text:
    Rodney Lee McGAUGHY and Stephanie Lynn McGaughy minor children of Rodney Dale McGaughy deceased, who sue by and through their mother and their next of kin, Kathryn Robin McGaughy v. ALLIED PRODUCTS COMPANY.
    Civ. 2907.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    Rehearing Denied March 17, 1982.
    Certiorari Denied April 30, 1982 Alabama Supreme Court 81-532.

      James C. Pino of Mitchell, Green & Pino, Pelham, for appellants.
    Gilbert E. Johnston of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.
   BRADLEY, Judge.

The minor children of Rodney Dale McGaughy, an employee of Allied Products Company who died as a result of a gunshot wound inflicted by a co-employee, seek to recover workmen’s compensation benefits under the Alabama Workmen’s Compensation statute. From a judgment in favor of Allied Products Company denying compensation benefits, the minor children bring this appeal.

The evidence shows that Rodney Dale McGaughy (Employee) was employed by Allied Products Company (Employer) as operator of a ball mill, a machine used to crush lime into powder. Employee’s brother, Mark McGaughy, was employed by Allied Products Company as a kiln operator, and worked with Employee on the same work shift. There is disputed testimony concerning the likeness in physical appearance between the two brothers. James Williams, a co-employee of both Mark and Employee, was assigned as kiln operator helper to Mark. Mark had had several work-related problems with Williams, some of which he had discussed with his supervisors. There is no evidence of any personal contact, at work or socially, between Williams and Employee.

On June 5, 1979 around 11:00 p. m., Employee, Mark and Williams reported to work at Employer’s plant. Mark and Williams soon became involved in an argument, apparently over whether Williams was allowed to take a break in the kiln control room, an air-conditioned, glass-enclosed office in which Mark worked. Mark, after consulting with the supervisor, made a statement to Williams to the effect that Mark would keep up with the amount of time Williams spent on break. Williams apparently became angry, and left the room.

A short while later Williams returned to the control room, squatted down, and began cursing at Mark and shaking his fists. Mark began to approach Williams, whereupon Williams turned and ran out of the control room and into an open area outside the control room. Mark chased Williams out into this open area about twenty feet and took a swing at him. At this point Williams ran toward a side door, and Mark returned to the control room to call his supervisor.

Employee was in the control room when the altercation began. When Mark followed Williams out of the control room, Employee also left the control room and stood about ten feet behind Mark. During this time Employee made no move to intervene and said nothing to either party.

Mark stated that after Williams ran through the side door and down some stairs, Mark returned to the control room to telephone his supervisor. When he reached the control room he heard a loud noise like a gunshot. He ran back out of the control room and found Employee lying out the side door on a small platform. Employee died as a result of this gunshot wound.

Jimmy Rhodes was Employee’s assistant. At the time of the shooting, he was working with two other men to repair the dust collector screw. This screw was approximately thirty feet from where the shooting occurred.

Rhodes stated that he heard a loud noise. When he heard the noise, he turned and saw Employee standing on the platform near the ball mill control panel. Rhodes also saw James Williams at the bottom of the stairs. Rhodes stated that Williams stopped, turned around, came back up about two steps, and fired a shot. Rhodes stated that at that point Employee was standing still on the platform.

Rhodes also testified that just prior to the shooting, Employee was observed walking slowly through the side door out onto the platform. Rhodes stated that this was where Employee was required to be so that when the dust collector screw was repaired Employee could push the button to restart the machine.

Later it was discovered that the loud noise which everyone heard prior to the shooting was a bucket of bolts falling over on the platform. No one saw what caused the bolts to fall over.

David Ponder was helping Rhodes work on the dust collector screw. Ponder said that when he turned he saw Employee looking down the stairs at Williams. It was at this time that Williams turned, took about two steps up the stairs, and fired his gun at Employee. Further, Ponder testified that Employee was in a place which his job required him to be.

The widow and minor children of Employee brought suit on October 10, 1979 against Employer to recover workmen’s compensation benefits, alleging that Employee’s death arose out of and occurred in the course of his employment. The case was tried on May 27, 1981, and judgment for the Employer was entered on June 24, 1981. The court specifically found:

The Court further finds that Mark McGaughy told his brother to grab Williams, or words to that effect; that Dale McGaughy pursued Williams; that a few seconds after James Williams ran from the scene with Dale McGaughy in pursuit, Dale McGaughy knocked over a one hundred pound bucket of bolts located on a platform; that at the time the bucket was knocked over Williams had just descended or was descending stairs attached to that platform; that Williams turned around, took a couple of steps towards Dale McGaughy and shot him, which shot caused the death of Dale McGaughy; and that Williams knew the person whom he shot was Dale McGaughy at the time he shot.
The Court concludes that Dale McGau-ghy was shot and killed as a result of his pursuit of James Williams; that Dale McGaughy was not involved in the argument between Williams and Mark McGaughy; that Dale McGaughy was not acting on behalf of his employer or within his employment in any way when he pursued Williams; that there was no causal relation between the employment and the death; that Dale McGaughy was killed for reasons unrelated to his employment; and that Dale McGaughy was not killed by an accident arising out of and in the course of his employment.

The court further found that Employee, in pursuing Williams, left his employment and by so doing violated several reasonable company rules of which Employee knew. The widow and minor children appeal from that judgment.

The issues on appeal concern the correctness of the trial judge’s findings. The questions presented are (1) whether the trial court erred in its finding that Employee was shot and killed as a result of his pursuit of Williams, (2) whether the fatal shooting of Employee during working hours was an accident arising out of and in the course of Employee’s employment, and (3) whether Employee was in violation of company rules of which he had knowledge, thus precluding his dependents from recovering compensation benefits under § 25-5-51, Code 1975.

We must first point out that the scope of review in workmen’s compensation cases is limited to an examination of the evidence to determine if any reasonable view of it supports the conclusions of the trial court. This court will not examine the weight or preponderance of the evidence but will look only to see if there is any legal evidence to support the findings of fact of the trial court. Weatherly v. Republic Steel Corp., 391 So.2d 662 (Ala.Civ.App.1980); Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977).

Appellants contend, with regard to the first issue, that no reasonable view of the evidence would support a finding that Employee was killed because he was pursuing Williams. We agree with this contention. The evidence is undisputed that Employee had been standing in the control room for a time when the disagreement between Mark and Williams began. Mark followed Williams out of the control room, whereupon Mark swung his fist at Williams. At this point the testimony indicates that Williams ran out a side door and down some stairs.

Mark returned to the control room where he stated he planned to telephone the supervisor. At this point the evidence places Employee on a small platform just outside the side door and within three feet of the ball mill control panel which he monitored. One witness testified that he first observed Employee standing on the platform; yet that same witness stated that he observed Employee walking slowly through the side door onto the platform.

In its findings of fact, the trial court found that Mark had told Employee to grab Williams. Mark denied this. The supervisor, however, testified that shortly after Employee was shot Mark told the supervisor that he had told Employee to grab Williams. This testimony was objected to on the ground of hearsay. The trial court stated that the evidence would be admitted for impeachment purposes and overruled the objection.

The law in this state clearly holds that a statement admitted for impeachment purposes can operate only to discredit a witness and cannot be made the basis of a finding of fact necessary to the establishment of a liability or defense. Randolph v. State, 348 So.2d 858 (Ala.Crim.App.), cert. denied, 348 So.2d 867 (Ala.1977). In the present case the trial court specifically admitted the supervisor’s testimony for impeachment purposes, and under Alabama case law could not later use that testimony for substantive purposes. Therefore, there is no evidence to support a finding that Mark told Employee to grab Williams.

Without this evidence we cannot find any support for the court’s finding that Employee was pursuing Williams. The word “pursuit” connotes an attempt to overtake or capture. See Webster’s Third New International Dictionary (1966). In the present case there is no evidence to support a finding that Employee attempted to overtake or capture Williams.

The evidence indicates that a bucket of bolts was spilled on the platform. Upon hearing this noise the other employees looked up and saw Employee standing on the platform. No one saw Employee make any move to descend the steps to stop Williams. No one saw Employee running or moving fast toward Williams. At the time the witnesses looked up, they simply saw Employee standing on the platform within three feet of the ball mill control panel.

During the altercation between Williams and Mark, Employee did not speak to Williams. He never made any attempt to intervene in the fight. The evidence is that Employee was standing on the platform by the stairs which Williams had just run down and made no attempt to follow Williams, nor did he say anything to Williams. It is undisputed that this platform was adjacent to the control panel at which Employee’s job duties required him to be.

In light of the evidence that Employee was at a place where his duties required him to be and .that he had not engaged in any dispute or altercation with Williams or threatened Williams in any way, the fact that a bucket of bolts overturned in the vicinity of Employee is no evidence that he was in “pursuit” of Williams at the time Williams shot him. Consequently, we conclude that the trial court’s finding that Employee left his employment to pursue Williams is not supported by the evidence.

Appellants’ second contention is that the trial court erred in finding that the fatal shooting of Employee was not an accident arising out of and occurring in the course of his employment. Again, we agree with appellants’ contention.

Section 25-5-1(9), Code 1975, provides in part:

(9) Injuries by an accident arising out of and in the course of his employment ... shall not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him and not directed against him as an employee or because of his employment ....

A wilful assault by a co-employee may be compensable under the Alabama workmen’s compensation statute. Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188 (1923). However, the fact of a wilful assault alone does not conclusively establish that the assault arose out of the employee’s employment. That conclusion must be drawn from the circumstances of each case. Sloss-Sheffield Steel & Iron Co. v. Harris, 218 Ala. 130, 117 So. 755 (1928). The fact that the assailant and the employee were on the employer’s premises at the time of the altercation, and engaged in the performance of work, is not conclusive. Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So.2d 39 (1965). “ ‘[T]he rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency.’ Madden’s Case, 222 Mass. 487, 495, 111 N.E. 379, 383, L.R.A. 1916D, 1000.” Sloss-Sheffield Steel & Iron Co. v. Harris, supra. If the assault is committed solely to gratify personal ill will, anger, or hatred, the injury or death cannot be said to arise out of the employment relationship. Tiger Motor Co. v. Winslett, supra.

