or notices in a conspicuous place or in conspicuous places about his place of employment, stating that he is insured and by whom insured, and if the employer shall further file a copy of such notice with the department of insurance, then, and in such case, any civil actions brought by an injured employee or his dependents shall be brought directly against the insurer, and . the employer, or insured, shall be released from any further liability.

Nowhere on the face of the record does this issue appear. Because this issue appears for the first time on appeal, it is not properly before this court for review under Rule 4(a)(3) ARAP.

Rule 4(a)(3) provides:

Any error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) or Rule 59 of the ARCP.

Stephens v. Central of Ga. R. R., Ala., 367 So.2d 192 (1978).

III

The final issue is whether the trial court erred in awarding Ray his medical, surgical, hospital, and drug expenses where treatment was not given by employer-selected doctors.

Section 25-5-77, Code of Alabama 1975 provides, except for emergencies, that an employer has the right to select the doctor who is to treat the employee and absent such selection, authorization, or consent, the employer is not liable for any expenses incurred by the employee.

In the instant case the employee selected his own doctors for treatment. However the employer did not suggest a doctor for the employee to consult.

As in the previous issue, this issue is not properly before us for review. The question of whether the employee had consulted a company-selected doctor was not raised in the trial court and, as a consequence, cannot be presented for the first time here. Rule 4(a)(3) ARAP; Stephens v. Central of Ga. R. R., supra.

The trial court’s judgment is affirmed.

AFFIRMED.

WRIGHT, P. J., and HQLMES, J., concur.


author: WRIGHT, Presiding Judge.

text:
    Dorothy L. WRIGHT et al., as members of the Alabama State Tenure Commission v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, Alabama.
    Civ. 2493.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.
    Gregory B. Stein, Blacksher, Menefee & Stein, Mobile, for appellant.
    Robert C. Campbell, III, and Frank G. Taylor, Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a teacher tenure case.

The Board of School Commissioners of Mobile County, Alabama (the Board) notified one of its tenured teachers of the proposed cancellation of his employment contract. The teacher notified the Board of his intention to contest the proposed cancellation and a hearing was held pursuant thereto according to law. The Board canceled the teacher’s contract and he appealed to the Alabama State Tenure Commission (the Commission). The Commission, after receiving briefs and hearing oral argument, reversed the Board’s action. On writ of mandamus, the Circuit Court of Mobile County found that the Commission’s action reversing the Board was not in compliance with § 16-24-10, Code of Alabama (1975), was unjust and should be set aside. The Commission appeals from that order of the circuit court. We reverse.

The dispositive issue is the propriety of the Commission’s action in reversing the cancellation of the teacher’s contract due to the Board’s failure to meet the requirements of § 16-24-10(b).

Section 16-24-10(b), in pertinent part reads as follows:

The teacher shall have the right to appeal to the state tenure commission, as hereinafter established, to obtain a review by the commission as to whether ... [the Board’s] action was in compliance with this chapter and whether such action was arbitrarily unjust.... Upon notice of appeal, the board shall cause to be made sufficient copies of the record of proceedings to provide a copy for each of the members of the commission and one for the teacher. The record shall consist of all notices given to the teacher, all papers filed with the board by the teacher in compliance with the provisions of this chapter, transcript of testimony and other evidence and the findings and decisions of the board. The requisite number of copies of the record shall be delivered to the commission and to the teacher within 20 days from the day of the hearing.... (Emphasis ours.)

The hearing before the Board was held on December 10,1979. The teacher appealed and, as required by § 16-24-10(b), the Board should have supplied copies of the record from the December 10 hearing to both the Commission and the teacher by December 30. The Board failed to comply with this statutory 20-day period and on January 10, 1980, requested an extension, until January 24, within which to file the required copies. The Commission granted the request. The Board delivered copies to the Commission by January 24, but failed to deliver a copy to the teacher as required by the statute.

The teacher filed a motion to strike the record on January 30 on the ground that the Board had failed to comply with the statute. The Commission granted the motion and reversed the cancellation by the Board for failure to so comply.

Section 16-24-10(b) places an affirmative duty upon the employing Board, upon an appeal to the Commission, to prepare the record of proceedings before it and to deliver copies to the Commission and to the teacher within 20 days from the date of the hearing before the Board. Where the 20-day requirement is not met in a cancellation case, it is within the Commission’s authority to strike the tardily-filed transcript and reverse the Board’s decision. Alabama State Tenure Commission v. Board of Education of City of Demopolis, 384 So.2d 1100 (Ala.Civ.App.), cert. denied, 384 So.2d 1103 (Ala.1980); Washington County Board of Education v. Alabama State Tenure Commission, 364 So.2d 338 (Ala.Civ.App.1978). Logically, where the Commission allows an extension of the 20-day requirement and the Board fails to comply with the extended deadline, the Commission again has the authority to strike the tardily-filed transcript and reverse the Board’s decision. Merely extending the time for compliance does not lessen the duty of the Board to comply. Neither does it diminish the authority of the Commission to strike a transcript not filed in compliance with the granted extension.

It is well established that the judgment of the Commission is final and may be reversed by the circuit court on review by mandamus only if the Commission has failed to comply with the tenure law’s procedural requirements or has rendered a judgment so contrary to the weight of the evidence as to be unjust. Sumter County Board of Education v. Alabama State Tenure Commission, 352 So.2d 1133 (Ala.Civ.App.), aff’d as modified, 352 So.2d 1137 (Ala.1977). The circuit court here found that the actions of the Commission failed to comply with procedural requirements and were unjust. We cannot agree. The Commission had authority to enforce the statute and its rules, strike the transcript and reverse the Board. The Demopo-lis and Washington County cases are evidence of that authority. This court, though not affirming strict enforcement of the time limitations in such cases, nevertheless cannot derogate the authority of the Commission to do so. We do not adhere to the “substantial compliance” doctrine contended by the Board. The judgment of the circuit court must be reversed and the order of the Commission reinstated.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Felix CHEW v. STATE of Alabama.
    Civ. 2512.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.
    David L. Thomas, Huntsville, for appellant.
    Charles A. Graddic, Atty. Gen., and Mary Lee Stapp, Clyde P. McLendon, and Roger J. Burnett, Asst. Attys. Gen., for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a paternity proceeding. Upon the trial court’s determination that the defendant was the father of a certain illegitimate child, the defendant appealed and contends that the proof was inadequate upon which to base such adjudication.

