text:
    John L. PITTMAN v. Billy Wayne PITTMAN.
    Civ. 2520.
    Court of Civil Appeals of Alabama.
    Jan. 21, 1981.
    Rehearing Denied Feb. 18, 1981.

      Macon L. Weaver of Weaver & Price, Huntsville, for appellant.
    David H. Culver of Culver & Miller, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is post-divorce litigation over the continuation of alimony.

In open court on January 21, 1976 the parties reached and dictated into the record an agreement as to the custody and support of Shelly, their minor daughter, a division of the property of the parties and alimony for the wife. The stipulated provisions, which were expressly agreed to by each of the parties, as to alimony were as follows:

MR. STURDIVANT: These monthly payments shall begin February 1, 1976, and continue the 1st of each succeeding month thereafter until the wife remarries or the minor child, Shelly, reaches the age of 19 years or otherwise becomes emancipated.
It is further agreed between the parties that the gun collection-—
THE COURT: One moment. That $300, will that end when that child is 19 years of age, everything ends?
MR. CULVER: No, sir. No, sir.
THE COURT: Have you got something later on in there concerning alimony?
MR. STURDIVANT: The alimony is there. We don’t specify what is alimony and child support.
MR. CULVER: We didn’t break it down.
THE COURT: From the stipulation that you just gave me, that $300 will end on that child becoming 19, there wouldn’t be anything left, zero.
MR. CULVER: Add further, at the time she becomes 19, gets married, or becomes emancipated, that the alimony in a sum to be determined at that time will be continued, or in the interim, it could be changed in the interim.
MR. STURDIVANT: All right. In other words, somebody has to make a determination.
THE COURT: If they can’t agree on what the alimony will be at that point, they will bring it back before the Court.
MR. STURDIVANT: Right, back before the Court.
THE COURT: That’s what I wanted to know.

The February 10, 1976 judgment contained this order:

3. That the Husband shall pay to the Wife the sum of Three hundred and no/100 ($300.00) Dollars or forty percent (40%) of his take-home pay, whichever is greater, per month as child support and alimony. Take-home pay shall be defined as gross salary minus taxes. Said sum or percentage shall be paid to the Wife as child support and alimony until the said minor child namely, SHELLY VAUGHN PITTMAN reaches the age of majority, marries or otherwise becomes emancipated. The 1st installment shall become due on the 1st day of February, 1976.

Mr. Pittman (plaintiff) filed petitions in 1976 and 1977 seeking to reduce child support and alimony payments. By his last petition of October 1, 1979, he sought to be entirely relieved from Shelly’s further support because of her emancipation. Mrs. Pittman (defendant) contested the petition, and, by cross-petition, sought an increase in alimony and child support. Additionally, her motion of March 18, 1980, which now constitutes the heart of this controversy, sought relief under ARCP Rule 60(b)(6). Therein she contended that the portion of the divorce judgment which did not provide for alimony to continue after Shelly became of age, married, or emancipated, should be set aside as being contrary to the intention and contemplation of the parties, that the divorce judgment is inequitable as written, that the error in not providing for the continuation of alimony after the cessation of Shelly’s child support was one of omission and was never considered until the plaintiff filed his last modification petition, and that she is in need of alimony.

The defendant’s 60(b) motion, by stipulation of the attorneys, was submitted for a decision upon certain court files, which are not entirely before this court, and upon the January 21, 1976 stipulation, which is included in the record on appeal. The court granted relief to the defendant and ordered the plaintiff to continue paying alimony in an amount which was later established by the court after an evidentiary hearing. None of such evidence itself appears in the record. Through the same hearing, Shelly was adjudged to be emancipated.

The plaintiff appeals and raises as the sole issue the problem of whether the defendant’s Rule 60(b)(6) motion was timely filed. Accordingly, we shall determine only that one question.

The phrases of ARCP Rule 60(b), which are relative to this case state: “On motion .. . the court may relieve a party . . . from a final judgment ... for ... (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time . . ."

Clause 6 of Rule 60(b) is a residual clause intended to provide ample grounds for relief from final judgments which the trial court, in the exercise of its broad discretion, finds necessary. The judge obviously considered relief to be justified. Motions under this clause should be made within a reasonable time, however.

Haskew v. Bradford, Ala., 370 So.2d 259 (1979).

“Reasonable time” is defined as:

Such length of time as may fairly, properly, and reasonably be allowed or required, having regard to the nature of the act or duty, or of the subject-matter, and to the attending circumstances. It is a maxim of English law that “how long a ‘reasonable time’ ought to be is not defined in law, but is left to the discretion of the judges.” Twin Lick Oil Co. v. Marbury, 91 U.S. 587, 591, 23 L.Ed. 328.

Black’s Law Dictionary 1329 (5th ed. 1979). As an aid in deciding whether a 60(b)(6) motion has been filed within a reasonable time, along with all of the circumstances surrounding the matter in controversy, it is beneficial and helpful for the court to especially consider whether delay in seeking relief has prejudiced the opposing party, whether third persons have relied upon the judgment, whether it would be detrimental, and the extent of such detriment, for the judgment to be altered, and whether the movant has a valid reason for failure to take appropriate action at an earlier date. Wright & Miller, Federal Practice and Procedure § 2866 (1973). The decision of whether to grant or deny relief pursuant to Rule 60(b)(6) largely falls within the judicial discretion of the trial court, and, unless such discretion is abused, it will not be reversed on appeal. Nunn v. Stone, Ala.Civ.App., 356 So.2d 1212 (1978); Gallups v. United States Steel Corp., Ala.Civ.App., 353 So.2d 1169 (1978); Wilger v. Department of Pensions & Security, Ala.Civ.App., 343 So.2d 529 (1977). That discretionary rule applies to the determination of whether such a motion has been filed within a reasonable time as well as to the merits of the motion.

We find nothing in the record indicating prejudice or detriment to the plaintiff or to any third party occasioned by any delay in filing the 60(b)(6) motion. Although the defendant’s motion was filed after the plaintiff’s last motion, it came five months before the judgment of the court declared Shelly to be emancipated. There was no abuse of discretion in this case as to the question of the timely filing of the defendant’s motion.

We have responded to the merits of the issue before this court to the extent that the record before us allows; however we do not have presented to us any of the evidence introduced below at the last hearing, nor do we have advantage of the full files in the two prior cases which were considered by the trial court in ruling upon the defendant’s motion. Such matters might have influenced the circuit court to grant the 60(b) relief. We cannot disturb that finding and must presume that the unin-cluded documents and testimony were sufficient to sustain the action of the trial court. Valley Mining Corp. v. Metro Bank, Ala., 383 So.2d 158 (1980).

We affirm.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex Parte John L. PITTMAN. (In re John L. PITTMAN v. Billy Wayne PITTMAN).
    80-343.
    Supreme Court of Alabama.
    April 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    Grover M. HARBIN v. STATE of Alabama.
    Civ. 2387.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1981.
    As Corrected on Denial of Rehearing March 4, 1981.
    Robert M. Shipman, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp, Clyde P. McLendon and Roger J. Burnett, Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

This is a paternity suit. A jury found Grover M. Harbin to be the father of Ted R. Walker.

Harbin appeals and we affirm.

The dispositive issue is whether the trial judge erred in overruling an objection to a question regarding a conviction for second degree murder. Harbin in brief contends that the conviction was so remote that it was prejudicial. As a consequence, Harbin asserts that the trial, judge abused his discretion in overruling the objection.

Specifically, during cross-examination of Harbin, after Harbin had testified in chief, the district attorney asked Harbin if he had been convicted of second degree murder in 1949. Harbin’s counsel requested that the jury be sent out, which was done. Motion for a mistrial was made on grounds that the question was unduly prejudicial. That motion was denied. When the jury was brought back in, the district attorney asked the question again and objection was made. The trial judge overruled the objection and Harbin answered that he was not convicted of second degree murder in 1949.