We cannot find that there is any evidence to support the trial court’s conclusion that the shooting involved in this case did not arise out of the employment relationship. It is undisputed that Employee had not been involved in the argument between Mark and Williams. As we have previously stated, there is no evidence that Employee left his employment to pursue Williams. Therefore, we find that Employee was shot while in the scope of his employment, and the shooting was not due to personal enmity.

Appellants lastly contend that the trial court erred in finding that Employee was in violation of several company rules, thus precluding his dependents from recovering compensation benefits under § 25-5-51. That section provides, in part, that “no compensation shall be allowed for an injury or death caused by the wilful misconduct of the employee ... or his wilful breach of a reasonable rule or regulation of his employer, of which rule or regulation the employee has knowledge.”

We are mindful of the scope of our review in cases of this sort, but we cannot find any evidence to support a finding that Employee violated Employer’s rule. The Employee had signed a statement that he agreed to abide by the “General Conduct and Safety Rules” booklet. However, there is no evidence to support a finding that Employee had violated these rules. He had not participated in any fight, and at the time he was shot, he was at the proper place to perform his work duties.

For the reasons stated above, the judgment of the court is reversed and the cause remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Frank Ferguson DOREY v. Minnie Matilda DOREY.
    Civ. 2949.
    Court of Civil Appeals of Alabama.
    Feb. 10, 1982.
    Rehearing Denied March 17, 1982.
    Certiorari Denied, April 30, 1982 Alabama Supreme Court 81-552.

      Wilford J. Lane, Anniston, for appellant.
    Robert H. Brogden of Brogden & Quatt-lebaum, Ozark, for appellee.
   BRADLEY, Judge.

This' is a divorce case.

Frank and Minnie Dorey were married on June 28, 1953. They lived together as husband and wife until June 1979 when they separated. Three children were born of the marriage, all of which are now majority age.

The parties were granted a divorce on October 28, 1980. No appeal was taken from the final decree. In early 1981 the husband filed a motion under A.R.C.P. 60(b) asking for relief from the final decree, alleging it was inequitable. In the alternative the husband asked that the final decree be modified because of a substantial change of circumstances.

After a hearing, the trial court denied the husband’s petition for relief from the final judgment of divorce. The court did, however, find that one aspect of the final decree was causing confusion in that it required the husband to pay the wife thirty percent of his military retirement income as periodic alimony. As a result, the court modified the decree so as to require the husband to pay the wife $375.00 a month as periodic alimony. From this judgment the husband has appealed to this court.

The husband raises two issues in this appeal. First, he contends that the denial of his 60(b) motion was error because the final decree of divorce was inequitable. Secondly, he contends that the court abused its discretion in not modifying the award of alimony to the wife.

The husband filed a motion for relief from the judgment under A.R.C.P. 60(b) approximately four months after the judgment was rendered. Rule 60(b) is not a substitute for appeal, and the issue on appeal from the denial of a 60(b) motion is whether the trial court abused its discretion in denying the motion. Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976). We find no such abuse of discretion in the present case.

In examining the record, we note that the final decree of divorce is not contained therein. This fact makes it extremely difficult for this court to make a determination of whether the final decree was equitable.

In any event, we can find no evidence that warrants overturning the final decree. A court may deny a motion for relief from final judgment where it finds that the moving party has not shown good cause for having failed to take appropriate action sooner or where litigation would be protracted needlessly due to inability of the moving party to demonstrate valid reason for changing result of the challenged judgment. Clark v. Clark, 356 So.2d 1208 (Ala.Civ.App.1978). This portion of the judgment is affirmed.

As his second contention, the husband argues that the trial court’s refusal to modify the periodic alimony award in the original decree was improper. The husband basically makes two arguments on this issue. His first argument is that military retirement is not subject to division in a dh orce proceeding. Secondly, he argues that there has been such a material change in circumstances as to warrant a modification of the periodic alimony provisions of the original decree.

In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), it was held that military retirement pay is not subject to a property division. However, the Court did not say that military retirement pay could not be considered in awarding periodic alimony in appropriate cases.

In the present case the husband’s only real income was his military retirement pay of over $1,600.00 a month. His several attempted business ventures had all failed.

The court, in the modification hearing, modified the divorce decree to provide the wife $375.00 a month as periodic alimony. The original decree had awarded her thirty percent of the husband’s military retirement pay a month as periodic alimony. In Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979), this court held that military retirement benefits could be considered in an award of periodic alimony. McCarty, supra, did not preclude our courts from considering military retirement for periodic alimony purposes. As a result, we find no error in the award of periodic alimony which would be paid from military retirement benefits.

The husband argues, however, that the award of alimony in this case constituted a property settlement. He contends that under McCarty, supra, his military retirement benefits could not be used as a basis for a property settlement. We cannot, however, agree that this award constituted a property settlement and not periodic alimony.

Finally, the husband contends that the refusal to modify the periodic alimony award was an abuse of discretion. We cannot, however, agree.

Modification of a prior decree for periodic alimony, based upon changed circumstances is within the sound discretion of the trial court and will not be reversed absent a showing of an abuse of that discretion. Further, the burden of proving a material change of circumstances is on the petitioner. Childress v. Childress, 378 So.2d 1147 (Ala.Civ.App.1979).

In the present case we can find no abuse of discretion. The husband’s income has not changed since the original decree was entered. He argues that he has a mental disease which affects his ability to work. His business failures, however, were shown at the original divorce hearing. The trial court, therefore, did not err in refusing to modify the periodic alimony provisions of the original decree.

The wife has requested an award of attorney’s fees for this appeal. Her request is granted and she is awarded $350.00 as a reasonable attorney’s fee.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    In re Charles C. CARTER.
    Civ. 3030.
    Court of Civil Appeals of Alabama.
    March 31, 1982.
    Kenneth F. Funderburk of Phillips & Funderburk, Phenix City, for appellant.
    William J. Benton, Dist. Atty., Twenty-Sixth Judicial Circuit, Phenix City, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a criminal contempt against an attorney, properly brought before this court by appeal pursuant to § 12-1-11, Code (1975).

Charles C. Carter, an attorney licensed to practice in both Alabama and Georgia, was cited for an indirect criminal contempt by the Circuit Court of Russell County. The charge was grounded on the basis that Carter “with full knowledge acquiesced in and furthered the contempt of the said Richard Lee Mitchell [his client] in all cases which are still pending in this court.” Carter was fined $100 plus costs and suspended from practice in Russell County for a period not less than six months.

The cause arose under the following pertinent facts:

Richard Lee Mitchell and Crisanta Carlos Mitchell (Overman) were divorced in Alabama on August 20, 1980. The wife was awarded custody of the couple’s only child. On June 4, 1981, the father petitioned the circuit court in Russell County, Alabama, for modification of the divorce decree as to custody alleging that subsequent to that decree he and his former wife had entered into a common-law marriage and that there was a change in circumstances to justify awarding custody to him. On August 28, 1981, the trial court ruled that Mitchell was in contempt of court for his refusal to return custody of the minor child to the mother. Mitchell was ordered to return the child by September 15,1981, and upon his failure to comply, the trial court ordered him arrested on September 17, 1981.

Subsequent to the trial court’s order of August 28,1981, Mitchell retained appellant to pursue a divorce action in Georgia where his wife was then residing to terminate the common-law marriage. Carter filed the divorce complaint in Muskogee County, Georgia, on September 18,1981. He did so with full knowledge of the Alabama proceedings, although he did not participate in them. The Georgia divorce complaint included a prayer for custody of the minor son but failed to disclose the pending Alabama proceedings as required by the Uniform Child Custody Jurisdiction Act adopted in both states. Carter succeeded in having custody of the child returned to the mother and alleged that he refused to represent Mitchell unless he fully complied with the Alabama court orders.

On October 2,1981, on its own motion the Russell County Circuit Court entered a show cause order against Carter and set a hearing for October 16, 1981. After the hearing ore tenus, the trial court found Carter guilty of willful and deliberate contempt and set his punishment as noted above. From that order, Carter appeals.

In its finding of fact entered November 3, 1981, for purposes of appellate review, the trial court stated that it was not reasonably satisfied that Carter did not use the courts of Georgia to circumvent and thwart its orders, and found appellant guilty of willful and deliberate contempt.

Appellant contends that the record is totally void of any evidence that he acquiesced in or furthered his client’s contempt or that he used the Georgia courts to circumvent the Alabama court’s custody order.

Our scope of review in this case is set out in § 12-1-11 and reads in pertinent part:

On such appeal the question shall be whether the appellant was guilty of contempt, and the sentence or order of the court below may be affirmed, reversed, annulled or modified, according to the judgment of the appellate court. All such appeals shall be tried on the record ....

This case is unusual in that the attorney cited for contempt never appeared in the underlying case of Mitchell v. Mitchell before the Russell County Circuit Court, and the charge of contempt was entered by that court sua sponte. The alleged contempt apparently consists of one act — the filing of a verified complaint in a court of another state. On the face of it, the Georgia court had jurisdiction in that case since the wife was living in Georgia and the husband had returned custody of the minor child to her there in compliance with the Alabama court order through an arrangement by the appellant.