The child was born to a never married mother on May 13,1977. The mother testified that she conceived around September 1976 and that the defendant was the only man with whom she had sexual relations in August, September or October 1976. She further stated that she dated the defendant during that period of time and had sex with him almost weekly without practicing birth control. The defendant admitted to one act of intercourse with the prosecuting witness but denied his paternity of the child because of his use of a contraceptive.

Paternity proceedings are of a civil nature wherein the trier of facts must be reasonably satisfied from the evidence that the defendant is the father of the child involved. Keener v. State, Ala., 347 So.2d 398 (1977). After both sides rested, the trial court viewed the child and promptly pronounced the defendant to be her father. The circuit court heard the conflicting evidence and must have been reasonably satisfied as to the paternity of the child. Due to the status of the evidence, this court cannot hold that the trial court was palpably wrong. “The state offered evidence which, if believed, was sufficient to establish that the defendant was the father of the child involved. We find no error to reverse.” Keener v. State, supra.

The judgment appealed from is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Doug INGRAM, d/b/a Lowery Organ Center v. WAAY TELEVISION.
    Civ. 2541.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.

      James L. Marks, Hewlett & Black, Muscle Shoals, for appellant.
    C. Howard Grisham, Bailey & Grisham, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Mr. Ingram, the defendant, appeals from the denial of his Rule 60(b)(1), ARCP, motion.

The trial court had previously entered a summary judgment in favor of WAAY, the plaintiff, upon an account. Prior to the summary judgment, no affidavit or other evidence was offered by defendant which countered the affidavit on behalf of the plaintiff. After the rendition of the summary judgment, Mr. Ingram promptly filed, and later amended, the subject motion alleging in substance that he did not file a counter-affidavit because of a mistake in docketing the date of the hearing upon the plaintiff’s motion for a summary judgment. As his meritorious defense, he alleged in his motion that the debt in controversy was only incurred by him as agent for one of two corporations and that, therefore, he was not liable for the account. Thus, his motion contended for relief from the summary judgment on the ground of mistake, and the defendant’s affidavit filed with his amended motion solely covered his motion’s averments pertaining to the agency defense. The record discloses no evidence by affidavit, or otherwise, which supports the allegations of the motion as to mistake. After a hearing upon the defendant’s Rule 60(b) motion, the trial court ordered that the summary judgment remain in full force and effect as originally entered, the tenor of the order being that the defendant's motion was overruled. Hence this appeal.

More than forty-two days expired between the rendition of the summary judgment and the notice of appeal. The filing of a post-trial motion pursuant to Rule 60(b) does not suspend the running of the time for filing a notice of appeal. Cockrell v. World’s Finest Chocolate Co., Inc., Ala., 349 So.2d 1117 (1977). Thus, we are not concerned with the appropriateness of the granting of the summary judgment, which was admittedly due to be rendered under the posture of the case at the time of the submission of the plaintiff’s motion for a summary judgment. However, an appeal lies from an order denying a Rule 60(b) motion whereby the correctness of the order denying the motion may be reviewed, but the rightness of the summary judgment cannot be considered. Cockrell v. World’s Finest Chocolate Co., supra; Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975). Therefore, we have for decision only the appropriateness of the overruling of the defendant’s Rule 60(b) motion.

The granting or denial of a Rule 60(b)(1) motion is within the judicial discretion of the trial court, and its decision thereon may be reversed only for an abuse of discretion. Whitehead v. Georgia Pacific Corp., Ala., 352 So.2d 1342 (1977); Gallups v. U. S. Steel Corp., Ala.Civ.App., 353 So.2d 1169 (1978); Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975). The overruling of the defendant’s motion on the ground of mistake is not an abuse of discretion for no proof upholding that ground appears in the record. Marsh v. Marsh, Ala.Civ.App., 338 So.2d 422 (1976); Modernage Homes v. Wooldridge, supra.

In deference to earnest contentions of defendant’s learned counsel, we point out that the defendant’s affidavit filed with the amended Rule 60(b) motion cannot now be considered as a counter-affidavit to the plaintiff’s motion for a summary judgment even if we had under review the summary judgment itself. The summary judgment had been rendered without any counter-affidavit being filed. Only if the defendant had been relieved from the consequences of the summary judgment under his 60(b) motion could the trial court then consider any counter-affidavit thereafter timely filed in any rehearing and resubmission of plaintiff’s motion for a summary judgment.

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

AFFIRMED.

All the Judges concur.


text:
    FIRST ALABAMA BANK OF HUNTSVILLE, N. A. v. J. Wayne KEY and Thomas A. Caddell.
    Civ. 2597.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1981.
    James T. Baxter, III, Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Thomas A. Caddell, Caddell, Shanks, Harris, Moores & Murphree, Decatur, for appel-lees.
   BRADLEY, Judge.

This appeal is from a declaratory judgment holding that plaintiffs have title to a parcel of real property located in Decatur, Alabama unencumbered by any claim of defendant.

The pertinent facts are as follows: J. Wayne Key, Thomas A. Caddell, and Jerry E. Coone each owned a one-third interest in a piece of real estate in Decatur, Alabama. Coone entered into a contract of sale of the land to Key and Caddell on March 19, 1976. This contract was not recorded in the Probate Office of Morgan County, Alabama.

On February 1, 1978 First Alabama obtained issuance of a writ of attachment against Coone. This attachment was served by the sheriff on February 8, 1978 on the property involved in this lawsuit.

On March 28, 1978 Key and Caddell received the deed to the “suit property.” According to the testimony the delay in taking delivery of the deed was caused by the apprehension of Key and Caddell over whether they should make the final payment under the contract. The deed had been executed by Coone on August 31,1977.

On October 11, 1978 First Alabama obtained a judgment against Coone and a condemnation of his interest in the “suit property” in Decatur to satisfy the sum of $6,883.12. Part of this debt had been satisfied by other security held by First Alabama but on November 5, 1979 the sheriff of Morgan County sold and First Alabama purchased Coone’s purported interest in the real estate in Decatur for the sum of $2,788.86. A deed was issued to First Alabama for the “suit property.” Key and Caddell now seek to have that deed set aside and their title to the property established.

The applicable statute in this case is § 35-4r-90(a), Code of Alabama 1975, and is as follows:

(a) All conveyances of real property, deeds, mortgages, deed of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.