Section 12-21-162(b) of the Code of Alabama 1975 provides that a witness may be impeached by questioning him regarding a conviction for a crime involving moral turpitude. Murder is a crime involving moral turpitude. Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956).

Whether a prior conviction is too remote in time is within the sound discretion of the trial judge. McDaniel v. State, Ala.Cr.App., 365 So.2d 350 (1978). C. Gamble, McElroy’s Alabama Evidence § 145.-01(19) (3d ed. 1977). It has been held that it is not an abuse of discretion to admit a thirty year old conviction for impeachment purposes. Lanier v. State, 43 Ala.App. 38, 179 So.2d 167 (1965).

Furthermore, we note that when Harbin was asked whether he had been convicted of second degree murder in 1949, he answered in the negative. It is well settled in Alabama that overruling an objection to a question which is not answered or is answered in a manner favorable to the witness, is not prejudicial error. Stephens v. State, 250 Ala. 123, 33 So.2d 245 (1948); Cooper v. Slaughter, 175 Ala. 211, 57 So. 477 (1912). Hence no error in overruling Harbin’s objection.

In this instance, particularly in view of the above, the simple fact that the question was asked clearly did not create an atmosphere where a mistrial is indicated. See, Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). Hence no error in the trial court’s action in refusing to grant Harbin’s motion for mistrial.

We note at this juncture there is ample evidence to support the verdict that Harbin is the father of Ted R. Walker.

Finally, the State contends that this appeal should be dismissed on grounds that Harbin failed to file a proper notice of appeal. Specifically, the State contends that Harbin’s notice of appeal does not specify that he is appealing from the judgment of paternity rendered on May 13, 1980. The May judgment also assessed costs to Harbin and ordered that a hearing be had regarding child support. A hearing was had on June 12, 1980, and a judgment of child support was rendered on that day.

The State argues that the notice of appeal only specifies an appeal from “the final judgment ordering support and attorney’s fees.” However, the notice, when read in its entirety, clearly states that it is an appeal from Paternity Case No. JU77-605, and that the date of judgment was May 13, 1980.

As the Alabama Supreme Court stated in Edmondson v. Blakey, Ala., 341 So.2d 481 (1976), a simple statement indicating what judgments the appellant appeals from is all that is necessary. Furthermore, it is the policy of this court to decide cases on their merits. Based on the foregoing, we are not constrained to dismiss this appeal.

AFFIRMED.

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

ON REHEARING

HOLMES, Judge.

OPINION CORRECTED; APPLICATION FOR REHEARING OVERRULED.

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


author: FAULKNER, Justice.

text:
    Ex parte Grover M. HARBIN. (Re: Grover M. Harbin v. State of Alabama).
    80-415.
    Supreme Court of Alabama.
    May 1, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: HOLMES, Judge.

text:
    CALVIN REID CONSTRUCTION COMPANY, INC. v. Ralph E. COLEMAN.
    Civ. 2430.
    Court of Civil Appeals of Alabama.
    Feb. 4, 1981.
    Rehearing Denied March 4, 1981.

      Daniel M. Spitler, Pelham, for appellant.
    Kenneth R. Watkins and Ralph E. Coleman, Birmingham, for appellee.
   HOLMES, Judge.

This is a contract case.

Ralph Coleman sued Calvin Reid Construction Company to enforce a contract for the sale of land. The trial judge, sitting without a jury, found Reid Construction breached the contract and entered a judgment in favor of Coleman in the amount of $8,500. Reid Construction appeals and we affirm.

Reid Construction’s dispositive contentions on appeal are as follows:

(1) The trial judge erred in finding for Coleman in that the evidence did not conform to the pleadings. (2) There was insufficient evidence to support the trial judge’s finding in favor of Coleman. (3) The trial judge erred in admitting Coleman’s testimony as to his opinion of the value of the land.

The record viewed with the attendant presumptions reveals the following:

Reid Construction is a corporation engaged in the business of developing residential subdivisions. Coleman, along with two other individuals, Gamble and Royal, is the former owner of a 44 acre tract of land in Shelby County, Alabama.

On November 18,1972, Gamble and Royal agreed to sell their interests in the 44 acres to Reid Construction for $60,000. On December 27, 1972, Coleman agreed to sell his interest provided that Reid Construction agreed to sell back to Coleman an acre or a lot in the 44 acre tract. Reid Construction accepted Coleman’s terms and an instrument embodying the agreement was executed on that same day. The 44 acre tract was conveyed to Reid Construction in early 1973.

At the time the land was sold to Reid Construction, the parties contemplated that Reid Construction would develop the land into a residential subdivision. At the time of trial, no such development had taken place.

Reid Construction’s agreement to sell back an acre to Coleman is the subject matter of this case. This agreement appears in the record as follows:

Calvin Reid Construction Company, Inc., a corporation, agrees in addition thereto that Ralph E. Coleman may purchase one acre or lot, to be selected after same is subdivided and cost for the same shall be prorated to the cost of Calvin Reid Construction Company, Inc., a corporation, as said lot or acre bears to the whole.

On at least two occasions, Coleman attempted to purchase an acre or a lot. On all occasions, Reid Construction refused to sell.

At trial, Coleman without objection, testified that it was the intent of the parties that Reid Construction was to develop the 44 acres and sell Coleman a lot or that, if Reid Construction did not develop the property, Reid Construction would sell Coleman an acre. Mr. Reid, the president of Reid Construction, testified without objection that Reid Construction had agreed to sell Coleman an acre or a lot but only after the land had been developed.

With respect to the value of an acre or a lot within the 44 acre tract, Mr. Reid testified that lots in a nearby residential subdivision sold for six to sixteen thousand dollars. On the same issue Coleman testified that he was familiar with the value of various tracts of land in the vicinity of the 44 acre tract and testified that in his opinion the value of a lot in the 44 acre tract would be $7,500 to $10,000 and that the value of an acre in the same tract would be $6,000 to $10,000. In addition, a real estate appraiser testified as to the value of lots in three nearby residential subdivisions. These values ranged from $8,000 per lot to $20,000 per lot.

I

Reid Construction contends the trial judge erred in finding for Coleman on the ground that the evidence introduced at trial did not conform to the pleadings. Reid Construction argues that Coleman in his complaint averred that a conveyance of an acre or a lot was to take place on December 27, 1972; that no evidence in support of that averment was introduced at trial; and that all evidence offered by Coleman was to the effect that the conveyance was to be made at some time subsequent to December 27, 1972.

This averment appears in the record as follows:

Plaintiff avers that the Defendant agreed to convey on to wit 27th Dec. 1972, one acre of land or a lot in land to be subdivided.

Under Rule 15(b), ARCP, a pleading may be amended at any time, and if evidence is presented or an issue raised without objection, the pleadings are deemed amended to conform to the evidence. Coughlin v. Cain, Ala.Civ.App., 380 So.2d 883 (1980); Wilson v. Freeman, Ala.Civ.App., 376 So.2d 1096, writ denied, Ala., 376 So.2d 1099 (1979).

The record before us discloses no indication that Reid Construction objected to the presentation of evidence that the conveyance was to be made after December 27, 1972. Therefore, we find that the pleadings were amended to conform to the evidence by operation of Rule 15(b).

In addition, we note the above quoted averment is somewhat ambiguous and is susceptible to two equally reasonable constructions; the first being that the conveyance was to take place on December 27, 1972, and, the second, that the agreement to convey was entered into on December 27, 1972.

Under Rule 8(f), ARCP, all pleadings are to be construed so as to do substantial justice. To attain the goal pleadings are to be construed liberally in favor of the pleader. Bowing v. Pow, 293 Ala. 178, 301 So.2d 55 (1974); Rule 8, ARCP, Committee Comments. The trial judge could reasonably find that Coleman averred that the agreement to convey an acre or a lot was entered into on December 27, 1972.