Though the Georgia complaint did not inform concerning the pending custody proceeding in Alabama as required by the Uniform Child Custody Jurisdiction Act [in Alabama, § 30-3-29(a)(2) ], Mitchell had a right to pursue a divorce from the alleged new marriage and to have counsel represent him. Incomplete or improper pleading does not ordinarily constitute a contempt. There is evidence in the record which indicates the attorney in good faith believed the burden of pleading the pending Alabama suit was upon the defendant. There is no evidence that appellant willfully and deliberately used the Georgia courts to circumvent or thwart the orders entered in Alabama. The mere filing of the complaint could not thwart or impede the authority of the court. A judgmental error, if conceded, without clear and convincing evidence of bad faith intent, is an insufficient foundation for a finding of criminal contempt. In re Willis, 242 Ala. 284, 5 So.2d 716 (1941). See, In re Watts, 190 U.S. 1, 23 S.Ct. 718, 47 L.Ed. 933 (1903). The enthusiastic and conscientious prosecution of a client’s cause could be stifled or intimidated by threat of criminal contempt by any less standard of proof.

The judgment of contempt is due to be reversed and the charge dismissed. It is so ordered.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Dorothy LIGHTFOOT (Bylsma) v. Kim BYLSMA.
    Civ. 3081.
    Court of Civil Appeals of Alabama.
    March 31, 1982.
    Stephen M. Langham, Prattville, for appellant.
    Frank W. Riggs, Montgomery, for appel-lee.
   HOLMES, Judge.

The Circuit Court of Montgomery County modified a previous decree of divorce. The mother appeals from the modification and this court affirms.

The original decree of divorce awarded custody of the children to the mother. The minor daughter is four years old and the minor son is two years old. The father was awarded visitation privileges as follows:

a. Four weeks each summer commencing 1981.
b. Every other weekend from Friday at 6:00 o’clock p. m. through Sunday at 6:00 o’clock p. m.
c. Seven days each Christmas commencing at 2:00 p. m. on Christmas Day.
d. Every other Thanksgiving commencing 1982.

Thereafter, the father petitioned the trial court for custody. After an ore tenus hearing, the trial court modified the prior decree of divorce. The trial court ordered “[tjhat the parties shall hold joint legal custody of the minor children. ... ” Specifically, the trial court ordered:

3. The father shall exercise actual physical custody of the children at the following times and dates:
a. Four weeks each summer commencing 1981.
b. Every other weekend from Friday, 6:00 o’clock P.M. until Sunday, 6:00 o’clock P.M.
c. Seven days each Christmas commencing at 2:00 o’clock P.M. on Christmas Day.
d. Every other Thanksgiving commencing 1982.
e. Each Tuesday and Thursday from 4:00 o’clock P.M. until the next morning at 8:00 o’clock A.M.
f. The father shall pick up and deliver the children either at the mother’s home in Montgomery or at the day-care center, depending on the time of day that his physical custody commences or terminates.
The mother shall exercise physical custody on dates and times not included in the father’s physical custody provisions.

As indicated, the mother appeals, contending no material change in circumstances had occurred to warrant a change in custody. We disagree.

When a party to a divorce seeks a modification of the child custody provisions of the original decree, he must show a material change in circumstances which adversely affects the best interests and welfare of the children. Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980). When, after an ore tenus hearing, the trial court renders its judgment, this court presumes it to have correctly applied discretionary authority and adjudged the best interest of the child. Barber v. Lay, 384 So.2d 1095 (Ala.Civ.App.), cert. denied, 384 So.2d 1096 (Ala.1980). This court will not disturb that judgment unless it is so unsupported by the evidence as to appear plainly wrong. Stewart v. Grace, 360 So.2d 1032 (Ala.Civ.App.1978).

Viewing the record with the attendant presumptions, the following is revealed:

The father lives with his parents in Montgomery. He is employed by TG&Y and works from 7:00 a. m. until 3:30 p. m.

The mother is employed by Gamble Steel in Montgomery and works forty hours per week, from 8:00 a. m. until 5:00 p. m. Shortly after the divorce, in an effort to further her employment opportunities, the mother began attending night school. Her classes are on Monday, Tuesday and Thursday evenings from 5:30 p. m. until 10:30 p. m. Also, after the divorce, the mother began working in Selma on alternate Saturdays.

The maternal grandmother takes care of the children while the mother is at work and at class. The grandmother often stays with the children at the mother’s home in Montgomery, although the children have, on occasion, stayed at the grandmother’s home in Verbena. There was some evidence that the maternal grandmother was not in excellent health. On those weekends when the mother works in Selma, the father keeps the children at the paternal grandparent’s home.

With these facts before it, the distinguished trial judge found there had been a material change in circumstances and awarded the parents joint custody. Specifically, the trial judge determined that since the time of the divorce, the mother has less time to spend with the children. Consequently, in addition to vacations and alternate weekends, the father will now have physical custody on two of the evenings when the mother is attending class.

We cannot find the trial court erred in modifying the custody provisions of the divorce decree in view of the fact that the mother now attends night school three evenings a week. Pursuant to the modification order, the children will be placed in a licensed day care center during the day, and neither parent appears to complain about this arrangement. The children will spend the evenings and weekends in Montgomery with one or the other custodial parent. It is our view, as it was obviously the view of the trial court, that this custody arrangement serves the best interests of the minor children.

For the reasons indicated, this case is due to be affirmed.

AFFIRMED.

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


text:
    Ex parte William M. MARTIN. (Re EAST BAY APARTMENTS v. William M. MARTIN).
    Civ. 3160.
    Court of Civil Appeals of Alabama.
    March 31, 1982.
    W. Kenneth Gibson of Taylor, Benton & Gibson, Fairhope, for appellant.
    George Huddleston, III, Fairhope, for ap-pellee.
   BRADLEY, Judge.

Relief from this court is requested by an original petition for writ of mandamus. Petitioner is a former radio announcer known as William (Billy) Martin, residing in an apartment unit of East Bay Apartments, a complex located in Baldwin County. On January 13, 1982 respondent, East Bay Apartments, filed an action seeking damages for breach of a lease agreement against petitioner in the District Court of Baldwin County. It was alleged that Martin had defaulted in making rent payments under his lease for a period of three months, and had failed to pay late charges as required by the lease. The damages requested amounted to $2,280.00. Along with its complaint, respondent filed a petition for a writ of attachment and an accompanying affidavit of the resident manager of the apartment complex. The affidavit alleges that petitioner is in default for three months’ rent and applicable late charges, and that the affiant believes that petitioner “intends to move to Florida, outside the jurisdiction of the courts of Baldwin County, Alabama in the event collection procedures are commenced against him.” The affidavit failed to contain a statement to the effect that the writ was not sued out solely “for the purpose of vexing or harassing the defendant,” as required by § 35-9-62, Code 1975, the provision dealing with a landlord’s lien on the tenant’s possessions for rent due and owing.

The district court granted respondent’s petition for a writ of attachment. On January 19 respondent filed an attachment bond in double the amount of the damages requested, and on January 20 a writ of seizure and attachment was issued. Petitioner was duly notified, and the sheriff seized an automobile and two queen-size beds belonging to petitioner.

Thereafter, on January 25, petitioner, pursuant to A.R.C.P. 64(b) and the notice contained in the attachment order of the district judge, filed a written request for a hearing on the dissolution of the writ and a motion to quash.

The hearing was held on January 27. At that time respondent filed an amendment to the original affidavit, containing aver-ments that demand for the sums due had been made and refused, that petitioner had fraudulently disposed of certain items of his personal property, and that the writ was not sued out solely to vex or harass the defendant. The amended affidavit was accepted by the district judge over petitioner’s objection. The record before us does not contain a copy of the district court order or the transcript of the proceedings, but it does contain enough information to permit us to determine that petitioner’s motion to quash or dismiss the writ of attachment was denied.

On February 10 petitioner filed a petition for writ of mandamus in the circuit court, pursuant to that court’s supervisory jurisdiction as contained in § 12-11-30, Code 1975. The petition was denied, and on February 17 petitioner renewed his petition in this court, pursuant to § 12-3-11, Code 1975.

Petitioner asserts four grounds for the issuance of a writ of mandamus directing the dismissal of the writ of attachment. He first alleges that the original affidavit filed by respondent in conjunction with the request for a writ of attachment was invalid for failure to allege that the writ was not sued out solely “to vex or harass the defendant,” as required by § 6-6-44, Code 1975, the provision dealing with the general law of attachment. Petitioner argues that the requirement is a substantive one, and that such a defect in the affidavit is not amendable under the authority of Hall & Curry v. Brazelton, 46 Ala. 359 (1871). He further argues that a defective affidavit is equivalent to no affidavit at all, and that, pursuant to § 6-6-142, Code 1975, the writ is due to be dismissed.

We disagree with petitioner’s contention. We would first point out that § 35-9-62, Code 1975, dealing with attachment as a means of enforcing a landlord’s lien on property of the tenant, and § 6-6-44, Code 1975, the general law of attachment, both require that language to the effect that the writ of attachment is not sued out solely “to vex or harass the defendant” be contained in the affidavit. It is undisputed that the original affidavit did not contain the precise statutory language required for the proper issuance of the writ.

Although the original affidavit did not contain the required statutory language, the trial court permitted an amendment to the affidavit to include the required language. Both §§ 6-6-143 and 35-9-62 permit “the plaintiff, before or during the trial ... to amend any defect of form or of substance in the affidavit.” Consequently the trial court properly permitted the amendment to the affidavit.

The cases relied on by petitioner involved a construction of the Code of 1867, which provided that a defect in substance of the affidavit in attachment proceedings could not be cured by amendment. § 2990, Code 1867. See Hall & Curry v. Brazelton, supra. As noted above, the legislature has changed the law. Thus there is no procedural defect in the issuance of the attachment writ.

Petitioner’s next two allegations concern the actions of the district judge at the January 27 hearing. We would point out, however, that the underlying suit against petitioner is based upon a landlord’s statutory lien on the tenant’s personal property as provided by § 35-9-60 through -65, Code 1975. The right to a hearing on the dissolution of a writ of attachment under A.R.C.P. 64(b) is restricted to actions involving the recovery of specific personal property under the detinue statute, “or any other provision of law whereby the owner of a security interest in personal property seeks to recover possession of said personal property prior to judgment.” The enforcement of a landlord’s lien does not fall into any of the categories enumerated by rule 64(b).

