text:
    Ex parte Johnny BATTLES. (Re: Johnny Battles v. State of Alabama).
    79-729.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    AETNA LIFE INSURANCE COMPANY et al. v. C. E. MARTIN.
    Civ. 2214.
    Court of Civil Appeals of Alabama.
    June 25, 1980.
    Rehearing Denied July 23, 1980.

      James D. Pruett and Robert D. McWhorter, Jr., Gadsden, for appellants.
    W. M. Beck, Jr. of Beck & Beck, Fort Payne, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant-insurance company. The plaintiff claimed certain medical expenses which were incurred by his wife were covered by a policy of insurance. The defendant-insurance company denied coverage. The trial court, sitting without a jury, entered a judgment for the plaintiff in the amount of $4,817.61.

The defendant appeals. We affirm in part and reverse in part.

The dispositive issue is whether certain surgery performed on the wife was excluded from coverage under the policy of insurance.

A review of the record reveals the following:

The wife suffers from several birth defects. These include the absence of the right chest muscle which lies under the breast, rib cage deformities and curvature of the spine. Prior to the surgery performed on the wife, she also had what the surgeon described as “an abnormally large” left breast which was “approximately four times the normal size” and what was termed “at best, a small” right breast. In addition, the wife is of slight build.

The wife consulted a surgeon experienced in reconstruction of female breasts. The surgeon recommended a surgical procedure whereby the wife’s left breast would be reduced in size and the right breast would be increased in size to the approximate extent of the left breast.

The above surgery was performed on the wife in two parts. The first operation reduced the size of the left breast by approximately one-third. The second operation increased the size of the right breast to the extent that it looked like the left breast.

Subsequent to the above surgery, the plaintiff made a claim on his group medical insurance under which the wife was a covered dependent. The defendant-insurance company denied coverage stating that the surgery was merely cosmetic, that it was not for the prompt repair of a non-occupational accidental injury, and further, that it did not improve the functioning of a malformed body member.

The insurance policy, in pertinent part, is as follows:

Covered Medical Expenses are the reasonable charges which an employee is required to pay for the following services and supplies received by a covered family member for the necessary treatment of any non-occupational injury or non-occupational disease:
Hospital Expenses and Other Medical Expenses incurred in connection with cosmetic surgery necessary for the prompt repair of a non-occupational injury . are included . . . . No other expenses for cosmetic surgery are included as Covered Medical Expenses.

The case was tried on the theory and the defendant concedes that thé above policy extends coverage to cosmetic surgery for improvement of the functioning of a malformed body member.

As indicated above, the trial court determined that the surgery was within the coverage of the policy. In its order, the trial court specifically found that coverage existed because the surgery resulted in an improvement of the wife’s bodily functions.

The defendant, through able counsel, contends that the trial court erred in this instance because the evidence does not support a finding that the surgery improved any of the wife’s bodily functions. In the alternative, the defendant contends that even if the reduction of the size of the left breast did improve bodily functions, the surgery to increase the size of the right breast was a mere cosmetic operation and in no way improved the wife’s bodily functions.

At the outset, we note that a policy of insurance will be construed liberally in favor of the object to be accomplished, and in appropriate circumstances its provisions will be strictly construed against the insurance company. See, State Farm Mut. Auto Ins. Co. v. Wright, 57 Ala.App. 356, 328 So.2d 608 (1976); 12 Ala. Digest Insurance Key 146.7.

In addition, where a case is heard without a jury, there is a presumption in favor of the findings of fact made by the trial court and we will not reverse such findings unless plainly and palpably wrong or unless the trial judge takes an erroneous view of the law as applied to the facts. Ala. Farm Bureau Mut. Ins. Co., Inc. v. Davis, Ala.Civ.App., 354 So.2d 15 (1978).

With this is mind, we turn to the disposi-tive issue.

As indicated above, the initial issue is not whether the surgery performed was cosmetic. The issue is whether the surgery improved the wife’s bodily functions. Put another way, if the surgery improved the wife’s bodily functions, the fact that the surgery has a “cosmetic effect” does not remove the surgery from coverage.

Our research does not disclose a case which involved the precise facts and issues which are present in this instance.

In any event, the evidence in this instance consisted of the deposition of the surgeon who performed the surgery and the testimony of the wife.

The surgeon stated that the reduction of the size of the wife’s left breast would probably improve the wife’s overall bodily functions. That is, prior to the surgery, the combination of the wife’s birth defects, including her large left breast, caused her posture to be “out of alignment.” By eliminating some of the weight of the left breast; the wife’s carriage was improved somewhat.

In addition, the wife testified that before the surgery she experienced neck and back pain because of the pulling of the extra weight of her left breast. After the surgery, this pain ceased. The surgeon’s deposition corroborated the fact that this type of problem is frequently found in women with enlarged breasts.

The above evidence indicates that reduction of the size of the left breast did, in fact, improve the wife’s bodily functions. Thus, we find that the trial court did not err in finding that coverage extended to the surgery on the wife’s left breast.

As indicated above, the surgery was performed in two parts with the left breast first being reduced in size and six months later the right breast being increased in size. The record indicates that the expense associated with the first surgery was $2,556.61 and the expense associated with the second surgery was $2,274. These expenses were stipulated to represent reasonable charges. In this instance, the trial court allowed recovery for both operations. Apparently, the trial court determined that the two operations were so interrelated that they had to be considered as one surgery. Stated differently, the trial court determined that increasing the size of the right breast also improved the wife’s bodily functions. We disagree.

As indicated above, the wife’s right breast was not deformed. The surgeon’s deposition was that “at best, it was small.” Both the surgeon’s deposition and the wife’s testimony clearly indicate the right breast was increased in size to make it look like the left breast or to make it symmetrical with the left breast.

We have thoroughly reviewed the record and cannot find any evidence that the surgery on the right breast in any way improved the wife’s bodily functions. That is, the operation to increase the size of the right breast was done for the sole purpose and had the sole effect of making the right breast look like the left breast. It was therefore, at best, merely a cosmetic operation and, as indicated above, was performed six months after the surgery on the left breast.

There is authority for the proposition that a non-covered operation may be covered where it is merely incidental to performing an operation which is covered. However, this principle should not be carried to the extent of permitting coverage of distinct acts when not essential to the effective and proper treatment of the covered condition. See, Couch on Insurance 2d § 41.854.

In view of the above, a judgment in only the amount of $2,551.61 is supported by the evidence.

The judgment is affirmed in part, reversed in part, and remanded for entry of a judgment not inconsistent with this opinion.

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

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


author: WRIGHT, Presiding Judge.

text:
    Donald R. ELLISON v. Mary M. ELLISON.
    Civ. 2224.
    Court of Civil Appeals of Alabama.
    July 16, 1980.
    George Young, Birmingham, for appellant.
    E. Ray Large for Large & Donovan, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The issue presented is whether the trial court abused its discretion in the award of alimony and the division of property.

The parties were married for more than thirty-one years. They are each fifty-one years of age. There were four children. One child, age twelve, remains dependent. The wife is in questionable health, having suffered a mastectomy and undergone chemotherapy. There was testimony that she was a diabetic, had ulcers and was arthritic. She has not been employed in recent years other than as secretary of a small closed family corporation.

The husband is employed with a construction company. He has been working in West Virginia for over two years. His gross wages were approximately $30,000 in 1977. His living expenses away from home in the approximate amount of $14,000 for 1977 were paid by his employer. He is furnished an automobile. He has received income from the family corporation until 1979 of nearly $12,000 per year.

The parties own a home appraised at $71,000 in 1978. It has a mortgage on it of some $14,000. There are savings accounts of approximately $16,000, three automobiles of recent vintage, assets of the family corporation including real estate valued at $17,000, and certificates of deposit held in trust for the children’s education. The husband owns stock in his employer of a market value of several thousand dollars.

The judgment below awarded custody of the minor child to the wife with regular periods of custody and visitation given to the father. There was awarded child support of $250 per month and alimony of $500 per month. The savings accounts were divided equally. The corporation was ordered dissolved with the interests of the husband and wife in the named assets declared to be sixty percent and forty percent respectively. Title to the home was given to the wife along with the responsibility for payment of the remaining mortgage indebtedness. The wife was given all of the household furnishings. The husband was directed to maintain hospitalization and major medical insurance for benefit of the child. The stock in the employer was ordered to remain the property of the husband. The wife was to be the irrevocable beneficiary of a $60,000 life insurance policy and the child the beneficiary of two $10,000 policies until she attained the age of majority. Each party was awarded an automobile. Other provisions of the judgment were not significant.

We have carefully read the testimony and considered the judgment in light of it. We have announced numerous times the principles surrounding our review of the discretionary order of a trial court granting or refusing to grant alimony and dividing marital property. Rather than repeat them here, we merely cite representative cases where we have stated them. Marks v. Marks, 365 So.2d 1231 (Ala.Civ.App.1979); Shaver v. Shaver, 365 So.2d 979 (Ala.Civ. App.1979), cert. denied, 365 So.2d 981 (Ala.1979); Shirley v. Shirley, 350 So.2d 1041 (Ala.Civ.App.1977), writ quashed, 350 So.2d 1045 (Ala.1977).

We find no palpable abuse of the discretion of the trial court in this case and affirm its judgment.

Appellee’s request for attorney’s fee on appeal is granted in the sum of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Robert Glenn BROOKS v. Una Bevel BROOKS.
    Civ. 2233.
    Court of Civil Appeals of Alabama.
    July 16, 1980.

      Robert M. Shipman, Huntsville, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The plaintiff appeals from a judgment denying his modification petition which seeks to terminate child support as previously ordered in the judgment divorcing the parties. He alleges that Sheila Jo Brooks, his daughter, quit school, works full time, is totally independent and has emancipated herself from dependency upon anyone for her support.

