text:
    The MERCHANTS NATIONAL BANK OF MOBILE v. Carolyn Dianne LANGLEY.
    Civ. 3373.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1982.
    Rehearing Denied Dec. 1, 1982.
    Caroline E. Wells of Gallallee, Denniston & Cherniak, Mobile, for appellant.
    D.E. Brutkiewicz of Brutkiewicz & Crain, Mobile, for appellee.
   HOLMES, Judge.

The circuit court determined that the ex-wife was entitled to certain accounts receivable. The appellant, bank, appeals contending the trial court erred in its action. We find no error and affirm.

We do not deem it necessary nor prudent to set out in detail the facts surrounding this appeal, nor do we elect to set out the precise manner in which the case “reached” this court. We do quote the following from the bank’s brief: “There was no testimony taken of any witnesses. There being no dispute as to the facts counsel simply argued the law for the benefit of the trial court.”

The ex-wife and her husband, Dr. Langley, were divorced in February of 1980. The following is found in the decree of divorce:

“It is also further ORDERED, ADJUDGED and DECREED by the Court that the Defendant [wife] be and hereby is awarded the accounts receivable of Dr. John 0. Langley and all monies collected from the accounts receivable presently owed to Dr. Langley.”

It is significant to note no appeal was taken from this action.

As indicated above, the ex-wife and the bank in effect both claimed the doctor’s “accounts receivable.” Furthermore, as indicated, the ex-wife prevailed and the bank, through able counsel, urges error.

The following is quoted from the bank’s brief, which for purposes of this appeal, adequately states the bank’s contention:

“Appellant respectfully asserts that the trial court’s attempt to award the accounts receivable of Dr. Langley to Ap-pellee is invalid in that Dr. Langley himself has or had no accounts receivable, but rather any accounts receivable as a result of services performed by the doctor were the receivables of ‘John 0. Langley, M.D., P.C.’. The Domestic Relations Court had no jurisdiction over Dr. Langley’s professional corporation when rendering its Divorce Decree. Dr. Langley is or was the sole shareholder of ‘John 0. Langley, M.D.,' P.C.’ and according to statute (Code of Alabama, 1975, § 10 — 4-222 and 227) and the by-laws of the corporation, only a licensed medical doctor can own stock in a professional corporation, and specifically in Dr. Langley’s corporation. However, we do not get to the issue of whether Appellee could have been given the stock in The Professional Corporation as this is not what was, in fact, accomplished in the Decree of February 25,1980. The trial court purported to give the accounts of ‘Dr. Langley’ to Mrs. Langley ..., but allowed her the accounts receivable of The Professional Corporation by virtue of its final Order in the case on appeal

In view of the posture of this case and the briefs presented, the following is dispositive of this appeal:

A court of equity in a divorce case has the power to use any reasonable means to effect a just property settlement and adjust the equities between the parties. Smith v. Smith, 365 So.2d 88 (Ala.Civ.App.1978); 8 Ala.Digest, Divorce, Key No. 249(1).

The trial court in February of 1980 in the decree of divorce made its award of certain accounts receivable to the wife. In June of 1982, the order now being appealed, the trial court in essence determined the operative effect of the divorce decree of 1980. The trial court’s action, in this instance, to this court is reasonable and permissible under Smith, supra, and other cases.

The case is due to be affirmed. AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Troy N. MURRAY, as Driver, and Mike Oliver, as Owner v. STATE of Alabama ex rel. Al TIDWELL, District Attorney.
    Civ. 3388.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1982.

      Joel Robinson of O’Rear, Robinson & Nelson, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case concerns the condemnation of a van that was allegedly used in transporting 1,752 cans of beer in a dry county for the purpose of resale. § 28-4-285, Code 1975.

The owner and the driver of the van jointly filed a motion to suppress the evidence on the ground that the search and seizure here involved were invalid. After an ore tenus evidentiary trial before the circuit court upon that motion and upon the merits of the case, the trial court rendered a judgment which overruled the motion to suppress and condemned the vehicle.

Upon appeal, the defendants’ sole argument concerns the unconstitutionality of the search and seizure. Consequently, we shall limit the recital of facts herein to only those facts which pertain to that issue.

Joe Blankensop, a ten year beverage control agent for the A.B.C. Board offered the only evidence upon the question here involved. He was a most refreshing witness since he was apparently so straightforward, sincere, open, frank and honest in presenting his testimony. He testified that, approximately one month prior to June 12, 1981, another A.B.C. agent, Bill Ingram, whom he had known for ten years and who had provided reliable information to him on more than ten occasions which led to several arrests, told him “that there was a white % ton Chevrolet Van hauling into Winston County or through Winston County, and that one of the drivers or a driver probably would be Allen McGough.”

After agent Blankensop received that information, he began to look for a white three-quarter ton Chevrolet van. While working “transportation” at about 2:40 a.m. on June 12, 1981 in the company of the chief deputy sheriff, they were parked on the side of highway 195 in Winston County near the Walker County line. He observed a vehicle which matched the van’s description and he followed it. The van did not speed and it was driven in a normal, lawful manner at all times. The van did not appear to be loaded. It was not “setting low, or anything like that,” and there was nothing about it which “struck” the witness. He testified a number of times that he stopped the van solely because of the information which had been given to him by agent Ingram the previous month.

After stopping, Murray, the van’s driver, walked back towards the agent who asked Murray for his driver’s license, but he had none. The officer instructed Murray to “stand right there just a second, and I stepped around him and shined my flashlight” in the window of the van and saw Mrs. Murray. After another half step, the agent observed the beer behind the seats in plain view with no curtain or other obstruction obscuring it. Agent Blankensop’s purpose or reason for shining his flashlight inside the van was for his personal safety as well as to see how much beer it contained.

He arrested the Murrays, charging them with transporting. There were 1,752 cans of beer in the van. Winston is one of Alabama’s dry counties.

Agent Blankensop did not personally know Murray or anyone whose name was furnished to him by agent Ingram as being a probable driver of the described van. He had no judgment as to the number of white Chevrolet vans which were situated in the state of Alabama, or in Walker or Winston counties.

Since he had worked there for the preceding ten years, he stated that he was familiar with the roads in Winston County, but he had no opinion of the number of routes which are used for hauling alcoholic beverages from Walker County into Winston County. He knows that highway 195 had been previously used for transporting prohibited beverages. Hauling is done at any and all times of the day or night; hence it would be normal or usual for alcoholic beverages to be transported in the early morning hours.

The fourth amendment protection against unreasonable searches and seizures applies in condemnation cases such as this. Berryhill v. State, 372 So.2d 355 (Ala.Civ.App.1979).

Our primary matter for decision is whether the stopping of the van was valid, for, if so, the plain view doctrine applied and the seizure of the van and beer was permissible. “If the officer first stopped the car, this of course requires a determination as to the lawfulness of the stopping....” LaFave, 2 Search and Seizure § 7.5, 591 (1978). The state seeks to justify the stopping and detention of the van for two reasons: first, that the agent had probable cause to do so and, second, that an authorized investigatory stop was made.

Probable Cause

To enable a law enforcement officer to validly stop a vehicle for the purpose of searching it, the officer must have probable cause to believe that the vehicle contains contraband or other evidence of a particular crime, or that it is involved in the commission of a crime. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). It is, therefore, necessary to determine whether, under all of the existent circumstances known by agent Blankensop at the time the van was stopped, he had reasonable cause to believe that that particular van was being so illegally utilized at that moment.

With regard to probable cause, in Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), it was stated:

“Evidence required to establish guilt is not necessary. On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” (Citations omitted.)

Here, agent Blankensop candidly admitted and stated repeatedly that the only reason that he stopped the van was because of the information which had been given to him one month earlier by the other officer. Agent Ingram did not specifically identify the van to him other than as previously stated and there is no evidence that he had any further or additional information concerning it at the time he stopped it.

The information which he possessed when the vehicle was stopped would have been totally insufficient as to probable cause to authorize the issuance of a search warrant. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Further, there was no specific information conveyed to him that a specific white three-quarter ton Chevrolet van would be used in illegally transporting prohibited liquors or beverages at a particular time, place or route or even within a designated reasonable specified time frame within the entire confines of Winston County. Because of the lapse of time of one month between receiving the information and its utilization, if it was otherwise adequate, the related facts became too stale to supply the requisite probable cause. It is clear that the information which agent Ingram provided to him was not for the purpose of arresting anyone for a past crime but was concerned only with the possible future commission of offenses. In short, all of the facts and circumstances which were known to agent Blankensop at the time he stopped the van were insufficient to constitute probable cause.