Rather, the provisions of A.R.C.P. 64(a) are applicable to the present proceedings. Rule 64(a) provides that “all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by law.” (Emphasis supplied.) Moreover, the Committee Comments on rule 64 provide that:

ARCP 64(a) makes available all statutory procedures for seizure of person or property except to the extent that these laws are invoked for the purpose of recovery of a security interest in personal property prior to judgment. An effort to use these laws in the excepted area calls into play the additional requirements of ARCP 64(b).

Under the provisions of § 35-9-60 through -65, Code 1975, petitioner is not entitled to a hearing on the issue of dissolution of the writ of attachment. Errors alleged to have taken place at the January 27 hearing are, therefore, irrelevant to the resolution of the present case.

Petitioner lastly contends that the automobile seized by the sheriff under the writ of attachment is not within the class of property covered by a landlord’s lien. Petitioner argues that a landlord’s statutory lien extends only to those items of personal property contained within the four walls of the rented apartment. That contention is without merit. A landlord’s lien on the goods, furniture and effects of the tenant extends to such property of the tenant as is brought upon and enjoys the protection of the premises and is used by the tenant in connection therewith. Dixon v. Bashford, 220 Ala. 625, 127 So. 194 (1930). That class of property covered by the lien has been extended to include all property kept on the premises and used in connection with the tenancy, whether inside or outside of the leased premises. Stephens v. Adams, 93 Ala. 117, 9 So. 529 (1891). Respondent’s lien would therefore extend to the property of petitioner used on the common ways and parking areas of the apartment complex. Petitioner’s automobile would be squarely within the scope of coverage. See Dixon v. Bashford, supra.

For the reasons above stated, petitioner’s request for a writ of mandamus is denied.

WRIT DENIED.

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

      . The general law of attachments, § 6-6-30 through -168, governs cases such as the one before us, insofar as its provisions are not inconsistent with the provisions of § 35-9-60 through -65, dealing with landlords’ liens. § 35-9-64, Code 1975.


text:
    CITY OF JASPER CIVIL SERVICE BOARD v. Richard A. SCHULTZ.
    Civ. 3000.
    Court of Civil Appeals of Alabama.
    April 7, 1982.
    Charles R. Stephens of Bankhead, Savage & Stephens, Jasper, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is an appeal from the trial court’s order taxing the costs of a proceeding against the appellant, the City of Jasper (City). We reverse.

The pertinent facts giving rise to the instant appeal are as follows:

The appellee, Richard Schultz, was a policeman with City. In 1978, the appellee was discharged, and he appealed to City’s civil service board. After a hearing, the civil service board upheld the discharge.

The appellee then appealed to the: circuit court. The circuit court ordered the civil service board to file a transcript and record of all proceedings, findings and orders entered in the case. On April 22, 1981, after the record had been filed, the trial court entered an order affirming the decision of the civil service board. In this April 22 order, the trial court ruled that the costs incurred by the civil service board should be paid by City.

On April 28, 1981, the trial court amended its order, and determined that the costs incurred in the action should be taxed against the appellee. The clerk of the circuit court issued an execution for the cost of the record and transcript, a total of $438.60. A levy was made on the appellee on September 1, 1981.

On September 2, 1981, the trial court entered a new order, stating that costs had been taxed against the appellee, Schultz, through mistake, inadvertence, and excusable neglect. Therefore, the trial court ordered the April 28 order be set aside, and reinstated the April 22 order taxing costs against City. The money collected from the appellee pursuant to the April 28 order was to be refunded.

City appeals from the order of September 2, contending the trial court was without jurisdiction to enter the order. We agree and reverse and remand.

Appellee’s motion requesting the trial court to set aside the April 28 order is not in the record before us. The record does contain, however, an affidavit from the trial judge which was apparently prepared for the purpose of the instant appeal. In this affidavit, the trial judge states that the appellee, appearing pro se, came before the trial judge in open court on September 2 and orally requested that the order of April 28 be set aside on the grounds of mistake, inadvertence and excusable neglect.

City correctly contends that this September 2 motion was not timely. In City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981), our supreme court held that the proper motion requesting the trial court to reconsider the taxing of costs is a rule 59(e), ARCP, motion. In that decision, our distinguished chief justice, writing for a unanimous court, held that a rule 60(b), .ARCP, motion was not a proper procedural device by which to seek a reconsideration of the issue of taxing costs.

Appellee’s motion of September 2, then, was merely a rule 59(e) motion. A motion made pursuant to 59(e) must be filed and served within thirty days of the final judgment. City of Talladega v. McRae, 375 So.2d 429 (Ala.1979). The appellee did not file his motion requesting the April 28 order be set aside within thirty days as required by rule 59(e). Even assuming, arguendo, that the September 2 motion could be a rule 60(b)(1) motion, we note that the motion would still be time barred since it was not made within four months of the April 28 order. Ex parte Hartford Insurance Co., 394 So.2d 933 (Ala.1981). Consequently, the appellee’s motion of September 2 was not timely, and the trial court was without jurisdiction to enter an order setting aside the April 28 order.

This case is due to be reversed and remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Joel B. ADAMS v. June F. ADAMS.
    Civ. 3062.
    Court of Civil Appeals of Alabama.
    April 7, 1982.
    L. Scott Atkins, Centreville, for appellant.
    Michael L. Murphy, Centreville, for ap-pellee.
   BRADLEY, Judge.

This is a divorce case.

Joel B. Adams and Jane F. Adams were married on June 3, 1978. They lived together until January 1, 1981. No children were born of this marriage.

On January 7, 1981 the wife filed for divorce. After a hearing a final decree of divorce was entered on July 20, 1981. In this decree the wife was awarded $15,000 as alimony in gross. The husband was ordered to pay $5,000 of this amount within thirty days. The remaining amount was to be paid in fifty monthly installments of $200 each. The wife was awarded a pickup truck and a piano as her personal property. The husband was awarded title to the parties’ mobile home and two acres of property. He also retained title to all the other property, including an automobile.

The evidence adduced at trial indicated that the wife brought approximately $20,-000 of savings into the marriage. This was money which she had collected from insurance when her home burned. This money was placed in a joint account. The wife testified that the money was used for a down payment on the mobile home and the land. Further a down payment was made on the husband’s car out of these funds.

Upon the wife filing for divorce, the husband used the remaining $10,000 of these funds to pay off other debts of the parties. He retained all the rest of this money after these debts were paid.

The husband earned $1,000 a month. The wife worked part time, earning between $90 and $100 a week. The parties had no other assets.

The husband filed a motion for a new trial on August 18, 1981. This motion was denied by operation of law on November 16, 1981. A timely appeal was filed in this court on December 1, 1981.

The only issue in this appeal is whether the trial court abused its discretion in the division of property and the award of alimony in gross. We find no abuse of discretion and affirm.

First the husband argues that there is no evidence in the record to show that the wife needed alimony in gross or that the husband was able to pay. We disagree.

The wife has only a part-time job. The husband, on the other hand, works full time earning $1,000 a month. Further almost all of the wife’s $20,000 of savings were used for the purchase of the mobile home, two acres of land, and car to which the husband now has title. Clearly the trial court did not abuse its discretion in awarding alimony in gross to the wife to offset the property awarded to the husband.

The husband also argues that the provisions of the decree were arbitrary and unjust. Again we cannot agree. The wife received only a truck and piano and $15,000 as alimony in gross. The husband received all the other property. The award of alimony and the division of property are matters within the sound discretion of the trial court and will not be reversed absent a showing of a palpable abuse of that discretion. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

Finding no abuse of discretion, the judgment is affirmed.

The wife has requested an award of attorney’s fees for this appeal. Her request is granted, and we award her $350 as a reasonable attorney’s fee.

AFFIRMED.

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


text:
    Audrey Gaye OWENS (Walker) v. Billy M. OWENS.
    Civ. 3066.
    Court of Civil Appeals of Alabama.
    April 7, 1982.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    Dan T. Wames of Ogden, Wames & Jones, Guntersville, for appellee.
   WRIGHT, Presiding Judge.

This is a child support case.

The parties herein were divorced on August 25, 1976, and the mother was awarded custody of the two minor daughters, Michelle and Kim. Child support for the children was set at $50 per week until September 1, 1977, when it would automatically increase to $60 per week. Both parties have remarried. The former husband paid the child support in full when due until the eldest daughter, Michelle, married in February 1979 prior to reaching majority. He thereafter unilaterally reduced his payment of child support by half, to $30 per week. The final decree of divorce did not provide for a reduction upon one of the children reaching majority or marrying.

The mother petitioned for modification to increase child support on April 10, 1981. She also sought a judgment for arrearage owed due to the father’s reduction of support at the time of Michelle’s marriage. She requested that costs and a reasonable attorney’s fee be taxed against Owens. The father answered with a denial and counter-petitioned asking that the mother be held in contempt for failure to comply with the visitation provisions of the divorce decree. He requested a reasonable attorney’s fee and that costs be taxed against the mother.

The court, after an ore tenus hearing, entered its order July 16,1981, setting child support for the remaining minor child at $40 per week. The court specifically found that, “The father has fulfilled his obligation of support to Michelle Owens from the date of her marriage. And he is relieved hereby of the $30 per week since the date of her marriage.” (Emphasis ours.) The mother filed a Rule 59(e), A.R.C.P. motion to reconsider the judgment. It was denied pursuant to Rule 59.1, A.R.C.P. when the trial court failed to rule on it within ninety days. She appeals.

She contends on appeal that the trial court erred (1) by failing to enter judgment for child support arrearage caused by the reduction upon the eldest daughter’s marriage; (2) by setting child support for the remaining minor child at $40 per week; and (3) by denying her request for an attorney’s fee.