Plaintiffs admit that First Alabama was a “judgment creditor” within the meaning of § 35-4-90(a) as of February 1, 1978, which is the date of record attachment in aid of its pending suit, but contend that First Alabama had actual notice of their unrecorded contract rights in the property prior to attachment and, therefore, cannot claim title to the property in question.

It is undisputed that plaintiffs had not recorded their contract of sale in the Morgan County Probate Office and thus there was no constructive notice to First Alabama of their claim to the property in question. They contend, however, that First Alabama had actual knowledge of their ownership claim as a result of several means of notice. To this court, the determinative means of notice of plaintiffs’ claim of ownership was the evidence that plaintiff Caddell told an attorney reportedly investigating title to the “suit property” for First Alabama that he and plaintiff Key had bought or were buying Coone’s interest in the property. There was no evidence introduced by First Alabama in contradiction of this testimony.

In Alexander v. Fountain, 195 Ala. 3, 70 So. 669 (1916), the Supreme Court said:

[Ajctual notice is equivalent to the constructive notice afforded by the registration of the conveyance. The whole object and design of the statute is said to be to give notice of the existence of the conveyance.

Furthermore, it has been held that whatever is sufficient to put one on inquiry as to the titleholder is enough to charge him with notice. Means of knowledge may be equivalent to knowledge. Whatever is sufficient to put one on guard, and call for inquiry, is notice of everything to which inquiry would lead. Gamble v. Black Warrior Coal Co., 172 Ala. 669, 55 So. 190 (1911); Lightsey v. Stone, 255 Ala. 541, 52 So.2d 376 (1951); Hodges v. Beardsley, 269 Ala. 280, 112 So.2d 482 (1959).

The question whether First Alabama had actual notice of plaintiffs’ claim to the property in question was one of fact for the trier of fact. The trial court sitting without a jury concluded that First Alabama had knowledge of plaintiffs’ claim to the property, and, after a careful examination of the evidence, we cannot say that the trial court was plainly and palpably wrong in its conclusion.

The evidence is uncontroverted that First Alabama was told that plaintiffs had bought or were buying the property in question. We consider this evidence plus the inferences to be gleaned therefrom to be sufficient to elicit inquiry as to the source and status of plaintiffs’ claim to the property in question.

AFFIRMED.

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


author: CLARK, Retired Circuit Judge.

text:
    Jimmy D. RINGER v. STATE.
    8 Div. 329.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied July 29, 1980.

      John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   CLARK, Retired Circuit Judge.

Appellant-defendant was charged in an indictment with possession of marijuana, included in § 204 of the Alabama Uniform Controlled Substances Act (Acts 1971, No. 1407, p. 2378). Code of Alabama 1975, § 20-2-1, et seq. By Code 1975, § 20-2-70, possession of marijuana is a felony but possession by a person for “his personal use only” is a misdemeanor. The jury found defendant guilty of possession of marijuana “for his personal use” and assessed a fine of $1,000.00. The court entered a judgment accordingly and added punishment at six months imprisonment in the county jail, permitted by the cited statutory law.

A major insistence on appeal is that the trial court erroneously overruled a motion, or motions, of defendant to suppress evidence of the fruits of a search made by officers at a house in Huntsville at 1502 Washington Street that was the residence of defendant. Appellant insists that the search was made pursuant to a search warrant issued by a district court magistrate who was not licensed to practice law in Alabama. Appellant argues that a search warrant issued by a district court magistrate who is not “licensed to practice law in Alabama” contravenes Rule 18 11(A)(3)(a), Alabama Rules of Judicial Administration, as follows:

“. .. The powers of a district court magistrate shall be limited to:
“(a) Issuance of arrest warrants, ... and, where such magistrate is licensed to practice law in Alabama, issuance of search warrants; ...”

It was so held on rehearing in Newton v. State, Ala.Cr.App., 375 So.2d 1245, 1249-1250, cert. denied, 375 So.2d 1250 (1979).

In response to appellant’s stated contention, appellee says:

“The appellant contends that the warrant magistrate did not have the authority to issue a search warrant. An examination of the record reveals that there was no evidence introduced to support this contention. The only references to the magistrate’s qualification are statements in appellant’s motion. This Honorable Court has held that facts asserted in the brief of appellant or appellee which cannot be ascertained from the record cannot be reviewed. Dumas v. State, Ala.Cr. App., 369 So.2d 317 (1977), Brooks v. State, Ala.Cr.App., 380 So.2d 1012 (1980).”

We think the action of the trial court should be reviewed. Although there is some undesirable vagueness in the position or contention of defendant in the trial court, the record shows that on November 26,1979, the day before the trial of the case commenced, a “Motion to Suppress the Evidence" was filed with the clerk of the court and that on the day of the trial, but before the trial actually commenced, the trial judge overruled said motion. On the same day, it overruled defendant’s written “Motion to Dismiss the Indictment,” which motion was verified by defendant and alleged in paragraph 3:

“Since the magistrate which issued the warrant in the present case did not have the power to do so, the warrant issued by him was invalid and the evidence obtained by virtue of the warrant should be inadmissible.”

Said motion also alleged that “Acts No. 790 (1973) and No. 407 (1975) are invalid because they are contrary to Rule 18 11(A)(3)(a), Alabama Rules of Judicial Administration.” The Acts cited (Act No. 790, Acts 1973, p. 1203 and Act No. 407, Acts 1975, p. 1005) purport to empower a warrant magistrate of the Madison County Court to “take evidence and affidavits in support of search warrants and to issue warrants.” Each Act is a local act.

The transcript of the proceedings shows that after the jury was selected to try the case, and at a hearing conducted out of the presence of the jury, defendant brought to the attention of the court the motions he had previously filed and proceeded to argue the same. Inter alia, defendant’s counsel said:

“It is the defendant’s position, as per the motions that I have filed, that the warrant magistrate that signed the warrant in this case was not licensed to practice law in the State of Alabama and, therefore, did not have the authority to issue a search warrant allowing the officers to go to the residence in question and go in and seize contraband. It is also the defendant’s position that to allow a magistrate that is not licensed to practice law to issue a search warrant would deprive him of his equal protection of laws. Based on my motions and based on that statement, it is our position that the evidence should be suppressed in this case.”

The court then said:

“Overrule your motion. Anything further?” At that point each party made an opening statement to the jury, and then the first witness was called and testified.