We find no error regarding the above.

II

Reid Construction’s second contention is that there is insufficient evidence to support the findings of the trial court.

When, as in this case, the trial judge sits as the finder of fact and hears the testimony of the witnesses, his judgment is presumed correct and will not be reversed if it is supported by legal evidence and is not clearly wrong or unjust. Barbour v. State Department of Pensions and Security, Ala.Civ.App., 867 So.2d 470 (1978), writ denied, Ala., 367 So.2d 472 (1979); 2A Ala. Digest, Appeal & Error Keys 931(1), 1010.1(1), and 1010.1(3).

In this case, the trial judge had the instrument containing the agreement of the parties before him. The trial judge heard Coleman testify, in pertinent part without objection, to the effect that the parties intended that Coleman have a lot if the 44 acre tract was developed or an acre if it was not developed; that he obtained the agreement to sell an acre or a lot from Reid. Construction as part of the consideration given by Reid Construction for his interest in the 44 acre tract; and that he attempted to purchase an acre or a lot from Reid Construction and that Reid Construction refused to sell. The trial judge also heard the testimony of Mr. Reid, Mr. Coleman, and the appraiser on the value of the land.

After considering the above facts, we find that there was evidence to support the findings of the trial judge and that those findings were not clearly wrong or unjust. Specifically, the above quoted agreement states that Coleman “may purchase one acre or lot.” An “acre” is a quantity of land containing 160 square rods in whatever shape, and can be circular, square, triangular, irregular, broad or narrow. Pigeon v. Hatheway, 156 Conn. 175, 239 A.2d 523 (1968). In short, an acre is a unit of measurement that is suitable for use in describing one portion of a large unsubdi-vided, undeveloped, tract of land. On the other hand, the term “lot,” when used in connection with a contemplated platting of acreage into a residential subdivision, means a fractional part of a block limited by fixed boundaries on an approved recorded plat. Wall v. Ayrshire Corp., Tex.Civ.App., 352 S.W.2d 496 (1961). With these definitions in mind, we find that the trial judge could reasonably have construed the agreement to mean that Coleman would be entitled to purchase a portion of the 44 acre tract regardless of whether Reid Construction developed the tract into a residential subdivision.

We note that, in addition to the above, Reid Construction argues that the agreement to sell an acre or a lot was ambiguous and too vague to enforce. However, for the reasons set forth above and in light of the evidence presented at trial, we cannot say that the trial judge erred in finding an enforceable contract between the parties.

Ill

Reid Construction’s final contention is that the trial judge erred in allowing Coleman to testify as to his opinion of the value of an acre or a lot in the 44 acre tract. Specifically, Reid Construction argues that Coleman is not an expert on real estate values and that he is, therefore, incompetent to testify as to the value of the land.

It is the rule in Alabama that any person, including a layman, is competent to testify as to his opinion concerning the value of land if he has had an opportunity for forming a correct opinion and testifies in substance that he has done so. State v. Steele, Ala., 374 So.2d 325 (1979); State v. Woodham, 292 Ala. 363, 294 So.2d 740 (1974). Further, the competency of a witness is a question addressed to the discretion of the trial judge, and his decision will not be reversed in the absence of an abuse of that discretion. Whetstone v. Caudle, 54 Ala.App. 299, 307 So.2d 697 (1975).

As indicated above, Coleman was the previous owner of the 44 acre tract. He testified that he had bought and sold land in Shelby County and that he had obtained appraisals of several tracts of land in the vicinity of the 44 acre tract.

In light of Coleman’s testimony as to his familiarity with land values in the vicinity of the 44 acre tract, we cannot say the trial judge abused his discretion in admitting Coleman’s opinion testimony.

The above being dispositive, it is not necessary to address the other issues presented by Reid Construction.

For the reasons stated above, we find that the judgment in favor of Coleman is due to be affirmed.

AFFIRMED.

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


text:
    Ex Parte CALVIN REID CONSTRUCTION COMPANY, INC. In re CALVIN REID CONSTRUCTION COMPANY, INC. v. Ralph R. COLEMAN.
    80-408.
    Supreme Court of Alabama.
    April 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    CEMENT PRODUCTS COMPANY, INC. v. Charles T. MARTIN.
    Civ. 2469.
    Court of Civil Appeals of Alabama.
    April 1, 1981.
    Larry W. Harper of Porterfield, Scholl, Clark & Harper, Birmingham, for appellant.
    Ralph E. Coleman, Birmingham, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case involving the one-year statute of limitations provided by § 25-5-80, Code of Alabama (1975).

The record reveals the following facts pertinent to this appeal:

Plaintiff-employee, a manual laborer, has suffered injuries to his back on at least five occasions during his working career. He was first injured prior to his employment with the defendant-employer and received workmen’s compensation benefits based on ten percent permanent partial disability. In August 1974 the plaintiff sustained an injury to his back while working for the defendant and received benefits based on fifteen percent permanent partial disability resulting from that accident.

During a fourteen-month span beginning in February 1976, the plaintiff, while employed by defendant, injured his back in three separate accidents. The first of these injuries occurred on February 4, 1976. Plaintiff received compensation therefor based on the defendant’s estimate of his disability. In October 1976 plaintiff suffered another back injury. On April 8, 1977, plaintiff incurred the third in this series of back injuries. After this final injury the plaintiff-employee filed suit against the defendant-employer. The timely-filed complaint alleged the occurrence of the February 1976 injury only and sought permanent partial disability benefits resulting therefrom. The suit remained pending, and the plaintiff began receiving temporary total compensation for the April 1977 injury. He was off the job for some thirteen months due to that injury but resumed work on May 3, 1978. He worked through September 5, 1978. He was unable to continue because of his back problems.

Subsequent to the plaintiff’s returning to work on May 3, and prior to his leaving on September 5, defendant discovered that there had been an underpayment of the compensation due plaintiff for the April 1977 injury. On October 11, 1978, the defendant mailed the plaintiff a check for $79.99 as the final balance due and accompanied it with a release form. Plaintiff neither cashed the check nor signed the release. In September 1979, approximately eleven months after receipt of the check, plaintiff amended his original suit, then pending, to include the injury of April 1977. The amendment claimed permanent total disability benefits. Defendant moved to strike, claiming the amendment was not filed within one year of the April 8, 1977 injury, or within one year from the time of making the last payment of compensation, as required by § 25-5-80.

After a hearing the trial court found that the last payment of compensation was the October 1978 check to the plaintiff and that the amendment was timely. The court further found plaintiff to be permanently and totally disabled and, pursuant to § 25-5-57(a)(4)(f), apportioned the amount of permanent total disability attributable to the defendant-employer. Defendant appeals.

The dispositive issue is whether the check mailed on October 11, 1978, constituted a payment of compensation under § 25-5-80 so as to toll the statute of limitations and make timely plaintiff’s September 1979 amendment claiming permanent total disability for the April 1977 injury.

We initially note that § 25-5-80 provides a one-year statute of limitations for claims brought under our Workmen’s Compensation Act. The statute begins to run from the date of the injury. Davis v. Standard Oil Co., 261 Ala. 410, 74 So.2d 625 (1954). The limitation is tolled, however, where the employer makes compensation payments to the injured employee and, in such instances, the one-year limitation begins to run at the time of making the last payment of compensation. B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967).

The defendant-employer’s contention is simply that the check mailed to the plaintiff on October 11, 1978, was not a payment of compensation. We disagree with that contention and affirm.

Certainly the check was in the nature of “compensation” to the plaintiff. Section 25-5-1, in defining “compensation” for purposes of the workmen’s compensation statute, states that the term “indicates the money benefits to be paid on account of injury or death.” It is clear that the check was sent to the plaintiff as a money benefit paid on account of the April 1977 injury. The cover letter sent with the check and the word “compensation,” printed on the check itself and the accompanying final receipt, are indicative of the check’s compensatory purpose.