We find that the trial court erred in failing to enter judgment for child support arrearage. We have consistently held in recent cases under similar facts that a father may not unilaterally reduce child support payments where the decree does not so provide. Events such as the marriage of a minor child provide cause to seek modification. See, Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.), cert. denied, 401 So.2d 78 (Ala.1981). See also, In re Weaver, Civ. 3086, 412 So.2d 286 (Ala.Civ.App.1982); McDaniel v. Winter, Civ. 2993, 412 So.2d 282 (Ala.Civ.App.1982); Parker v. Parker, Civ. 2996 (Ala.Civ.App. March 17, 1982). We are of the opinion that the legal duty of a father to support a minor child ends when that child marries just as it would if the child reached majority or became self-supporting. See, Brooks v. Brooks, 386 So.2d 472 (Ala.Civ.App.1980); Godec v. Godec, 346 So.2d 459 (Ala.Civ.App.1977). The duty to support then falls upon her husband. No credit should be given the father for his contribution to Michelle’s support after her marriage.

We find no error as to the amount of child support set by the trial court for the remaining minor child. Such a decision is in the discretion of the trial court and will be reversed only for plain and palpable error. Bill v. Bill, 370 So.2d 1023 (Ala.Civ.App.1979). It is not our prerogative to substitute our judgment for that of the trial court. Shepard v. Shepard, 338 So.2d 1016 (Ala.Civ.App.1976).

The same rule applies to attorney’s fees. We do not find the denial of attorney’s fees below to be error.

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

The father’s request for attorney’s fees on appeal is denied.

The case is remanded for determination of the amount of accrued but unpaid support from the date the father reduced the decreed support until the date of the modification in the last decree.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.


author: BOOKOUT, Judge.

text:
    Ronnie M. JOHNSON v. STATE.
    4 Div. 913.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81-472.

      Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen. and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Second degree forgery; sentence: six months’ imprisonment with three and one-half years’ probation.

On May 3, 1979, a loan application was made by appellant with Postal Financial Services, an Indiana-based mail order lending institution, in the name of appellant’s roommate, Michael Brannock. A check dated May 24, 1979, for $1,459.52 and made payable to Brannock was mailed by Postal to Brannock. The check was later endorsed and used to purchase an automobile. The check bore the endorsement of both Bran-nock and the appellant. The appellant was indicted for forging Brannock’s name on Postal’s check.

Mr. James Wolph, general manager of Postal Financial Services, identified both the loan application and the check previously described. He stated that he was custodian of the above records, and that they were maintained in the normal and ordinary course of business. Both exhibits were admitted into evidence.

Mr. Wolph identified a check dated November 27, 1979, drawn by the appellant and made payable to him for $126. He stated that the check was received in Postal’s office as payment on the loan account allegedly established by Brannock. The check was returned to Postal as the drawer’s account held insufficient funds to pay it. Wolph had retained the check in his office since its return. The check was admitted into evidence. Wolph testified that Postal received a couple of payments on the loan account of Brannock, one being the above check drawn by the appellant. He stated that the loan had not been paid.

Mr. Wolph admitted that he did not know who signed the loan application or Postal’s check. He did not know if Branock had given the appellant authority to sign his name to either the loan application or the check.

Mr. Lonnie Horne, a used car dealer in Phenix City, testified that he had known appellant for many years. Horne identified one of his company checks dated May 28, 1979, for $569.27 and made payable to the appellant. The check was the difference between the purchase price of a car bought by the appellant and the loan check from Postal. The appellant had endorsed the check. The check was admitted into evidence. Horne testified that about two weeks prior to appellant’s car purchase the appellant had called him and stated that his friend and he were going to get some money and “when it comes in, I will come up there and buy the car from you.”

Mrs. Ada Goodwin, accounts supervisor for David Hirsch, a lawyer practicing in both Alabama and Georgia, testified that between 1:00 p. m. and 2:00 p. m. on November 18, 1980, the appellant and Bran-nock visited Mr. Hirsch’s law office in Columbus, Georgia. They went into Mrs. Goodwin’s office where she reviewed Bran-nock’s file on the unpaid loan. She told Brannock the status of a civil suit against him for the collection of the unpaid loan, but she was continually interrupted by the appellant. Appellant attempted to make arrangements for paying the debt, suggesting $30 a week as terms. Mrs. Goodwin stated that she asked Brannock if he could speak for himself, to which the appellant replied, “Well, he is not to pay this, I am. It is my debt. I am the one that took the check when it came in the mail.” Mrs. Goodwin inquired as to what he did with the check, to which appellant stated, “Well, I signed Michael Brannock’s name to it and took it to Lonnie Horne’s used car lot and purchased an automobile.” She testified that the appellant said he had “forged” Brannock’s name on the check. The appellant also told Mrs. Goodwin that he had used Brannock’s name to get the loan. Mrs. Goodwin testified that Brannock stated that he did not make application for the loan, had never seen Postal’s check, did not sign it and received no proceeds from it.

After her conversation with the appellant and Brannock, Mrs. Goodwin informed Mr. Hirsch of the situation and escorted them into his office. She remained with them during Mr. Hirsch’s meeting with them. Mrs. Goodwin stated that the appellant repeated the substance of his prior conversation with her to Mr. Hirsch. The appellant added that if this situation were made public he would lose his seat on the school board. The appellant reluctantly left Hirsch’s office while Mrs. Goodwin, Bran-nock and Hirsch remained. Mrs. Goodwin stated that Hirsch placed a telephone call, apparently to the Russell County District Attorney’s Office. Afterward, Mrs. Goodwin took Brannock to the Russell County Courthouse. Mrs. Goodwin testified that prior to leaving the appellant confronted Brannock, shook him and said, “Micháel, don’t do this. You know this is going to cause me to lose my seat on the school board.”

During cross-examination Mrs. Goodwin stated that Brannock was told that a judgment could be taken against him for the unpaid loan. She stated that Brannock asked her to carry him to the courthouse. She also stated that at the time the civil suit against Brannock was filed, she did not have a copy of the back of Postal’s check to him illustrating the endorsements.

David Hirsch testified that Postal Financial Services retained him to collect on the open account of Michael Brannock on a contingency fee basis. On November 18, 1980, in response to a letter sent by Hirsch regarding the unpaid loan to Postal, Bran-nock and the appellant met with him at his office. Mrs. Goodwin was present during the meeting. Hirsch testified that Mrs. Goodwin briefed him concerning the information she had discovered during her conversation with Brannock and the appellant. In response to Hirsch’s question, Brannock acknowledged that he had not incurred the debt and did not owe it because the endorsement had been forged. Hirsch stated that the appellant interjected that he would pay $50 a month on the debt, which Hirsch did not accept. Mr. Hirsch informed Bran-nock of the legal steps he would take if the debt were Brannock’s. Hirsch also stated that ethically he had to inform the Russell County District Attorney’s Office of the forgery. He requested Brannock to talk with him outside the presence of the appellant. During this conversation Hirsch informed Brannock of the probable steps the district attorney’s office would take and suggested that he immediately inform that office of the situation. He stated that, if Brannock did not tell the truth to the district attorney’s office, in all probability that office would charge him with perjury or whatever offenses were applicable. Hirsch called the district attorney’s office in Bran-nock’s presence.

Mr. Hirsch stated that Mrs. Goodwin had initially informed him that Brannock knew nothing of the loan until he had been notified by Postal. Mr. Hirsch testified that Brannock stated that he did not sign the check, apply for the loan, or incur the debt. Brannock affirmatively replied to the question of whether the appellant had forged the endorsement.

At the time of the meeting, Hirsch was not aware that the appellant had previously signed Brannock’s name on any other papers. He was aware that the appellant was to be sworn as a Russell County school board member that day. Mr. Hirsch’s testimony concluded the presentation of the State’s case. The appellant offered no testimony to contradict that of the State.

I

Appellant contends that the trial court erred in denying his motion to exclude the State’s evidence based upon its failure to prove a prima facie case.

The elements of forgery are generally: (1) a writing of such a nature that it is a possible subject of forgery; (2) which writing is false — which may be accomplished by the fraudulent application of a false signature to a true instrument, or a real signature to a false instrument; and (3) was made with the intent to defraud. Finney v. State, 348 So.2d 876 (Ala.Cr.App.), cert. denied, 348 So.2d 878 (Ala.1977); Powers v. State, 333 So.2d 205 (Ala.Cr.App.1976); and cases cited therein. In addition, in the instant case, the State must establish that the appellant was without authority to sign Brannock’s name to the check or, though unauthorized, appellant’s signing of Bran-nock’s name was done without a bona fide belief in the existence of the authority to do so. Finney, supra.

The essence of forgery is an intent to injure or defraud when the act is done. It is not essential that actual injury result. Finney, supra. The requisite intent need not be proven by positive and direct evidence as it may be inferred by the jury from the evidence before it. McGee v. State, 20 Ala.App. 221, 101 So. 321 (1924). The only requirement involving the forged instrument is that it possess “some apparent legal efficacy” and that “there is a reasonable possibility that it may operate to cause injury.” Jones v. State, 372 So.2d 892 (Ala.Cr.App.1979). One found in possession of a forged instrument of which he purports to be the beneficiary, and applying it to his own use, must, in the absence of explanation satisfactory to the jury, be presumed to have forged it or to have been privy to its forgery. Overby v. State, 24 Ala.App. 254, 133 So. 915 (1931); McGee, supra. See also Terrell v. State, 34 Ala.App. 262, 38 So.2d 604 (1949); Tidwell v. State, 33 Ala.App. 198, 31 So.2d 513 (1947).

There is no doubt that the instrument in question possessed “some apparent legal efficacy” and the “reasonable possibility that it may operate to cause injury.” The statements of Brannock to both Mrs. Goodwin and Mr. Hirsch reveal a false signature made by the appellant and a lack of authority on the appellant’s part to sign Bran-nock’s name. Furthermore, the admissions by the appellant to both Mrs. Goodwin and Mr. Hirsch clearly evidence his belief that he lacked authority to sign Brannock’s name to the check.