Under the circumstances stated, we conclude that defendant brought to the attention of the court his motion to suppress the evidence of marijuana and other incriminating objects that were found in his residence upon a search of it pursuant to a warrant issued by a particular magistrate of the District Court of Madison County. It is our view also that defendant then based his motion, in part at least, upon the same position that appellant now takes that the search warrant was invalid in that it was issued by a magistrate who was not licensed to practice law.

No distinction is sought to be made by appellee between the effect of the Acts involved in this case and Act No. 551, Acts of Alabama 1977, applicable to Tuscaloosa County, that was involved in Newton v. State, supra. No distinction is apparent, and the conclusion necessarily follows that the magistrate who issued the search warrant in the instant case was not qualified to issue it unless he was licensed to practice law in Alabama. Rule 18 11(A)(3)(a), Alabama Rules of Judicial Administration, forbids it; said Rules may be changed only by the court that promulgated them, the Supreme Court of Alabama, or “by a general Act of statewide application.” Constitutional Amendment No. 328 (Judicial Article) § 6.11.

We agree with appellee that neither the record nor the transcript of the proceedings shows that the magistrate was not licensed to practice law in Alabama, and that there was some burden on the defendant to prove the allegations of his motion. However, we observe nothing to indicate that the court’s ruling was based on failure of defendant to prove the fact upon which his contention was based. It is to be said also that the prosecution did not indicate any disagreement with that factual allegation. Defendant’s motion was overruled before he was ever given an opportunity to support it by proof of the factual averment under consideration. Any question as to this, however, should not be left unresolved. If the magistrate was not licensed to practice law, it is our opinion that the search warrant was invalid, that the objects seized thereunder were not admissible in evidence and that the judgment should be reversed. Otherwise, it should be affirmed, as we find no other error in the record prejudicial to defendant.

The case should be remanded to the trial court with directions that it make a determination, after such hearing as it deems necessary or appropriate, whether the magistrate who issued the search warrant herein was licensed to practice law in Alabama at the time and make its return thereof to this Court for further action herein. Each party shall have fourteen days after said return to file an additional brief.

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

REMANDED WITH DIRECTIONS.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: Jimmy D. RINGER v. STATE of Alabama).
    79-849.
    Supreme Court of Alabama.
    Nov. 7, 1980.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jimmy D. RINGER v. STATE.
    8 Div. 329.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
   LEIGH M. CLARK, Retired Circuit Judge.

The Return to Remand, 394 So.2d 69, discloses that a hearing has been conducted by the trial court in which the testimony of the magistrate who issued the search warrant in this case was taken. He testified that he was not licensed to practice law. The Return to Remand was filed in this Court on December 15, 1980. It appears that neither party has filed a brief within the period provided in the last paragraph of our opinion. In accordance therewith, the judgment of the trial court should be reversed and the causes remanded.

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

REVERSED AND REMANDED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Paul D. BIBBY, alias v. STATE.
    6 Div. 356.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Rehearing Denied Nov. 25, 1980.
    James L. O’Kelley, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sandra M. Solowiej, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Appeal from denial of writ of error coram nobis.

By petition for writ of error coram nobis, the appellant challenged his 1980 conviction for robbery and twenty-year sentence thereon. His petition, in pertinent part, is as follows:

“Your Petitioner respectfully shows that said conviction was unlawfully and improperly taken against him in consequence of the fact that long before the trial date, the District Attorney of Jefferson County, through his Deputy District Attorneys, informed Petitioner’s counsel that the alleged offense occured (sic) on July 27, 1978. Said counsel ... relying on this assertion by the District Attorney, prepared his case around said date. Numerous witnesses were present on behalf of your Petitioner at the trial to testify as to his true whereabouts on said date.
“On the date the trial was had, after these witnesses were excused from the Courtroom pursuant to the rule being invoked, it became apparent that the District Attorney’s office, prosecuting on behalf of the State, presented testimony to show that the alleged offense occured (sic) on July 19, 1978, as opposed to the earlier date given, July 27, 1978. Under these facts, your Petitioner was denied the due process of law as guaranteed by the Constitution of the United States.
“Your Petitioner shows that he has a valid and lawful defense against the said conviction and that if given the opportunity, can and will make and propound his defense, as may be authorized and allowed by law and the rules of this Honorable Court. Also, petitioner is not guilty of the offense charged.”

At the coram nobis hearing, the appellant’s trial counsel testified that prior to the robbery trial he discussed the charge with David Barber, an assistant district attorney. He said Mr. Barber told him that the robbery occurred on July 27, 1978, at approximately 5:10 p. m. The only alibi witnesses which defense counsel had available were the appellant’s mother and girl friend. To the best of trial counsel’s recollection, the first time he was apprised that the robbery in question took place on July 19,1978, was during the course of the prosecutor’s opening argument.

The appellant’s sole contention is that the date of the offense was different than trial counsel had been led to believe it to be prior to trial and that the appellant’s mother and girl friend were not called as alibi witnesses at the trial. However, the case is not that simple.

The evidence shows that there were actually two cases pending against the appellant at the time his trial counsel had a discussion with the deputy district attorney. Appellant’s counsel in chief did not recall the date of July 19 being mentioned by Mr. Barber, whereas Barber’s recollection and notes are to the contrary. He testified that in talking to appellant’s trial counsel “two dates and two times were discussed as to each charge, as to the escape and as to the robbery.” Barber further testified:

“The robbery charge involved a P & S Apothecary in the 7700 block of 2nd Avenue, South. It was reported to the Birmingham Police Department to have occurred on July 19th at 5:10 P.M.
“The escape case came to the attention of our office on the 28th of July, and the escape was reported to have occurred on the 27th of July, something like 10:00 A.M.”

The record likewise reveals that the failure of trial counsel to call the appellant’s mother and girl friend as alibi witnesses was not solely due to the conflicting dates on which the robbery purportedly occurred. Both the appellant’s counsel in chief and associate counsel at trial testified on the coram nobis hearing that the two alibi witnesses were not used due to the unreliability of their proposed testimony. The appellant’s associate trial counsel testified as to the girl friend that “she did not remember being with Paul any time during the two or three weeks prior to the robbery, the alleged robbery, is my recollection. His mother, Mrs. Bibby, we were just not sure what she would say.” He said there were several discrepancies in Mrs. Bibby’s stories which conflicted with the appellant’s version of his whereabouts: “Mrs. Bibby said that he had been on work release and was working, and Paul said he had not worked for a several week period.”