Agent Ingram did not testify in the present case and there is no evidence of the underlying circumstances and sources thereof which gave rise to the sparse facts which he relayed to agent Blankensop. Here, the only evidence of possessed facts, circumstances or suspicions is that one month earlier Ingram described a van to Blankensop which apparently fit the description of the vehicle in question. Under similar circumstances, this has been held to be insufficient evidence to establish probable cause at a trial. Paschal v. State, 365 So.2d 681 (Ala.1978).

Just observing a white three-quarter ton Chevrolet van being lawfully driven upon a public highway by an unknown driver under no suspicious circumstances early in the morning one month after receiving the designated information did not constitute a reasonable cause to stop it. The facts did not warrant a man of reasonable caution to believe that the particular vehicle in question was being utilized in any unlawful activity on June 12,1981 on highway 195 in the edge of Winston County. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Accordingly, we hold that the requisite probable cause did not here exist to stop the vehicle, under existing facts and circumstances as known to and relied upon by agent Blankensop.

Investigatory Stop
“Police officers may stop a vehicle for investigative purposes based on specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant suspicion of criminal conduct on the part of the occupants of the vehicle. The authority to stop a moving vehicle based upon less than probable cause derives from Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), as applied by the Supreme Court to vehicles in Adams v. Williams, 407 U.S. 143 [92 S.Ct. 1921, 32 L.Ed.2d 612] (1972) (parked vehicle), and U.S. v. Brignoni-Ponce, 422 U.S. 873 [95 S.Ct. 2574, 45 L.Ed.2d 607] (1974) (moving vehicle).
“The factors which can contribute to a reasonable suspicion to stop a vehicle are analogous to the factors justifying a stop and frisk of a suspect on the street. Among those factors are: the behavior of the suspect, such as erratic or evasive driving patterns; the appearance of the vehicle or its occupants; the time and location of the stop, such as a deserted area known as a narcotics pick-up point; and the experience of the police officer. While rarely will any one factor alone be sufficient to warrant a reasonable suspicion of criminal activity, most commonly several factors will appear in combination, thereby justifying a police officer in making an investigative stop.” (Footnotes omitted.)

Ringel, 1 Searches & Seizures, Arrests and Confessions (2d ed. 1981).

In this case there was no offensive driving of the van, there was no evidence of the appearance of the van’s occupants, and the agent apparently placed no particular importance upon the time and place of the stop. He did not testify as to any facts, or offer any explanation of facts whereby he, as an experienced officer, was able to perceive and articulate meaning into given conduct which would be wholly innocent to the untrained observer. The articulation of such matters was heavily depended upon in the three justice concurring opinion in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1880, 64 L.Ed.2d 497 (1980), which is urged upon us by the state as being controlling.

Of the factors enumerated by Ringel, supra, which contribute to a reasonable suspicion to stop a vehicle, the only one here involved which had any significance to the officer was the apparent match in appearance of the van in question with the month-old general description of the vehicle given by Ingram. No other fact or reason was given, or relied upon, by agent Blankensop to stop the van.

Much of the rationale as to there being in this case a lack of probable cause likewise applies as to the invalidity of the stop for investigative purposes and will not be repeated. It suffices to state that, under the facts herein, we find no reasonable suspicion which authorized a stopping of the van for an investigatory search.

In his actions on the night in question, agent Blankensop apparently acted in good faith, but good faith is not enough. “If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate .... ” Beck v. Ohio, supra, 85 S.Ct. at 229. Neither is it adequate that contraband, beer, was discovered in the van after the vehicle was stopped. The stopping of the van may not be justified by the discovery of the beer through the subsequent unobstructed plain view of the interior of the van. Henry v. United States, supra.

The learned, respected and conscientious trial court erred in overruling the owner of the van’s motion to suppress and in its order condemning the vehicle. The final judgment of the circuit court is reversed and this cause is remanded for further proceedings not contrary to this decision.

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

REVERSED AND REMANDED.

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

HOLMES, J., concurs in the result.


author: WRIGHT, Presiding Judge.

text:
    Sam BROWN, Jr. v. PULLMLAN, INC., et al.
    Civ. 3309.
    Court of Civil Appeals of Alabama.
    Nov. 17, 1982.
    Herb. P. Massie of Shores, Larkin, Pen-ick & Massie, Birmingham, for appellant.
    James B. Kierce, Jr. of Stone, Patton & Kierce, Bessemer, for appellees.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Sam Brown worked for Pullman-Standard on July 2, 1980, when he suffered an alleged injury to his right ankle while on the job. Brown claims that he struck his ankle on a piece of steel or iron, causing him severe pain and resulting in a permanent partial disability to the ankle.

The evidence developed that in October 1978, Brown suffered a fracture to his right foot while on the job, and he subsequently received compensation therefor. In April 1979 he suffered a fracture to his right ankle; this injury did not arise out of or in the course of his employment. The fracture was reduced by Dr. Dewey Jones, an orthopedic surgeon, who placed a pin and screw in the joint to hold the bones together. Brown was absent from work from April 6, 1979, until June 17, 1980, while recovering from this injury. In May 1980, Brown apparently suffered another injury to his right ankle, which again did not arise out of or in the course of his employment.

Following the alleged injury to the right ankle on July 2, 1980, Brown was referred by Pullman to the plant physician, Dr. James S. Callahan. Dr. Callahan saw Brown on several occasions and then referred him to Dr. David G. Vesely, an orthopedic surgeon. Dr. Vesely examined Brown several times, and compared x-rays made by his office with x-rays from Dr. Dewey Jones of the previous fracture. Dr. Vesely concluded that there had been no refracture of the ankle. Tomograms were also made of Brown’s ankle which likewise indicated no new fracture. In Dr. Vesely’s opinion, if Brown had suffered any injury, it had been a sprain or strain of the ankle, and he had suffered no resulting increase in permanent impairment to the ankle. Dr. Vesely released Brown to return to work on September 24, 1980, and Dr. Callahan released him on September 29,1980. There was no work available at the plant at that time, however, as it was being shut down. Brown received temporary total disability compensation from Pullman at the prevailing weekly rate from July 2 until September 29,1980, for a total sum of $1,881.76.

In October 1980 Brown went to Dr. Jones complaining of pain in the right ankle. Brown continued to see Jones until September of 1981. Jones concluded that an injury had occurred on July 2,1980, and that that injury was an aggravation of the previous fracture. Dr. Jones’ final evaluation of Brown found twenty-three percent impairment to the lower extremity, although Dr. Jones also testified that he had evaluated Brown in August 1979, (before the alleged on-the-job injury) and found a twenty-six percent impairment.

Brown instituted this suit September 14, 1981, claiming workmen’s compensation benefits for the July 2, 1980, injury to his foot. Following a trial of the case on February 17, 1982, the court rendered its judgment, findings of fact and conclusions of law. The court found that Brown had not suffered an injury on July 2, 1980, which had proximately resulted in any permanent partial disability to him or in any increase in permanent partial disability to him. Judgment was rendered for Pullman.

On March 11,1982, Brown filed a motion to set aside the judgment, a motion for judgment notwithstanding the verdict, and a motion for a new trial, which were denied on April 19, 1982. This appeal followed.

The sole issue on this appeal is whether the court erred in rendering judgment for Pullman. It is well-settled law in workmen’s compensation cases that in reviewing the trial court’s findings of fact, this court is concerned only with whether there is any legal evidence to support the court’s findings. City of Montgomery v. Johnson, 403 So.2d 244 (Ala.Civ.App.1981); Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976), cert. denied, 342 So.2d 924 (Ala.1977). If so, this court must affirm the trial court’s judgment. Harbin v. United States Steel Corp., 356 So.2d 179 (Ala.Civ.App.1978). In this case, there is ample evidence in the record to support the trial court’s finding. There is some conflict in the medical testimony, both as to whether there was an injury and whether there was any permanent partial disability. However, where the testimony is conflicting, the trial court’s findings are conclusive. Young v. City of Huntsville, supra; Davis-Day Timber Co. v. Gentry, 309 So.2d 97, 54 Ala.App. 385 (1975). The decision of the trial court is therefore affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Rayford FARMER v. Dwight STROTHER.
    Civ. 3338.
    Court of Civil Appeals of Alabama.
    Nov. 17, 1982.
    William W. Tally, Scottsboro, for appellant.
    John Baker, Fort Payne, for appellee.
   HOLMES, Judge.

This is a breach of contract case.

The Circuit Court of Jackson County sitting without a jury awarded the plaintiff, Dwight Strother, $5,359 as damages. From this award, defendant, Rayford Farmer, appeals, and we affirm.