After a close and careful examination of the evidence presented in this case, we find that the State proved a prima facie case of both forging an endorsement and uttering a forged instrument contrary to § 13-4-61, Code of Ala. 1975. McCray v. State, 23 Ala.App. 378, 125 So. 793 (1930). Consequently, the trial court properly denied the appellant’s motion to exclude the State’s evidence.

II

Appellant contends that the trial court erred in refusing to give several of his written requested charges.

Charges I, V, VI, VII, VIII and IX, dealing with the State’s burden of proving each element of the crime beyond a reasonable doubt, were fairly and substantially covered by the trial court’s oral charge and given requested charges of the appellant. Thus, they were properly refused. Section 12-16-13, Code of Ala. 1975. Charges X, XI and XII contained the legal concept of ratification. No evidence was presented to justify charging the jury on that concept. Therefore, those charges were properly refused. Charges XIV and XV, dealing with reasonable doubt, were properly refused as they were fairly and substantially covered by the trial court’s oral charge and given requested charges of the appellant. Section 12-16-13, supra.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Lewis FLOYD, Jr. v. STATE.
    5 Div. 587.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, April 30, 1982 Alabama Supreme Court 81-498.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Chambers County Grand Jury for robbery. After trial before a jury, appellant was found guilty and sentenced to thirty years’ imprisonment. This appeal followed.

Mr. Hugh Poole, owner and operator of Poole Standard Service Station in the city of Lanett, Chambers County, Alabama, arrived at his station at 6:30 on the morning of June 8, 1979. As he began adding his checks from the previous day, a dark blue or black Chevrolet occupied by two black men pulled up and stopped in front of his station. One of the black men, identified by Mr. Poole as the appellant, asked if the station was open. Mr. Poole replied it was not open but that it would be in a few minutes. Appellant then asked Mr. Poole if they could get a tire repaired. Mr. Poole stated his help had not arrived, but that the help would be there in a little while and they could leave the tire to be repaired. The two men then drove 20 feet, stopped, and then backed up to the sales office door. One of the men got out of the automobile, came into the station, looked around as if to buy something, and then went back to the vehicle. The appellant then reached into the back seat and pulled out a shotgun. He pointed it at Mr. Poole, told him he was being robbed, and that if he tried anything he would be killed. The appellant held the shotgun on Mr. Poole’s head, while the accomplice came into the station. They took $700.00 in currency from the cash drawer, $240.00 in currency from Mr. Poole’s wallet, $789.64 in checks, and Mr. Poole’s wallet and watch. The appellant took Mr. Poole’s glasses off and told his accomplice to take Mr. Poole’s pistol. Mr. Poole stated he observed the appellant for 30 seconds before appellant reached and removed his glasses. Mr. Poole positively identified the appellant in court as the gunman from the robbery.

After the men robbed Mr. Poole, they took him back into a storage room, bound him with an electric cord, and left him lying on the floor. Mr. Poole then worked his feet loose, went to the phone, and called the police who arrived within minutes. Mr. Poole told police the appellant appeared to be 5'8" and weighed 175 or 180 pounds.

Officer Jimmy Pogue testified he responded to a call to report to Poole Standard Service Station at 7:00 a. m., on June 8, 1979. He found Mr. Poole standing at the door of the station with his hands bound by an electrical cord. Officer Pogue untied Mr. Poole and then called Investigator Richard Bolt to take over the investigation. The state rested at the close of Officer Pogue’s testimony.

Appellant’s motion for a directed verdict was denied by the trial judge, and appellant called Josephine Floyd, appellant’s wife, to testify. She testified appellant followed his usual morning work day routine on June 8, 1979 and that he did not arise .until 7:00 a. m., and did not leave for work until 7:30 or later. She testified Lanett is a twenty minute drive from their home.

I

Appellant contends he was forced to participate in a pre-indictment lineup without benefit of counsel and thereby was denied due process of law. The trial court denied appellant’s pretrial motion to suppress the pretrial identification testimony concerning the appellant, after an extended hearing on the same. The appellant testified in support of the motion that he had requested and been denied assistance of counsel prior to being forced to participate in the lineup procedure. Officer Richard Bolt testified that the appellant had been advised of his constitutional rights before the lineup and had then been requested to participate in the lineup.

The state in its case made no mention or reference to the pretrial lineup identification, but rather relied solely upon the victim’s in-court identification of the appellant as the man who robbed him.

An accused is not entitled to have counsel provided for him at a pre-indictment lineup. Hatchet v. State, Ala.Cr.App., 335 So.2d 415 (1976). However, he does have the right to have his own employed counsel present upon request. Sparks v. State, Ala.Cr.App., 376 So.2d 834 (1979). The record is not clear as to whether appellant indeed had retained counsel, or if he requested or waived the presence of his attorney. Even so, where the in-court identification of an accused is founded upon clear and convincing evidence based upon observation of the accused, prior lineup identification without counsel’s presence does not require reversal. Hatchet, supra; Sparks, supra.

In the instant case, the victim observed the appellant at close range for half a minute as he held a shotgun on him and demanded his money before he removed Mr. Poole’s glasses. As well, Mr. Poole observed him during the period prior to the actual robbery as the appellant stopped at the service, station to ask for assistance with a tire. The record reflects Mr. Poole’s testimony as follows:

“A. The other one came on in, this one held the shotgun right at my head — I started to get the money out of the cash drawer myself, and he reached and got the whole thing and set it out. Reached and got the checks, my watch off my arm, my glasses off my head, and he said to the other one ‘Get his pistol’, I had a holster laying on the desk there. He said, ‘Give me your pistol’. I stood up, I hadn’t even went for my pistol or anything, I stood up and told him to get it, it was in my right pocket.
“Q. Now, before he took your glasses off, did you have an occasion to look at the person who had the gun?
“A. Yes, sir.
“Q. How long did you have an occasion to look at him?
“A. I’d say, thirty seconds.
“Q. Do you know whether or not, the person that had the gun was the person who asked you whether or not you were open? Do you know that?
“A. Yes, sir.
“Q. Was he or not?
“A. Yes, sir.
“Q. He was?
“A. Yes, sir.
“Q. Do you know whether or not the one that had the gun was the one that asked you whether or not you could fix a flat?
“A. Yes, sir.
“Q. He was?
“A. Yes, sir.
“Q. And the person that had the gun is the one that told you he was going to rob you?
“A. Yes, sir.
“Q. Look around the courtroom and see if you can identify or see that person in the courtroom here today.
“A. Yes, sir.
“Q. Where is he?
“A. Sitting over there at that table.
“Q. That’s the person that had the gun pointed at your head telling you he wanted your money?
“A. Yes, sir.
“Q. You are absolutely sure of that.
“A. Yes, sir.
“Q. After they got the money and the other property you described—
“COURT: Let’s let the record show that the witness has pointed to the defendant, Lewis Floyd, Jr.”

The record indicates the basis for Mr. Poole’s identification of the appellant was founded upon observation independent of the pre-indictment lineup. We find there was no error precipitated by the lineup or the in-court identification in that there was a sufficient basis for Mr. Poole’s in-court identification independent of all considerations other than those perceived and formed by him at the time and scene of the robbery. Floyd v. State, Ala.Cr.App., 387 So.2d 291 (1980).

Appellant’s second ground argued as reversible error flows from the same pretrial lineup. He contends the manner in which the lineup was conducted was so impermis-sibly suggestive as to give rise to irreparable mis-identification. Testimony of the lineup identification was elicited by appellant’s counsel on cross-examination and during the presentation of appellant’s case. The state made no use of the lineup identification in presenting its case.

The record indicates the participants in the lineup were of the same race and general description. Four sanitation workers dressed in work clothes, not uniforms, participated. The appellant was similarly dressed, possibly having worn cut-off pants, but with a cleaner tee shirt than the sanitation workers who were in the middle of their work day. While the appellant’s foot was bandaged, testimony indicated it was not visible to the witnesses from their viewpoint. Nothing was said to the witness to indicate that a particular suspect was included in the lineup, nor that the appellant was the subject the police believed was guilty. Neither was the witness shown any photographs of the appellant at the police station before he was allowed to view the lineup. The appellant was not made to wear any item of clothing associated with the robbery, nor was he requested to do or say anything apart from the other subjects. Testimony indicated the witness was able to make a positive identification of the appellant at the lineup. While Mr. Poole did view the photographic array of mug shots from a mug book several days before the lineup, testimony indicated he was not shown the appellant’s driver’s license or his photograph, nor was the appellant identified by the police to Mr. Poole as the suspect before the lineup.

We do not find the evidence adduced concerning the lineup indicated any unconstitutionally suggestive action which would have tainted the lineup identification, or the subsequent in-court identification of the appellant by Mr. Poole. Floyd v. State, supra. And, as we stated hereinabove, the in-court identification was based upon independent observation of the witness separate and apart from the pretrial lineup. The appellant was afforded a pretrial hearing by the trial court on possible suggestiveness affecting the lineup and the trial court correctly found no unconstitutional misconduct.

Appellant asserts that his driver’s license photograph was shown to Mr. Poole immediately before the pre-indictment lineup. He argues that this picture was obtained during an illegal search and seizure, and that hence its use in the identification procedure was a use of the “fruit of the poisonous tree” which unconstitutionally tainted the identification. We point out first that both Mr. Poole and the officer alleged to have shown the picture to Mr. Poole denied that any such action ever took place. Additionally, Mrs. Floyd, the appellant’s mother, who testified appellant’s picture was shown to Mr. Poole before the lineup, did not identify the photograph as appellant’s driver’s license, but merely as a “picture of Lewis.” Finally, evidence presented in the record concerning the alleged illegal search and seizure is far from informative. Reference was made, during the pretrial hearing on appellant’s motion to suppress, to an earlier trial in which the judge and counsel participated involving appellant and the search and seizure. This issue was treated in Floyd v. State, supra, and we pretermit further discussion of this issue in the instant case. The driver’s license appears not to have been used in the instant case for any purpose, either as evidence or for identification purposes, and we find no basis therefore for reversal.