The defendant, in fact, does not dispute that the check was compensation to the plaintiff. Instead, defendant argues that the check was not a “payment” of compensation but was “an attempt to correct an underpayment” of compensation benefits. We deem this a distinction without a difference. Defendant has cited no authority, and neither do we find any, indicating that a “correction of underpayments” or “catchup payments” are not to be considered payments of compensation.

Defendant further argues, because plaintiff did not cash the check and sign the accompanying final receipt, that the check did not constitute “payment.” That argument is likewise untenable. “Payment,” for purposes of the statute, is the receipt by the workman of an instrument of payment, and payment is deemed to have ceased as of the day the last instrument of payment was received. See, Sturgill Lumber Company v. Maynard, 447 S.W.2d 638 (Ky.1969).

We find that the “correction of underpayments” made by the check mailed October 11, 1978, was a payment of compensation. The cheek was the last payment of compensation made on account of the April 1977 injury. The plaintiff’s amendment, filed within one year of that payment, was timely. Our decision conforms to the admonition often expressed by our appellate courts — the Workmen’s Compensation Act should be construed liberally to effectuate its beneficent purpose. Riley v. Perkins, 282 Ala. 629, 213 So.2d 796 (1968).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Winford LOGAN v. CENTRAL BANK OF ALABAMA, N. A.
    Civ. 2529.
    Court of Civil Appeals of Alabama.
    April 1, 1981.

      Murray W. Beasley, Tuscumbia, for appellant.
    Edward W. Doggett, Florence, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The decisive issue has been limited by the parties to whether there was a material and fraudulent alteration of a promissory note by the holder, Central Bank of Alabama (the bank), so as to discharge a co-maker, Mr. Logan.

The bank sued Mr. Logan upon the note, and, by his answer, he sought to avoid liability by averments that the bank altered the note after he had signed it.

The facts, as stipulated in the circuit court by the parties, which are presently pertinent to the issue, were that Mr. Logan eo-signed with Wayne Davis a promissory note to the bank. Mr. Davis paid two installments on the note, but, thereafter defaulted in his payments. The facts, as stipulated, further stated:

The promissory note evidencing said debt was altered by changing the date of the note from June 24, 1976, to July 24, 1976, this alteration being made in three places on said note and the payment date on the note being changed from July 5, 1976, to September 5,1976, this alteration being made in one place on the note.

The trial court found that such alterations were neither material nor fraudulent. Judgment was rendered in favor of the bank upon the note. Mr. Logan appeals.

The relevant applicable portions of § 7-3-407 of the Code of Alabama 1975, which is § 3-407 of the Uniform Commercial Code, are as follows:

(1) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such change in:
(c) The writing as signed, by adding to it or by removing any part of it.
(2) As against any person other than a subsequent holder in due course:
(a) Alteration by the holder which is both fraudulent and material discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense;
(b) No other alteration discharges any party and the instrument may be enforced according to its original tenor, or as to incomplete instruments according to the authority given.

Under subsection (2)(a) of that Code section, if the bank fraudulently and materially altered the note, Mr. Logan is discharged from liability. There are three elements to this defense. The alteration (1) must have been made by the holder of the note; (2) must have been a material change; and (3) must have been made for a fraudulent purpose.

The stipulation of facts does not implicate the bank, nor any of its officers, agents or employees, in the alteration of the instrument, and that evidentiary void constitutes a fatal flaw in the defense; but the argument of both counsel has been directed to whether the changes in the note were material and fraudulent, and we respond partially thereto, for it is not necessary that the materiality of the alterations be determined, since the changes were not fraudulent.

We find no Alabama case which defines “fraudulent” in connection with UCC § 3-407. Our research pinpoints two cases from sister states that give applicable definition to that term. In Hutcheson v. Herron, 131 Ill.App.2d 409, 266 N.E.2d 449 (1970), the court agreed with the Illinois Committee Comments as to that UCC section wherein it was stated:

The term “fraudulent” probably requires a finding that the alteration has attempted to impose an obligation or obligations upon the maker or other party against whom enforcement is sought additional to his obligation on the instrument at the time he signed it.

Under that UCC section, it has been determined that “fraudulent” requires a dishonest and deceitful purpose to acquire more than one is entitled to under the note as signed by the makers. Thomas v. Osborn, 13 Wash.App. 371, 536 P.2d 8, 88 A.L.R.3d 898 (1975). The alterations in this case do not, per se, fall under these definitions of “fraudulent.”

In the official comments to § 7-3-407, it is stated, “Changes favorable to the obligor are unlikely to be made with any fraudulent intent . ... ” The stipulated alterations to the dates in the note in question were to the benefit of the makers, not to the bank. So far as is evident, the bank gained nothing by those changes. We cannot infer fraud from those alterations.

The defense under the statute is not applicable unless the alteration was fraudulent. Because there is no direct evidence of fraud contained in the stipulation of facts, or even any facts from which a proper inference of fraud can be drawn, the defense of alteration must fail. Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967); Lawler v. F.D.I.C., 538 S.W.2d 245 (Tex.Civ.App.1976).

The trial court correctly rendered its judgment in this case and we affirm.

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

AFFIRMED.

All the judges concur.


text:
    JASPER COMMUNITY HOSPITAL v. Donna Jane HYDE.
    Civ. 2530.
    Court of Civil Appeals of Alabama.
    April 8, 1981.

      George Huddleston, III, of Porterfield, Scholl, Clark & Harper, Birmingham, for appellant.
    James K. Davis of Fite, Davis & Fite, Hamilton, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Walker County found the employee to be permanently and totally disabled, awarded the employee benefits, and ordered the employer to pay certain medical expenses incurred by the employee. The employer filed a motion for new trial and judgment notwithstanding the verdict and a motion to set aside or reopen the judgment. These motions were denied. The employer appeals and we affirm.

The issues presented for review are (1) whether there is any legal evidence to support the findings of the trial court, (2) whether the trial court erred in amending its judgment, and (3) whether the trial court erred in denying the employer’s post trial motion to reopen the judgment for the taking of additional testimony.

The record reveals the following facts:

The employee worked as a nurses’ aid in the employer’s hospital. On May 26, 1978, while at work the employee injured her back while lifting a patient. The employee was immediately examined by the employer’s doctor and was admitted to the employer’s hospital as a patient. The employee remained hospitalized for approximately two weeks. The employee has since been hospitalized four times for treatment of her back.

At trial, the employee testified to the effect that her back was injured while lifting the patient and that she has suffered back pain, muscle spasms, and a loss of movement since her injury.

The trial court also heard testimony from the employee’s personal physician. The physician testified that he examined the employee on May 27, 1978, and found that the employee had suffered a severe muscle strain in her lower back. The physician also testified to the effect that the condition of the employee’s lower back has not substantially improved since May, 1978; that he did not expect this condition to improve; and that in his opinion the employee could not engage in any gainful employment that would require lifting, stooping, or any substantial physical activity.

There is further testimony to the effect that the employee has a high school education and that her work experience is limited to jobs requiring physical labor, such as nurses’ aid.

We are aware that the record contains other medical testimony which indicates that the employee does not suffer from any orthopedic or neurological malady. However, this testimony does not eradicate the testimony showing that the employee suffers from a severe muscle strain in her lower back. In any event, this court will not look to the weight of the evidence but will only look to see if there is any legal evidence to support the findings of the trial court. Albertville Nursing Home v. Upton, Ala.Civ.App., 383 So.2d 544 (1980); Carroll Construction Co. v. Hutcheson, Ala.Civ.App., 347 So.2d 527 (1977).