The record, viewed with the attendant presumptions, reveals the following: The plaintiff was employed by defendant as a salesman for an eight state area. The plaintiff was to receive 15% commission on direct sales and 8% commission on sales arranged through brokers. The defendant terminated plaintiff’s employment shortly after the plaintiff obtained a large sales contract. Other orders were also in process. The plaintiff sued for breach of contract to recover his commissions from certain sales.

The sole issue on appeal is whether there was sufficient evidence to support the award by the court.

The defendant, through able counsel, contends the evidence was so conjectural and speculative that it would not support the judgment. We do not agree.

We see no useful purpose to be served in detailing all the evidence. Suffice it to say there was evidence presented in the form of copies of orders, plus testimony by the plaintiff which was sufficient to support the trial court’s finding in this matter. See Moquin v. Cochran, 380 So.2d 819 (Ala.1980). In fact, there was sufficient evidence to support a greater award.

Damages for breach of contract need not be assessed with mathematical precision. United Bonding Ins. Co. v. W.S. Newell, Inc., 285 Ala. 371, 232 So.2d 616 (1970). Mere uncertainty as to the amount will not preclude the right to recovery or prevent a decision awarding damages. All that is required is that the evidence, with as much certainty as the situation permits, lay a foundation with which the trier of fact may make a fair and reasonable estimate of the amount of damages. 22 Am.Jur.2d 44, Damages § 25 (1965), quoted with approval in United Bonding Ins. Co. v. W.S. Newell, Inc., supra.

We also note the verdict as to damages is favored with a presumption of correctness, and the reviewing court will not substitute its judgment for that of the trier of facts. Metzger Bros., Inc. v. Friedman, 288 Ala. 386, 261 So.2d 398 (1972).

There being evidence to support the trial court’s award, the judgment is due to be affirmed. United Bonding Ins. Co. v. Newell, Inc., supra.

AFFIRMED.

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


text:
    George Albert APLIN v. Mildred Virginia APLIN.
    Civ. 3361.
    Court of Civil Appeals of Alabama.
    Nov. 17, 1982.
    Douglas M. Bates, Dothan, for appellant.
    No Brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a child support case.

The evidence disclosed the following: there was no provision regarding child support in the parties’ 1977 divorce judgment. However, in December 1981 a judgment was rendered which required that Mr. Aplin (the father) pay to the former Mrs. Aplin (the mother) $300 per month commencing on January 1,1982 as child support for their three minor children. Around the first of that year, Darlene, the fifteen year old daughter, commenced to continuously reside with her father. The other two children are boys, aged nine and twelve years, who are, and have been, in their mother’s custody. Since the 1981 judgment, the father has paid nothing to the mother for the support of either of the children.

Both parties have remarried and each of the parties, as well as their respective spouses, is employed. The mother’s take-home pay is $143 per week and her present husband nets $198 weekly, but he must make certain payments due to obligations as to a previous marriage. The father’s monthly take-home wages amount to $1,120; his present wife’s net monthly income is $352 and his itemized expenses total $1,052 each month.

The mother’s motion sought either to place the father in contempt of court or to obtain a monetary judgment against him for child support arrearage. The father’s counterclaim averred that the mother was well able to contribute to the support of the children. He sought custody of Darlene, child support for her from the mother, and a reduction in the level of support which he is required to pay for the maintenance of the two boys.

After an ore tenus trial, the circuit court’s judgment ascertained that the father was not in contempt of court but entered a judgment against the father for $1,200 for past due child support through June 1,1982. The father was awarded Darlene’s custody and the amount of child support which the father was thereafter required to pay to the mother was reduced to $200 per month.

The father’s sole argument on appeal is that the trial court should have required the mother to contribute to the support of Darlene.

Where a father has custody of a minor child, the mother may be required to pay child support to the father, depending upon the circumstances of the case. Jenkins v. Jenkins, 418 So.2d 137 (Ala.Civ.App.1982); Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980).

Here, the ore tenus rule applies. A trial court’s judgment will not be disturbed on appeal unless there was such an abuse of discretion therein as to make it plainly and palpably wrong. Jenkins v. Jenkins, supra; Williamson v. Williamson, supra. In this case the state of the evidence discloses no abuse of discretion in not ordering the wife to contribute to Darlene’s support. We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Dick NELSON, et al. v. Bill LEONARD.
    Civ. 3372.
    Court of Civil Appeals of Alabama.
    Nov. 17, 1982.

      Kenneth Shinbaum and W. Clarence At-keison, Prattville, for appellants.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The defendant’s appeal is from a judgment of the trial court which granted the plaintiff’s motion for a judgment notwithstanding the verdict.

The pertinent chronological facts were:

February 10, 1982 — The jury returned its verdict for the plaintiff for $1.

February 12,1982 — The plaintiff filed his A.R.Civ.P. rule 50(b) motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial under rule 59.

June 10, 1982 — The trial court granted the plaintiff’s rule 50(b) motion.

Rule 59.1 is here controlling, the provisions thereof being as follows:

“No post-trial motion filed pursuant to Ryles 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

The record does not disclose the requisite express consent of the parties to extend the ninety day limit imposed by that rule. Here, the ninetieth day of the pendency of the motion was on May 12, 1982. Therefore, the plaintiff’s motion was denied by operation of rule 59.1. Upon the passage of the ninetieth day and, thereafter, no valid judgment of the trial court could be rendered relative to that motion. The June 10, 1982 judgment of the respected and learned trial court was a nullity. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975); Crenshaw v. Crenshaw, 405 So.2d 38 (Ala.Civ.App.1981).

We are required to enter a reversal and to set aside that June 10, 1982 judgment of the circuit court in this cause. Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629 (1969); Ala.Code § 12-22-70 (1975).

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

REVERSED AND RENDERED.

All the Judges concur.


author: PER CURIAM.

text:
    Alvin WRIGHT and Patricia Wright v. MONTGOMERY COUNTY DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 3438.
    Court of Civil Appeals of Alabama.
    Nov. 17, 1982.
    No briefs filed by appellants.
    No briefs filed by appellee.
   PER CURIAM.

This case concerns whether an appeal from a juvenile court adjudication terminating parental rights was timely filed.

The relevant facts are as follows:

The Department of Pensions and Security filed a petition seeking to terminate the parental rights of Alvin and Patricia Wright. A hearing was held in the Juvenile Section of the Montgomery County Circuit Court on July 21, 1982. At the end of the hearing the court took the case under advisement.

Thereafter, a decree dated July 21, 1982 was mailed to the parents’ attorneys, who received the decree on August 4, 1982.

On August 17, 1982, the parents filed a motion to correct judgment seeking to have the date of the decree changed. That same day, August 17, the parents also filed a notice of appeal to this court.

An order was issued by the trial court on August 23, 1982, correcting the date of the decree to August 2, 1982. The parents’ notice of appeal to the Court of Civil Appeals was filed on August 17, fifteen days after the date of judgment. This presents the question of whether the appeal was timely taken to the correct court. Put another way, is the juvenile court adjudication appealable to this court and is the time for such appeal fourteen days from the entry of the judgment?

We find that the appeal was properly to this court, but that the appeal was untimely in that it was not filed within the fourteen day limitation.

Before March 1, 1982, appeals from juvenile court went to the circuit court. Ala. Code § 12-15-120 (1975). The time for appeal was fourteen days from the entry of judgment and the proceedings were de novo. Ala.Code § 12-15-120(a) and (b). Juvenile proceedings were not recorded, therefore the trial de novo was necessary so that a record of the evidence could be prepared for an appeal to an appellate forum.

The supreme court, acting on recommendations of the advisory committee to the Alabama Rules of Juvenile Procedure (A.R. Juv.P.), amended these rules in two instances. The results were A.R.Juv.P., rules 20 and 28. These rules became effective on March 1, 1982.

Rule 20 requires each juvenile proceeding to be recorded so that a record of the proceedings can be made for appeal. This makes it unnecessary to first appeal to the circuit court for a trial de novo as was done before the amendments.

Rule 28 concerns appeals from juvenile court to the appropriate appellate court. The parts pertinent to this discussion provide that appeal is taken to this court from cases arising out of the jurisdiction of the juvenile court over a child and that notice of appeal must be filed within fourteen days after the entry of the order, judgment or decree. A.R.Juv.P., Rule 28(C)(2), (3).

This court construes the impact of rule 28, taken in connection with rule 20, as completely altering the appellate route of juvenile court adjudications. Therefore, we determine that rule 28 supersedes Ala.Code § 12-15-120. Rule 28 now governs appellate procedure from juvenile court.