Appellant’s counsel in chief likewise testified:

“One thing I would like to clarify is Mrs. Bibby stated — I believe that I’m correct — we were together only one time. That is not true. In reference to the District Attorney’s question, even though I don’t make extensive notes in my file, I do make notes on what date I do things and who I talk with. My file indicates several contacts with Mrs. Bibby. My file also indicates on the 21st of December, 1979, I have a taped telephone conversation with Mrs. Bibby, at which time she tells me one set of facts. Then the next time I talk with her she tells me another set of facts....
“Judge, in regards to that telephone conversation, I have a typed transcript of that conversation in my file. The basis for my even approaching the bench again is that there were so many discrepancies and changes in Mrs. Bibby’s testimony and differences between, that it was just a strategy attack, that it would not be in the client’s best interest at all to put her on the stand.”

In Summers v. State, Ala.Cr.App., 366 So.2d 336 (1978), cert. denied, Ala., 366 So.2d 346 (1979), this court stated concerning a writ of error coram nobis:

“The function or office of the writ lies to correct a judgment rendered by the court upon errors of fact not appearing on the record and so important that if the Court had known of them at the trial it would not have rendered the judgment. .. . The writ is concerned only with errors of fact.... The error of fact must not be apparent on the record ... and must have been unknown to the Court and to the defendant at the time of trial.... The error must be one which, if presented to the trial court, would have prevented conviction, rather than merely causing a different result.... In effect, the writ of error coram nobis serves as a motion for new trial on the ground of newly discovered evidence.... ”
(Citations omitted.)

The evidence in the instant case shows that although the appellant’s trial counsel were surprised at the change of dates they did not claim surprise to the trial judge nor ask for a continuance. Their decision not to call the two alibi witnesses was grounded more on the unreliability of the witnesses’ potential testimony than upon the change of dates in issue.

On the coram nobis hearing, it was within the province of the trial judge to give more weight to the positive statement of the deputy district attorney that he apprised defense counsel of two dates than to testimony of defense counsel that he did not remember the date of July 19 ever coming up during their discussions.

In a coram nobis proceeding, the petitioner bears the burden of submitting clear, full, and satisfactory proof of facts which, had they been timely submitted at trial, would have prevented judgment. Champion v. State, 45 Ala.App. 188, 227 So.2d 818 (1969). The degree of proof is “highly exacting as to facts and must convince the trial judge of the truth of the allegations in the petition, and the petitioner has the burden of rebutting the presumption of the correctness of the judgment of the trial court. Summers, supra.

In the instant case, the petition alleged that “numerous witnesses” were present at the original trial to testify as to the true whereabouts of the appellant on the date of the crime. However, evidence presented on the coram nobis hearing shows that only two witnesses were present and that their testimony was considered to be worthless by both attorneys for the appellant.

Likewise, the petition alleges that the appellant “has a valid and lawful defense against the said conviction.” However, during the coram nobis hearing, not one scintilla of evidence is presented to the trial court to support that allegation. Although the appellant’s mother was called as a witness in his behalf on the coram nobis hearing, she merely testified that she was not used as a witness in his original trial. She was not asked and neither did she testify that she could provide an alibi for her son for July 19, 1978. The appellant did not call his girl friend as a witness in the coram nobis hearing to show whether or not she could supply such alibi testimony for July 19.

In the present state of the record, we find that the appellant failed to meet the burden of proof required for the issuance of a writ of error coram nobis. The trial court was, therefore, not in error in denying the writ.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex Parte Paul D. BIBBY. (Re: Paul D. Bibby, alias v. State of Alabama).
    80-152.
    Supreme Court of Alabama.
    Feb. 20, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Louis SULLIVAN, alias v. STATE.
    1 Div. 180.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.

      Thomas Baxter, Chatom, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Louis Sullivan was charged by indictment with murder in the second degree in the killing of Hillard Johnston, Jr., alias “Junior” Johnston, by shooting him with a .32 caliber pistol. The jury found the appellant guilty of murder in the second degree and the trial court sentenced him to ten years imprisonment.

The appellant filed motions for new trial and to set aside the verdict of the jury. The motions were overruled, following a hearing thereon. This appeal followed.

Norman Weaver, a neighbor of the deceased, and a first cousin of the appellant, testified the deceased was at his home in Fairford, Alabama on the morning of the murder, November 6, 1979, around 11:00 a. m. He observed the deceased and two other men, Dallas Chastang, Jr. and Bill Monroe Davis, leave his house walking towards the appellant’s residence shortly thereafter. Approximately thirty minutes later, the appellant came to Weaver’s house and the following conversation occurred:

“A She was putting up a bed. I went in where she was at there. Louis come and knocked on the door, like that (indicating). He said I want you to help me. I said what do you mean, help you. He said I want you to carry Junior to the hospital for me. I said what’s wrong with him. He said I shot him.
Q Louis said he shot Junior Johnston?
A That’s right.” (R.p. 116)

Mr. Weaver testified that appellant had been drinking and appeared to be “pretty much drunk.” Mr. Weaver then drove to Deputy Kessler Weaver’s residence and reported the shooting at Jerry Weaver’s house, where appellant resided.

Deputy Kessler Weaver testified he went to the Jerry Weaver house around noon November 6, 1979, in response to Norman Weaver’s report of a shooting. The record reflects the following transpired:

“Q When you arrived down there, what, if anything, did you find?
A I found Hillard Johnston, Jr. laying on the floor with a bullet hole in his stomach.
Q Was he dead or alive?
A He was alive at that time.
Q Was anyone else there?
A No, there wasn’t.
Q Did you see the Defendant, Louis Sullivan, there?
A Not when I first got there I didn’t.
Q Now, where was the deceased, Hillard Johnston, Jr., laying?
A He was laying approximately two to three feet inside the bedroom door.
Q Inside of the bedroom door?
A Yes, sir.
Q Does that door open out into the front?
A Right.
Q All right, sir. What else did you do after you got there, if anything, Kessler?
A I tried to get his attention. I called his name about twice. I couldn’t get no answer. At that time a Norman Weaver and his wife, Tollie Weaver, came on down behind me. And shortly after that, a couple of minutes, Louis Sullivan arrived.
Q Louis came back?
A Yes, sir.
Q All right, sir. And what did you do then?
A At the time he walked up there, he said, well, he hit me on the shoulder twice is the reason I shot him. Just out of the spur of the moment I said you shot him. He said, yeah. I said I want to advise you of your rights. I advised him of his rights at the time and I sat him in the car.
Q Did you place him under arrest when he said he shot Hillard Johnston?
A Yes, sir.” (R.p. 128-130)

After reading appellant his rights, Deputy Weaver questioned appellant as to the location of the pistol. Appellant stated he threw it over the house. Both men looked for the weapon, but did not find it.