Apparently the girl, who will be nineteen years of age in August 1980, quit school in 1977. She worked in a restaurant from April 1978 until the last of October 1978, receiving tips only as wages. In November 1978, she became employed at an electronics plant and worked there until March 1979, when she resumed part-time employment for two or three hours a day at the rate of $2.95 per hour for about three weeks at the restaurant. From June 1979 until November 1979, she again worked in the electronics plant. She began to draw unemployment compensation about a week before Christmas 1979, and was unemployed when the trial was held before the circuit judge on January 16, 1980.

Sheila Jo has lived with her mother, the defendant, for all of her life except for two weeks in June 1979, when she moved into an apartment with two girls, and for two weeks in December 1979, when she lived with a man in Birmingham. Evidently the man supported her for that two-week period. When she resided with the two girls, she paid the rent upon the common apartment, but her mother furnished food to her.

The daughter never contributed any money to the defendant directly nor toward necessities such as her mother’s apartment rent, food, nor very much for the purchase of her own clothing, which items were provided to her by her mother.

The plaintiff bought an automobile for Sheila Jo, and she made all of the payments upon it except for one installment paid by the plaintiff. The defendant furnished gas and oil to Sheila Jo when the daughter was not employed.

The only evidence in this case consisted of the testimony of the two parties. There was no evidence as to needs of the daughter. No one presented any evidence as to wages paid to her for work in the electronics industry, nor as to the amount of tips received at any time during her periods of employment at the restaurant.

At the conclusion of the trial, the judge announced from the bench his decision upon this issue as follows:

THE COURT: On the petition for modification in which the petitioner, Mr. Brooks, contends that Sheila Jo Brooks has quit school and now works at a full-time job and is totally independent, the court finds there is insufficient proof on that issue put forth for the Court to make that finding. The Court is not even satisfied that there has been sufficient proof of the amount of money that she makes, much less that she is fully employed. There has been evidence by the mother of the amount she makes, which may or may not be sufficient on that issue of fact. So, I will not decrease the amount of child support by virtue of the petition for modification, but upon the insufficiency of the evidence find that issue in favor of Mrs. Brooks.

Generally, parents owe a legal duty to support minors because children are unable to, and do not, support themselves, requiring many years for developing, education, training and maturing before they can become reasonably self-sufficient. When a minor’s situation is such that he no longer needs to be supported, then his right to support from his parents, or either of them, should no longer exist. This is because the amount of child support required to be paid by a parent has always been dependent upon two factors; first, the needs of the child and second, the ability of the parent to pay. Spears v. Spears, 382 So.2d 572 (Ala.Civ.App.1980); 15A Ala.Dig., Parent and Child, Key No. 3.1(10) and 3.3(7), and 8 Ala.Dig., Divorce, Key No. 306. When a minor is employed and self-supporting, and may properly be expected to continue to do so, his parents are relieved from the obligation of support. Adcock v. Adcock, 45 Ala. App. 328, 229 So.2d 925 (1970); 67A C.J.S. Parent and Child § 51 at p. 331; 24 Am. Jur.2d, Divorce and Separation, § 850 at p. 965. “Self-support” has its common and ordinary meaning, that is, the independent support of oneself. Webster’s Third New International Dictionary.

With a total absence of evidence as to the amount required for the support of Sheila Jo, and with the evidence being most unsatisfactory and incomplete as to her earnings while employed, we agree with the findings of the learned trial judge, for the evidence was inadequate as to the first factor upon which the amount of child support is based, the needs of the child. The plaintiff had the burden of proof to reasonably satisfy the trial judge from the evidence as to the truth of the material aver-ments contained in his petition. He failed in that regard. When a judge personally hears the witnesses testify in a case of this nature, the usual presumption applies as to the correctness of his findings, and this court cannot alter such a decision of the lower court unless the trial judge was plainly and palpably wrong. Parish v. Parish, 374 So.2d 348 (Ala.Civ.App.1979), cert. denied, 374 So.2d 351 (Ala.1979). Under the evidence in this case, we cannot say that Sheila Jo was self-supporting.

For the foregoing reasons, the judgment of the circuit court is affirmed.

This opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, 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.


text:
    Willie Mae WALKER v. Idell DANCER.
    Civ. 2272.
    Court of Civil Appeals of Alabama.
    July 16, 1980.
    William K. Higgins, Jr., Birmingham, for appellant.
    Mark B. Poison, Birmingham, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge:

This case involves the involuntary commitment of a mentally ill person, hereinafter sometimes referred to as the patient, to the custody of the State Department of Mental Health for proper treatment of her illness.

Unquestionably the patient suffers from a mental disease. The issues before this court are: first, did she pose a real and present threat of substantial harm to herself or to others and manifest such by a recent overt act; second, was commitment the least restrictive alternative necessary and available for the treatment of her illness; and, third, whether § 22-52-10, as amended, of the Code of Alabama of 1975 was unconstitutionally applied in her commitment? Only substantial facts bearing upon such issues will be summarized herein.

The appellant and her niece had been lodged in a boarding house which was certified each ninety days by the State Department of Mental Health for the care of disturbed adults. She had been most protective of her almost completely helpless niece. For example, the niece disliked bathing and the appellant would protest when the management of the boarding house would suggest that the niece bathe or when they supervised her baths. The problem became so aggravated that the appellant and her niece were assigned to different houses.

Evidently the appellant was also averse to bathing. She had not had a bath for a week when the boarding house operator asked her to bathe, whereupon the patient refused and locked herself in the bathroom from 10:00 A.M. until after 4:00 P.M., when the operator went to the courthouse and filed the present commitment petition against the appellant.

When she was last released from the hospital her prescription for Resperine required her to take four pills per day. They were effective until the dosage was reduced by one-half. Her behavior became more bizarre and she refused to take her medication. Subsequently, her behavior became so difficult that, on three different occasions, the operator called the police to remove her from a house, to make her go home for the night.

Approximately three weeks before the commitment hearing, the appellant was using foul language towards a teacher at the boarding house. When a part time employee attempted to calm her, she picked up a chair and later pushed the worker around the room when the worker took her arm to lead her out.

There was evidence that when this appellant was asked to do anything she would become upset and begin verbally lashing out, cursing.

A resident physician in psychiatry testified that this patient had been admitted to University Hospital on three occasions. She suffers from paranoid schizophrenia, which is a psychotic mental disease where persons are afraid that other people will harm them in some manner and they have delusions about this, which can cause such mentally ill persons to react, sometimes violently, towards others. This patient daily consistently stated that the people at the boarding house were trying to harm her. The appellant stated to the probate judge that most people try to harm her.

Treatment is available for her in the form of pills to be taken by mouth. The doctor further testified that confinement would be necessary for her safety and well being or the safety and well being of others since she was not under good control at that time as to her mental illness. The doctor further expressed the judgment that she presented a real and present threat of substantial harm to herself or to other people. The threat to herself was because of the poor judgment which she then possessed. She even refused to take her medicine while in the hospital. Because of her condition, the doctor was of the opinion that Bryce Hospital would provide the least restrictive confinement and the means for her treatment. Other alternatives such as the boarding house had been unsuccessfully tried but they failed because of her lack of cooperation and failure to take her medicine.

The patient apparently has no friend or relative who could, or would, take her into their home, and she has no place to go. for care and treatment.

At the conclusion of the evidence the probate judge made the following observations:

Q Well, I don’t know what to do with you except I’ve got to get you some more medicine, so I guess I’m going to have to have you committed to the State for further observation and treatment. That’s to see if you can’t get a little better. We’ve got to get you a place to stay.
Judge Reynolds: I sure would like for someone to take this up on appeal and see what the Supreme Court is going to say where we can send these people. I just . . I doubt if we meet the statutory requirements. You’ve got a very negative situation as far as the overt act. But for this woman’s sake, I’ve got to get her some place to sleep and some place to eat. I don’t have any other choice. There is nowhere I can turn her aloose to. If I had anybody to take care of her, I would let them, but I don’t have anybody.
Mr. Higgins: I don’t know whether you’ve stated on the record a finding of fact concerning the overt act. I would like that on the record.
Judge Reynolds: I don’t point out any particular act, I just tell you that I find there is sufficient basis "to cause her to be detained. On the Pinal Hearing I find that there is sufficient basis on which to justify her commitment to the State Department of Mental Health authorities for treatment.

After the hearing, the final order of commitment contained this language:

[T]he Court is therefore of the opinion from the clear, unequivocal and convincing evidence that,
1. The said Willie Mae Walker is mentally ill and poses a real and present threat of substantial harm to herself and to others.
2. The said danger to herself and others has been evidenced by recent overt acts.
3. There is care and treatment available for the illness diagnosed.
4. Confinement in a hospital is necessary for said individual’s safety and well-being and for the family’s and community’s welfare.
5. Commitment is the least restrictive alternative necessary and available for the treatment of her illness.
IT IS, THEREFORE, ORDERED BY THE COURT that said Willie Mae Walker be committed to the custody of the State Department of Mental Health for proper treatment of her illness.

The guardian ad litem appeals and raises the issues heretofore enumerated.

In Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974), in the majority opinion written by Judge Johnson for the three judge district court panel, most of Alabama’s legislation as to the involuntary commitment of insane persons was held to be unconstitutional because of multiple violations of the due process clause of the constitution. In lieu of the statutes, certain definite procedural and substantive due process minimum requirements for involuntary commitments to any of Alabama’s mental institutions were imposed by the court. Subsequently, the Alabama legislature adopted the court’s requirements. § 22-52-10, as amended, Code of Ala.1975. The probate judge’s finding of fact in his final judgment followed the language of the statute.