The record reflects the following exchange during the prosecution’s closing argument:

“Here’s a man that has a certain pattern, so she says, every morning. Well, what pattern did he have the day he was involved in another offense that Mr. Jones brought up to you.
“TOM JONES: Object to that Your Hon- or.
“R. C. WALLACE, JR.: You’re the man that brought it out.
“TOM JONES: Move for a mistrial, Your Honor.
“R. C. WALLACE, JR.: You’re the man that brought it up or I would have never said it.
“TOM JONES: May I approach the bench, Your Honor?
“COURT: Come on around.
“TOM JONES: Your Honor, I move for a mistrial, this is highly prejudicial, it was not brought out in the trial at all, it was on an evidentiary hearing, it was not involved in the trial.
“R. C. WALLACE, JR.: Why in your opening statement you said it.
“TOM JONES: I want the record to show what he said to the jury and I move for a mistrial.
“MITCH GAVIN: Your Honor, he even went so far as to say he was picked up on 2/11 of this year.
“TOM JONES: I did not, he was not picked up on 2/11 of this year. He was identified on 2/11 when he was in jail awaiting this trial. Furthermore, there was no such statement made in my opening statement and I move for a mistrial.
“COURT: Do you have the opening statement?
“COURT REPORTER: I do.
“COURT: I am going to deny your motion for a mistrial.
“TOM JONES: Your Honor, I would ask the court to instruct Mr. Wallace not to make any further statements along these lines.
“COURT: Don’t make any statements about any other possible offenses. Motion for mistrial is denied. You members of the jury, I instruct you that we are here today to try only one case, that’s the case in which this defendant is charged with having robbed Hugh Poole. So, totally disregard any testimony or any statements or any argument that might have been made by any of the lawyers with respect to any other conduct on the part of this defendant. Just consider the charge which is on trial here today. Put out of your minds and totally disregard any other charges that may have been pending, or may not have been pending against him.”

It appears there may have been some confusion created in the instant trial by references made to appellant’s prior mistrial for the same crime involved in the instant case. Whether or not any other previous crime was mentioned by appellant’s counsel during the trial, the trial court’s action in immediately instructing the jury to disregard the prosecution’s vague reference to another unspecified crime cured any potential error prejudicing the appellant’s ease. Diamond v. State, Ala.Cr.App., 363 So.2d 109 (1978).

No prejudicial error to the substantial rights of the appellant having been found, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Columbus SHORTS v. STATE.
    7 Div. 868.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81-386.

      Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannan, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

The appellant was indicted and convicted for the murder of his wife, Florence Thomas Shorts, by stabbing her with a knife in violation of Alabama Code § 13A-6-2 (Supp.1977). The trial court fixed his punishment at life in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty and not guilty by reason of insanity. Appellant is represented on this appeal by court-appointed counsel, who represented him at trial, and has been furnished with a free transcript.

The evidence was uncontroverted that appellant murdered his wife by stabbing her some forty times with a knife. From the opening statement at appellant’s trial, it was freely admitted that appellant, acting alone, made all the stab wounds. The only defense offered was insanity.

Appellant, without reservations, admitted in his testimony that he was mad at his wife at the time he killed her. Appellant testified that he and the deceased “wasn’t getting along too good,” that she had been “going out sleeping with other men” and was pregnant with a child that was not his. One paramour the deceased had mentioned in particular was a “guy named Charles,” whom she had been seeing for “about a week” prior to the night she was killed. Appellant stated that he “got tired” of the deceased referring to Charles as “her sweetheart.” It was appellant’s belief that the deceased and Charles “both put a hoodoo pact on me.” Appellant further testified that the deceased had told him that “Charles and his mama put the hoodoo on me.”

The night of the killing appellant testified that he had been trying to go to sleep but the deceased wouldn’t let him. The deceased was “just laying there wide awake calling Charles’s name and doing things.” “I told her she gonna keep on, I do something to her.” The deceased then told appellant she wanted to engage in marital relations, but appellant found himself impotent. The deceased began laughing “about putting the hoodoo on me” and “that’s when I killed her.” Appellant testified that if the deceased “hadn’t messed around” with Charles the “hoodoo” would never have “got on me.” He further stated that if one had enough “hoodoo” it would “kill you, that’s what it will do for you.” Appellant expressed no regret for having killed the deceased.

During the course of the trial, there was a great deal of testimony concerning appellant’s mental condition. Evidence was presented by Dr. Thomas L. Smith, Jr., a psychiatrist and Director of the Alabama Secure Medical Facility at Bryce Hospital, on behalf of the State and by Dr. J. Stephen Zeigler, a clinical psychologist, on behalf of the defense as to appellant’s sanity at the time of the commission of the crime.

Dr. Smith gave his opinion that, even though appellant “may have had a mental disease or defect at the time of the act charged, such disease or defect did not in his case cause the defendant to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Dr. Smith was able to observe appellant at Bryce Hospital after the February, 1980, killing from 8-1-80 to 10-3-80 and from 12-23-80 to 4-15-81. Dr. Smith testified that appellant’s I.Q. was tested while he was at Bryce and that appellant scored a full scale of 55, placing him in the mild range of mental retardation.

Dr. Zeigler’s testimony concerning appellant’s mental condition, on the other hand, was based on his examination of appellant for “several hours” on November 9, 1979, three months prior to the commission of the offense. At that time Dr. Zeigler had been requested by the State Department of Education, the Division of Disability Determination, to determine whether or not appellant could handle his own financial affairs. He had no further contact with appellant. Dr. Zeigler testified that his conclusion about appellant’s mental condition was contrary to those of Bryce Hospital.

Without further detailing the testimonies of Dr. Smith and Dr. Zeigler, it is sufficient to say there was a conflict in the evidence. It is clear from reading the record, however, that Dr. Zeigler’s testimony in no manner constituted a “preponderance of the evidence” that appellant was suffering from a “mental disease or defect” at the time of the commission of the crime such as would negate criminal responsibility under Alabama Code § 13A-3-1 (Supp.1977). In order to overcome the presumption of sanity, the appellant had the burden to prove by a preponderance of the evidence that he was, in fact, not responsible for his criminal conduct because at the time of such conduct he lacked the “substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” as a result of a mental disease or defect. Alabama Code § 13A-3-1 (Supp.1977). See Christian v. State, 351 So.2d 623 (Ala.1977); Wherry v. State, 402 So.2d 1130 (Ala.Cr.App.1981); Berard v. State, 402 So.2d 1044 (Ala.Cr.App.1980). The determination of that issue against appellant was clearly within the province of the jury and was fully supported by the State’s evidence. We note that Alabama Code § 15-16-2 (1975) was not repealed by § 9901 of Acts 1977, No. 607, and should be read in conjunction with Alabama Code § 13A-3-3 (Supp.1977).

Appellant contends it was error for the trial court to allow his tape recorded confession to be played before the jury. Appellant maintains that he did not have the mental capability to knowingly and intelligently waive his constitutional rights at the time he was given the Miranda warnings at the Gadsden Police Department. We disagree.

The record is clear that, before appellant was questioned regarding his confession, law enforcement officers read him the Miranda warnings and he voluntarily signed a waiver. The question in issue is whether or not, under the totality of the circumstances, appellant had the mental capability of understanding the Miranda warnings and of knowingly and intelligently waiving his constitutional rights. We answer affirmatively.

Lieutenant H. J. Copeland of the Gadsden Police Department testified, outside the presence of the jury, that in reading to appellant the Miranda warnings, “I explained to him that those were his rights.... I asked him did he understand them and he said, ‘Yes.’ ”

“Q. What was said next?
“A. All right. I asked him did he want to sign it. I explained to him what that was, it was a waiver agreeing to talk to me.
“Q. Tell us exactly what you explained to him.
“A. I told him — Explained to him what that was, told him it was a waiver. If he signed it that meant he agreed to talk to me without an attorney and did he want to sign, ‘Yeah.’ He said—
“Q. What did he say?
“A. He said, T might — ’ something like, T might as well talk to you, I killed her.’ Something like that.”

Lieutenant Copeland stated that, at the time he talked with appellant, he had no knowledge that appellant had any mental problems. Lieutenant Copeland testified that appellant “may have been slightly nervous. He wasn’t overly nervous.” Lieutenant Copeland later testified before the jury that at no time did appellant seem incoherent. “He seemed to know what was going on. Aware of everything.”

Appellant next testified outside the jury’s presence that it was his voice that appeared on the tape recording and that he had, in fact, signed a waiver. Appellant recalled that he had been told he had the right to remain silent and the right to have a lawyer. Appellant remembered being told specifically that he would be provided with a lawyer before being questioned, but that he didn’t want one because he was guilty and it “wouldn’t do me no good down here.” Appellant stated that he understood he did not have to make a statement.

Appellant stated that he did not know what the words “waiver,” “undersigned,” or “constitution” meant. When asked what “any statement which I might make may be used against me in Court” meant, appellant replied, “Court of law, I guess.”

On cross-examination, appellant again admitted being told that if he requested an attorney no questions would be asked until he had been provided one, but that he “just wanted to tell the truth about it.”