In the instant case there is legal evidence to support the findings of the trial court. Specifically, there is the testimony of the employee regarding her injury and physical condition and there is the testimony of the employee’s physician to the effect that the employee suffered a severe back strain which rendered her unable to work. Put another way, there is ample evidence from which the trial court could reasonably find that the employee was injured during the course of her employment; that the injury arose out of her employment; and that the injury caused the employee to be permanently and totally disabled.

In addition to the above, the employer contends the trial court erred in amending its judgment. The trial court entered its judgment on June 27,1980. This judgment, among other things, ordered the employer to pay certain medical expenses incurred by the employee. On September 10, 1980, the trial court entered an order amending the June 27 judgment. This order amended the judgment by striking all findings of fact relating to the medical expenses and by setting aside the award of medical expenses.

Under Rule 59, ARCP, the trial court may, upon timely motion, amend or correct its judgment. See, Hallmark v. Hallmark, Ala.Civ.App., 381 So.2d 641, writ denied, 381 So.2d 642 (1980). In the instant ease the trial court amended its judgment in response to the employer’s timely motion for a new trial. Rule 59(a), ARCP.

The employer cites Harbin v. United States Steel Corp., Ala.Civ.App., 356 So.2d 179 (1978); and Alabama Hide & Tallow Co. v. Pincheon, 282 Ala. 404, 211 So.2d 896 (1968), as authority for the proposition that a trial court cannot amend its judgment. We find those cases to be inapplicable to the instant appeal. In each of those cases the motion seeking the amendment of the judgment was made more than thirty days after the entry of the judgments. In the instant case the employer’s motion for new trial was filed within the thirty day period prescribed by Rule 59. This motion authorized the amendment of the judgment. Rule 59(a), ARCP. We find no error.

Finally, the employer contends the trial court erred in denying its post trial motion to set aside or reopen the judgment. The stated purpose of this motion was to allow the taking of additional testimony. This additional testimony consisted of evidence of the employee’s loss of earning capacity. This evidence was obtained by the employer after the entry of judgment.

Granting or denying a motion for a new trial on the ground of “newly discovered evidence” rests largely in the trial court’s discretion and its order will not be reversed on appeal unless it appears that the trial court violated some legal right of the movant or abused its discretion. It is presumed that the trial court’s discretion was properly exercised. Gilmer v. Salter, 285 Ala. 671, 235 So.2d 813 (1970).

Since there was ample evidence to support the trial court’s finding of permanent and total disability, we cannot say that the trial court abused its discretion in refusing to hear the employer’s “newly discovered evidence” on the employee’s loss of earning capacity.

The employer argues in brief that the trial court’s denial of its post trial motions was in contravention of § 25-5-57(a)(4)(b), Code of Ala.1975. This Code section authorizes the modification of an award of compensation for permanent total disability upon a showing, by the employer, that the employee is no longer permanently and totally disabled. However, in this instance, it is clear to this court that the employer’s post trial motion was not presented to the trial court as a petition to modify pursuant to § 25-5-57(a)(4)(b). In fact, in view of when the petition was filed, i. e., less than seventy days from entry of judgment, it would appear that § 25-5-57(a)(4)(b) would be inappropriate.

In any event, the employer makes its § 25-5-57(a)(4)(b) argument for the first time on appeal. This argument comes too late. Bevill v. Owen, Ala., 364 So.2d 1201 (1979); 2 Ala. Digest, Appeal & Error Key 169. We find no error.

The employee has requested damages for a frivolous appeal. Rule 38, ARAP. Employee’s motion is denied.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Marsha L. SHIRLEY v. Jimmy S. SHIRLEY.
    Civ. 2543.
    Court of Civil Appeals of Alabama.
    April 8, 1981.

      ' Miles T. Powell, Decatur, for appellant.
    John S. Key of Eyster, Eyster, Key & Tubb, Decatur, for appellee.
   HOLMES, Judge.

This is an appeal from the modification of a divorce decree.

The husband filed a petition for modification of the decree based on changed circumstances. Specifically, the husband requested a reduction or termination of the alimony payments.

After an ore tenus hearing, the trial court reduced the alimony payments from $900 per month to $600 per month. The court also ordered the husband to pay the wife, at her election, an additional amount of $100 per month to be used solely for her education, counseling or training. Finally, the trial court ordered a reduction in child support payments, from $400 per month to $300 per month.

The dispositive issue on appeal is whether the trial judge abused his discretion in ordering reductions in the alimony and child support payments. We find such abuse only with regard to the child support payments and reverse and remand on that ground.

Viewing the record with the attendant presumptions, the following is revealed: The husband and wife were divorced in 1976 after ten years of marriage. The wife was granted custody of the parties’ four-year old daughter. The wife was also given the parties’ home. After appeal to this court, the husband was ordered to pay $900 per month alimony and $400 per month child support and required to pay the mortgage on the home and convey to the wife, his interest in the home.

While the parties were married the husband formed a real estate company which became extremely profitable. In fact, the husband’s income steadily increased from approximately $40,000 in 1972 to about $130,000 in 1977. Beginning in 1979, however, the real estate business became somewhat less profitable and the husband’s income fell to about $70,000.

In 1980, the husband filed his petition to reduce or eliminate the alimony payments to his ex wife on grounds of changed circumstances. At the time of the hearing on the husband’s petition, the husband had received income of about $44,000 for the first nine months of 1980. Over this same period the real estate company incurred a net loss of about $34,000.

While his business has recently suffered setbacks, the husband has acquired substantial real estate holdings since the divorce. For example, he has purchased a new home valued at $125,000 with a mortgage of $38,-000, a new office building valued at $155,-000 with a mortgage of about $96,500, and an apartment complex valued at $110,000 with a mortgage of about $80,000. In addition, he owns several houses valued at approximately $154,000 with mortgages totaling about $73,000.

The wife married the husband when she was sixteen years old. She finished high school after getting married. She was employed during the marriage only for brief periods of time, and has made no effort to obtain employment since the divorce.

The first issue on appeal is whether the trial court abused its discretion in reducing the alimony payments from $900 per month to $600 per month.

Generally, periodic alimony may be altered upon a showing of changed circumstances. Du Valle v. Du Valle, Ala.Civ.App., 348 So.2d 1067 (1977). A change in the financial situation of the husband may warrant the modification of an alimony allowance. Silver v. Silver, 269 Ala. 517, 113 So.2d 921 (1959). Furthermore, the modification of alimony based on changed circumstances is within the discretion of the trial court and unless that discretion is abused an order of modification will not be reversed on appeal. Mockridge v. Mockridge, 278 Ala. 79, 175 So.2d 772 (1965).

In the case at hand there is evidence of a change in circumstances which would support a reduction of alimony. Specifically, the husband’s financial situation has changed in that his income dropped from approximately $130,000 in 1977 to approximately $70,000 in 1979. Because his real estate company lost about $34,000 in the first nine months of 1980, it appears that the husband’s income will continue to decrease.

Furthermore, while the court ordered a reduction of $300 per month in alimony payments, it also ordered the husband to pay an additional $100 per month so that the wife may obtain counseling or training or pursue educational endeavors. These funds, which the wife may receive at her election, will aid her in becoming financially independent.

In view of the above, with particular emphasis on the wife’s option to receive an additional $100 per month, we find no abuse of discretion as to require reversal regarding the reduction of alimony payments.

The next issue is whether the trial court abused its discretion in reducing child support payments from $400 per month to $300 per month.

An order modifying the child support provisions of a divorce decree will not be reversed on appeal unless it is such an abuse of discretion as to be plainly and palpably wrong. Little v. Little, Ala.Civ.App., 349 So.2d 48 (1977).