That same afternoon, after reading and signing a waiver of rights form, appellant gave a statement to police officials in which he admitted shooting the deceased after running out of the house into the yard to escape further blows from a chair wielded by the deceased. The following morning appellant took investigators to the pistol, which was located near a telephone pole a short distance from the scene of the murder.

Testimony by neighbors Dallas Chastang, Jr., and Bill Monroe Davis indicated they were present at the Jerry Weaver house the morning of the shooting, having been invited there by appellant to have a drink and listen to music. Both witnesses stated that appellant and the deceased had been drinking moonshine whiskey there that morning. However, both witnesses left the scene around 9:30, before the shooting. Neither man saw any sign of trouble between the appellant and the deceased at the time they departed. Bill Davis testified, however, that appellant did have a .32 pistol, which he had shown to Davis that morning, and had asked him how he liked it.

Doctor Leroy Riddick, a forensic pathologist for the State, testified he performed an autopsy on the deceased on November 7, 1979. The autopsy reflected the following:

“Q All right, sir. Now then, did you make a determination, Doctor Riddick, as to the medical cause of death of the decedent?
A The cause of death was a gunshot wound of the abdomen. As a result of the lacerating the artery, he bled over a quart of blood into his abdominal cavity.” (R.p. 96-97)

Richard Carter, a firearms examiner for the State, testified that an expended cartridge case which he received from Deputy Jack Rivers in connection with the death of Hillard Johnston, Jr., was fired from the same .32 caliber pistol he received from Deputy Rivers. The same pistol was identified at trial as the murder weapon pointed out to investigators by appellant the day after the murder. He also stated his examination of the shirt worn by deceased at the time of the shooting evidenced that the shot could have been fired from a distance of no closer than three to four feet from the victim.

Eddie Slayton, a State investigator, testified he took a statement from appellant at the courthouse the afternoon of the murder at approximately 3:00 p. m., after appellant first read and signed a waiver of rights form. Slayton stated appellant appeared sober at the time he gave the statement. As well, Slayton read appellant his rights, in the presence of Sheriff Wheat, and appellant stated he understood his rights. Investigator Slayton also accompanied appellant the next morning to find the murder weapon.

Slayton’s testimony on cross-examination by defense counsel revealed the substance of the statement to be as follows:

“Q Did you put down the material parts of it you felt needed to go in the statement, didn’t you?
A Yes, sir.
Q Even with that, he told you that Junior Johnston came to his house about 9:00 o’clock that morning, that they sat around the house and had a few drinks. He told you that Junior had drank a pint of wine that morning, didn’t he?
A Yes, sir, best I recall he did.
Q And he told you Junior brought two pints of whiskey with him to the house, didn’t he?
A I think so, yes, sir.
Q And that he drank about half a pint of that whiskey, didn’t he?
A That’s right.
Q The next thing he up and told you, Junior said he was going to knock the hell out of him?
A That was several hours after sitting around talking and drinking.
Q Junior told him he was going to knock the hell out of him?
A Yes, sir.
Q He told you he did hit him twice. He asked him not to hit him anymore?
A Yes, sir.
Q And Junior was coming out the door to hit him again?
A Yes, sir.
Q And he had to step out of the house there to keep him from hitting him?
A Yes, sir.
Q Then he says he shot him one time with a pistol to keep him from hitting him again, didn’t he?
A Yes, sir.
Q After that, didn’t he say, I notice, ‘Don’t let me die. I ran to my aunt’s house and called the law. I don’t know where the gun is.’ That’s what he told you that evening?
A That afternoon, yes, sir.
Q T went back to my house and Deputy Kessler Weaver was already there. Grace Weaver, my aunt, is where I called the law and an ambulance.’ He told you in here he kicked the door open at his aunt’s house because nobody was home to get this boy some help?
A I think that’s right, yes, sir.
Q Did y’all check on that to see whether he did or didn’t?
A I personally — no, sir.
Q You had no reason to doubt him telling you the truth, did you, Officer?
A No, sir.” (R.p. 160-162)

The defense rested without presenting any evidence or testimony.

I.

Appellant argues that the prosecuting attorney made an improper reference in closing argument to appellant’s failure to take the stand to testify in his own behalf. The prosecutor’s statement appears in the record as follows:

“MR. TURNER: He had enough sense, ladies and gentlemen of the Jury, to fabricate a lie about killing Hillary (sic) Johnston in self defense but he did not think about the fact this body would be autopsied and proved without question that he lied to the officers and lied to you yesterday because there is no way—
MR. GILMORE: Your honor, we object to the Defendant lied to this Jury.
THE COURT: I will let him argue—
MR. TURNER: I thought I said the Defendant did in his statement.
MR. GILMORE: He said the Defendant did yesterday.
THE COURT: I will exclude that statement from you.
MR. GILMORE: We make a motion for a new trial.
THE COURT: The motion for new trial will be denied.
MR. GILMORE: We accept.” (R.p. 178-174)

After carefully considering the prosecutor’s statement and its intended and probable import, we are of an abiding conviction that this was not a statement made in reference to the appellant’s failure to testify, but merely a permissible argument based upon evidence presented at trial. Binion v. State, 57 Ala.App. 234, 327 So.2d 729 (1975), cert. denied, 295 Ala. 391, 327 So.2d 732 (1976). The prosecutor’s argument was neither a direct nor an indirect comment on appellant’s failure to testify. It was not incumbent upon the trial judge to exclude the statement, but it appears he did so out of an overabundance of caution to avoid any possible error. Smith v. State, Ala.Cr.App., 370 So.2d 312, cert. denied, Ala., 370 So.2d 319 (1979). Considering the circumstances of what transpired in the trial and the nature of evidence presented during the trial, we do not find error in the prosecutor’s remark or in the trial judge’s ruling thereon. Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973); on remand 52 Ala.App. 708, 288 So.2d 832 (1974); Mitchum v. State, Ala.Cr.App., 384 So.2d 1193, cert. denied, Ala., 384 So.2d 1205 (1980).