An analysis of rule 28 as it relates to the instant case is necessary in arriving at the above conclusion. The rule has three major subdivisions. Subdivisions (A) and (B) deal with appeals in cases “arising out of the jurisdiction of the juvenile courts over minors and adults”; subdivision (C) treats appeals in cases “arising out of the jurisdiction of the juvenile court over a child.” Appeals under subdivisions (A) and (B) go to the circuit court; appeals under (C) go to the appellate courts of the state. Subdivision (C)(2) lists the types of proceedings that are appealable to this court. However, proceedings to terminate parental rights, the basis of the instant appeal, is not listed in subdivision (C)(2) nor is it contained anywhere else in rule 28.

It appears that when the above situation occurs, the determinative event in deciding whether the appeal goes to the circuit court or appellate court rests on whether the juvenile court is entertaining a matter involving “minors and adults” or a “child.” These terms are not defined in rule 28; however, their meaning is supplied by the two jurisdictional sections of the juvenile code. Ala. Code § 12-15-30 and 12-15-31 (1975).

Section 12-15-30 provides for the juvenile court to exercise jurisdiction over certain situations and proceedings involving children. Relevant to the instant case are

§ 12-15-30(a)(l) and (b)(6) which provide that the juvenile court shall have jurisdiction over proceedings in which a child is alleged to be delinquent, dependent or in need of supervision and in proceedings to terminate parental rights. That is exactly the situation present in the instant appeal in that the Department of Pensions and Security sought to have the parents’ parental rights terminated because the children were dependent and in need of supervision.

This position is further strengthened by reference to § 12-15-71, Code 1975. This provision provides for the disposition of a child found to be dependent, stating in pertinent part:

“(a) If a child is found to be dependent, the court may make any of the following orders of disposition to protect the welfare of the child:
(6) In appropriate cases, award permanent custody to the department of pensions and security ... with termination of parental rights....” (Emphasis added.)

It appears that, whenever the juvenile court’s jurisdiction is predicated upon a dependent child or one in need of supervision, termination of parental rights is one of the viable alternatives. The appellate jurisdiction would be invoked by § 12-15-30(a)(l). Its corresponding provision in rule 28 is found in rule 28(C)(2)(a) and (b). Notice of appeal under those sections must be filed within fourteen days after entry of judgment. A.RJuv.P., Rule 28(C)(3).

Set out most simply, cases involving termination of parental rights arise out of the juvenile court’s jurisdiction over children. Ala.Code § 12-15-30 (1975). In cases arising out of the juvenile court’s jurisdiction over a child, appeals are taken to the Court of Civil Appeals (unless the proceedings involve a child alleged to be delinquent or in proceedings involving an order transferring a child to adult court for criminal prosecution). A.R.Juv.P., Rule 28(C). In such cases, the time for filing notice of appeal is fourteen days. A.R. Juv.P., Rule 28 (C)(3). In the instant case, the notice of appeal was filed fifteen days after entry of judgment.

Based on the above reasons, this court has no alternative but to find the notice of appeal was untimely filed and the appeal is due to be dismissed.

This result has been reached by this court’s reasoned analysis of the impact of the rule changes on the statutory scheme of juvenile procedure. We note that these changes are not abundantly clear. There is some confusion as to the procedure involved in appealing certain cases from juvenile court adjudication. We hope that the appropriate bodies will become cognizant of this problem.

APPEAL DISMISSED.

All the Judges concur.


author: BOOKOUT, Judge. DeCARLO, Judge,

text:
    Thomas R. PIANZIO v. STATE.
    1 Div. 186.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 17, 1981.
    Certiorari Quashed Dec. 30, 1982 Alabama Supreme Court 80-438.

      Albert C. Bowen, Jr. and James M. Ful-lan, Jr., of Beddow, Fullan & Vowell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Possession of a controlled substance; sentence: fifteen years’ imprisonment.

Prior to appellant’s trial, appellant filed motions to suppress the State’s evidence and later filed amended motions to suppress. These motions referred to evidence seized pursuant to search warrants executed on February 10, 1980. A hearing to consider these motions was held on July 28, 1980. At the conclusion of the hearing, the trial court denied the motions. A review of the proceedings which transpired at the hearing convinces us that appellant’s motions to suppress were due to be granted. Because of the trial court’s denial of appellant’s motions to suppress and the subsequent admission of the unlawfully obtained evidence at trial, we have no alternative but to reverse and remand this cause.

Central to appellant’s motions to suppress and amended motions to suppress are allegations that the affidavits accompanying the search warrants contained false information and that the search warrants were improperly executed in the nighttime. For the sake of clarity, the affidavits and search warrants in question are set out fully below.

Briefly, the facts which gave rise to Deputy Thomas Byrd’s affidavits, upon which Judge Nesbit relied when she issued the requested search warrants, reveal the following:

Around 5:00 p.m. on February 10, 1980, Deputy Byrd of the Baldwin County Sheriff’s Department first received a “be on the lookout” bulletin (commonly called a “BOLO”) for an Aero Commander airplane, black, silver and yellow in color. Deputy Byrd received the “BOLO” from U.S. Cús-toms officials in New Orleans while he was on duty at the Foley office. Later that evening, while at the police station in Gulf Shores, Deputy Byrd had a telephone conversation with a Customs official who informed him that the airplane had landed in Marianna, Florida, and that one of the occupants of the plane had been arrested, but that the pilot had taken off in the plane. The Customs official told Deputy Byrd that he “suspected” or “suspicioned” the airplane “might be carrying some type of contraband.” That was the only information Byrd received from Customs.

Deputy Warren Stewart, also of the Baldwin County Sheriff’s Department, testified that he, Officer Ken Lee of the Gulf Shores Police Department and Steve Stewart arrived at the Jack Edwards Airport in Gulf Shores around 6:30 p.m. It was dark at the time of their arrival. Sheriff Benton and Sergeant Bourne also drove to the airport and parked their car beside Deputy Stewart’s. Both cars were unmarked.

Deputy Byrd had testified that the above group of law enforcement officers were at Jack Edwards Airport “on a detail to watch for a shrimp boat that was coming in with some marijuana.” There is no indication in the record that the officers were located at the airport for any other purpose.

Deputy Stewart testified that when they arrived at the airport they observed the airplane in question parked on the grass about ten to twenty feet off the east-west runway on the west end. The airplane was unoccupied when they arrived. No one saw the plane land.

Later, Deputy Stewart saw a white and blue Buick occupied by appellant and Mrs. Faye Hardy drive over to the airplane. Stewart said, “We watched Mr. Pianzio get out of his vehicle. He went to the plane. And we watched him unload several boxes out of the aircraft into the vehicle.” Mrs. Hardy remained in the car. Deputy Stewart testified that “they got through just before we walked up to them.” Prior to their approaching the appellant, the law enforcement officers at the airport had received the “BOLO” information concerning the airplane through a briefing on the matter by Chief Criminal Investigator Bobby Stewart.

The first thing appellant said when approached at the airport was “Oh, you’re the police?” When questioned about what he was loading into the Buick appellant replied, “electrical supplies.” Appellant allowed the officers to look inside the airplane, but no contraband was discovered.

Deputy Stewart testified that he then told Mrs. Hardy he wanted to search the car because of “the suspicious circumstances.” Mrs. Hardy replied that “there were electrical supplies in the boxes and that she couldn’t permit us to search the boxes, the contents of the boxes at this time.” Deputy Stewart stated that “Mrs. Hardy got upset with us. She couldn’t understand what we were doing and she attempted to drive away. I had to put the car in park and take the keys out of it.”

Between 9:00 p.m. and 10:00 p.m., Deputy Byrd was dispatched by Sheriff Benton to the home of Judge Phyllis Nesbit in Fair-hope to obtain search warrants for the airplane and Buick automobile. Another magistrate had earlier refused to issue the requested search warrants. Byrd did not go to the airport prior to the time the search warrants were obtained. After Judge Nes-bit issued them, Byrd did not participate in their execution, but sent them by another deputy to Sergeant John Galloway who was at the airport.

Deputy Byrd admitted that prior to the time he obtained the search warrants no one had told him they had seen contraband on the airplane. Byrd only knew that the airplane was parked at the airport and that some boxed materials had been taken from the plane and loaded into an automobile. Byrd also admitted that no one at Customs told him that contraband was in the airplane or in a Buick automobile, “just that they suspicioned it” being on the airplane. No one from Customs sent Byrd information that the airplane or the Buick automobile was at Jack Edwards Airport. Byrd testified that the Customs officials he talked to on the telephone in Foley did not tell him anything about the automobile. Byrd acknowledged that Customs officials “had no knowledge that a car was out there; they didn’t even know a car was out there.”

Deputy Warren Stewart testified that the searches were conducted around 10:80 p.m. The reverse side of the search warrants indicates that the search warrant for the Buick was executed at 10:41 p.m. and the one for the airplane was executed at 10:55 p.m. Deputy Stewart admitted that he did not know what was in the boxes until he opened them and that no one had told him what was in them before he opened them.