Dr. Thomas L. Smith, Jr., testified on voir dire that in his opinion appellant could substantially understand the Miranda warnings which were given to him and the waiver of counsel which he signed. Dr. Smith then stated the following concerning appellant’s mental capability to understand his constitutional rights:

“A. Despite the problems that I have outlined before that he had, there is one thing that is striking about him, is that his — He is oriented towards his rights and on one occasion while he constantly demanded to be returned to Court to have his day in Court and work with his lawyer. On one occasion had told us that he was going to call his attorney about having him sent back. He was going to demand or even bring it to Court, the fact that we were holding him there and he wanted to come back and he was entitled to his day in Court, which indicated to me that he had some working knowledge with an attorney who was on his side and I was very much impressed by his ability that he knew he had an attorney, that the attorney or lawyer was working for him, that he could call upon this lawyer to exert — Assert his legal rights and this is really where I am coming from in giving an opinion on this because of what he actually said to me while he was there, that he knew that he had legal rights and he had a lawyer working for him and he certainly understood, you know, what the charges were. He told me in exact and explicit terms of what — That he did have a right to a trial and he didn’t want to be held in a mental hospital and had a right to come back and have a hearing.
“Q. He’s always been very anxious to come to Court?
“A. He wanted to come to Court and demanded his day in Court and wanted to work with his lawyer, and he called upon his lawyer in telling us and letting us know that he did not want us to waste any time getting him back, so that had a lot to do with the reason I feel like I can make this statement, that he, I think, can understand that he did not have to say anything or make a statement.
“Q. What about the fact that that statement could be used in Court?
“A. Used against him. I think that he could understand that certain evidentiary things could be used against him and I believe that he could have known that they would use that — Could or might or something.
“Q. Did he seem to have any knowledge of how Court worked, now, the procedures?
“A. Well, now, of course, what we try to understand is, do they understand their charges.
“Q. Right.
“A. And do they know what a lawyer is and the lawyer represents them and there is a Judge that’s going to be neutral and that there’s another lawyer for the State that’s going to try to prosecute them. I think in very general terms he understands that and wanted such a trial.
“A. ... I think that he’s streetwise to these — In these particular areas. And, of course, the fourth statement about if you don’t have enough money to hire a lawyer the Court will appoint one for you, that he certainly seemed to understand in a broad sense that he had an attorney, that this indeed had occurred, so I’m looking back with that knowledge and that experience that I had with him at the hospital. And in the same light, this item five that if I request an attorney — That he could refuse to talk until the attorney was there to represent him, in general, I think that he understands these in a broad substantive way.
“Q. What about the fact that — Question of waiving rights? Do you think he’d understand a concept like waiving?
“A. I think he would understand that he doesn’t have to use them. He could do— Now, the term ‘waiver’ itself is a word — I don’t believe he would understand that particular word, but I think he might understand the principles contained, that he wouldn’t have to use a certain right.
“Q. Any time we’re talking in kind of abstract terms there, would he have difficulty understanding abstract terms?
“A. He does have — He would have some trouble with abstracts, but I think some broad principles contained in these that he does understand.
“Q. And as far as just maybe a general term like constitutional rights, in your opinion would he—
“A. Well, the term ‘constitutional’, I don’t know that some lawyers know all about that, particularly, you know. What I’m saying is there is a — I’m wondering about — Sometimes I — Well, I think that the word ‘constitutional’, he probably knows that there are — There is an instrument that has — Gives broad rights. Now, as far as what specifically, that would be a problem. But I think that he does understand that there were certain rights that he has. He demanded them while we were there, you know, in the hospital. That I have certain rights to a trial and if you don’t move along rapidly I’m going to call my lawyer, and it’s in the record that he said that.”

It was Dr. Smith’s opinion that appellant was educably mentally retarded which is above being trainably mentally retarded.

Dr. J. Stephen Zeigler testified that, based on his November 9, 1979, evaluation of appellant as a schizophrenic paranoid, a person in appellant’s condition could not freely make a rational choice in exercising his constitutional rights, “I do not think he is capable of understanding his constitutional rights or of appreciating the consequences of waiving those rights if he did understand them.”

On cross-examination, Dr. Zeigler testified that his opinion that appellant could not understand his constitutional rights was based on the November 9, 1979, interview. The following exchange then occurred:

“Q. And you’re not saying in what condition — You don’t know in what condition he was mentally on the date that he gave this — Signed this waiver which was the 13th of February, 1980, at 4:30 a. m. in the morning, do you sir? You’re not saying you knew his mental condition at that date and time, are you, sir?
“A. I would disagree with you. I am saying it because mental retardation does not come and go and I was basing my statement not on his schizophrenia but on the mental retardation.” (Emphasis added.)

Sergeant David Nichols Gartman testified that, when he saw appellant at the scene prior to questioning, appellant was coherent, that he seemed adjusted to his surroundings and didn’t seem nervous. “His speech and his actions were normal .... He appeared to me to be normal.” Sergeant Gartman stated that appellant did not appear to be very well educated, but other than that he appeared completely normal.

As this court stated in Hines v. State, 384 So.2d 1171, 1172 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980):

“Under the Constitutions of the United States and the State of Alabama, any suspect of a crime is guaranteed the right of assistance of counsel and the right to remain silent during in-custody police interrogation. So sacred are these rights that any statement obtained in violation of them is inadmissible in a subsequent criminal proceeding. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The suspect may, of course, waive these rights provided that the waiver is knowingly and intelligently made. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). However, the United States Supreme Court has stated:
“ ‘[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we reassert these standards as applied to in-custody interrogation.’ Miranda, 384 U.S. at 475, 86 S.Ct. at 1628. “An extrajudicial confession is prima facie involuntary and inadmissible. C. Gamble, McElroy’s Alabama Evidence, § 200.02(1) (3rd ed. 1977). The prosecution must prove ‘at least by a preponderance of the evidence’ that that confession was voluntary. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).”

However, the mental subnormality of an accused does not in and of itself render a confession involuntary. Ellis v. State, 398 So.2d 402, 403 (Ala.Cr.App.1981) and cases cited therein. Here, as in Ellis, supra, the trial judge had an opportunity to observe the demeanor and character of appellant when appellant testified at the suppression hearing. Also see Brown v. State, 393 So.2d 513 (Ala.Cr.App.1981) where, as in this case, the accused had an I.Q. of 55 and the trial court had the opportunity to observe the accused’s demeanor and character. In most cases the defendant’s mental deficiency is but one factor to be considered in the “totality of the circumstances” surrounding the confession. Garrett v. State, 369 So.2d 833 (Ala.1979); Hines, supra.

In applying the principles of law addressed in the above cases to the facts before us, we find no abuse of discretion in the ruling of the trial court admitting the tape recorded confession. Considering the totality of the circumstances, we affirm the trial court’s judgment that appellant had the mental capability to make a knowing and intelligent waiver of his constitutional rights.

The trial court did not commit reversible error in excluding defendant’s exhibits 5 and 7 from the evidence. Appellant contends that these exhibits were relevant to show that he was suffering from a mental illness at times close in proximity to the time he killed the deceased. Defendant’s Exhibit 5 consisted of certain clinical “materials” of appellant made at the C.E.D. Mental Health Center in Gadsden. Defendant’s exhibit 7 consisted of hospital records from the Holy Name of Jesus Hospital in Gadsden which pertained basically to the deceased’s pregnancy tests that were conducted shortly before her death. It should be pointed out that voluminous records from Bryce Hospital were admitted on behalf of appellant which detail with particularity his mental condition. Also, a record documenting appellant’s condition at the time he was interviewed by Dr. Zeigler was admitted.

With respect to defendant’s exhibit 5 it must initially be noted that nowhere in the record is it demonstrated that that exhibit was properly certified in accordance with Alabama Code § 12-21 — 7 (1975). Proper certification is requisite to the introduction of copies of hospital records. Alabama Code § 12-21-6 (1975). There is no indication in defendant’s exhibit 5 that it was correctly certified and affirmed in writing by the proper custodian. Instead, James J. Cody signed a memorandum as “Center Director” entitled: “RESPONSE TO: Subpoena Duces Tecum of the Circuit Court Etowah County, Alabama” requesting “these materials be delivered into the personal custody of Judge Cyril Smith...” Defendant’s exhibit 5 contains no information that James J. Cody, or anyone else, was the proper custodian for the records. Nor is there any reference in the exhibit that C. E. D. Mental Health Center was “a hospital organized or operated pursuant to or under the laws of Alabama.” Further, there is no demonstration that the materials contained in defendant’s exhibit 5 were “exact, full, true and correct” copies of appellant’s records. The only “certification” of the “materials” came from Judge Cyril Smith that he had received them. In short, while the certificate of the custodian of hospital records is not required to be verbatim of the form set out in Section 12-21-7, its form must be substantially the same. Here, defendant’s exhibit 5 fell far short of that requirement and for that reason alone was properly excluded.

In addition, the “materials” contained in defendant’s exhibit 5 are replete with hearsay and were properly excluded for that reason as well. Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975). If a trial courts ruling is correct for any reason, it will not be reversed on appeal even if the trial court assigned the wrong reason for its ruling. Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972).

It should be noted that appellant attempted to introduce exhibit 5 during the testimony of Dr. Zeigler. Dr. Zeigler’s name appears nowhere in the “materials” which were proferred and it was admitted that Dr. Zeigler had simply “reviewed” the exhibit in making his opinions concerning appellant’s mental condition. Dr. Zeigler’s opinions are well documented in the record. The admission of defendant’s exhibit 5, upon which his opinions were at least partially based, would thus have been cumulative.

Again, we find that the admission of defendant’s exhibit 7 would, likewise, have been cumulative of evidence otherwise admitted. There was repeated testimony from appellant’s own lips that he had, on more than one occasion, taken the deceased to “have her checked at the hospital” for pregnancy. Even assuming defendant’s exhibit 7 was relevant, which we do not hold, the erroneous exclusion of evidence in the first instance can be cured by the subsequent disclosure of substantially the same facts. Smith v. State, 393 So.2d 529 (Ala.Cr.App.1981).

We have reviewed the issues in this case as presented by appellant. In addition, we have searched the record, as required by law, for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.