II.

At the conclusion of the trial court’s oral charge, appellant excepted to the court’s charge as follows:

“THE COURT: Any exceptions or objections to the Charge?
MR. GILMORE: I want to except to the part of the Charge on—
THE COURT: I have one matter to take up outside your presence. I want you to remain in the jury box. Do not try to decide any issue in this case until your deliberations under instructions of the Court. I do not want anyone leaving the courtroom.
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE JURY.)
MR. GILMORE: I except to the Court’s Charge on the duty of the Defendant to retreat unless it’s shown that he was in his home or place of work. When all the evidence is undisputed that he was in his home and owes no duty to retreat.
THE COURT: I Charged, my Charge in regard to that was, a person is not, however, justified in using deadly physical force upon another person if it reasonably appears, or if he knows that he can avoid the necessity of using such force with complete safety by retreating, except that he is not required to retreat if he is in his dwelling or at his place of work and was not the original aggressor.
I feel that is a correct statement of the law. I Charged them that.
MR. GILMORE: All the evidence shows he was in his home. We except.” (R.p. 188-189)

Appellant now argues for the first time on appeal that the court erred by failing to charge the jury that the defendant had no duty to retreat if he was in either the curtilage of his home, or within his actual dwelling.

Where the trial court errs in its oral instructions to the jury, the only remedy is for defense counsel to take exception thereto and substantially point out to the trial court the erroneous instructions. If the defense attorney fails to take such exception, the matter can not be presented for the first time on appeal. Passmore v. State, 47 Ala.App. 189, 252 So.2d 115 (1971); Langley v. State, Ala.Cr.App., 383 So.2d 868, cert. denied, 383 So.2d 873 (1980); Smith, supra. If the defendant wishes an extension of a properly given oral charge, he must do so by requesting and presenting to the court written instructions extending the court’s charge. Taking an exception to the court’s covered oral charge in this instance is insufficient to preserve the point for review. Passmore, supra.

It is evident to this court that the exception taken by defense counsel made no attempt to point out any error in the substance of the portions of the court’s oral charge excepted to, but merely challenged the fact it was given at all. We find the charge on self defense under the evidence presented at trial was warranted and given in the defendant’s best interest. Additionally, while appellant argues on appeal that the court should have extended its charge on self defense, no requested written charges were given to the trial judge. Hence, defendant failed to preserve any error for review and we must decline to consider any alleged error in the court’s oral charge. Passmore, supra.

III.

Appellant argues error to reversal occurred through the repeated admission of evidence in the nature of a confession, without the trial court first having conducted a hearing outside the presence of the jury to determine voluntariness. There was no motion made by the appellant to suppress such statements prior to trial, nor was any request made for a hearing outside the presence of the jury at any time during the proceedings.

The first instance appearing in the record indicates this statement by the prosecutor in opening argument:

MR. TURNER: Louis Sullivan went to Norman Weaver’s house and said call the ambulance, that he killed Hillard Johnston.
MR. GILMORE: We object to what the Defendant told or any statement of the Defendant without first being hashed-out before the Court as to whether or not it was voluntary or not. And we move for a mistrial.
THE COURT: Deny your motion.
MR. GILMORE: It puts it in the minds of the jury that the Defendant already made a statement of what he did and without it first being considered out of the presence of the jury. It biases and prejudices the jury against the Defendant.
THE COURT: Do you want to take that issue up at this time?
MR. GILMORE: No, sir.
THE COURT: I am going to overrule your motion, deny your motion.” (R.p. 58)

The statement by the prosecutor appears to be no more than permissible argument as to facts he expected the evidence to reveal during the trial. A review of the record indicates this very evidence did come in, and properly so, at page 116 of the record, quoted supra in this opinion. Additionally, the trial judge gave the defense attorney the opportunity to take the issue up before the court, and defense counsel declined to do so. The trial court acted on defense counsel’s refusal and proceeded with the trial. At no point did defendant request a hearing outside the presence of the jury. Defense counsel having waived the opportunity for a hearing on the matter at that time, he can not now argue error. A defendant may not by his own voluntary conduct invite error and then seek to profit thereby. Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); see also Collins v. State, Ala.Cr.App., 385 So.2d 1010 (1979), reversed on other grounds at Ala., 385 So.2d 1005 (1980).

Appellant also insists the court erred in allowing in Deputy Kessler Weaver’s testimony regarding statements made to him by appellant. Those statements, quoted supra, indicate appellant made a confessory statement which was a spontaneous exclamation, prior to being taken into custody. Such statement was without doubt, freely volunteered and was admissible without laying a formal predicate. Laffitte v. State, Ala.Cr.App., 370 So.2d 1108, cert. denied, Ala., 370 So.2d 1111 (1979).

Further evidence was introduced of statements made to Deputy Kessler, and later to Investigator Slayton, after appellant was taken into custody. Both Deputy Kessler and Investigator Slayton testified as to the voluntariness of such statements. Appellant made no request for a hearing to be held outside of the jury’s presence. Additionally, appellant did not raise timely objection to the introduction of the particular statements, and allowed the evidence to come in in toto before raising his objection. Finally, appellant elicited the same testimony from the State’s witnesses during his cross-examination of Deputy Weaver and Investigator Slayton.

As the court has previously stated, “On the question of the voluntariness of a confession, the burden is not on the trial court to withdraw the jury ex mero motu, hear evidence on the question of the volun-tariness of a confession outside the jury’s presence, and expressly rule.” Carroll v. State, Ala.Cr.App., 370 So.2d 749, 757, cert. denied, Ala., 370 So.2d 761 (1979). The trial court, here, in monitoring the proceedings during the trial, was able to determine the voluntariness of these statements without a formal hearing. Further, the accused failed to interpose timely objections to the statements, and allowed the entire statement to come in, in both instances, before raising his objection. Considering these facts along with appellant’s own questions on cross-examination eliciting the same testimony, we find no reversible error. Carroll, supra.

We have carefully examined the record of this trial and find no error therein. The judgment of the trial court is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Robert C. COLEMAN v. STATE.
    3 Div. 288.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.