I

When the foregoing facts, which were brought to light at the suppression hearing, are compared with the information contained in Deputy Byrd’s affidavits, it becomes unequivocably clear that the statements made in the affidavits are false. And, because the information Deputy Byrd swore to in the affidavits is so far afield from the actual information he had, the conclusion is inescapable that the falsity of the affidavits was made knowingly an# intentionally or with reckless disregard for the truth.

Although all of the contraband was discovered in the Buick automobile and not in the airplane at the time the search warrants were executed, for the purpose of clarity we shall discuss the falsity of the affidavits to both warrants. It must first be noted that the affiant, Byrd, had not been to Jack Edwards Airport prior to his obtaining the search warrants from Judge Nesbit. He had not seen the airplane or Buick automobile before giving his sworn affidavit that he had “reason to believe” contraband was being concealed in them. Byrd had no personal knowledge that the airplane or Buick automobile was located at Jack Edwards Airport, much less that they contained contraband. Therefore, any information Byrd had that would establish probable cause, which is a prerequisite to obtaining any search warrant, had to have been obtained through hearsay. Probable cause may be based solely upon hearsay information under certain well defined circumstances. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966); Waters v. State, 360 So.2d 347, 353 (Ala.Cr.App.), cert. denied, 360 So.2d 358 (Ala.1978).

From appellant’s suppression hearing, the only possible sources through which Byrd could have obtained the necessary hearsay information to establish probable cause were U.S. Customs agents and Sheriff Benton. Byrd had received a “BOLO” bulletin in Foley around 5:00 p.m. on the date in question. While at Gulf Shores he had a telephone conversation with Customs officials in New Orleans later that evening. Byrd was dispatched per radio communications by Sheriff Benton to obtain the warrants from Judge Nesbit. Byrd had no other sources of information concerning this case.

Reviewing Byrd’s affidavits, the only facts even vaguely connected with Sheriff Benton are found in the Buick automobile search warrant: “Baldwin County Deputy Sheriffs saw something being transferred from an airplane into the subject Buick.” (Emphasis added.) It requires no recitation of authority to hold the above quoted portion of Byrd’s affidavit inadequate to establish probable cause. Nothing whatsoever pertaining to information received from Sheriff Benton is contained on Byrd’s affidavit to the airplane search warrant.

Byrd’s only remaining source of information is U.S. Customs; the “BOLO” bulletin received around 5:00 p.m. and the telephone conversation with Customs officials later in the evening. The “BOLO” bulletin Byrd received was no more than a directive to be on the lookout for the Aero Commander airplane. Through the telephone conversation later in the evening, Byrd learned that the airplane had landed in Marianna, Florida, that one of its occupants had been arrested, and that the pilot had taken off in the plane. The Customs official Byrd talked with also “suspected” or “suspi-cioned” that the airplane “might be carrying some type of contraband.” As stated previously, this is all the information Byrd received from Customs.

Byrd received no information from Customs that the airplane was located at Jack Edwards Airport after it had taken off from Marianna, Florida. Byrd received no information that the airplane actually contained contraband, only that it was “suspected” or “suspicioned.” There was no mention from Customs that the airplane was carrying marijuana. It is apparent that it was beyond Customs’ wildest speculation that a 1977 Buick automobile containing “controlled substances (drugs) and or mrijuana [sic]” was located at Jack Edwards Airport. U.S. Customs most assuredly did not have that information, nor had Byrd received any such information from Customs. Yet, Byrd’s affidavit recites, “Information received from U.S. Customs dispatch .... ”

Clearly, the information in Byrd’s affidavits regarding what he “received from U.S. Customs dispatch” is false. In Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), the Supreme Court held:

“[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” (Emphasis added.)

Appellant in the case at bar certainly established by a preponderance of the evidence a reckless disregard for the truth in Byrd’s affidavits. The facts alleged in the affidavit which served as a basis for the issuance of the airplane warrant were false in all respects leaving nothing to establish probable cause. The facts alleged in the automobile warrant were likewise false except for the remaining content: “Baldwin County Deputy Sheriffs saw something being transferred from an airplane into the subject Buick.” As stated earlier, this small portion comes nowhere close to establishing probable cause.

Even had Byrd’s affidavits been sufficient on their face, which we need not decide, the search warrants were invalid because material statements in the supporting affidavits were contradicted and proven erroneous by the testimony of Byrd himself. Waters v. State, 360 So.2d 347, 357 (Ala.Cr.App.), cert. denied, 360 So.2d 358 (Ala.1978). As was stated by our supreme court in Walker v. Graham, 228 Ala. 574, 154 So. 806, 809 (1934):

“[N]o one will be permitted to wrongfully procure the issuance of a process by practicing a fraud or imposition upon the court or authority, and seek shelter behind such a process.... ”

Thus, setting all the affidavits’ false material to one side as we are required to do under Franks v. Delaware, supra, the affidavits’ remaining content is insufficient as a matter of law to establish probable cause. The probable cause requirement of voluminous case law, as well as § 15-5-3, Code of Ala.1975, was simply not satisfied.

II

The search of the airplane and automobile was defective for a second reason: the search warrants were executed in the nighttime. § 15-5-8 Code of Ala.1975 reads:

“A search warrant must be executed in the daytime unless the affidavits state positively that the property is on the person or in the place to be searched, in which case it may be executed at any time of the day or night. The issuing judge or magistrate must state in the warrant, according to the character of the affidavits, whether it is to be executed by day or at any time of the day or night.”

The supporting affidavits before us state that the affiant, Byrd, had “reason to believe” with the phrase “he is positive” deleted with X marks. Despite the deletion of “he is positive,” Judge Nesbit nevertheless authorized the search of the airplane and Buick automobile to be conducted at “anytime” and struck the word “daytime.” We think this action exceeded her judicial authority. Section 15-5-8 mandates that “a search warrant must be executed in the daytime unless the affidavits state positively that the property is ... in the place to be searched.... ” (Emphasis added.) To allow a search warrant to be executed at a time other than “daytime” when the affiant cannot swear positively that the property is “in the place to be searched” is contrary to a plain reading of the statute. Both search warrants here were, in fact, executed in the nighttime. Therefore, the searches were conducted illegally and the fruits of such illegal searches were inadmissible at appellant’s trial. See Pate v. State, 42 Ala.App. 350, 165 So.2d 127, cert. denied, 276 Ala. 706, 165 So.2d 128 (1964).

Appellant timely raised these issues in his motions and amended motions to suppress. Based on the evidence that came to light at the suppression hearing, appellant’s motions were due to be granted. Without question, the property seized and later introduced at appellant’s trial was the product of an illegal search, violative of appellant’s substantial rights under the Fourth and Fourteenth Amendments.

REVERSED AND REMANDED.

All the Judges concur except DeCARLO, J., dissents.

DeCARLO, Judge,

dissenting.

The majority of the court has determined that the search warrant in this case was defective because of the false information given by the affiant in the affidavit. Therefore, it holds that the resulting search and seizure of twenty-eight boxes containing approximately 700,000 “Methaqualudes” was illegal.

The conclusion of the majority that the search warrant was invalid is, in my judgment, correct. However, it is also my judgment that, even though the warrant was invalid, the search was constitutionally permissible based upon the probable cause plus exigent circumstances exception to the warrant requirement. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Richardson v. State, Ala.Cr.App., 376 So.2d 205 (1978), affirmed, Ala., 376 So.2d 228 (1979); Baker v. State, Ala.Cr.App., 340 So.2d 854, cert. den., Ala., 340 So.2d 860 (1976); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Without question, if after the false material is set to one side, the remaining content can be used to establish probable cause for a search warrant, Franks v. Delaware, supra, then certainly it could be used to establish probable cause for a warrantless search.

In my judgment, the deputies properly approached appellant and Mrs. Hardy to question their activities at Edwards Airport. When a “reasonable suspicion, based on objective facts, [exists] that the individual is involved in criminal activity” it is permissible to detain that individual for brief periods of questioning. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Among the circumstances that can arouse a law enforcement officer’s reasonable suspicion are his knowledge of the methods used in recent criminal activity, the character of the persons engaged in such activity, the character of the particular area, and the behavior of the suspect who appears to be evading police contact. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1923); United States v. Davis, 561 F.2d 1014 (D.C. Cir.), cert. den., 434 U.S. 929, 98 S.Ct. 416, 54 L.Ed.2d 290 (1977). In all situations, the officer is entitled to assess the facts in light of his experience. United States v. Brignoni-Ponee, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, supra. Furthermore, as Mr. Justice Powell observed in his concurring opinion in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1882, 64 L.Ed.2d 497 (1980):

“[I]t is important to recall that a trained law enforcement agent may be 'able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.’ (quoting Brown v. Texas, 443 U.S. at 52 n. 2, 99 S.Ct. at 2641 n. 2).”