The issues raised in this case involve questions of fact. The probate judge personally heard all of the evidence at the commitment hearing. The usual presumption of correctness applies if the evidence supports his findings. We are not authorized to disturb his factual findings contained in the final judgment unless he was clearly and palpably wrong. These rules of law, however, must be applied in joint consideration with the high burden of proof required in cases of this nature.

In Lynch v. Baxley, supra, on due process grounds, it was held that “the trier of fact must be persuaded by clear, unequivocal, and convincing evidence that the subject of the hearing is in need of confinement under the minimum standards for commitment herein enumerated.” Id. at 393. The same “clear, unequivocal, and convincing” standard of proof was accordingly adopted by the legislature (§ 22-52-10, as amended) and the probate judge, in the final judgment in this case, stated that she should be committed because he was of the opinion from the clear, unequivocal and convincing evidence of the existence of such requirements for involuntary commitment.

In 1979, the Supreme court of the United States spoke for the first time as to the measure of proof required in involuntary commitment cases. They decided that such proof must be “clear and convincing,” a burden in between our “reasonably satisfied” in most civil cases and “beyond a reasonable doubt” in criminal cases. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The Supreme Court rejected the argument that due process required that the word “unequivocal” be included in such standard because “[T]he term ‘unequivocal’, taken by itself, means proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases.” Id. at 432, 99 S.Ct. at 1812. In further discussing such problem, the court stated:

We have concluded that the reasonable doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment. Similarly, we conclude that use of the term “unequivocal” is not constitutionally required, although the states are free to use that standard. To meet due process demands, the standard has to inform the fact-finder that the proof must be greater than the preponderance of the evidence standard applicable to other categories of civil cases.
We noted earlier that the trial court employed the standard of “clear, unequivocal and convincing” evidence in appellant’s commitment hearing before a jury. That instruction was constitutionally adequate. However, determination of the precise burden equal to or greater than the “clear and convincing” standard which we hold is required to meet due process guarantees is a matter of state law which we leave to the Texas Supreme Court. .

441 U.S. at 432-433, 99 S.Ct. at 1812.

Were it not for code section 22-52-10, as amended, we would here hold that the burden of proof in involuntary commitment proceedings would now be “clear and convincing” because of Chief Justice Burger’s opinion in Addington. However, our legislature has spoken and we are without authority to alter the statute since states may include, but are not required to adopt, the higher “unequivocal” standard. If “unequivocal” is to presently be eliminated from the statute, the legislature is the proper body to do so. We pretermit, as being beyond our prerogative, a determination as to whether the court from whence Lynch v. Baxley, supra, emanated should be asked to ratify any such legislative change.

We, therefore, look to all of the evidence, taking into consideration the very high burden of proof in these cases, to ascertain if there is any competent evidence which sustains the judgment of the probate judge as to any of the issues raised upon this appeal. We are cognizant that the trier of facts weighs the evidence. While some of the trial judge’s statements from the bench indicate some doubt as to the sufficiency of proof as to a requisite overt act, the formal written final judgment controls and therein he stated that under the clear, unequivocal and convincing evidence the enumerated necessary requirements for her commitment existed.

I

Did the appellant pose a real and present threat of substantial harm to herself or to others and manifest such by a recent overt act?

Since this requirement was imposed into the law of Alabama by means of the decision in Lynch v. Baxley, supra, it is most helpful to review the wording of that case to ascertain what was meant by a finding of dangerousness.

Although dangerousness to self and dangerousness to others are frequently considered together, it is clear that they actually represent quite different state interests. Commitment on account of dangerousness to others serves the police power, while commitment for dangerousness to self partakes of the parens patriae notion that the state is the ultimate guardian of those of its citizens who are incapable of caring for their own interests. See In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648, 658 (1973). Valid exercise of the parens patriae power presumes an incapability to manage one’s affairs that approximates, if it is not identical with, legal incompetence to act. Consequently, in order to deprive a person alleged to be a danger to himself alone of the right to choose between treatment and liberty, the state must first demonstrate that, because of his mental illness, he lacks the capacity to weigh for himself the risks of freedom and the benefits of hospitalization.
A finding of dangerousness indicates the likelihood that the person to be committed will inflict serious harm on himself or on others. In the case of dangerousness to others, this threat of harm comprehends the positive infliction of injury — ordinarily physical injury, but possibly emotional injury as well. In the case of dangerousness to self, both the threat of physical injury and discernible physical neglect may warrant a finding of dangerousness. Although he does not threaten actual violence to himself, a person may be properly committable under the dangerousness standard if it can be shown that he is mentally ill, that his mental illness manifests itself in neglect or refusal to care for himself, that such neglect or refusal poses a real and present threat of substantial harm to his well-being, and that he is incompetent to determine for himself whether treatment for his mental illness would be desirable.
(c) The danger posed by the person to be committed has been evidenced, by a recent overt act. Due process requires that the need for confinement be based upon a substantial likelihood that dangerous behavior will be engaged in unless restraints are applied. While the actual assessment of the likelihood of danger calls for an exercise of medical judgment, 8 the sufficiency of the evidence to support such a determination is fundamentally a legal question. A mere expectancy that danger-productive behavior might be engaged in does not rise to the level of legal significance when the consequence of such an evaluation is involuntary confinement. To confine a citizen against his will because he is likely to be dangerous in the future, it must be shown that he has actually been dangerous in the recent past and that such danger was manifested by an overt act, attempt or threat to do substantial harm to himself or to another. Lessard v. Schmidt, 349 F.Supp. [1078] at 1093; Cross v. Harris, 135 U.S.App.D.C. 259, 418 F.2d 1095, 1102 (1969); cf. Millard v. Harris, 406 F.2d [964] at 973. (Footnote omitted.)

386 F.Supp. at 390-391.

We forego any decision as to whether the evidence as to actual violence towards others was sufficient in this case, for we are of the opinion that the evidence indicates discernible physical neglect. While we have considered all of the evidence in reaching such opinion, we set forth some of the testimony especially. The police were called on three separate occasions to return her to the boarding home at night. She refused to take her necessary medication both in the boarding home and in the hospital. She had not taken a bath for a week, and, when requested to bathe, the appellant locked herself in the bathroom for over six hours. She verbally abused almost everyone and was suspicious of all persons. She neglected herself and refused to care for herself.

The probate judge could have readily found from the evidence that such constituted a real and present threat of substantial harm to her well being. She was clearly incompetent to determine whether she desired treatment for her mental disease.

By making proof of refusing medication and of her locking herself in the bathroom for six hours, the state met its burden as to proof of recent overt acts manifesting her neglect of herself, the endangerment of herself.

The evidence of discernible physical neglect was adequate to warrant a finding of dangerousness to self. The evidence of a recent overt act was likewise sufficient, “overt” being “open; manifest; public; issuing in action . . . .” Black’s Law Dictionary, 5th Ed., at 995.

II

In view of the appellant’s mental condition, and the other factual findings, the probate judge had a duty to order treatment, but did he err in ordering commitment as being the least restrictive alternative necessary and available for treatment of her mental illness? We find no error in the action of the trial judge. No relatives were available to care for her. A boarding home had been tried and it failed. Even full time hospitalization pending the hearing was not successful in administering medication to her. Due to her mental condition and to the lack of any other viable alternative at the time of the hearing, the probate judge had no other real alternative but to order her committed for treatment as well as to provide food and shelter pending such treatment.

In this regard, Lynch v. Baxley, supra, placed the following burden upon the state:

Specifically, the state, which knows or has the means of knowing the available alternatives, must bear the burden of proving what alternatives are available, what alternatives were investigated, and why the investigated alternatives were not deemed suitable. Lessard v. Schmidt, 349 F.Supp. at 1096.
Moreover, it should be pointed out that due process does not preclude, and indeed may require, commitment of a person suffering from a mental illness to an environment other than full-time confinement in Bryce or Searcy Hospital. Possible alternatives include voluntary or court-ordered out-patient treatment, day treatment in the hospital, night treatment in the hospital, placement in a private hospital, placement in the custody of a willing and responsible relative or friend, placement in a nursing home, referral to a community health clinic, home health aide services, and prescribed medication.

386 F.Supp. at 392.

The responsibility was fully met by the evidence in this case.

Ill

The appellant urges that her commitment represents an unconstitutional application of the Alabama involuntary commitment statute. Since we have decided that there was no failure of proof as to the two mandatory elements previously discussed, the statute was not applied to the appellant in an unconstitutional manner.

The guardian ad litem for the appellant represented her well in the probate court. He filed an excellent brief on her behalf with this court. In some instances, attorneys view their appointments as guardians ad litem as being purely perfunctory, a mere legal formality to be tolerated. Admirably, such was not the case here. Her appointed counsel gave to his client his professional best in the highest tradition of his honored profession. We commend his efforts on her behalf.

This case must be affirmed since the probate judge was not clearly and palpably wrong. We cannot substitute our judgment for his since there was competent evidence which supported his findings.

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

AFFIRMED.

All the judges concur.


author: BRADLEY, Judge.

text:
    D. Jack DIXON v. ROYAL CUP, INC., A Corporation.
    Civ. 1986.
    Court of Civil Appeals of Alabama.
    July 23, 1980.
    Robert A. Wills, Bay Minette, for appellant.
    Champ Lyons, Jr., of Coale, Helmsing, Lyons & Sims, Mobile, for appellee.
   BRADLEY, Judge.

Plaintiff, Royal Cup, Inc., filed this action for injunctive relief to prevent the defendant, D. Jack Dixon, from competing with Royal Cup in violation of a non-compete clause in an employment contract entered into between Royal Cup and Dixon. The plaintiff also sought liquidated damages as provided by the employment contract.

Dixon filed his answer and counterclaimed for salary, commissions, expenses, and severance pay allegedly owed by Royal Cup under the employment contract.