However, the most pertinent factor in determining a modification of child support is a material change in the needs, conditions and circumstances of the children. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert, denied, 295 Ala. 429, 321 So.2d 664 (1975). That factor, coupled with the financial ability of the father to meet such needs, determines the basis for modification. Womble, supra. And the burden of showing a material change in circumstances rests upon the moving party. Inman v. Inman, Ala.Civ.App., 370 So.2d 1037 (1979).

In this case neither party requested a modification of child support. The husband’s petition for modification did not request a change in child support payments; it only requested a reduction or elimination of alimony payments. Furthermore, the husband’s case in chief elicited no evidence regarding child support. In fact, the only evidence regarding child support is found in the wife’s presentation of evidence; that is, the wife testified about certain medical bills incurred by the child. On cross-examination of the wife, the husband’s attorney asked no question regarding child support.

In view of the above, the question of a modification of child support payments was not before the trial court and the trial court therefore erred in reducing the child support payments.

Nevertheless, even if the issue had been raised below, the evidence would not have supported a reduction of child support payments. Since the original award of child support was rendered, the child has been diagnosed as a diabetic. As a result, her medical expenses have increased. Furthermore, we take judicial notice that inflation has caused an increase in the cost of living. See, Inman v. Inman, supra. If anything, the child’s diabetic condition, along with her increasing age and the higher cost of living, have caused her needs to increase, rather than decrease.

Furthermore, although the husband’s income has sharply decreased, such decreases have not rendered him unable to meet the needs of his child. More specifically, the husband in this case made $44,000 in the first nine months of 1980. He also owns a great deal of real estate, including an apartment complex. In view of the above, the husband clearly has the financial ability to pay $400 per month child support.

Accordingly, we conclude that the trial court’s order reducing the child support payments from $400 to $300 per month was reversible error. That portion of the order regarding child support is therefore reversed and remanded with directions that the support provisions of the amended decree, i. e., $400 per month, be reinstated.

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

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

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

      . See, Shirley v. Shirley, Ala.Civ.App., 350 So.2d 1041, cert. quashed, Ala., 350 So.2d 1045 (1977).


text:
    Edward SANDERS v. Cary L. DOZIER.
    Civ. 2546.
    Court of Civil Appeals of Alabama.
    April 8, 1981.
    Thad Yancey, Jr., Cervera & Yancey, Troy, for appellant.
    George Beck, Montgomery, for appellee.
   HOLMES, Judge.

This is a contract case.

Cary Dozier sued Edward Sanders on a promissory note. Sanders counterclaimed, alleging fraud. The trial court, after an ore tenus hearing, found in favor of Dozier on both the complaint and counterclaim and entered a judgment in the amount of $5,115. Sanders appeals and we affirm.

The dispositive issue is whether there is evidence to support the judgment of the trial court.

The record reveals the following facts:

Dozier was the owner of a restaurant. In 1977, Sanders purchased the business. The sale included the restaurant’s inventory and various items of equipment and furnishings. In return for the business Sanders gave Dozier a promissory note in the amount of $3,836.52 and agreed to assume the payment of two debts.

Sanders has not made any payment on the promissory note.

In his pleadings and at trial Sanders set up the defenses of fraud and mutual mistake. He also counterclaimed for fraud, alleging that Dozier misrepresented his ownership of the restaurant’s equipment and furnishings and that he falsely represented that all bills were paid and that there were no other debts or claims against the business.

As indicated above, the trial court found no fraud or mutual mistake that would justify a rescission of the contract and note, nor did the trial court find actionable fraud.

Whenever the trial court hears the evidence ore tenus, its judgment is presumed correct and will not be disturbed on appeal unless plainly wrong. Rush v. Atomic Electric Co., Ala., 384 So.2d 1067 (1980); 2A Ala.Digest, Appeal & Error Key 931(1).

In the instant case the record discloses that Dozier did not own all of the restaurant’s equipment and furnishings. Dozier owned some items, while a third party owned the others. The testimony is in conflict as to whether Dozier informed Sanders of this fact prior to the sale. It is not necessary to set out all of this testimony in detail. It is sufficient for purposes of this appeal to state that there is testimony to the effect that, prior to the sale, Dozier led Sanders around the restaurant and identified the equipment and furnishings owned by Dozier and those items owned by the third party.

From the above testimony, the trial court could conclude, and apparently did conclude, that the parties were aware of what was being sold; that there was no mutual mistake; and that there was no misrepresentation in this regard.

With respect to the question of misrepresentation of business debts, it is clear from the record that all debts were not paid on the date of the sale. There is testimony to the effect that Dozier informed Sanders of the unpaid bills and that the parties had agreed upon a method of settling some of the debts that came due after the sale. Again, the trial court could reasonably conclude that no fraud had occurred.

In view of the above, we cannot say that the trial court was plainly and palpably wrong in finding for Dozier on the complaint and counterclaim.

Put another way, the evidence was in conflict. The trial court resolved that conflict and this court cannot substitute its judgment for that resolution. See, Rawls Warehouse, Inc. v. Jackson, Ala., 383 So.2d 152 (1980); Vance v. Alliance Community Center, Ala., 374 So.2d 312 (1979).

This case is due to be affirmed.

AFFIRMED.

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


author: DeCARLO, Judge.

text:
    Curtis Gene BEHEL v. STATE.
    8 Div. 285, 8 Div. 286.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.
    Elizabeth T. Cvetetic, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

These appeals involve two escapes and are submitted to this court on oral argument. For the purposes of oral argument these cases, 8 Div. 285 and 8 Div. 286, were consolidated. The two cases are now consolidated for the purpose of appellate review.

While serving a forty-year sentence for a first degree burglary conviction, appellant escaped from the Lauderdale County Jail. He was charged with the offense of escape and, at arraignment, pleaded guilty to the charge. Sentencing was postponed to a later date. Prior to sentencing in the first escape case, appellant escaped a second time. He was charged with escape, and, at arraignment, pleaded not guilty to the second escape charge.

In the first escape case, appellant was sentenced to forty-five years to run concurrently with the forty-year burglary sentence. Appellant was later, in a non-jury trial, convicted of the second escape and sentenced to forty-five years to run concurrently with the forty-five year sentence in the first escape conviction, and a forty-year sentence in the burglary conviction.

The record reflects that the trial judge, when sentencing the appellant, considered the following facts: (1) A second escape prior to sentencing for the first escape, (2) the pending rape charge against appellant, (3) the safety of the community and (4) the deterrence factor of such sentence.

I

Appellant’s contentions are that a forty-five year sentence for escape conviction constitutes an abuse of the trial court’s discretion due to the excessiveness of the sentence in light of the crime and that such a sentence constitutes cruel and unusual punishment.

The appellant was convicted under § 13-5-65 of the Alabama Code 1975, which reads as follows:

“Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall on conviction, be imprisoned for an additional term of not less than one year.”

In Weaver v. State, 44 Ala.App. 268, 207 So.2d 134, this court, interpreting the above statute, stated that a prisoner convicted for escape “could have been sentenced to as little as twelve months more in the penitentiary. Or he could have been sentenced to a longer term up to and including life.” See also, Kelly v. State, 44 Ala.App. 307, 208 So.2d 217.

In Lee v. State, 37 Ala.App. 321, 69 So.2d 467, this court held that it is “the prerogative of the trial court to assess such punishment, within legal limits, as sound discretion should dictate.” And that “where a trial court acts within the limits provided by statute in imposing punishment, his discretion is not reviewable or revisable.” See Hosey v. State, Ala.Cr.App., 344 So.2d 1230.

In light of § 13-5-65, Code of Alabama 1975; Weaver, supra, and Lee, supra, we find that the trial court did not abuse its discretion in sentencing appellant to two forty-five year terms to run concurrently with the forty-year burglary sentence.

In response to appellant’s contention that the forty-five year sentence constituted cruel and unusual punishment, we find that the sentences were clearly within the limits authorized by § 13-5-65 and:

“[Wjhere the punishment prescribed by the Legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment.” Messelt v. State, Ala.Cr.App., 351 So.2d 636.