The transcript of evidence of the suppression hearing reveals specific and articulable facts giving rise to a “reasonable suspicion” on the part of the deputies that appellant was engaged in criminal conduct. Appellant was unloading boxes from an airplane which had earlier evaded police apprehension in Marianna, Florida. While I am fully aware that mere suspicion, standing alone, is never a sufficient basis for a finding of probable cause, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Rudolph v. State, Ala.Cr.App., 371 So.2d 962, cert. den., 371 So.2d 965 (Ala.1979), I believe that the circumstances of this case rose above mere suspicion, ripened into probable cause, and, when coupled with the exigent circumstances present, justified the warrantless search. See Hancock v. State, Ala.Cr.App., 368 So.2d 581, cert. den., Ala., 368 So.2d 587 (1979). In my opinion, the following facts adduced at the suppression hearing provide the necessary probable cause:

(1) The deputies were informed by a “be on the lookout” (BOLO) bulletin, derived from U.S. Customs officials in New Orleans, that a black, silver, and yellow Aero Commander plane, suspected of carrying contraband, had landed in Marianna, Florida, from an overseas destination. One of the occupants of the plane had been arrested, but the pilot eluded apprehension and left with the plane. Even if all the false assertions included in the affidavit for the search warrant are subtracted, Franks v. Delaware, supra, these remaining true facts derived from the “BOLO” bulletin contribute to a finding of probable cause. Without question, probable cause may be based on the hearsay information of a radio bulletin. Paschal v. State, Ala., 365 So.2d 681 (1978).
(2) When the plane departed from Ma-rianna, Florida, the pilot left behind a wallet indicating the name “Pianzio.”
(3) A white male and a white female, later identified as Mr. Pianzio and Mrs. Hardy, drove up to the airplane. Mrs. Hardy remained in the car and Mr. Pianzio began unloading boxes from the aircraft into the vehicle.
(4) Appellant and his companion were observed between 6:30 and 9:00 P.M., on February 10, 1980, a time when it was totally dark.
(5) The events in this case took place at Edwards Airport. It is important to consider, and judicial knowledge may be taken, that Edwards Airport is not a busy, controlled facility. In Green v. Mutual Benefit Health & Accident Association, 267 Ala. 56, 99 So.2d 694, 697 (1957), the Alabama Supreme Court stated:
“It is customary for courts to take judicial knowledge of what ought to be generally known within the limits of their jurisdiction. This cognizance may extend far beyond the actual knowledge, or even the memory of judges, who may therefore resort to such documents of reference, or other authoritative sources of information as may be at hand, and may be deemed worthy of confidence. The rule has been held, in many instances, to embrace information derived informally by inquiry from experts.”

With the guidance from our Supreme Court in Green, supra, I note that Edwards Airport is a blacktop airstrip without control tower, lights, hangars, or personnel — in short, an unattended airstrip. See Vogel v. State, Ala.Cr.App., Mo. 3 Div. 146 (October, 1980). Certainly the nature of the airfield is relevant in determining the “character of the surroundings” in order to evaluate the actions of appellant, see United States v. Davis, supra.

(6) Appellant unloaded some twenty-eight boxes from the aircraft. He refused to allow the officers to look in the luggage compartment of the plane. Mrs. Hardy told the officers that the boxes contained electrical supplies, and she, too, did not permit a search of the boxes. She became “upset” and attempted to drive away. Mrs. Hardy’s evasive action undoubtedly is a strong contributing factor .in the probable cause determination. See Sibron v. New York, supra. In addition, it does not seem plausible that individuals in the electrical supply business would be loading and unloading boxes at a dark, unattended airstrip. From aught that appears, the boxes bore no names, labels, or other indications that they were, in fact, electrical supplies. “Implausible explanations of suspicious behavior may, when considered with other factors, furnish probable cause.” Vogel v. State, supra, and cases cited therein.

While I recognize that each of the above facts, considered separately, might not furnish the requisite probable cause for a war-rantless search, I am of the opinion that, taken together, these individual facts were sufficient to establish probable cause for the deputies’ belief that appellant was concealing contraband in the boxes. Probable cause does not call for absolute certainty. As the United States Supreme Court stated in Brinegar v. United States, supra:

“In dealing with probable cause, ... as the very very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

I do not believe that it seriously can be contended that exigent circumstances did not exist to justify the seizure at the airstrip without a warrant. Although the presence of an automobile does not automatically dissolve the protection afforded by the Fourth Amendment, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), it is clear that automobiles and other “moveables” have been treated differently when considered in the context of search and seizure cases, Coolidge v. New Hampshire, supra; Carroll v. United States, supra; Ex parte Reid, Ala., 388 So.2d 208 (1980).

In this case, there was not only an automobile, but also an airplane. Therefore, the presence of two “moveables”, coupled with Mrs. Hardy’s attempt to leave, certainly provides sufficiently exigent circumstances to allow the search and seizure without a warrant.

My conclusion that the search in this case should be upheld is further supported by the practical considerations and public policy observations of the United States Supreme Court in United States v. Mendenhall, supra:

“The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs .. . may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.”

The Court also observed that

“[t]he jurisprudence of the Fourth Amendment demands consideration of the public’s interest in effective law enforcement as well as each person’s constitutionally secured right to be free from unreasonable searches and seizures.”

Therefore, based on the foregoing facts and principles of law cited, I respectfully dissent.


author: BOWEN, Judge.

text:
    Gene MILLICAN, Alias v. STATE.
    7 Div. 947.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied Dec. 3, 1982 Alabama Supreme Court 81-943.
    Rowan S. Bone and Edward Cunningham, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful sale or disposition of cocaine. Alabama Code 1975, Section 20-2-70(a). Sentence was eight years’ imprisonment.

The only issue raised on appeal is the defendant’s argument that he was “entitled to have copies of any statements or notes of testimony made before the Grand Jury by a State’s witness after the witness testified on direct examination.” The portion of the record upon which this argument is based is found in defense counsel’s cross examination of State’s witness B.J. Alexander.

“Q. Did you testify before the Grand Jury?
“A. I don’t remember. To be honest with you, I don’t.
“MR. BONE (Defense Counsel): Do we have Grand Jury notes on B.J. Alexander?
“MR. MARTIN (Assistant District Attorney): I don’t know. That’s secret, Your Honor. He doesn’t have any right to show any Grand Jury notes.
“MR. BONE: We have the right to question him from any statements he’s made previously, including any statements he made before the Grand Jury.
“MR. MARTIN: No, sir. Anything that transpires in the Grand Jury by law is secret and it has to be sworn that he won’t divulge it.
“THE COURT: Mr. Bone knows that. “MR. BONE: We are asking at this time for the Court to direct Mr. Martin to allow us access to any previous statements, testimony of any kind, anywhere, that this police officer has made.
“THE COURT: As far as Grand Jury is concerned, I deny your motion.
“MR. BONE: All right, sir.”

In Pate v. State, 415 So.2d 1140 (Ala.1981), our Supreme Court held:

“(T)he general rule (is) that an accused is not entitled to discover statements of government witnesses before trial.
“The rule of discovery is different where a prosecution witness has testified on direct examination in the trial of the case.
“In such cases, the defendant, UPON LAYING A PROPER PREDICATE, is entitled to have the Court, at least, conduct an in camera inspection as outlined in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The trial court could determine initially (1) whether the statement made by the witness before trial differed in any respects from statements made to the jury during trial, and (2) whether the statement requested was of such a nature that without it the defendant’s trial would be fundamentally unfair. Cooks [v. State], supra (50 Ala.App. 49, 276 So.2d 634, cert. denied [McGullion v. State ], 290 Ala. 363, 276 So.2d 640 (1973)).” (emphasis added)

“While a witness may always be impeached by showing that he has made a contradictory statement as to material matters before the grand jury, the inquiry must be limited to contradictions and not corroborations.” Mullins v. State, 31 Ala.App. 571, 573, 19 So.2d 845 (1945). “It is, of course, well established by the authorities that a witness may be impeached and discredited by showing prior statements in conflict with his sworn testimony given at the trial .... This includes his testimony before the grand jury if the inquiry is limited to contradictions.” Adams v. State, 33 Ala.App. 136, 140, 31 So.2d 99, cert. denied, 249 Ala. 294, 31 So.2d 105 (1947). Smith v. State, 183 Ala. 10, 26, 62 So. 864 (1913); Wyatt v. State, 35 Ala.App. 147, 157, 46 So.2d 837, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950); Riley v. State, 21 Ala.App. 655, 656, 111 So. 649, reversed on other grounds, 216 Ala. 536, 114 So. 12 (1927). “(F)or impeachment of a witness, ... a grand juror may be required to disclose the testimony of any witness examined by that body.” State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 687, 296 So.2d 779, cert. denied, 292 Ala. 506, 296 So.2d 784 (1974); Davis v. State, 30 Ala.App. 562, 10 So.2d 35 (1942); Alabama Code 1975, Section 12-16-201. “The fact that the alleged contradictory statement was made before a grand jury in no way excepts it from the general rule that a witness may be cross examined as to prior statements made by him contradictory to statements made in his testimony in the pending trial.” Williams v. State, 32 Ala. App. 597, 601, 28 So.2d 731 (1947); Bryson v. State, 38 Ala.App. 517, 520, 84 So.2d 782, affirmed, 264 Ala. 111, 84 So.2d 785 (1956).