      Marlin M. Mooneyham, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Robert C. Coleman was indicted by the Montgomery County Grand Jury for the unlawful, willful, and felonious possession of marijuana contrary to the provisions of the Alabama Controlled Substances Act, § 20-2-70, Code of Alabama 1975. The appellant waived his right to jury trial. The trial court, after conducting colloquy with appellant and appellant’s counsel, found this waiver to be knowing and intelligent. Consequently, the trial court heard the evidence, found the appellant guilty as charged, and set sentence at ten years imprisonment in the penitentiary.

The appellant’s motion for a new trial, challenging the weight and sufficiency of the evidence was denied.

On February 8,1980, Agent Charles West of the Alabama Alcoholic Beverage Control Board, attached to the State Narcotics Unit, conducted a search of the appellant’s residence at 808 Alma Drive, Montgomery, Alabama. Agent West was assisted by other agents and officers, including Agent Grady Gibson of the ABC Board and Officer J. E. Kyser of the Montgomery Police Department. The agents were executing a search warrant issued the previous afternoon after Agent West received reliable information that the appellant had been seen selling marijuana inside his residence at 808 Alma Drive a few days before February 7.

The agents and officers were admitted to the residence by Lillie Mae Coleman, the appellant’s sister, and Jessie Lee Wright, a male companion. The appellant was not present when the search began, but he drove by without stopping while the search was in progress. One of the officers involved in the search saw the appellant as he passed, pursued him by automobile, and brought him back to the residence where the appellant was placed under arrest.

During the search, Agent Gibson found brown plant material, later identified as 1.5 grams of marijuana, under a chair cushion in the front room of the house. Officer Kyser found similar plant material, identified as 0.5 grams of marijuana, and a set of scales of the type used in drug trafficking in the kitchen in a drawer next to the sink. Officer Kyser also found approximately 3.7 pounds of marijuana under the hood of a Mercury Cougar automobile parked behind and up against the residence. In the bedroom Agent West found a water bill addressed to the appellant at 808 Alma Drive.

The appellant confirmed the fact that 808 Alma Drive was his residence. There was no evidence of any other permanent residents at this address, although there was evidence that appellant’s sister, Cellestine Hunt, occasionally stayed overnight when she had marital problems.

The ownership of the Cougar automobile was in dispute. It was registered to the appellant, the initial purchaser, but ownership was claimed by Cellestine Hunt. The trial disposed of this aspect of the case by ruling that there was sufficient evidence inside the residence to support a finding of possession.

I

The sole issue presented on appeal is whether or not there was sufficient evidence of appellant’s knowledge of the presence of marijuana inside his residence to establish a prima facie case for possession.

A well settled Alabama rule in cases of this type, where actual possession cannot be proven, is that constructive possession can be relied on if the prosecution proves beyond a reasonable doubt that the defendant had knowledge of the presence of the prohibited substance. Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973); McHel-len v. State, Ala.Cr.App., 351 So.2d 689 (1977); Green v. State, Ala.Cr.App., 384 So.2d 1215 (1980). Such knowledge may be proven by circumstantial evidence. Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971); Henderson v. State, Ala.Cr.App., 347 So.2d 540, cert. quashed, Ala., 347 So.2d 543 (1977).

The test for the sufficiency of the circumstantial evidence required to present such evidence to a jury (the trier of fact) is whether or not facts are presented from which a jury might reasonably infer that the crime has been committed. Cumbo v. State, Ala.Cr.App., 368 So.2d 871, cert. denied, Ala., 368 So.2d 877 (1978) and cases therein cited. So the threshold question based on facts presented is not whether or not the trial court views the facts as excluding every reasonable hypothesis except that of the defendant’s guilt but whether or not a jury might so infer. Cumbo, supra. Once this threshold is satisfied the issue is properly submitted to the trier of fact. A conviction is then justified only where the fact-finder is convinced beyond a reasonable doubt that the evidence establishes guilt. Cumbo, supra.

Having reviewed the evidence in this case, we are of the opinion that the circumstances of this case, when taken collectively, are sufficient for a jury to infer guilty knowledge. There was uncontro-verted evidence that the appellant had sold marijuana in his residence a few days prior to the search. Marijuana was found in two separate rooms inside his residence. A set of scales of the type used in drug trafficking was found in appellant’s kitchen. There was no evidence of the presence of strangers or of other permanent residents at 808 Alma Drive, his home. The appellant did not stop at his home when he apparently saw search in progress. Instead he fled and had to be chased and brought back by a police officer. He made no attempt to explain his actions. While any one of these factors might be insufficient by itself, when considered in totality they will justify an inference by a jury that the appellant had knowledge of the presence of marijuana in his residence.

Appellant contends that none of the circumstances of this case provides the connection between appellant and the contraband sufficient to prove knowledge. He bases the contention on Temple v. State, Ala.Cr.App., 366 So.2d 740 (1978), which set out six kinds of circumstances commonly used to support a finding of knowledge sufficient to prove constructive possession. Without ruling on the application of the circumstances listed in Temple we need only point out that the list was not exclusive. The kinds of circumstances which could be used to establish knowledge are unlimited and depend upon the specific facts of each case. Temple, supra, at 743.

We also make reference to the general rule of Temple, that knowledge could not be established by the mere presence of a controlled substance on the premises of the accused where he was in possession but not “exclusive possession.” Though we find it unnecessary to decide the issue of “exclusive possession” in this case, an argument could be made that appellant was in exclusive possession of 808 Alma Drive such that the mere presence of a controlled substance on the premises would satisfy the knowledge requirement.

We are not unmindful of the fear expressed in Temple that liberal application of circumstantial evidence might run contra to the defendant’s presumption of innocence such that innocent parties could be convicted if enemies were to plant illegal drugs in their residences. This fear was present in Temple because facts showed the presence of strangers and no facts showed circumstances which connected appellant with the illegal drugs. But Temple did not set out a general rule by which a drug trafficker could avoid conviction by being absent during the search of his residence and by having associates visit occasionally. On the contrary, the rule applied was a narrow one based on Temple’s peculiar facts.

For the reasons noted above the circumstances of this case would justify submitting this case to a jury. Whereas, as here, the case was tried without a jury, the trial court becomes the trier of fact and its verdict has the weight of a jury verdict. Kelly v. State, 273 Ala. 240, 139 So.2d 326 (1962).

We have carefully reviewed the record on appeal and conclude that there was sufficient evidence for the court below to find guilty knowledge. The case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.