Therefore, the judgment of conviction by the Lauderdale Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice. MADDOX, Justice

text:
    Ex parte Curtis Gene BEHEL. (Re Curtis Gene Behel v. State of Alabama).
    79-340.
    Supreme Court of Alabama.
    Feb. 5, 1981.
    Rehearing Denied March 6, 1981.
    Elizabeth T. Cvetetic, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for respondents.
   FAULKNER, Justice.

Petitioner Behel was convicted of first degree burglary and was sentenced to 40 years in the state penitentiary. Prior to transfer to the penitentiary, Behel escaped from the Lauderdale County Jail, where he was incarcerated. He pleaded guilty to the charge of escape and was sentenced to 45 years to run concurrently with his 40 year burglary sentence.

Prior to sentencing on his first escape conviction, Behel again escaped from the county jail. He was indicted and received a non-jury trial for escape at which he pleaded not guilty. He was convicted and sentenced to 45 years to run concurrently with his prior sentences. After denial of his motions for new trial, he appealed to the Court of Criminal Appeals, which affirmed both escape convictions. We granted Be-hel’s petition for a writ of certiorari to review the record to determine whether he was properly sentenced under § 13-5-65, Code 1975. We hold that he was not, and reverse and remand.

The indictment charging Behel with escape is as follows:

State of Alabama, Lauderdale County, Circuit Court, March Term, 1979. The Grand Jury of said County charge, before the findings of this Indictment, Curtis Gene Behel, whose name is to the Grand Jury otherwise unknown, than as stated, did escape from Billy Townsend, Sheriff of Lauderdale County, Alabama, the person having Curtis Gene Behel in charge under authority of law, before the expiration of the term for which he was sentenced, against the peace and dignity of the State of Alabama. Signed “Lavern Tate, District Attorney, Eleventh Judicial Circuit.”

We hold that Behel could not be convicted for escape under § 13-5-65 by this indictment. In Bradford v. State, 146 Ala. 150, 41 So. 471 (1906) (Bradford I), the indictment charged that the defendant who had been duly sentenced to the penitentiary, “did escape before the expiration of his sentence from the county jail of Montgomery County, Alabama.” There Mr. Justice Anderson wrote that, “In order for the State to be entitled to a conviction under § 4707 of the Code of 1896 [now § 13-5-65] the proof must show an escape or attempt to escape from the penitentiary, hirer or guard, which was not averred or proven in the case at bar.” That case again came up to this Court and was considered in Bradford v. State, 149 Ala. 1, 42 So. 990 (1907) (Bradford II). In an opinion written by Mr. Chief Justice Tyson, the Court held that an indictment that charged the defendant with having been convicted of grand larceny and sentenced to the penitentiary, and attempting to escape before the expiration of his sentence from the county jail where he was in custody under authority of law charged the offense defined in § 4707. Thus Bradford I was overruled.

Bradford II contains this confusing language: “Had the indictment alleged the defendant’s attempt to escape before the expiration of his sentence from the sheriff or jailer of Montgomery county having him in charge under authority of law, instead of his attempt to escape from the county jail of Montgomery county where he was held in custody under authority of law, there would scarcely be a diversity of opinion that it was preferred under this statute.” Obviously, the Court had in mind that an indictment charging escape from the sheriff or jailer would be prefaced by alleging that the defendant had been convicted of a criminal offense.

Here the indictment alleges that Behel escaped from the sheriff who had him in charge before the expiration of his term for which he was sentenced, but it did not allege that Behel had been convicted of any criminal offense, i. e., burglary, and sentenced to the penitentiary. Therefore, we opine that he could not have been convicted of escape under § 13-5-65.

The Court of Criminal Appeals is reversed and the case remanded to it for entering an order reversing the trial court, and granting Behel a new trial.

REVERSED AND REMANDED.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., concur.

MADDOX, JONES, SHORES and ADAMS, JJ., dissent.

MADDOX, Justice

(dissenting).

The opinion of the Court of Criminal Appeals states that while Behel was “serving a forty-year sentence for a first degree burglary conviction, [he] escaped from the Lauderdale County Jail.”

Behel did not request that the Court of Criminal Appeals make additional findings of fact as prescribed by Rule 39(k), ARAP.

Behel does not claim that he was not a convict, nor that he was not guilty of an escape. His contention is contained in his brief filed here, wherein he states:

It is the contention of Appellant that the facts indicate that he did not escape from the penitentiary but from the Laud-erdale County Jail, and therefore sentencing should have been made pursuant to Code of Alabama § 13-5-68. “Escapes not Otherwise Provided For,” instead of § 13-5-65, “Escapes and Attempts to Escape From Penitentiary or Guard.”

This Court goes to the original record, reviews the indictment and concludes that it did not change an offense under § 13-5-65.

Assuming that this Court should have reviewed the matter based upon Behel’s inadequate petition, and further assuming this Court should have gone to the original record to obtain facts not apparent on the face of the opinion from the Court of Criminal Appeals, and further assuming that the sufficiency of the indictment to charge the offense for which he was sentenced can be raised for the first time on appeal, I, nevertheless, conclude that the indictment, charging the offense in the language of the statute, not only would support the sentence, but would have been good against demurrer. “[UJnder our system of pleading, indictments are rather a statement of legal conclusions, than of facts. Hochman v. State, 265 Ala. 1, 91 So.2d 500 (1956). An indictment is sufficient if it charges an offense in the language of a statute, and it need not set up proof necessary to a conviction. Finley v. State, 28 Ala.App. 151, 181 So. 123, cert. denied 236 Ala. 161, 181 So. 125 (1938).

Here, the indictment tracked the language of the statute in charging an offense of “escape from a person or guard having him in charge under authority of law.” Obviously, the State had to prove that Behel was, in fact, a convict and that he was in lawful custody. Behel makes no claim that these facts were not proved. In fact, the opinion of the Court of Criminal Appeals shows that the allegations of the indictment were proved. I would affirm the judgment entered by the Court of Criminal Appeals.

ADAMS, J., concurs.

      . Reporter’s note: a memorandum report of Supreme Court action in this case published at 379 So.2d 632 indicates that the Supreme Court denied the writ on February 8, 1980. That report was in error.


author: PER CURIAM.

text:
    Curtis Gene BEHEL v. STATE.
    8 Div. 285, 286.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
   PER CURIAM.

Reversed and Remanded on Authority of the Alabama Supreme Court, 397 So.2d 163 (1981). No Opinion.

All the Judges concur.


author: TYSON, Judge.

text:
    Verne Harold William KUHLOW, alias v. STATE.
    5 Div. 495.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied Aug. 19, 1980.

      William J. Baxley and James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Verne Harold William Kuhlow was indicted for the offense of rape, found “guilty as charged in the indictment” by the jury, and sentenced to thirty years imprisonment in the penitentiary.

The prosecutrix testified that, on July 29, 1979, she went to bed at 9:30 p. m. and was later awakened by the sound of pounding on her door. Before she was completely awake, someone covered her head with a greasy rag and told her, “Shut up or I’ll kill you.” The prosecutrix was then tied up and raped twice. She testified that she was a virgin prior to the rape incident and this testimony was corroborated at trial by a doctor who examined her the morning following the incident in question.

The prosecutrix indicated that the assailant had a northern accent and she stated that the “voice sounded like that of the appellant.”

The appellant testified that the prosecu-trix had consented to sexual intercourse, but became alarmed about the possibility of pregnancy when the appellant ejaculated within her. According to the appellant, he was also afraid that his wife would find out that they had had intercourse. He stated that he and the prosecutrix thereupon planned that the prosecutrix would pretend to have been raped so that in the event she did become pregnant she would be able to more easily obtain an abortion.