The trial court granted Royal Cup a permanent injunction against Dixon and entered a final judgment which awarded Royal Cup liquidated damages, attorney fees, and costs in the amount of $4,210.65. The court also granted Dixon a set-off in the amount of $2,158.29 based on his counterclaim.

The non-compete provisions of the employment contract provide that:

11(a) The Salesman, during his employment with the Company in whatever branch or branches to which he shall be assigned, or after the termination of his services for any cause, will not divulge to any person or persons, firm or corporation not connected with the Company, any of its business methods, forms, names or addresses of customers; and the Salesman further covenants that he will NOT at any time while in the employ of the Company, nor within a period of one year after termination of his services with or without cause:
(1) For himself or any other person, firm or corporation, directly or indirectly, engage in the business of selling any items of a nature similar to those listed in Exhibit “A” [coffee] hereto attached or other merchandise or products similar to or competitive with the merchandise or products handled by the Company during his period of employment, within any county in which his headquarters have been nor in any of the territories or delivery routes which shall have been assigned or entrusted to him by the Company; or,
(2) For himself or any other person, firm or corporation, directly or indirectly, solicit or take orders for or sell or deliver any such merchandise in such county, territories or delivery routes; or,
(3) In any way, directly or indirectly, solicit, divert, take away or interfere with or attempt to solicit, divert, take away or interfere with any of the custom, trade, business, or patronage of the Company in such country [sic], territories, or delivery routes, or in any way directly or indirectly, interfere with any of the salesmen or solicitors who shall be employed by the Company.

The test used to determine whether a restrictive contract will be enforced is whether the restriction upon one party is greater than is reasonably necessary for the protection of the other party under the facts of the particular case. Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953).

In Robinson v. Computer Servicenters, Inc., Ala., 346 So.2d 940 (1977), our supreme court refused to enforce a non-compete clause in an employment contract where the employer intended to dismiss the employee at the time the contract was executed.

Dixon relies on Robinson and argues that Royal Cup intended to terminate him at the time he entered into the employment contract. Dixon contends that it would be inequitable and unreasonable to enforce such agreement.

Hatton Smith, a vice president of Royal Cup, who terminated Dixon, testified that he had no knowledge of Dixon’s plans to compete with Royal Cup prior to the execution of the employment contract. Wayne Eason, a district manager for Royal Cup, testified that Dixon revealed to him that he (Dixon) planned to establish a coffee business that would compete with Royal Cup. However, Eason testified that he did not notify the officers of Royal Cup until after the employment contract had been executed. We can find no evidence in the instant case to indicate that Royal Cup intended to terminate Dixon prior to the execution of the employment contract. Therefore we hold that under the particular facts of this case it would not be inequitable and unreasonable to enforce the non-compete provisions of the employment contract.

Dixon also contends that his actions did not violate the non-compete provisions of the employment contract.

Paragraph 11(a)(1) of the contract as set out above provides that a salesman will not engage in the business of coffee sales. The evidence reveals that Dixon had: (1) placed an order with a competitor, Maxwell House, for thirty-five cases of coffee; (2) printed business cards with his name and a company called “Southern Coffee Service” on the cards; (3) set up an answering service for a coffee business; and (4) obtained classified page listing for a coffee service which he identified as his own.

Paragraph 11(a)(2) states that a salesman will not solicit orders for coffee for other makers. Yet Ina Shaw, the operator of the answering service obtained by Dixon, testified that Dixon offered to sell her Maxwell House coffee. Mrs. Shaw stated that Dixon never mentioned Royal Cup to her.

The last of the non-compete provisions, paragraph 11(a)(3), provides that a salesman will not interfere with any other salesman. Wayne Eason, a district manager for Royal Cup, testified that Dixon offered him a partnership in a Maxwell House distributorship. Eason testified that Dixon stated that he would obtain customers for the Maxwell House distributorship while working for Royal Cup. Dixon planned to use Royal Cup’s vehicle to obtain his own customers as well as using Royal Cup’s customers.

We view the non-compete provisions of the employment contract to be clear and unambiguous. The evidence shows that Dixon violated each of these provisions.

The last contention argued by Dixon is that the non-compete provisions in the instant case are void. Contracts restraining business are void unless they fall within an exception contained in § 8-1-1 of the 1975 Alabama Code. Section 8-l-l(b) provides in part that:

(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business .

Dixon contends that he was not “engaging in business,” but was merely preparing to do so. He argues that the evidence indicates only one instance where he actually attempted to sell coffee, and that a single solicitation is not sufficient to constitute “engaging in business.” As noted above, Dixon had a competing coffee business ready for operation. To hold that he was not “engaging in business” because his competing business had failed to attract a certain number of customers would be placing too severe a restriction on non-compete provisions. Furthermore, engaging in business, as used in a restrictive covenant in an employment contract, involves not only the servicing or soliciting of customers, but also means the setting up of an office or place of business for soliciting or servicing customers. R. E. Harrington, Inc. v. Frick, 428 S.W.2d 945 (Mo.App.1968). After reviewing the record, we conclude that Dixon was “engaging in business” within the meaning of § 8-l-l(b) and did violate his employment contract. Therefore the decision of the trial court is affirmed.

AFFIRMED.

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


author: HARRIS, Presiding Judge.

text:
    Frank Russell LEU, III v. CITY OF MOUNTAIN BROOK.
    6 Div. 798.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied May 6, 1980.

      John Tucker, Birmingham, for appellant.
    Carlos E. Heaps, Birmingham, for appel-lee.
   HARRIS, Presiding Judge.

Appellant was charged by complaint with the offense of driving “while intoxicated or under the influence of a narcotic drug or other drugs” within the corporate limits or police jurisdiction of the City of Mountain Brook. He was represented by counsel of his choice and interposed a plea of not guilty. The jury found appellant guilty as charged and assessed a fine against him of $100.00. The trial court adjudged appellant guilty as charged in the complaint and, in accordance with the verdict of the jury, imposed a fine against him of $100.00 and the court costs.

Don Isaacs, a police officer of the City of Mountain Brook, testified that, at about 8:40 p. m., on October 9, 1977, he observed appellant driving a motor vehicle in an erratic manner within the City limits of Mountain Brook. Officer Isaacs was in plain clothes and patrolling in an unmarked car. He radioed for a uniformed officer in a marked car to intercept appellant’s car and gave the location. Isaacs continued to follow appellant and saw his car swerve off the side of the street and then make a wide left turn crossing over into the oncoming traffic lane. According to Isaacs appellant was driving from one side of the street to the other and kept crossing the center lane and he was afraid appellant was going to wreck his car and hurt someone as well as himself. He decided to stop appellant instead of waiting for the uniformed officer to arrive. He turned on his blue light and siren and finally stopped appellant.

Isaacs went to appellant’s car and noticed ■ a strong odor of alcohol on appellant’s breath and his face was flushed. Appellant had difficulty in getting out of his car and could hardly walk. His speech was badly slurred.

When Officer Gene Holtage arrived in the marked patrol car appellant was removed from his car and put in the patrol car with Officer Holtage who transported him to the station house. Isaacs followed them to headquarters, and was present when Officer Holtage, who was certified by the State Board of Health as qualified to operate the photo-electric intoximeter machine, attempted to administer the test to appellant. Appellant made three attempts to blow into the machine but was unable to exhale a sufficient amount of air to obtain a meter reading.

Officer Isaacs testified that he had seen many people who were intoxicated and that based upon his experience and his observation of appellant it was his opinion that appellant was intoxicated on the night he was arrested. Appellant was placed in jail and charged with driving an automobile while intoxicated.

Officer Gene Holtage gave appellant the Miranda rights and warnings and explained the requirements of taking the PEI test. He set up the machine and appellant made three unsuccessful attempts to blow into the tube which inflates the bag. He further testified that appellant had a strong odor of alcohol on his breath. His speech was very slurred and slow, his face was very flushed and his eyes were glassy looking. He stated appellant was unsteady on his feet and he had to assist him in walking up the steps and into the police station. While Walking down the hall inside the station appellant fell against the side of the wall and had to be helped. Based upon his observation of appellant and his actions he expressed the opinion that appellant was very intoxicated.

Appellant testified that, on Sunday, October 9, 1977, he remained at home until about 6:00 p. m. when he drove to the Vestavia Country Club where he was a member. He said prior to that time he had nothing alcoholic to drink. He stated that upon arriving at the Club he had two beers over ice and went into the steam room where he stayed approximately twenty-five minutes. He testified that he had two more beers after leaving the steam room.

Appellant stated that he had a prescription for Valium issued to him by his personal physician and that about 45 minutes prior to leaving the Club he took one Valium tablet. He left the Club around 8:15 p. m. and did not feel at all unusual, nor did he experience any difficulty in talking or walking. He said when he was stopped by the officer he had the feeling that something was happening to him, that something was wrong, but he did not know what it was. He did recall being carried to the police station and attempting to blow into the photo-electric intoximeter and his inability to do so.

Dr. Ralph L. Tieszen, Sr., testified on behalf of appellant and stated that he is a Medical Doctor, licensed by the State of Alabama, with a specialty in internal medicine. He said that Valium is not a narcotic drug and is not habit forming; that Valium is a tranquilizer and muscle relaxant. He did say that Valium is a controlled substance. He stated that when Valium and alcohol are combined in the body the alcohol gives an increased effect to the Valium. The effects which could be produced by such a combination include slurred speech, difficulty in walking, glassy eyes, and inability to breathe properly. He said appellant’s inability to blow into the intoximeter on the night of his arrest was consistent with his ingestion of beer and Valium earlier that evening.

Dr. Tieszen stated that while one can of beer combined with Valium could possibly produce symptoms similar to appellant’s, and three cans of beer would probably produce those symptoms, certainly four cans of beer would do so.

James A. Green, Jr., testified that he talked to appellant at about 6:30 p. m. on October 7, 1977, at the Vestavia Country Club and he did not appear to be abnormal in any way.

Donald Cannon stated that he spoke with appellant the same night as both were leaving the Club and walking to the parking lot. The time was between 8:15 and 8:30. He did not observe anything abnormal in appellant’s looks, speech or walk.

Appellant’s major insistence of error on this appeal is that Ordinance No. 640 of the City of Mountain Brook, under which he was prosecuted, is unconstitutional in that it is inconsistent with the State statute prohibiting driving a motor vehicle while intoxicated, Section 32-5-170 Code of 1975.

Section 32-5-170, Code of 1975, provides in pertinent part as follows:

“It shall be unlawful for any person . while under the influence of narcotic drugs, or any person who is intoxicated, to drive a motor vehicle upon any highway of this state . . . ”

Section 12-14 of the Code of the City of Mountain Brook, Alabama, as amended, provides in pertinent part as follows:

“(a) It shall be unlawful for any person, who is an habitual user of narcotic drugs or any person who is intoxicated to drive a motor vehicle upon any street of this city.”
# * * * * *
“(9) It shall be unlawful for any person who is under the influence of any narcotic drug or any other drug to a degree which renders him incapable of safely driving or operating a vehicle, to drive or operate a vehicle within the City or the police jurisdiction thereof.”

Appellant insists that the Mountain Brook Ordinance is inconsistent with Section 32-5-170, Code of 1975, supra, because it enlarges the prohibition against a person driving a motor vehicle while under the influence of narcotic drugs to include driving while under the influence of “any other drug . . . which renders him incapable of safely driving . . . ”

Section 11 — 45-1, Code of 1975, reads as follows:

“Municipal corporations may from time to time adopt ordinances and resolutions not inconsistent with the laws of the state to carry into effect or discharge the powers and duties conferred by the applicable provisions of this title and any other applicable provisions of law and to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of the inhabitants of the municipality, and may enforce obedience to such ordinances. (Code 1907, § 1251; Code 1923, § 1992; Code 1940, T. 37, § 455; Acts 1971, No. 2279, p. 3670.)” (Emphasis supplied.)

The restriction that a municipal ordinance shall not be “inconsistent with the laws of the state” is in recognition of Section 89 of the Alabama Constitution of 1901 which provides as follows:

“The legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state.”

See Ott v. Moody, 283 Ala. 288, 216 So.2d 177.

It has been held that whether a local ordinance is inconsistent with the laws of the State is to be determined by whether the local law prohibits anything which the State law permits. Atkins v. City of Tarrant City, Ala.Cr.App., 369 So.2d 322; Ligon v. City of Gadsden, 21 Ala.App. 312, 107 So. 733.

Appellant states, in brief: “We find no state statute making it unlawful for a person to drive an automobile while under the influence of drugs. Section 32-5-170 does make it unlawful for a person to drive while under the influence of narcotic drugs The prohibition (found in the Mountain Brook ordinance) against driving an automobile while under the influence of drugs prohibits what the state law permits because there is no such prohibiting state law.”

It seems clear to us, however, that Section 32-5-170, Code 1975, does not permit a person to drive while under the influence of drugs which render him “incapable of safely driving or operating a vehicle.” The State statute prohibits a person from driving while under the influence of “narcotic drugs or while intoxicated.”

The word “narcotic” has been defined as: 1. “A drug . . . that in moderate doses allays sensibility, relieves pain and produces profound sleep but that in poisonous doses produces stupor, coma or convulsions.”
2. “Something that soothes, relieves or dulls.”
Webster’s Third International Dictionary 1503 (unabridged 1971).
“An agent that produces insensibility or stupor.” Dorland’s Illustrated Medical Dictionary 1018 (25th Ed. 1974)
“A drug which, used in moderate doses, produces stupor, insensibility, or sound sleep.” Stedman’s Medical Dictionary, 827 (3rd Ed. 1972)
“Intoxication” has been defined as: “the abnormal state induced by a chemical agent.” “Intoxicate” means, “to excite or stupefy by alcoholic drinks or narcotic especially to the point where physical and mental control is markedly diminished.” Webster’s Third International Dictionary 1185 (unabridged 1971)
“A disturbance of mental or physical capacities resulting from the introduction of substances into the body.” American Law Institute Model Penal Code Section 2.08(5)(a) (1962).

In Clowney v. State, Fla., 1958, 102 So.2d 619, the Supreme Court of Florida held that, “a person is intoxicated when he is under the influence of intoxicants to such an extent as to deprive him of full possession of his normal faculties. Intoxication is generally associated with imbibing vinous, malt or spirituous liquors. But with the advent of the pervasive illegal traffic in drugs which our society is experiencing, the definition of intoxication has been extended generally to their use also.” Trivette v. State, Fla., 244 So.2d 173. An excellent annotation is found in 17 A.L.R.3rd 815.

The clear purpose of Section 32-5-170, Code 1975, is to prohibit the operation of motor vehicles by those whose faculties are so impaired that they present a danger to the safety of the public as well as to themselves. McMurry v. State, 28 Ala.App. 253, 184 So. 42; Haywood v. State, 280 Ala. 171, 190 So.2d 728.

One who operates a motor vehicle after ingesting a drug “which renders him incapable of safely driving or operating a vehicle” has violated State law. The Mountain Brook ordinance challenged by appellant is merely elaborative of, and not in conflict with, State law.

Appellant next contends that the State’s evidence failed to establish a prima facie case of the offense charged and the trial court erred in overruling his motions to exclude and for a directed verdict. This contention is without merit.

The police officers testified that appellant’s car was weaving in traffic; they smelled a strong odor of alcohol on appellant’s breath; that appellant’s speech was slurred; that he had great difficulty in trying to stand up and walk, and that he could not blow into the intoximeter after three attempts. Appellant testified that he had consumed four beers and had taken a Valium tablet prior to driving his automobile.

Substantial evidence of every element of the charged offense was presented by the City and, therefore, the trial court correctly overruled appellant’s motion. Morton v. State, Ala.Cr.App., 338 So.2d 423, certiorari denied, Ala., 338 So.2d 428; Mainor v. State, Ala.Cr.App., 348 So.2d 1083, certiorari denied, Ala., 348 So.2d 1091.

Finally, appellant maintains the trial court committed reversible error in overruling his motion for a mistrial after the following occurred on cross-examination:

“Now, Mr. Leu, you know what a photoelectric intoximeter is, don’t you?
“A. Yes.
“Q. On October 7th, 1977, you knew what a photo-electric intoximeter was, didn’t you?
“A. Yes, sir.
“Q. You knew that the purpose of it was, didn’t you?
“A. Yes, sir.
“Q. And you blew in it, didn’t you?
“A. I attempted to blow it up.
“Q. Were you in the same condition on October 9th, 1977, that you were in on October 4th, 1976, was your physical condition about the same?
“MR. TUCKER: Object, Your Honor, that has—I would like to get outside the presence of the jury again, if we might.
“THE COURT: All right.”
After a discussion was had in chambers the trial was resumed and the following occurred:
“MR. HEAPS: Mr. Leu, you say you know what a photo-electric intoximeter test is?
“A. Yes.
“Q. I will ask you if it isn’t a fact that you have blown up such a machine in the past?
“A. I think I have, yes.
“Q. Yes, sir. And you blew it up on that occasion back on October 4th, 1976, didn’t you?
“MR. TUCKER: We object.
“THE COURT: All right, sustained.
“MR. TUCKER: And move to exclude it and move for a mistrial.
“THE COURT: What the attorneys say are not evidence in the case and there has been no answer, disregard the question.
“MR. HEAPS: I would like to point out, Judge — well, let me ask him this question; your physical condition at that time was the same as it was in October of 1977, wasn’t it?
“MR. TUCKER: We object.
“THE COURT: Sustain.
“MR. TUCKER: We move to exclude and ask the Court to instruct the jury not to consider it and ask for a mistrial.
“THE COURT: You are concerned with nothing but evidence, what they say is not evidence and overruled on the mistrial.”

It is to be noted that appellant never answered the questions posed to him. In Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, this court said:

“. . . The witness had not answered, hence, only a question was in the record. Ordinarily a mistrial is too drastic a penalty in such a posture.
“A mistrial only springs into being upon ‘a manifest necessity * * * or when the ends of justice would otherwise be defeated.’ Code 1940, T. 30, Section 100.. Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501; Harnage v. State, 290 Ala. 142, 274 So.2d 352.” See also Kendricks v. State, Ala.Cr.App., 378 So.2d 1203, and authorities therein cited.

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Frank Russell LEU, III. (Re Frank Russell LEU, III v. CITY OF MOUNTAIN BROOK).
    79-615.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    Curtis Graves BOWEN, III v. STATE.
    3 Div. 179.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied May 27, 1980.
    Rivard Melson and Paul M. Harden of Harden & Melson, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen., Sandra M. Solowiej, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Robbery; sentence: fifteen years imprisonment.

Appellant contends that a preponderance of the evidence at trial proved his insanity at the time of the commission of the offense and that the trial court erred to reversal in overruling his motion for a new trial based on that ground.

Early on the morning of November 28, 1978, Dick Robbins was driving to work, going east on Highway 84 toward Evergreen, when he saw the appellant hitchhiking and gave him a ride. When Robbins reached the junction of Highway 84 and Interstate 65, he asked the appellant where he wanted to get out. After a momentary hesitation, the appellant pulled a pistol and told him to drive south on Interstate 65. Robbins, under the pretense of needing gasoline, pulled into a nearby service station owned by Murray Stinson. Robbins immediately jumped from the car, ran to the rear of the station, and shouted to Stinson to call the police. Robbins testified that during the ten minutes in his presence the appellant acted and appeared normal.

Murray Stinson, the victim of the robbery, testified that after Robbins shouted to him the appellant entered his station and robbed him at gunpoint of $223. He stated that the appellant was in his presence approximately ten minutes and that he “acted all right to me.” He also stated that appellant’s appearance then and at trial was substantially the same.

Shortly after the appellant ran from the scene of the robbery, he encountered George Massey, a long distance truck driver. Massey testified that on the morning in question he was sleeping in his parked tractor-trailer truck near the Monroeville exit of Interstate 65 and Highway 84 when he was awakened by the appellant shaking the cab of the vehicle. The appellant pointed a pistol at him and demanded a ride. He asked the appellant if he needed money, but the appellant replied that he did not as he had just robbed a store. Massey drove south on Interstate 65 for approximately twenty-two miles until the appellant laid the pistol down on the seat between them in order to count the stolen money. Massey grabbed for the pistol and a struggle ensued during which time the truck crossed the highway median and wrecked. Massey stated that he and the appellant fell out of the cab and continued struggling. Shortly thereafter Massey gained control of the pistol, and the appellant climbed the highway boundary fence and ran into the woods!

Winston Grant, the dog warden from nearby Atmore Prison, was called to the scene and conducted a lengthy search of the area with his dogs. He tracked the appellant into a field where he was apprehended. Grant found a quantity of torn-up currency scattered around where the appellant was overtaken. On cross-examination he testified that from his personal observation the appellant appeared “o. k.” and acted as normal as “any other fugitive you catch.”

The appellant produced two witnesses to testify as to his insanity. Reverend Curtis G. Bowen, Jr., the appellant’s father, testified that his son acted normal up until a time in his late teens when he began experiencing drug abuse problems. He testified that in the spring of 1978 he had taken his son to their family physician who, after examining the appellant, suggested that he be examined by a psychiatrist. He took the appellant to a psychiatrist stating that such a move was motivated by his prior observations of the appellant which indicated that he had difficulty relating to people and obtaining and maintaining employment. Reverend Bowen stated that his son described hallucinations in which someone was attempting to harm him and someone was reading his mind. He described his son as being extremely depressed and out of touch with reality.

Dr. W. H. Rudder, a consulting psychiatrist at Searcy Hospital, testified on behalf of the appellant. On motion of defense counsel, filed after arraignment but prior to trial, the trial judge found the appellant to be insane at that time and committed him to Searcy Hospital until “restored to his right mind.” Dr. Rudder had treated the appellant while confined at Searcy Hospital and on trial testified as to his diagnosis and treatment. He stated that he initially diagnosed the appellant as suffering from a psychosis or drug or poison intoxication. However, after consulting with other staff members and after administering and reviewing the results of a battery of psychiatric evaluation tests, Dr. Rudder reached a different result in his final diagnosis. He then found the appellant suffering from “acute schizophrenia” with “almost certain exacerbation under stress of substance abuse” and a high probability that he had “Old World” or “Process” schizophrenia. The witness defined such terms as meaning “a type of lifelong thought disorder — for a man on the street, that would be considered lifelong craziness — probably congenital.”

Dr. Rudder testified that the appellant’s mental condition had probably been drifting from normal to abnormal since his late teens. He stated that the appellant’s illness could have manifested itself in his late teens, but could not state whether the condition stemmed from drug problems. Dr. Rudder concluded that on the day of the crime, the appellant did not know the difference between right and wrong. He further opined that the appellant was not faking his illness. However, according to Dr. Rudder, the appellant’s I.Q. of 101 was above average.

In rebuttal the State again offered testimony from George Massey. He testified that he was in the presence of the appellant for approximately forty-five minutes. He stated that the appellant “appeared to be a rational, nervous young man” who “seemed to be knowing what he wanted, and he seemed to me like he knew what he was doing.” In Massey’s opinion the appellant was sane when he was with him.

Section 15-16-1, Code of Ala.1975, provides:

“When the defense of insanity is set up in any criminal prosecution, it must be by special plea, interposed at the time of arraignment and entered of record upon the docket of the court, which, in substance, shall be ‘not guilty by reason of insanity.’ A plea of insanity shall not preclude the usual plea of the general issue, which shall not, however,
put in issue the question of the irresponsibility of the accused by reason of his alleged insanity, this question being triable only under the special plea.”

The record shows the arraignment in the instant case to have been conducted on March 19, 1979. The record reveals no special plea of insanity as required by § 15-16-1, supra. In the absence of such a formal plea, the question of insanity was not properly before the jury for their consideration thus no legal basis existed upon which the jury could have returned a verdict of “not guilty by reason of insanity.”

Nevertheless the trial court stated at the beginning of the trial: “Let the record show that the defendant, on arraignment, enters a plea of not guilty and a plea of not guilty by reason of insanity.” Likewise, the trial judge charged the jury on the defense of insanity and inter alia instructed the jury that it could return a verdict of “not guilty by reason of insanity” if the jury was convinced that the appellant was insane at the time of the commission of the offense.

Although the record proper does not show a special plea on the date of arraignment, a review of the record in its totality leads us to believe that such a plea was made sometime prior to the beginning of trial and accepted by the trial judge. In Goodman v. State, 15 Ala.App. 161, 72 So. 687 (1916), the then Court of Appeals stated:

“The right to plead an additional plea after arraignment is not absolute, but a matter addressed to the sound discretion of the court, and its action is not revisable on appeal. . . . ”

We will, therefore, consider the appellant’s contention that his insanity was proved by a preponderance of the evidence at trial.

Section 15-16-2, Code of Ala.1975, provides:

“Every person over 14 years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.”

The burden of proving insanity rests upon the defendant and must be established by a preponderance of the evidence. Christian v. State, Ala., 351 So.2d 623 (1977), and cases cited therein.

In the instant case the appellant supplied one expert witness, Dr. Rudder, who expressed an opinion that the appellant was insane at the time of the commission of the offense. The defense also put on the non-expert, or lay testimony, of the appellant’s father in support of the defense of insanity. The jury, in determining the weight and credibility to be given to the testimony of these two witnesses, could certainly consider the fact that the latter witness was the father of the appellant. As to the former witness, Dr. Rudder, the rule is that even undisputed expert medical testimony is not conclusive upon the jury. It must be weighed like all other evidence and may be rejected by the jury. Pickett v. State, 37 Ala.App. 410, 71 So.2d 102 (1954), cert. denied, 260 Ala. 699, 71 So.2d 107. Such expert testimony however may not be arbitrarily ignored by the jury. Christian, supra; Sasser v. State, Ala.Cr.App., 387 So.2d 237 (1980).

In both Christian and Sasser, supra, no evidence of sanity had been presented by the State. Expert testimony in both of those cases tended to establish the insanity of the defendants at the time of the crimes in question. The testimony of the expert witnesses in both cases was convincing whereas the State relied solely upon the presumption of sanity which attends each accused via § 15-16-2, supra. In both those cases the defense met the test of showing insanity by a “preponderance of the evidence.”

In Woods v. State, Ala.Cr.App., 364 So.2d 1178 (1978), cert. denied, Ala., 364 So.2d 1186, we find a factual situation more closely aligned to the instant case. In Woods the defense called two witnesses who were physicians specializing in psychiatry, both of whom gave what this court termed to be “impressive and informative testimony” concerning that appellant’s insanity. Both, concluded that Woods was legally insane at the time he committed the offense and that he did not know right from wrong. Likewise, the defense elicited testimony from an attorney who testified that in his opinion Woods was insane.

In that case the State only adduced testimony from two lay witnesses that the defendant was sane. One such witness was serving a jail sentence for selling marijuana, and the other was a housekeeper for whom Woods had done odd jobs in the past. In that case this court held that the preponderance and weight of the evidence sustained the plea of insanity. In the instant case we reach the opposite conclusion.

The instant case is certainly not one of those exceptions alluded to in Herbert v. State, Ala.Cr.App., 357 So.2d 683, cert. denied, Ala., 357 So.2d 690 (1978), where the proof of insanity is overwhelming and un-contradicted. In the instant case the State’s witnesses were with the appellant at or around the time the crime was committed and had ample opportunity to observe him at that time. The credibility of the State’s witnesses as to sanity here appears to be considerably more substantial than that of the State’s two witnesses in Woods, supra.

After a careful review of all the testimony in the instant case, we are not convinced that the expert opinion of Dr. Rudder is so predominant as to overcome the statutory presumption of sanity supported by the testimony of three lay witnesses based upon their personal observation of the appellant.

In making such decisions, this court does not substitute itself for the jury. Whether we would have given more weight to the testimony of Dr. Rudder had we served on the jury is not the test. We must determine whether the witnesses for the defense clearly and conclusively established the appellant’s insanity by a preponderance of the evidence, that the verdict of the jury was arbitrary and patently erroneous. We find the jury’s verdict to be supported by the evidence in the case.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Curtis Graves BOWEN, III. (Re: Curtis Graves Bowen, III v. State of Alabama).
    79-660.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, AL-MON and EMBRY, JJ., concur.


author: TYSON, Judge.

text:
    Walter Fred OGLE v. STATE.
    6 Div. 163.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    On Rehearing June 30, 1980.
    Rehearing Denied July 29, 1980.
    David N. Lichtenstein, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   ON REHEARING

TYSON, Judge.

The application for rehearing in this cause by the appellant is hereby granted and the order of this Court, issued May 27, 1980, affirming the trial court, without opinion, is hereby withdrawn and held for naught.

The one-count indictment charged Walter Fred Ogle with receiving stolen property, and the jury found the appellant guilty as charged and fixed the value of the stolen property at $2500.00. The trial court set sentence at ten years imprisonment.

Sonny Cook of Talladega, Alabama, stated that, on December 14, 1977, he was in the used car business. Cook indicated that one Harold Bentley left a 1973 two-door Chevrolet Monte Carlo with him for resale, the vehicle identification number being 1H57K3R458748. Cook stated that the appellant, whom he positively identified in open court, came in and asked to try out the. automobile left by Bentley and drove it away without ever making a payment or returning to make arrangements to purchase the car - in question. Cook reported the vehicle missing to the Talladega police.

On October 3, 1978, Birmingham Police Officer Michael Curry observed a 1973 black Chevrolet Monte Carlo driving in the wrong direction on a one-way street in downtown Birmingham. Curry indicated that the driver was the appellant and that he charged him with driving while intoxicated and had the vehicle towed to Kemp’s Garage. He stated the vehicle bore an Alabama 1978 tag, No. AGL 328.

On cross-examination Curry indicated that he made an investigation as to this vehicle by its tag number and the VIN number shown on the dash, which was 1H57K3R441758, and the report came back negative as to the car being stolen.

Birmingham Police Sergeant James Copeland testified that he investigated a 1973 black Chevrolet Monte Carlo at Kemp’s Garage under request from fellow Officer Michael Curry. Copeland discovered that the vehicle identification number on the dash did not correspond with the vehicle identification number on the engine, which he found to be 1H57K3R458748. Copeland then reported the new number found on the engine and discovered that this vehicle had been reported missing to the Talladega police by Sonny Cook on December 14, 1977. The automobile carried a 1978 tag, No. AGL 328.

On cross-examination Copeland stated that Janet Ogle, the appellant’s wife, came to him with a purported bill of sale and tag receipt from Blount County, Alabama, for tag No. AGL 328, 1978, and asked for the car, stating that her husband requested that she pick the car up for him. Copeland indicated to her that the vehicle was being held pending an investigation and declined to release same.

The appellant made a motion to exclude at the close of the State’s testimony on the basis that the State failed to prove a prima facie case, which was overruled. The appellant did not take the stand, nor offer any testimony at trial.

I

Appellant points out to this Court, on rehearing, that he cannot be convicted of receiving stolen property as a matter of law since he, in fact, stole the automobile in question. We agree.

Judge Bookout, writing for this Court in White v. State, Ala.Cr.App., 383 So.2d 888, 889 (1980), cert. denied, Ala., 383 So.2d 892 (1980), set forth the applicable law, as follows:

“It is a well recognized rule of law that a person who actually steals property cannot be convicted of buying, receiving, concealing or aiding in the concealment of the property stolen. Annot., 136 A.L.R. 1087 (1942); Blackburn v. State, Ala.Cr.App., 372 So.2d 908 (1979); Nicholson v. State, Ala.Cr.App., 369 So.2d 304 (1979); Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940). The reason for the rule stems from the logical impossibility for the thief to receive stolen property from himself. Davidson v. State, Ala.Cr. App., 360 So.2d 728, cert. denied, Ala., 360 So.2d 731 (1978).
“When the one accused of receiving the stolen property is not the actual thief, but merely a participant or accomplice to the theft, authorities differ on whether the accused may be convicted.
“ ‘. . . The crime of larceny and that of receiving stolen property being distinct and separate offenses, it becomes necessary for the courts to determine whether participation in the larceny. by one accused of receiving the goods is of such character and extent as to make the receiving a part of the theft itself, or whether the receiving is, under the circumstances, so distinct as to constitute the separate offense defined by the statute as receiving . .’ Annot., 136 A.L.R. at 1093.
“Compare Metcalf v. State, 98 Fla. 457, 124 So. 427 (1929), and Reg. v. Hilton, Bell C.C. 20, 169 Eng.Rep. 1150 (1858), with Snider v. State, 119 Tex.Cr.R. 635, 44 S.W.2d 997 (1931), and Reg. v. Perkins, 2 Den.C.C. 459, 169 Eng.Rep. 582 (1852).
. “Alabama follows the rule that:
“ ‘. . . [W]here one steals goods under such circumstances that the receiving thereof is a part of the theft itself, he cannot be convicted of receiving the stolen goods. Likewise, one who has stolen property jointly with another, that is to say, who jointly with another takes part in the caption and asportation of the property, «annot properly be convicted of receiving stolen property . . . .’
“Scott v. State, Ala., 374 So.2d 316, 318 (1979), quoting with approval 76 C.J.S., Receiving Stolen Goods, § 14(b); Stoude-mire v. State, Ala.Cr.App., 365 So.2d 376 (1978); Mefford v. State, Ala.Cr.App., 363 So.2d 1050 (1978).”

Inasmuch as the one-count indictment in the instant case charged the appellant with receiving stolen property only, it is apparent that, under the evidence in this cause, he cannot be convicted of this offense since the evidence establishes that Ogle actually stole the automobile in question. Davidson v. State, Ala.Cr.App., 360 So.2d 728, cert. denied, 360 So.2d 731 (1978); and Nicholson v. State, Ala.Cr.App., 369 So.2d 304 (1979).

II

As noted by Judge Bowen in Nicholson v. State, supra:

“. . . Since the State produced no evidence of buying, receiving, or concealing stolen property and the appellant was entitled to a directed verdict of acquittal on that count of the indictment, he cannot be retried for such offense.”

The judgment in this cause is reversed and rendered on authority of Nicholson, supra, and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Jones v. State, Ala.Cr.App., 373 So.2d 1221, cert. denied, 373 So.2d 1225 (1979). This is not to say that the appellant cannot be indicted and tried for grand larceny. Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940).

APPLICATION FOR REHEARING GRANTED;

THE JUDGMENT OF CONVICTION IS REVERSED AND RENDERED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Michael Lee PARKER v. STATE.
    6 Div. 33.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.
    Robert T. Wilson of Wilson & King, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for buying, receiving or concealing stolen property. Sentence was three years’ imprisonment, two years of which were suspended.

David Meeks testified that a silver 1976 Dodge van was stolen from his home in Birmingham, Alabama. He did not know the vehicle identification number and “gave the police everything on the van identification.” After his van was stolen he never saw it again and did not identify any van found in the defendant’s possession.

Special Agent James W. Johnson of the National Automobile Theft Bureau obtained a vehicle identification number from a silver Dodge van located in a shop on the defendant’s salvage yard. The number was taken from a confidential location on the frame of the vehicle. Agent Johnson gave the number to Ralph Beasley, Commander of the Auto Theft Unit of the Alabama Bureau of Investigation who “checked for stolen through the State Trooper computer” apparently by using a car radio. He learned that the van belonged to David Meeks.

Counsel for the defendant vigorously objected to the admission of this testimony on the grounds that it was hearsay and that “[tjhat’s not the way you prove a case.” The trial judge overruled the objections and allowed the testimony into evidence. This testimony was incompetent under the hearsay rule and should not have been admitted. United States v. Johnson, 413 F.2d 1396, 1398 (5th Cir. 1969). Compare with Cory v. State, 372 So.2d 394, 399 (Ala.Cr.App.1979), wherein this Court held that “testimony of the details of the [radio] dispatch is not inadmissible as hearsay evidence when it is not offered to prove the truth of those details.”

With this testimony excluded, the State “utterly failed” to make out a case of buying, receiving or concealing stolen property as charged in the indictment. Johnson, 413 F.2d at 1398. “There must be some evidence of common characteristics other than color, make, and model of the automobile in order to establish identity.” Watkins v. United States, 409 F.2d 1382, 1386 (5th Cir. 1969). The identity of the property bought, received or concealed with that alleged in the indictment to be stolen must be established beyond a reasonable doubt to support a conviction for buying, receiving or concealing stolen property. Johnson; Watkins. The scanty evidence presented by the State does not show that the van stolen was the same as that later found in the possession of the defendant. At most the State’s proof shows that a van of common make, color and design was stolen from David Meeks in Jefferson County and that a van of similar make, color and design was found in the defendant’s possession in Walker County. For this reason, this case must be reversed.

The State’s own proof showed that the police received “everything on the van identification” from Mr. Meeks. The prosecution went to trial without this information, apparently relying on the thought that it could cure the defect by the testimony of Commander Beasley. Since the evidence was insufficient to support the conviction, this case must also be rendered pursuant to the requirement of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

In denying the defendant’s request to exclude the State’s evidence, the trial judge stated that he “was almost persuaded” to grant the motion. We are persuaded that the motion should have been granted and the defendant discharged. For the failure of the State to present sufficient evidence to sustain the defendant’s conviction, this case is reversed and rendered.

REVERSED AND RENDERED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    George Edward WILSON v. STATE.
    8 Div. 317.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.

      Gary L. Aldridge, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Upon the return of a verdict of a jury that defendant was guilty of robbery as charged in an indictment, the court fixed his punishment at imprisonment for ninety-nine years and sentenced him accordingly.

A major insistence of appellant is that the trial court was in error in overruling defendant’s “Motion to Dismiss for Failure to Prosecute” on the asserted ground “That the charge was returned more than six (6) months ago, that the defendant has thereby been denied his right to a Speedy Trial, guaranteed by the Sixth and Fourteenth Amendments and that he has suffered prejudice therefrom.” The motion was filed on October 1, 1979. It was heard on October 19, 1979; the case had been set for trial on October 22, 1979, and the trial was commenced on October 23.

Defendant was the only witness to testify on the hearing of the motion. It is undisputed that the alleged crime occurred on November 29, 1978, that defendant was arrested therefor on March 1, 1979, in Louisville, Kentucky, on a warrant previously issued by the District Court of Morgan County, Alabama. One week later, he was returned to Alabama and placed in the Morgan County Jail. On March 14, 1979, he filed a pro se handwritten “Motion for a Fast and Speedy Trial” in the office of the Clerk of the Circuit Court, but as the case was not then in the Circuit Court the motion was sent on the same day to the office of the Clerk of the District Court, and on March 15 the motion was marked “granted” by a judge of the Morgan County District Court.

It is also without dispute that defendant was promptly given a preliminary hearing and that counsel was appointed for him as an indigent at his request and that the same counsel remained his counsel from the time of the preliminary hearing until the completion of the trial in the Circuit Court. Different counsel has been appointed to represent him on appeal. The transcript does not clearly show, but it seems to follow from what has been stated that at the preliminary hearing he was bound over to await the action of the grand jury, which returned an indictment on May 17, 1979. He was arraigned on September 27, 1979, entered a plea of not guilty, and the case was set for trial on October 22, 1979.

The parties on appeal have been energetic in presenting their respective views as to possible application herein of the principles set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and subsequent cases, including Prince v. State, Ala.Cr.App., 354 So.2d 1186, cert. denied, 354 So.2d 1193 (Ala.1978). We look upon such discussions as purely academic, as in each of such cases there was involved an unusual or unreasonable delay between the time the accused’s “right to a speedy trial attached.” In Barker, supra, it was more than five years, in Prince, supra, it was “roughly three and one half years — from August 2, 1973, to appellant’s trial date on January 20, 1977.”

In the argument between the parties as to whether the right to a speedy trial attached on March 1, 1979, at the time of defendant’s arrest, or on May 17, 1979, when he was indicted, neither party convinces us that such is important.

The parties also seem to disagree as to when the prosecution was placed on notice that defendant desired a speedy trial. This also seems to be an argument that gets us nowhere. It appears that the prosecution was put on notice that defendant desired a speedy trial by his handwritten motion filed on March 14, 1979. This, however, was treated, correctly so, as a request for a speedy preliminary trial, and defendant was given one. No further request, or notice of a desire, that he be given a speedy trial was ever made or given by him.

No contention is made that the time intervening between defendant’s arrest and the indictment was inordinate. Clearly it was not. This is especially true in view of defendant’s request for a speedy preliminary hearing, which he was given. There is nothing to indicate that the time between the indictment and defendant’s arraignment was unusually lengthy or unreasonable. There was nothing to indicate that any indictment found subsequent to the indictment against the defendant was tried before this case was set for trial. There is nothing to negate that each of the three circuit judges had a full load during the time involved and was dispatching cases orderly as well as promptly. At the conclusion of the hearing on the motion complaining of a denial of defendant’s “right to a Speedy Trial,” the trial judge hearing the motion said:

“Well, for the record, this Court, of course, has the cases assigned randomly to each individual Judge, and this case— both of these cases apparently were assigned to this Judge after the indictments were returned. A motion for a speedy trial was filed in the District Court, but this Court is not called upon to take judicial knowledge of the District Court’s records. The defendant has had an attorney since he was brought before the District Court. There has been nothing filed in this Court asking that the case be assigned to another Judge so that it may be more promptly disposed of than it has been. There has been no criminal term of court held by me since this defendant was indicted. In addition there is nothing showing before the Court of any substantial prejudice as a result of any delay or that any witnesses have been lost, and for that reason the motion is denied.”

The trial court could not have rightly ruled otherwise.

When the case was reached for trial on October 23, 1979, at 10:30 A.M., the following occurred:

“MR. POWELL: Judge, the defendant has requested me to make the following motions for the record: First of all, motion for a bill of particulars.
“THE COURT: You want to argue that motion?
“MR. POWELL: No, sir.
“THE COURT: All right, motion is denied.
“MR. POWELL: A motion to suppress the identification of the defendant by the prosecuting witness.
“THE COURT: Motion is denied by reason of the fact it was waived on the arraignment and the plea of not guilty.
“MR. POWELL: A motion to make a separate analysis of all police findings.
“THE COURT: Motion is denied.”

Thereafter in rapid succession defendant’s counsel, at the request of defendant, listed about a dozen more motions, which the court ruled upon. Thereupon a jury was selected and the trial of the case commenced.

Appellant asserts as reversible error the court’s action “in denying appellant’s pre-trial ‘motion to suppress identification,’ and in not conducting an in camera hearing on the procedures employed by law officers in obtaining identification.” It is to be noted that appellant supplements a motion made by defendant “to suppress identification” by now adding that the court did not conduct an in camera hearing. None was requested. When the victim of the robbery testified, and was asked by State’s counsel whether she saw in court one of the men who had robbed her, she replied, “Yes, I do.” Then the following occurred:

“Q. Would you point him out?
“MR. POWELL: We object.
“A. He is sitting right over here.
“THE COURT: Wait just a minute.
“MR. POWELL: We object to any in court identification, Judge.
“THE COURT: Ask the question again, I don’t know if I understand the objection.
“MR. BURROUGH: The last question I asked her I believe, Judge — I previously asked her did the man she saw out there with that shotgun — if he was here in court today, and her response was ‘Yes.’ And my next question was ‘Would you point him out to the ladies and gentlemen of the jury.'
“THE COURT: You object to that question?
“MR. POWELL: Yes, sir.
“THE COURT: Overruled.”

It is to be noted that defendant did not at that time ask for an “in camera” hearing or interrogation of the victim and other witnesses out of the presence of the jury. Without derogating any right of defendant under the circumstances to an in camera hearing before the victim was allowed to testify in the presence of the jury as to her identification of defendant as one of the robbers, defendant should have then requested such a hearing in order to be able to urge now with success that he was wrongfully deprived of it.

The victim of the robbery was positive in her identification of defendant as one of the two men who robbed her during daylight hours of a large sum of money at a store she and her husband had been operating for forty years. Before she saw any pictures of him, she described him to the officers in a way that was correct in general. From pictures shown her by officers, she picked out, without any indication of suggestiveness, a picture of defendant without hesitation and without qualification.

While the witness was testifying on cross-examination, particularly as to her identification of defendant as one of the men who robbed her, the following occurred:

“Q. Had you ever seen this man before?
“A. Yes, sir.
“Q. You know him?
“A. Yes, sir, I had seen him about seven years ago.
“Q. Seven years ago?
“A. Yes, sir.
“Q. Had he been in the store?
“A. Yes, sir.
“Q. And you are telling the jury that you had seen him before and he came down there and robbed you, is that right?
“A. That is right. He held us up seven years ago.
“MR. POWELL: We are going to object to that. We are going to object to that, Judge, and move to exclude it. We move for a mistrial.
“THE COURT: Make your motions one at a time.
“MR. POWELL: We move for a mistrial. That is a prejudicial statement. There is no way in the world the jury can get that out of their minds, violating this defendant’s rights, has nothing to do with this case, and it is irrelevant.
“THE COURT: Ladies and Gentlemen, I am going to instruct you to disregard the remark made by the witness and tell you to put it aside, not to consider it now or in your deliberations or anywise on the issue of guilt or innocence. Do you all feel that you can follow the Court’s instructions and try the case on the remainder of the evidence other than that answer? Is there anybody that feels that he or she cannot? All right. There are no hands up, so I take it then that you all agree you will follow the Court’s instructions, and with that I will deny the motion for a mistrial. Go ahead.”

We do not deem it the fault of defendant’s counsel in probing too deep into the witness’s acquaintance with defendant seven years before. If defendant had been as cautious in warning his counsel against such questions, or in advising him as to his previous crime, as he was in directing him as to several motions he should interpose, it is obvious that there would have been no testimony as to a robbery seven years before. The trial court acted promptly to expunge the particular evidence. Its denial of defendant’s motion for a mistrial was well within its discretion.

After the victim of the robbery had testified, Officer Tallent of the City of Decatur Police Department was called as a witness for the State. During his testimony on direct examination as to some photographs, including one photograph of defendant, the following occurred:

“Q. (By Mr. Burrell): All right. I ask you to examine individually the exhibits that have been marked State’s Exhibits 1 through 4.
“A. All right.
“Q. Have you — what are they as to objects?
“A. They are identification pictures or mug pictures.
“MR. POWELL: Now, — all right. Judge, we are going to move for a mistrial on the ground he just told this jury something about a mug shot, and, of course, people know what that denotes, and it would prejudice this defendant’s rights, and we move for a mistrial at this time.
“THE COURT: Ladies and gentlemen, I am going to strike the remark the officer just made to the question. I will instruct the jury in the strongest possible terms that you will not consider that answer if these pictures come in evidence.
“Can you follow that instruction of the Court, as well as you did the others?
“Is there anybody that thinks you cannot put that out of your mind now hold up your hand and let me see your hand.
“All right. There are no hands up. You can go ahead with your examination.
“Q. (By Mr. Burrell): Are these four photographs?
“A. Yes, they are.”

The characterization of the photographs as mug pictures should have been avoided. Carlisle v. State, Ala.Cr.App., 371 So.2d 975 (1979). In that case, Presiding Judge Harris said at 371 So.2d 978:

“. . . Notwithstanding the result here reached, prosecutors and trial judges are again cautioned that the continued use of mug shots at trial may result in reversal. . . . ”

In his contention for a reversal, appellant argues that the cumulative effect of what the victim of the robbery said as to a robbery of her by defendant seven years before and what was said by Officer Tallent was sufficient to require a mistrial, even though neither was sufficient in itself. However, the cumulative effect of the two items of evidence was not made a basis of any motion for a mistrial. What the trial court would have done if this contention had been made, we do not know. We doubt that the cumulative effect under all the circumstances of the two items was of such a nature as to prevent the eradication of any prejudice to defendant. We have no doubt that the trial court should not be reversed for its ruling on defendant’s second motion for a new trial, by reason of a ground asserted now but not called to the attention of the trial court.

We find no error in the record prejudicial to defendant. 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. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.