The majority rule appears to be that “where a prosecution witness has testified on direct examination in the trial of the case, the defendant, upon laying a proper foundation if required, may be permitted to inspect the transcript of the grand jury testimony of such prosecution witness for the purpose of cross examining or impeaching him.” Anno. 20 A.L.R.3d 7, 104 (1968). In line with this, “(o)ur appellate courts have held that the trial court is not put in error if it does not allow the inspection and use of grand jury notes until the State has used them to test recollection, to impeach or unless contradiction is shown.” Stroud v. State, 56 Ala.App. 692, 695, 325 So.2d 200, cert. quashed, 295 Ala. 424, 325 So.2d 204 (1975).

“While the matter is within the sound discretion of the trial court, and the proper predicate for impeachment must be laid, the general rule is that a witness may be discredited, or impeached, as to testimony given on the trial by inconsistent testimony given by him before the grand jury which found the indictment; as to material matters; the inquiry has been required to be limited to contradictions and not corroborations.” 98 C.J.S. Witnesses Section 594(c) (1957). (emphasis added)

“Where the impeaching written evidence consists of testimony before a grand jury, the required foundation is to be laid by showing or reading it to the witness or allowing him to read it, by calling his attention to such testimony, although not to particular statements alleged to be contained therein, by inquiring whether or not he made the statements, and by affording an opportunity for explanation.” 98 C.J.S. Witnesses Section 604(a).

It is a clear and fundamental rule that before a witness may be impeached by extrinsic evidence, “the impeaching party must lay a proper predicate by asking the party being impeached whether he made such statement, specifying with reasonable certainty the time when, the place where, the person to whom such supposed statement was made and the substance of such statement.” C. Gamble, McElroy’s Alabama Evidence, Section 157.01 et seq. (3rd ed. 1977). Bryson, 38 Ala.App. at 520, 84 So.2d 782.

Before a defendant is allowed to inspect a transcript of a State’s witness who testified before the grand jury or before a trial judge should conduct an in camera inspection of such testimony, see Palermo and Pate, supra, the defendant should at least and at a very minimum make some offer of proof (1) that the matters contained in the witness’ grand jury testimony were relevant to the subject matter of the prosecution; (2) and that there exists an inconsistency between grand jury testimony and trial testimony. Unless defense counsel is merely going on a fishing expedition, he will have some information as to the particular inconsistency in the defendant’s testimony. In this case no such showing was made and the existence of any inconsistency between the witness’ trial and grand jury testimony was never even alleged. Cooks, supra. Also, there was no showing that the witness’ grand jury testimony, if available, was “of such nature that without it the defendant’s trial would be fundamentally unfair.” Cooks, 50 Ala.App. at 54, 276 So.2d 634. See also Husch v. State, 211 Ala. 274, 276, 100 So. 321 (1924) (“Moreover, if the solicitor had had such a statement in his possession, defendant could have required its production by a rule of the court if he thought it was favorable to him.”)

In laying the proper predicate for examination of a witness’ grand jury testimony, it should also be established that the witness testified before the grand jury and that such testimony was recorded or reduced to writing, unless a grand juror will be called to disclose the testimony of the witness. Alabama Code 1975, Section 12-16-201.

“When the defendant, in effect, asks for the State District Attorney to produce a document, he should at least establish that this State official has such document or a copy thereof in his possession before the trial court will be put in error.” Strange v. State, 43 Ala.App. 599, 606, 197 So.2d 437, cert. dismissed, 280 Ala. 718, 197 So.2d 447 (1966).

Once the defendant has laid a proper predicate for the impeachment of a witness who testified before the grand jury, the trial judge should conduct an in camera inspection as outlined in Palermo, supra, and Pate, supra, to determine (1) whether the statement made by the witness before the grand jury “differed in. any respects from statements made to the jury during trial”, Pate, supra, and (2) whether the grand jury testimony requested by the defendant “was of such a nature that without it the defendant’s trial would be fundamentally unfair.” Pate, supra. This procedure will best preserve and protect the legislative determination that “it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate.” Alabama Code 1975, Sections 12-16-214 through 226.

The defendant has been represented at trial and on appeal by experienced and extremely competent counsel. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Rosemary W. MILLER v. STATE.
    8 Div. 613.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Dec. 22, 1982 Alabama Supreme Court 82-51.
    Carl W. Stolsworth, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found the appellant guilty under an indictment which (omitting the formal parts) charged the following:

“Rosemary W. Miller ... did agree with Melisha Vandiver, Linda Ashley and Cindy Nichols to commit the crime of Robbery in the First Degree, in violation of Section 13A-8^41 of the Code of Alabama, with the intent that conduct constituting said offense be performed and that the said Melisha Vandiver did, in the course of constituting a theft of lawful currency of the United States of America of the combined value of, to-wit: $200.00, the property of Howard Barnett, used force against the person of Terry McLe-more, with the intent to overcome his physical resistance or physical power of resistance, while the said Melisha Vandi-ver was armed with a deadly weapon, to-wit: a shotgun, in furtherance of said crime, in violation of Section 13A-4-3 of the Code of Alabama.”

After a sentencing hearing at which it was charged and proved that defendant had been previously convicted of a felony, the court fixed her punishment at imprisonment for ten years and sentenced her accordingly.

The appeal presents no challenge of the sufficiency of the evidence to support the verdict, the appropriateness of the punishment fixed by the court, or as to any matter other than the action of the court in overruling defendant’s motion to suppress as evidence an in-custody statement made by appellant to police officers while she was intoxicated. The evidence is undisputed that she was “highly intoxicated” and “very hysterical” at the time she made the statement. In support of appellant’s contention that her statement was inadmissible by reason of the prohibition of the Fifth Amendment to the Constitution of the United States against involuntary self-incrimination of an accused in a criminal case, appellant relies particularly on the quoted testimony of Russellville Police Officer Donnie McGuire as follows:

“Q. Mr. McGuire, you say that in your opinion Rosemary was highly intoxicated, on this occasion?
“A. Yes sir.
“Q. Did you see any evidence of any drinking in the car?
“A. Yes sir.
“Q. What kind of evidence?
“A. There was beer cans all in the car and there was a part of a bottle of Vodka laying under her feet.
“Q. Do you recall how many beer cans? “These were empty, I take it?
“A. Yes sir.
“Q. Do you recall how many there were? “A. There was, approximately, 6 to 10. “Q. Was there any Vodka gone out of the pint bottle of Vodka?
“A. There was about a half pint gone.
“Q. In your opinion — well, let me ask you this. Was she crying during this time?
“A. Yes sir.
“Q. In your opinion, was she hysterical? “A. Yes sir.
“Q. Would you say she was in a highly agitated emotional state?
“A. Yes sir.
“Q. Did she ask specifically to talk to you?
“A. Yes sir.
“Q. During the course of your conversation with Rosemary, on this occasion, did she appear to be rambling and talking about different things?
“A. Like when they would laugh, in the middle of the street, or something, she would change the conversation and start talking about different things and at that particular time, I didn’t know what she was talking about, but I found out later what she was talking about.
“Q. Were there any other ramblings or anything to indicate to you that she might not be in control of her faculties or senses?
“A. Oh, no sir.
“Q. Officer McGuire, you recall the preliminary hearing that we had in this case some month or a month and a half ago? “A. Yes sir.
“Q. Do you recall Mr. Jolly asking you and I quote, ‘Now after advising the Defendant of her rights, what, if anything, was said?’ and your answer was, T didn’t start asking her any questions, I sat there for a long time listening to what she had to say, because she was talking about several different things, I mean, you know, she was drifting from talking about one thing and then she would talk some about Town Hill Truck Stop.’ Do you recall that statement?
“A. Yes sir.
“Q. Is that a true statement, sir?
“A. Yes sir.
“Q. In effect, would you say she was rambling and talking about different things?
“A. Yes sir.
“Q. What was her appearance, on this occasion, how did she appear, as far as her dress and her physical appearance?
“A. You mean clothing she was wearing?
“Q. Yes sir.
“A. The best I can remember, she had on jeans, a pull over type top. I don’t really remember. Her speech was slurred or anything of that nature, she was just, she was crying and she would get mad from time to time.
“Q. She was highly intoxicated, on this occasion?
“A. Yes sir.
“Q. And very hysterical?
“A. Yes sir.
“Q. Was she screaming or talking in a loud voice?
“A. Yes sir, at times she was.
“Q. Now, these other things she talked about, other than Town Hill Truck Stop, did these other things make any sense to you, at that time?
“A. At that time, they didn’t, I didn’t know what she was talking about.
“Q. You say you could smell alcohol on her?
“A. Yes sir.
“Q. Did you ask Rosemary if she had been drinking?
“A. I don’t remember that.
“Q. Do you recall at the preliminary hearing that we had—
“A. I believe at one time during the conversation, she told me she had been drinking.
“Q. Do you recall at the preliminary hearing the question I asked you and I quote from the transcript, ‘Did you ask Rosemary if she had been drinking,’ and this part is noted as being unintelligible, ‘and taking pills’. And your answer was, ‘Yes, sir, she had, she said she had been drinking all afternoon, she said, Donny, I’m drunk, and I don’t know what I’m doing.’ Did she make that statement? “A. Yes sir.
“Q. At what point in your conversation, did she make this statement? How far along into it?
“A. I don’t remember that.
“Q. Do you recall at the preliminary hearing, I asked you, ‘when did she say that, at what point in your conversation did this occur?’ And your answer was, T believe it was right after I first got in the car, but it came up several different times, while I was sitting in the car talking to her, because she would start to say something and she would say something of the nature, you think I’m crazy, I’ve been drinking, I’m drunk, she was aware she was rambling, but the way I took it, she seemed to be aware she was rambling around.’ Was that your statement, on that occasion?
“A. Yes.
“Q. It is still your opinion that she was highly intoxicated and hysterical, on this occasion.”

There is apparently no disagreement between the parties on appeal as to the governing principle of law as to when an accused has become so intoxicated at the time he makes a confession or inculpatory statement that the statement should not be admitted in evidence. Both parties cite Warren v. State, 44 Ala.App. 221, 205 So.2d 916 (1967), which comprehensively covered precedents on the subject and elsewhere, as found in Annotation: Intoxication of Accused at Time of Confession, 69 A.L.R.2d 361, et seq. In Warren v. State, at 205 So.2d 919, the principle is stated as follows:

“The general rule applicable to confessions obtained from persons under the influence of intoxicants is well stated as follows: ‘ * * * Proof that the accused was intoxicated at the time he confessed his guilt of crime will not, without more, bar the reception of the confession in evidence. But if it is shown that the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statement, then the confession is inadmissible.’ (Ann.: Intoxication of Accused at Time of Confession, 69 A.L.R.2d 361, 362, and see authorities collected). “In People v. Schompert, 19 N.Y.2d 300, 279 N.Y.S.2d 515, 226 N.E.2d 305, the court said:
“ ‘Lack of awareness or understanding alone might be sufficient to exclude a confession in the rare case where it clearly appears that at the time of the confession the confessant was so intoxicated as to lack mental capacity, that is, he was unable to appreciate the nature and consequences of his statement. This, no doubt, is the “mania” referred to in the older cases.’
“Our courts recognize the rule that proof of intoxication amounting to ‘mania’ or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words, renders a confession made by him while in such state inadmissible. Eskridge v. State, 25 Ala. 30; Smith v. State, 25 Ala.App. 297, 145 So. 504; Vinzant v. State, 28 Ala.App. 220, 180 So. 736; Ray v. State, 39 Ala.App. 257, 97 So.2d 594.”

There have been several restatements of the principle quoted from Warren v. State, supra. As recently as Tice v. State, 386 So.2d 1180, 1185 (Ala.Cr.App.1980), we find:

“Intoxication, short of mania or such impairment of the will and mind as to make an individual unconscious of the meaning of his words, will not render a statement or confession inadmissible. Medders v. State, Ala.Cr.App., 342 So.2d 49 (1977); Scott, supra [Scott v. State, Ala.Cr.App., 333 So.2d 619 (1976) ].”

From that part of the testimony of Officer McGuire that is particularly relied upon by appellant, and which we have quoted above, there is basis for a conclusion that defendant was so intoxicated at the time of her confession or inculpatory statement as to render it inadmissible in evidence. However, the same conclusion does not necessarily follow when some of the remainder of the officer’s testimony is taken into consideration, particularly the following:

“A. Well, when I got in the car, she said, I’ve got to talk to you about Town-hill Truck Stop, [the place where the undisputed evidence shows that the robbery occurred] and I told her, I said Rosemary, if you are going to talk to me about Townhill Truck Stop, I’ve got to read your rights to you and she said, I know my rights, I’m so ashamed of myself, I don’t know what to do and she was crying and I took the card out of my pocket and read her her rights.
“Q. Tell the Court about that. What happened, how did you do that?
“A. I read it off the card and as I read her her rights, she was going along with me repeating just about the same thing that I was saying to her and said, I know my rights.
“Q. Was she reading it off the card? “A. No sir.
“Q. She was repeating it after you? “A. She was going along with me, just like she had a card.
“Q. Were the lights on in the car?
“A. No sir.
“Q. What were you using to read off the card?
“A. I was using a flashlight.
“Q. You said, she repeated the rights after you?
“A. Yes sir.
“Q. What all did you tell her about her rights, and have you got the card with you?
“A. Yes sir, I told her you have the right to remain silent, anything you say can and will be used against you in a Court of Law. You have a right to talk to a lawyer and have him present, when you are being questioned. If you cannot afford a lawyer, one will be appointed before any questions. You can decide at any time to exercise these rights and not answer any questions or make any statement and I asked her if she understood and I proceeded and said do you understand each of these rights and she kept saying, I know what the rights are and I’m ashamed of myself and how much trouble I’m in and I asked her if she wished to talk to me and she said yeah.
“Q. What happened then?
“A. Okay, she kept asking how much trouble was she in and I told her, I didn’t know, was she involved in it and she said she was driving the car. Well, to start off with, she said Melisha and Dobby had robbed Townhill Truck Stop and then she got down to the point that she said she was driving the car and I asked her if this was the car and she said yes.
“Q. Now, Mr. McGuire, did the defendant recognize, on this occasion, other people who were present?
“A. Yes sir, she did.
“Q. How do you know that?
“A. Because she kept calling them by name and there were several times, you know, that she even recognized who was talking and who was laughing, without looking out, because at one time she got Dannie Price, well, there was probably 25 or 30 feet out in the road and at one time he laughed and she got real mad because he was laughing and said, that he was laughing at her.”

Upon a consideration of all the evidence on the question, we are unable to say that the trial court was in error in overruling defendant’s motion to suppress the evidence pertaining to defendant’s confession or in-culpatory statements. A factual question was presented by the evidence for the trial judge to determine, as to whether defendant was intoxicated to the extent that it amounted to mania or constituted such an impairment of her will and mind as to render her unconscious of the meaning of what she said. The trial court’s ruling was well within its province and does not constitute a basis for a reversal of the final judgment. Perhaps we should note in this connection that on the hearing of the motion to suppress, Officer McGuire testified that defendant “was conscious at all times” while he was there. The defendant testified on the motion to suppress that she did not recall making a statement to Officer McGuire, but in her testimony on the trial before the jury, she testified, inter alia, as follows:

“I remember seeing Donnie McGuire and I hollered and asked him, would he come and talk to me.
“Q. Did he?
“A. Yes sir, he did.
“Q. What did ya’ll talk about?
“A. I was telling him Dobby had told me and Linda and I asked him or I told him they had been in my car and I asked him what kind of trouble I was in.
“Q. Did you know, at that time, your Probation could be revoked for drinking? “A. Yes sir.
“Q. And did you tell Donnie that you had driven the car with Linda Ashley and Cindy Nichols in it?
“A. Yes sir, I did.
“Q. What happened, after you told Donnie this?
“A, I asked him what kind of trouble I was in and he said, he didn’t know that he would take me down to the station and we would talk about it in the morning and I started crying and I told him I was afraid.
“Q. Did he take you to the station?
“A. Yes sir, he did.
“Q. Were you arrested and charged with this crime?
“A. The last thing I remember, they took me in a cell and I laid down on the bed.”

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.