I

The appellant first contends on appeal that the clothing he wore on the night of the alleged rape was improperly introduced into evidence against him at trial.

Officer John C. Davis of the Auburn Police Department testified that he and Captain John Lockhart went to the appellant’s trailer the morning after the alleged rape and were admitted thereto by appellant’s wife. Officer Davis stated that he and the other officer knocked on the trailer door and, when Mrs. Kuhlow answered, the officers asked her if they could come in and ask her some questions. According to the officers, she replied, “Yes. Appellant was not present at this time. In response to the officers’ questioning, Mrs. Kuhlow told them that, on the preceding night, her husband had been wearing a pair of jogging pants and a blue knit shirt. When asked if she had any objection to the officers taking the clothing with them she said she did not. Officer Davis denied telling Mrs. Kuhlow that the appellant had given the police permission to retrieve the items.

Mrs. Kuhlow, on the other hand, testified that she was asked by the police if she would answer some questions. She asked them “if it could wait until later” because she had a class at school to attend. According to Mrs. Kuhlow, the police said, “No, we have to talk to you now.” Once inside her trailer, Officers Lockhart and Davis told her that her husband had given them permission to take the clothes he had worn the previous evening and she, therefore, assumed that she could give them to the officers.

Appellant contends that the warrantless search of his trailer was in violation of the Fourth Amendment to the United States Constitution, and, therefore, it was error to admit into evidence at trial the clothing recovered by the police officers from his trailer.

“Proper consent may constitute a waiver of Fourth Amendment rights, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946), and makes a search warrant wholly unnecessary. Toston v. State, 333 So.2d 161 (Ala.Cr.App.1976). The voluntariness of consent to search is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Smith, 543 F.2d 1141 (5th Cir. 1976).”
Barclay v. State, Ala.Cr.App., 368 So.2d 579, 580, cert. denied, Ala., 368 So.2d 581 (1979).

In Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, Ala., 335 So.2d 688 (1976), there was conflicting testimony adduced at trial regarding whether the wife of the appellant had voluntarily given police officers consent to search her trailer from which incriminating articles of clothing were found.

In Liptroth, supra, we said:

“The trial court ruled that the evidence should not be excluded as he believed the police officer’s version of the facts surrounding the consent rather than the version given by Mrs. Liptroth. Where there is conflicting evidence as to whether or not a party has consented to a search, the trial court is in the better position to determine consent or lack thereof. Jones v. State, 49 Ala.App. 438, 272 So.2d 910 (1973); Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). ...” Ala.Cr.App., 335 So.2d at 688.

Accordingly, we hold the trial court did not commit error in admitting appellant’s clothing in the present case. Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976), and authorities cited.

II

Appellant next contends that the trial court erred in admitting evidence of samples of the defendant’s hair from his head and pubic region, fingernail scrapings, saliva, and his undershorts. Appellant insists that the taking of these samples from his person violated his rights under the Fourth Amendment of the United States Constitution to be free from unreasonable searches and seizures.

On the morning after the alleged rape, the appellant was taken to the police station for questioning. While at the police station, the appellant was questioned by several officers. He was asked if he would give samples of hair from his head, pubic hair, and fingernail scrapings. One police officer testified that he answered, “Yes,” and another police officer testified that appellant said that he wanted to do everything possible to help clear up the matter.

In contrast to the officers’ testimony, the appellant testified that he was told by the police that he could not leave the station until he gave the requested physical samples.

Thus, there was conflicting testimony regarding the appellant’s alleged consent to the taking of the samples and therefore this Court will not disturb the finding of the trial court in this regard absent clear abuse of discretion. Barclay v. State, supra; Liptroth v. State, supra, and authorities therein cited.

In addition to the taking of the hair and fingernail samples, the appellant also complains that he was compelled to give a saliva sample without a court order.

Appellant was arrested on August 2, 1979, and, on August 3, the district attorney obtained an order from the trial court compelling the appellant to submit to a blood test. While at the hospital for the blood test, the appellant was asked by the police to give a saliva sample. According to Officer Eugene Sparks, the appellant was hesitant, at first, but when the police told him they would get another court order, he agreed to furnish the saliva.

Clearly, this action by the police officer did not violate appellant’s rights. Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968); McDade v. State, 49 Ala.App. 533, 274 So.2d 89 (1972); see Hill v. State, Ala.Cr.App., 366 So.2d 296 (1978), affirmed, Ala., 366 So.2d 318 (1979), and authorities therein cited.

Ill

Appellant also maintains that the trial court committed reversible error in allowing into evidence a statement made by him following his arrest. In this statement the appellant indicated that the woman he was accused of raping had actually consented to sexual intercourse.

Chief Marion Harding testified that, after the appellant was arrested on August 2, 1979, he interviewed him the next day. Before the interview began, Chief Harding told the appellant that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to talk to a lawyer for advice before any questioning and to have him present during questioning, that if he could not afford a lawyer, one would be appointed for him before questioning, that if he decided to answer any questions without a lawyer present, he would still have the right to stop answering at any time.

Chief Harding further testified that he in no way threatened the appellant, nor offered him hope of reward, or other inducement, did not tell him it would be better or worse for him if he gave a statement, nor did he deprive him of food or water, or threaten, or otherwise abuse the appellant.

At trial, the appellant admitted that his rights had been read to him a “few times,” that he understood his rights, and that he had signed three waiver forms.

From the totality of the circumstances appearing in the record of this cause we hold that the trial court did not err in admitting appellant’s statement into evidence. Coon v. State, Ala.Cr.App., 380 So.2d 980 (1979), affirmed, Ala., 380 So.2d 990 (1980), and authorities therein cited.

IV

The trial court properly refused to give appellant’s written requested instruction because the word “inconsistent” was misspelled therein so that it appeared as “inconsistend.” Steele v. State, 56 Ala.App. 539, 323 So.2d 721, cert. denied, 295 Ala. 423, 323 So.2d 726 (1975); Blevins v. State, 20 Ala.App. 229, 101 So. 478, cert. denied, 211 Ala. 615, 101 So. 482 (1924).

There being no error in this record, this cause is due to be and is hereby

AFFIRMED.

All the Judges concur.

ON REHEARING

I

The appellant’s counsel submits to this court a petition requesting that additional facts be stated as to several of the issues which were considered and decided by this court in its original opinion.

We are of the view that sufficient facts were set forth in our opinion and the positions of the parties as to the issues involved were appropriately stated so that appellant’s motion in this regard is denied.

II

Appellant’s counsel challenges the admission into evidence of the appellant’s fingernail scrapings, hair samples, saliva sample, pubic hair, and undershorts.

The appellant also asserts that there was an insufficient Miranda warning, and, further, that these items, together with any statements made by the appellant at the time of this initial questioning on July 30, 1979, should not be admitted because the officer knew the appellant was represented by counsel and yet proceeded to interrogate him without contacting his attorney.

Our examination of the record reveals that Detective Davis indicated that he used a “standard Miranda rights card,” and that the appellant indicated he understood these rights before questioning. Further, the appellant was not arrested and taken into custody until the following Thursday and had voluntarily accompanied the officers to the police station on the occasion of this initial questioning.

This court has considered the totality of the circumstances and believes these matters were properly admitted into evidence by the trial court. Thomas v. State, Ala.Cr.App., 373 So.2d 1149, affirmed, Ala., 373 So.2d 1167 (1979); Coon v. State, Ala.Cr.App., 380 So.2d 980 (1979), affirmed, Ala., 380 So.2d 990 (1980).

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Verne Harold KUHLOW. (Re: Verne Harold William Kuhlow v. State of Alabama).
    79-910.
    Supreme Court of Alabama.
    April 10, 1981.
    James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham, for petitioner.
    Charles A. Graddic, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for respondent.
   MADDOX, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur.